'<{'• APPELLANT: {!n Jai!) RESPONDENT: .PFCHHATTiSGARH. BiLASPUR of 200S Dilip Kumar Nishad, S/o Bhikham Ram Nishad, aged about 20 years, R/o ViHage Branmpun, i^.S. purani Basti, Raipur, Tahsi! and Distt. Raipur (C.G.) Versus The State of Chhattssgarh, through the Districf Magistrate, Ralpur (C.G.) {Criminal appea! under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mrs. tndira Mlss Sangeeta I, counsel for the appslSanf. Sishra, Panei Lawyer for the State; Sinale Bench: Kon'bte Ivlr. T.P. Sharma, J (21-10-2008' 1. By this appeai, the appellant has chaiienged legaiity & prcpriety of the judgment of conviction & order of sentencs datsd 27-3-2008 passed by the Sessions Judge, Raipur in Sessions Tria! No.63/2006 wherebv iearned Sessions Judge after hoiding the appellant guilty for commission of offence of attempt to murder, convtcted him under Section 307 of the I.P.C. and i sentenced to undergo R.i. for six vears & pay a fine of Rs.2,000/-, jn defauit of payment offineto further undergo R.i. for one year. 2. The judgment is chailenged on the ground that the prosecution has not proved the case beyond reasonable doubt and wlthout any credible & cSlnching evidence. the Court below has convicted & sentenced the appeiiant as 3. I hsve heard laarned counsel for the parties and perused the impugned judgment as also the material avaiia&ie on rscord. 4. Case of the prosscution, in brief, is that on 3-11 -2005 at about 8.30 p.m. when Ganesh Nishad (PW-1) was golng towards garden near Kilawate Baba, Raipur, the accused suddeniy came near him and caused stab injury over his abdomen with knife and as a result of the stab injury sustained by him, large intestine came out of the injury. The injured was admitted in the hospital and the F.1.R was lodged by Santosh Nishad, brother of the injured, vide Ex.P-1. The in|ured was examined by Dr. (Mrs.) Anusuiya Dutt (PW-7) vide Ex.P-SA and found one 2 ctean incised wound 3 cms. x 15 cms. abdomina! cavity deep, large intestine coming out from ths wound. As per the opinion of ihe doctor, the injury was arievous in nature and caused by hard & sharp object. The injured was admitted in the hospital and his bioodstained cut shirt was seized vide Ex.P-2. The accused was taken into custodv. He m'ade disclosure statement of knife vide Ex.P-4 and on the basis of his disclosure statement, the knife was recovered at his instance vide Ex.P-5. Spot map was prepared vide Ex.P-6. 5. After recordina the statements under Section 161 of the Cr.P.C. and after corrsptetion of investigation charge sheet was filed before the Judiciai Magistrate, First C'ass, Raipur, who has committed the case to the Court of Sessions Judge, Raiour. 6 tn ordsr to prove the guilt of the accused, the prosecution has recorded the evidence of seven witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in v/hich he denied the cireumstances appearing against him and pleaded innocence & faise implication. He has alsotaken the defence that hs is having enmity with the injured famlSy, the injured and his reiatives used to tel! his mother as Tonhi and they used to torture them. He has aiso adducSd the evidence of his mother Bhagvantin Bai (DW-1) & Head Constable Heeralai Manhare (DW-2). Bhagvantin Bai (DW-1) has stated that on 2-11-2005 Mangai, Ganesh, Krlshna Kumar & Santosh came to her house and assauited her and thev told her that she is vritehcraft. She lodged the reoort £x.D-3. 7. After afrording opportunity of hearing to the parties, learned trial Court has convicted & sentenced the appeilant as aforesaid. 8 ln order to estabiish the guiit of the accused, the prosecution has adduced ocuiar and medlcal evidence. 9. Learned counsel for the appellant submits that the appeitant has not committed any offence. The prosecutjon has utteriy failed to prove the guilt against the appeliant. According to the case of the prosecution, the incident took piace near Kiiawate Baba, Raipur, but complalnant Santosh Nishad (PW-2), who has iodged the report, has specificaily stated that the incident took place near Durga temple where grand-father & grand-mother of the accused/appeilant were residing. The prosecution has not sent the knife, weapon of offence, for chemical analysls to prove the presence of biood on 'rt. The prosecution has also not proved that whsre from the weapon of offence knife has been recovered. The doctor has not stated that the injury was dangerous to life. initiativ the inlured & his rslatives are in Inimical terms with the accused and as resuit of such inimicat terms thev have falsely implicated the accused in the crime in question. Learned counsei has Dlaced reliance in the matter of Tykarama Qyudu NajR v, Stafe of Maharashtra' in vi.'hich the Assx Court has held that In absence of any injury over vital part and biov/s inflicted in darkness it can be inferred that there was no intention, but the accused was having knowiedge and the offence faiis under Section 308 of ihe i.P.C. Reliance has aiso been plsced by learned counse! in the matter of Chinnamuthuraj v. State in which the SVIadras High Court has held that in case of humi.'iation of wife of the accused the assauit made by the ac'cused faiis within the offence punishable under Section 308 of the I.P.C. Further reliance has been placed in the matter of Ram Kumar Raghunath Prasad Goutam v. State of M.P.0 in which it has been held by the M.P. High Court that in case of simple injury by sharp edged weapon, offence is punlshabte under Section 324 of the I.P.c. Lastly Searned counssl for the appellant has placed reliance in the matter of Jmashanker (®Babioo v. State of C.G. in which takina jnto consideratjon the joint petition for compromise filed by the complainant and the accused, conviction of the accused under Section 307 of the I.P.C. was maintained, but sentence was reduced to the period already undergone by him. 10. In this case, injur/ sustained by Injured Ganesh Nishad (PW-1) has not been much disputed by the appeilant, othenvise, it has been estabiished by the evidence of Ganesh Nishad (PW-1), Santosh Nishad (PW-2), Raju (PW-3). Guddu @ Krishna Kumar Sahu (PVV-4) & Dr. (Mrs.) Anusuiya Dutt (PVV-7). Ganesh Nishad (PW-T). the injured. has stated in his evidence that he was assaulted by the accused/appellant with knife over his abdomen and as a result of the injury sustained by him, his large intestine came out from the injury. He became unconscious and he was admitted in the hospital, wrtere he remained for 15 days. Santosh Nishad (PW-2), Raju (PW-3) & Guddu @ Krishna Kumar Sahu (PW-4) have supported the version of the injured. Dr. (Mrs.) Anusuiya Dutt (PW-7) has specificaiiy stated in her evidence that she has examined the injured on 3-11-2005 at about 9.10 p.m. and she found one incised wound of 3 cms. x 1.5 cms. x abdominai cavitv deep, large intestine was coming out from the injury and the injur/was grievous in nature caused by hard & sharp object. Her report is Ex.P-SA. In her cross-examination, she has admitted that she has not examlned any weapon. The injured sustained cut/ stab Injury over h's abdomen as of resuit large intestine was coming out trom the injury. Thls shovvs the gravity of the injury sustained by him. On the basis ' 1993 (3) Crimes 565 22000f1)Crimes475 3 2000 (2) M.P.L.J. 431 -*-2Q57(2)C.G.L.J.166 of the evidence of the aforesaid prosecution witnesses, it is estabiished that Ganesh Nishad received injury at the time of incident and the iniury sustained by him was arievous in nature. 11. As regards complicity of the accused in the crime in question, Ganesh Nishad (PW-1) has speciflca!!y stated in his evidence that when he was going towards the garden near Kiiawaie Baba, some altercation and scuftle took piace betv/een him & the accused. the accused took out the knife and assaulted over his abdomen as a result of which large intestine came out from the injury. Guddu Sahu @ Krishna Kumar Sahu was oresent at the soot. Santosh Nishad took him to house vvhere he became unconscious. He was admitted in the liospita!. 12. Santosh Nishad (PW-2), brother of the injured & Raju (PW-3) have supported the version of injured Ganesh Nishad (PW-1). Guddu @ Krishna Kumar Sahu (PW-4), who was present at the spot, has specificaiiy stated in his evidence that on the fatefui day he was going towards Kilewaie Baba aiong wlth Ganesh, whiie they were roaming near the house of the appellant, the appeilant came there and some altercation took place between Ganesh & the appeilant, the aDpellant assaulted Ganesh over his abdomen, when he tried to intervene, h® aiso received injury. At that time the appeiiant was having knife and he assauited Ganesh with the sald knife over his abdomen and as a resuit of the injury sustainsd by Ganesh his intestlne came out from the injury. 13. injured Ganesh Nishad (PW-1) has admitted in his cross-examination para 7 that he & his faniily are having inimica! terms with the appetlant & his famity, they feei that the mother of the appeilant te a witchcraft, but he has denied the suggestion that he had totd the appellant that his mother is a witehcraft. Santosh Nishad (PW-2) has aiso admitted the story of witehcraft. He has admitted in para 3 of his cross-examination that the incident took place near Durga temple. Raju (PW-3) has also admitted that the incident took piace near Durga temDie. 14. Bhagvantin Bai (DW-1), mother of the appeliant, has stated in her evidence that she was assaulted by Mangal, Ganesh, Krishna Kumar & Santosh just one day before the incident on the ground that she is a witchcraft. She has aiso stated that she has lodged the report Ex.D-3. 15. It is reveaied from Ex.D-3 that Bhagvantin Bai (DW-1) has iodged the report against Mangal & Parmanand, but not against Ganesh. Although there is some discrepancy relating to the piace of incident, but it appears from the evidence of the witnesses that Kilewale Baba & Durga temple are adioining. ^ K Defence has cross-examined the prosecution witnesses at iength, but it has not been able to eiicit anything in their cross-examination to show that the aDDeilant has not assauited the iniured. Iniured Ganesh Nishad (PW-1) has speciflcaliv stated that the appeliant has assaulted him with knife and caused injury. Evidence of the injured Is supported by the version of Santosh Nishad (WA/-2), Raju (RW-3) & Guddu @ Krishna Kumar Sahu (RyV-4) and it inspires confidence, same is trustworthy. It is also supported by the F.1.R. and the medicai evidence. Therefore, it is sufficient for drawing inference that the appellant has caused grievous injury to the injtfred at the time of incident over his abdomen as of result large intestine came out ofthe injury. This shows that the iniurv sustained bythe iniured was dangeroustcrllfe. 16. Now, coming to the case laws relied upon by iearned counsel for the appeliant, in the case of Tukarama (supra), the injury was not over vital organ, but four injuries were found on the person of the injured and taking into consideration the four injuries that too not on any vital part of the body of the injured, it has been held by the Apex Court that the offence falls under Section 308 of the I.P.C. But in this case, the injury was over vitai part of the body i.e. abdomen and as a resuit of the injury sustained by the injured, large intestine came out of the iniurv which shows aravitv & nature of the iniurv sustained by the iniured, as such,the case on hand is distinguishabie on facts to that of the case cited above. 17. In the case of Ram (supra), the injury was simpie and size of injury was 1.5" x % cm. x skin deep. but in the present case, size of injurv was 3 cms. x 1.5 cms. x abdominai cavity deep. Therefore, the case on hand is distinguishabte on facts to that of the above cited case. in the case of Umashanker (supra), taking into consideratlon the factum ofcompromise, the Court has taken lenient view. 18. Ganesh Nishad (PW-1) has specificaliy stated in his examination-in-chief, that on the fateful day there was some aitercation with the appeiiant and some scuffSe took place between him & the appetlant, thereafter, the appeliant assaulted him with knife. This is not the case in whlch the appeliant took out the knife from his house or from any place, but he was having the knife at the time of incident. Ths appeltant was present near his house whereas the iniured was moving in the front of his house. thereafter on some aitereation. the appetlant assaulted the injured. This shov/s the intentlon & knowledge of the aopeliant. Guddu @ Krishna Kumar Sahu {PW-4) has stated that he tried to inten/ene in the matter and took Ganesh to the hosDital. This shows that another person has save the injured. eiuos aSpnf BuiJBqs "d'l -/PS 'SOOZ-l l.'t' uiojj Apoisno ui si lueiiedde 941 '-/OOO'Z'sy 10 suy "? sjesA xis jo^ 'ry p pBsisui '.lesA euo JO^ •ry oBjapun jsLfUni 01 euy jo luauiAed ^o iiriqsp u] '-/ooo'Z'sy P 3uy '? 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