Appellant (injail) Respondent HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR.. J Criminal Appeal No. 24 of 2002 Somaru Versus State of Chhattisgarh POST FORPRONOUNCEMENT OF JUDGMENT i Sd/- JUDGE l3> -12-2009 Sd/- R.N. Chandrakar Judge HIGH COURT OF CHHARTTISGARH AT BILASPUR Single Bench:- Hon'ble Shri Justice R.N. Chandrakar Criminal Appeal No.24/2002 Appeliant (In Jail) Respondent Somaru, S/o Pandru Dhurava, aged about 32 years, Resident of Kamia Padarpara, P.S. Togpai District • Dantewara Versus The State of Chhattisgarh Through the Police Station Togpal District - Dantewara Criminal AppeaJ under Section 374 (2) of Code of Crimina! Procedure Present: Shri Subhash Yadav with Ms. Sofia Khan, counsel for the appellant. Shri UKS Chandei, Panei Lawyer for the State. Deiivered on lt\ ^-sdav of December. 2009 This criminal appeal is directed against the judgment of conviction and order of sentence dated 07.11.2001 passed by the Special Judge (Atrocities) (SC/ST Act) and Additionat Sessions Judge, Bastar at Jagdalpur (CG) in sessions trial No.313/2001, whereby the appellant has been convicted under Sections 307 of 1PC and sentenced to undergo R.l. for 5 years with fine of Rs.500/- and in default of payment of fine to undergo further R.l. for one year. (2) The case of the prosecution, in brief, is that on 14.4.2001, at about 7-8 p.m., Chainu Ram (PW"1) was at his home. At that time, accused/appellant Somaru came to the house of Chainu Ram and started quarreling with him on the pretext that Muge (PW-2), wife of Chainu Ram always used to quarrel with the appeiiant for the reason that he had taken excess land. Thereafter, accused/appellant Somaru with intention to murder Chainuram, assaulted him with the back portion of axe due to which he sustained injuries on his back and on the left and right side of his head. Being assaulted by the appeliant, Chainu Ram lost his consciousness. The inddent was witnessed by Muge (PW-2), wife of Chainuram andAmasu (PW-4). . Ramu Ram Nag (RA/-3) took Chainu Ram (PW-1) to the police station Togpal and reported the matter where F.I.R. was registered vide Ex.P«1. Injured Chainu Ram (RA/-1) was sentto Primary Health Centrejogpal for medical examination vide Ex.P-5 where Dr. L.L. Dhankar (PW-7) examined the injured Chainu Ram (P/W-1) and referred him to Maha Ranl Hospitai for further examination and treatment. He gave his report vide Ex.P-5/A and advised for X-ray of skull and chest. Dr. Govind Slngh (RA/-5) took x-ray of Chainuram and gave his report Ex.P/3. He found no bony injury on the chest butfound one fracture on right fronta! bone ofthe head. (3) During investigation, Sri Krishna Yadav (PW»S) inspected the spot and prepared spot map vide Ex.P-7. He recorded memorandum of the appellant vide Ex.P-8, seized the weapon of offence i.e. axe vide Ex.P-9, blood smeared and plain earth from the spot vide Ex.P/10 and one lungi' from the injured Chainuram vlde Ex.P/2. The seized materials including the weapon of offence were sent to Forensic Science Laboratory vide Ex.P-15 for chemical examination. (4) After completlon of investigation, the charge sheet was fiied before the competent court who in turn committed the case to the Court of Sessions from where the case was received on transfer by the Tria! Court. The Tria! Court framed charge against the accused/appeliant under Section 307 of IPC. After recording the evidence of the witnesses, statement of the accused/appellant was recorded under Section 313 of Cr.P.C In which, he denied the circumstances appearing against him and pleaded innocence and faise impiication. The leamed Additional Sessions Judge,after due ^ triai, convicted and sentenced the accused/appellant as aforementioned in para-1 ofthejudgment (5) Learned counsel for the appeliant submitted that the learned trial Judge failed to appreciate the evidence recorded in the case in its correct and proper perspective. The memorandum of appellant recorded under section 27 of Evidence Act was not proved by the independent witnesses as they were not examined by the prosecution and thus the seizure of weapon of offence is not proved in the case. He further submitted that the FSL report was not produced before the Trial Court which was fatal to the prosecutlon. It was further submitted that Dr. L.L. Dhankar did not mention anything in his report that the injuries sustained by the injured were fatal to his life. He lastly submitted that the offence whatever committed by appeilant does not travei beyond the offence under section 324 of the IPC. Thus, considering ail the facts and circumstances of the case, the irnpugned judgment passed by the Tria! Court be set aside and the accused appellant be acquitted of the charge. In the a!ternative learned counsel submitted that the conviction under section 307 of the IPC may be aitered into under section 324 ofthe IPC. (6) Per contra, learned Panel La\¥yer for the State argued in support of the impugned judgment. (7) Having heard learned counsei for the parties, 1 have perused the record of the Triai Court as also the impugned judgment. (8) In order to prove the guilt against the accused/appe!lant, the prosecution examined 7 witnesses. (9) On perusal of the record, it is dear that conviction of the appellant is mainly based on the testimony of the injured Chainuram (PW-1), Muge Bai (RA/-2), Amasu (PW-4) and Dr. Govind Singh (PW-5). ^ -^ (10) The complainant Chainuram (PW-1) stated in his deposition that he knows the accused/appellant Somaru and he is his brother. At the time of new festival, the accused/appellant Sornaru assauited him twice with an axe on the head. He also stated that due to the axe blows, he fell down on the earth and lost his consciousness. He was admitted in Maha Rani Hospital for two weeks. His statement is corroborated by IVIuge (PW/2), wife of the complainant Chainuram (PW/1) and Amasu (PW/4) who were the eye witnesses of the incident. These witnesses specifically stated that the accused/appellant Somaru assaulted the complainant Chainuram (PW/1) by axe and they al! remained unrebutted and consistent to their statements during cross-examination. The defence was unabie to eiicit any material contradiction, omission or improvement in their testimony by which their evidence couid be held unreiiable or untrustworthy. (11) Dr. L.L. Dhankar (PW/7) stated in his deposition that on 15.04.2001, he examined Chainuram (PW/1) and found the foilowing injuries. - 1. Incised wound measuring2"x1/2"x1/2" on the rightfrontal bone ofthe head. 2. incised wound measuring 1"x1/2"X1/2" on the ieft frontal bone of the head. 3. Incised wound measuring 1/2"x1/4"x1/2" above the right scapuia of the back. He opined that all the injuries were caused by hard and sharp object within 8-9 hours before his examination. He referred the injured to Maharani Hospital for x-ray of head and chest. On replying the query put by the Investigating Officer vide Ex.P-6, he opined that the blood on the seized weapon might be human blopd, which is exhibit Ex.P-SA. (12) Dr. Govind Singh (RA//5) stated in his deposition that on 16.04.2001, he took x-ray of the head and chest of Chainuram (RA//1) vide Ex.P-4 and gave hls report Ex.P-3. He found fracture ^ on frontal bone of the skuli. Thus, the injuries sustained by Chainuram is established by the medical evidence and the injury on the head was grievous in nature. -- / •..-^ (13) Ramram Nag (PW/3) stated that he went to the spot being called by some boys of the locality and found Chainuram (PW/1) in unconsciouscondition. He had sustained injuries on his head and back. At that time, Muge Bai (PW/2) and Amasu (PW/4) were present in the house of Chainuram who was taken to the Police Station Tongpal where this witness lodged the FiR Ex.P-1 and blood smeared jungi of Chainuram was seized before him vide Ex.P-2. The statement of this witness is also corroborated by Krishna Yadav (PW/6), the Investigating Officer. (14) Thus, it is ciear that the statement of complainant Chainuram (PW/1) is corroborated by al! the other witnesses. it is true that the memorandum statement of the appellant is not proved by independent witnesses as they were not examined by the prosecution and the FSL report is not produced before the Triai Court. But, oniy on this ground the credible testimony of the injured Chainuram, duiy corroborated by the eye witnesses, cannot be discarded and it is found that the prosecution was able to prove the guilt againstthe appeilant beyond all reasonable doubt. (15) So far as the conviction of appellant under section 307 of the iPC is concerned, it is clear from the evidence on record that the Intention of the appellant has not been proved by the prosecution that he assaulted the injured Chainuram with intention to commit his murder but looking to the injuries sustained by the injured and the weapon of offence used by the appellant, it is clear that he has the knowledge that the injuries caused by him were dangerous to the iife ofChainuram. it is also pertinentto mention here, ifthe appellant had any intention to cause death of Chainuram, he might have assauited him with the sharp edge of the axe. On reappraisal of the evidence and circumstances of the case, it appears that the incident took place in a heat of passion due to grave and sudden provocation and there was no intention of the appeliant to commit murder of i'v%i "i ^..J^ ^g'.:^;>-;^y Chainuram (PW/1). Thus, the case does not fall within the ambit of Section 307 of IPC until and unless the intention is proved, but iooking to the grievous injury caused by the appellant on the head of Chainuram as also the weapon of offence, the offence appears to be the one under Section 326 ofthe IPC. (16) For the foregoing reasons and in view of the nature of injuries caused by the appellant, I am of the considered opinion that the offence is not one under Section 307 of IPC. but under section 326 of IPC. Thus. his convjction under Section 307 of iPC is converted into Section 326 of IPC. His sentence of R.l. for five years is reduced to R.l. for three years. (17) In the resuit, subject to the modification in the conviction and sentence of the appellant as stated above, the appeal is partly aliowed. Sd/- R.N. Chandrakar Judge .--y-