'r . S HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: t'!''l-?E"3^ APPELLANT (In Jail) RESPONDENT HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No. 590/2008 Tope Ram Sahu S/o Shambhu Rani Sahu, aged 30 years, Occupation agriculturist R/o Village Amodi, P.S. Kharora, Distt. Raipur (C.G.). VERSUS State of Chhattisgarh Through P.S. Kharora Distt. Raipur (C.G.). CRIMINAL APPEAL UNDER SECTION 374 OF^THE CODE OF CRIMINAL PROCEDURE. Present:- Shri Atul Pandey, Advocate for the appellant. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. Shri C.R. Sahu, Advocate for the complainant. k ^-^.•:^^^9>--. ORAL-JUDGEMENT (Passedon 04/10/2010) The following iudgment of the Court was oassed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 25/4/2008 passed by 9th Additional Sessions Judge (F.T.C.) Raipur in Sessions Trial No. 179/2007 whereby and where under after holding the appellant guilty for the commission of offence of attempt to commit murder of .. his wife Pusai Bai convicted the appellant under Section 307 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 200/-, in default of payment of fine amount additional rigorous imprisonment for 1 month. Conviction is impugned on the ground that wifhout any iota of evidence sufficient for conviction of the appellant and has not considered the compromise application filed on behalf of the appellant before the trial Court, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. Both the parties have also filed compromise application before this Court during the course of hearing of appeal. As per case of the prosecution, appellant has caused 3 injuries to his wife Pusai Bai on 22/5/2007 by weapon like axe. Pusai Bai went to the Police Station on 22/5/2007 and lodged the First Information Report vide Ex. P-9. She was examined by PW6 Dr. S.R. Banjare vide Ex. P-5 arid found following injuries:- (1) One incised wound of 21/a x 0.5 x 0.4 c.m. above right eye. (2) One incised wound of 2^ x 0.5 x 0.5 c.m. over left parietal region. (3) One incised wound of 2'/2 x 0.5 x 0.5 c.m. over occipital region. Injuries were simple in nature. ^.-. r:"^:v'^^st- |* - ^^'!IE»gfe 5. During course of coinmission of offence, appellant fell down and received injuries. He was examined by PW6 Dr. S.R. Banjare vide Ex. P-7. Spot map was prepared vide Ex. P-2. Weapon was seized from the accused/appellant vide Ex. P-3 on the basis ofdiscloser statement vide Ex. P-4. 6. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur from where learned 9th Additional Sessions Judge (F.T.C.) Raipur received the case on transfer for trial. 7. In order to prove the guilt of the appellant/accused prosecution examined as many as 11 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. 8. During course of trial, complainant i.e. Pusai Bai wife of appellant has filed compromise application which was dismissed as offence charged was not compoundable. ^ ' ali-f:?Es^Sa. 9. After affording an opportunity of hearing to the parties learned 9th Additional Sessions Judge (F.T.C.) Raipur has convicted and sentenced the appellant as aforementioned. 10. Shri Atul Pandey, Advocate for the appellant, Shri Sandeep Yadav, Dy. G.A. for the State/respondent and Shri C.R. Sahu, Advocate for the complainant are heard. Judgment impugned and record of Court below perused. 11. Learned counsel for the appellant Shri Atul Pandey and learned counsel for the complainant Shri C.R. Sahu submit that they have also filed compromise application. Appellant and victim are husband and wife. They have entered into compromise. Present appellant is in custody since 24/5/2007 and has completed more than 3 years and 4 months even otherwise injuries shown is not sufficient for drawing an inference that appellant has committed the offence of atterapt to commit murder of his wife Pusai Bai. 12. Learned counsel for the appellant placed reliance in the matter pf Badrilal v. State of M.P.1 in which Supreme Court has held that compromise application in non- compoundable offence is not accepted but Court is required to consider the sentence in the light of such (2005) 7 SCC 55 compromise application and in case of conviction under Section 307 read with Section 34 of the Indian Penal Code the sentence of 14 months was found sufficient. 13. On the other hand, learned Dy. Govt. Advocate for the respondent/State opposed the appeal. 14. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of tfte prbsecution. 15. In the present case, as per evidence of prosecution witnesses, injury and the fact that appellant has caused injury has not been substantially disputed. As per evidence of PW6 Dr. S.R. Banjare and injury report Ex. P-5, 3 injuries were 2.5 c.m. in length and no injury was grievous in nature. 16. Present appellant is in custody since 24/5/2007 and has corapleted more than 3 years and 4 months. Considering the factum of compromise and the fact that disproportionate sentence has been awarded to the appellant, we are of the considered view that sentence is required to be reduced substantially. Consequently, criminal appeal is partly allowed. Conviction of the appellant under Section 307 of the Indian Penal Code is hereby maintained. Considering the factum of compromise and nature of injury, appellant is sentenced to the imprisonment already undergone i.e. J. Ol for more than 3 years and 4 months (detention period from 24/5/2007 till today), he be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge !S!8:S-]!'S! y