;~ 1 y BEFORE THE HON'BLE HIGH COURT OF JUDICATURE AT BJLASPUR HHATTISGARH) APPELLANTS CREVIINAL APPEAL. S~'7- ^ /2003 A^ Baishakhu, S/o. Dhundlisidar R/o. Sahedeopali, Tahsil & Dist-Raigarh (CG) VERSUS RESPONDENT APPEAL U/S 37<(2') State of Chhattisgarh Through D.M. Raigarh CREVINAL PROCEDURE "f;- ^^i^ HI6H COURT OF CHHATTIS6ARH AT BILASPUR Cr. Appeal No.532/2003 Sinqie Bench: Hon'ble Shri Oilip Raosaheb &®shmukh,J. -'. ^^.-t^-.T^T^'-^^ iar.nl Versus\, tats of Chhattisc T TOi" ^ S -OL Sd-/ Judge •Sii^^S^S^. UgH_CQURT OF CHHATTIS6 5i"c.!e Bench; Hon'ble Shri DiliD ^^ 8aishiakhu Versus, State of Chhdttis^arh rrssent;' Shri Amit Sharma, learned Counse! for the appeil 5h"! Ashish Shukia,<5ovt. Advocate for the State Appellant Baishakhu is also present in person. If.C.UCI ^E*='^ t'Da ^'&elivered on3Y'^>f May-2006) Beir.g aggrieved by his conviction under Section-325 & Sectlon-323 of IPC and the sentence of rigorous imprisonment for 2 years and a fine of Rs.300/- awarded under Section-325 of IPC and sentencs of i-'igor-ous imprisonment for 6 months awarded under Section-323 of IPC by the Ist Additional Sessions Judge, Raigarh in Sessions Case Number-88/2002 vide judgment dated 03-04-2003, AppslSa.nt Baishakhu has preferred this appea!. 2. 3rief!y stated the factual rnatrix is that on 13-01-2002 at 07.30 P.M., appellant Baishakhu went to the house of Sukhdeo csnd asked fo" a Chilain. On being asked by Sukhdeo to go to hotei of Rcjnath Pctel for the said purpose, tha appellant insisted that Sukhdso should accompany him. While going to the hotei of Rajnath Putel, c qusrre! snsued between the appellant and Sukhdeo. The appeHant deait a fist b-low below the left eye of Sukhdeo. Upon - hed"iri3 shouts of Sukhdeo, his younger brothef Bhagat came out frara his house. A\eanwhi!e. co-dccused Radhe &oiS & Mcdan Das also i!''rived there. It is aiieged^that the appellont Baishakhu brought a ssauited Sukhdeo and !. Shatrughan PW-6 tangiCi from ~he hote! of one Madan sm n( i^n igat with the said tangiu on th< snt^rvenfid. 3. F.I.R, was bdged by Sukhdeo on the next day i.e. 14-01-2002 at 2.20 P.M. Both Sukhdeo &,,' Bhagat were sent for medical .'••{. sxaiTtination. Upon medica! examinatiofi of Bhagat, Dr. P.K.Patel found a Sacerated wound size 2 i" x i" x bone deep with bieeding on the right side of the fronta' region. X-Ray was advised. It that ths injury was caused by a har-d and blunt object. On examinatiori of Sukhdeo. t5r. P.K.Patel found c lacerated wound at the righ'S' parietsi region or scaip size 2 i-" x i" x Skin deep with bleeding cind one contusion on the Seft molar prominence %" m diameter, reddish in colour. X-Ray was advised. &r. Iqba! Singh PW-2 condueted the radioloqical examination and found vide Ex.P-6 that no bony injury was sustained by Sukhdeo. However, hs found fracture of frontai bone of Bhagat. One iron tangia was recoyered at the instance of qipeilant Buishakhu vide seizur-e memo Ex.P-16. One iron rod was seized at the instance of co-accused Radhe &as vide seizure insrno Ex.P-18. One sword was "ecovered at the instonce of co- accused AAadan Dss vids Ex.P-14. Ths aforesaid articles we.re sent fo" analysis to the Forensic Science Lab prssence of blood on cl! the articles. After ce investigation, the appellant Baishakhu & co-accused Radhe Das and Madan &as wsre prosecuted under Section-307 of IPC. 4. A charge under Section-307 read with Section- fr'amed against th& appeiio.nt Baishakhu and other namely Radhe Das and Madan &as. The qipellant atic! pie&jsd innocsnce and false impiiciition. No of IPC was co-accused the guilt was ledjrL- SX. i^^^-^'^^"^^9 defence. Th® prosecution examined as mony as 8 witnassas. Consiciering the svidencs !ed by the prosecution and the fact that the upps'tcnts Radhe Das and AAoidon Das were not named in the Dehati NuSishi 'odged by SuRhdeo, the Isarned tria! Judge acquitted tl'ie co-cccused Radhe t5as and AAadan Oas. However, the leamed tridl Judge coiivicted the cippeliant Baishakhu under Section-325 of IPC for voluntariiy causinq grievous hurt to Bhagat and under Section- ^ --„-_-. .^ ^. _ . .-.- ----^^ 323 of IPC for '/oluntari'ly causing simpte hurt to Sukhdeo and sworded sentence as'msntioned in 'para-l. (Supra) 5. Shri Amit S'narma. 'earned counsel appearing on behalf of the apps'ilant 'nas assaiisd the conviction of the appellwit Baishakhu as aforesaid on ths ground that the evidence ied by the prosecution does not establish the guilt of the appeilant Bttishakhu under Section-325 & Section-323 of IPC, since evidsncs did not show beyoi'sd doubt tho;t the c^peiiant Baishakhu had infiicted injuriss on the head of Sukndso and Bhagat with a hard and blunt object. It was s'so argued that Bl-iagat PW-5 had in para-8 of his testimony clear-ly o.dmitted that he had not seen the oppellant assaulting him by means of a Tangia. The testimony of Sukhdeo in para-2 was a!so referred to show that Radhe Das and Madan &as who were accompanying the appsHant ho.d assault-sd Bhagat at the first instance. Considering the fact that Bhagat had sustained only one injury i.a one lacerated 'A'ound on the frontai region 2 i" x i" x bone deep, the possibiiit/ •inat it was inficted by either of the co-accused Radhe &as and AAadori &as could i'lpt be ruied out. There viias nothing to demonstrate that the appeHant wo.s acting in concert with Radhe Das ana' Madan Oas. It was a'so ar-gued that the testimony of Sukhdeo was highly exugge.r'o.ted since he had alleged in para-2 tnat the appellant Sriishakhu had assauited 7 times by o. tarigia'on his head. This was 'not cor'i"o'D-0!-&ted by rnedicai evidence since only one lacerated wound v.-s:ss^-"1 s^-''»s:^ -^ 2 i " x 1/2" x skin deep i<i the right parieta! re9ion of scalp caused by a hard and blunt object was found on him. In this mwiner, the testirnony that the appellanl-had assaulted Sukhdeo and Bhagat by a tadgia was not ts-ustworth^. It was also argued that F.I.R. of the incident was lodged after considerable delay i.e. on 14-01-2002 at 2.20 P.M. at the PoHcs Station-Kotwali, Raigarh w'nich was situated on'y 4 K.M. uwey" frcm the place of occurrence. Lastly, it was contended that Shatrughan PW-6 whe was an independent witness of the occurrence dld not support the prosecution story. On these pi'emises, it was urged that the conviction and sentence awarded by the !aurne..J tria! Judge was Siabie to be set aside. On the other hand, 5h"i Ashish Shukta, !eo.med 6ovt. Advocate argued in support of the impugned judgmsnt. 6. Having considered rivai contentions, I have perused the rectji'd. The -testimony of Dr.P.K.Pate! PW-1 shows that Sukhdeo had sustatned one lacara-ted wound ct the right parietal r-egion of scalp size 2 t" x t" x Skin deep with bieeding and in the opinion of t)r. "stsl, it could b& caussd by a hard and blunt o'oject. Similarly, the injury susta'ined by Bhagat is atso shown to b.e one lacerated wound ors the frontai r-egion 2 f" x t" x bone deep and it was opined that the injury could have been caused by o. hard and blunt object. It is t'nus clear' that both BS'sagat & Suk'ndeo did not sustain any injury by a sharp wea'pon. As alieged by the prosecution, co-accused Madan Das was carrying a sword which was seized at his instance vide selzure merno Ex.P-14 and one iron rod was also seized at the instance of ariothe" co-accused Radhe &as vide seizure memo Ex.P-18. In the report of Forensic Science Laboratory, presence of b'ood was confirmed on both the aforesaid artic!es..The testimony of Bhagat PW-5 in para-8 s'nows in unmistakabie term that he did not see appellant Baishakhu assaulting 'nim by means of a tangia sincejis had becarns unconscious. In para-2, he has deposed that the appellant Baishakhu had assaulted him with a Sabbal (an iron rod used for ths pur'pose of digging). This testimony is contradicted by Sukhdeo PVV-4 who has stated that Bhagnt had sustained injury due to assault by a sword and tangia. In para-2 of his testimony Sukhdeo P'vV-4 5'io.s stated Th.at orrarrjva! of Bhagat, the componions of appeilant Baishakhu had assaulted BKagat. The testimony of Bhagat PV/-5 in para-2 that appeliant Baishakhu assaulted thrice with a tangia on his heo.d is wholly unreliable, since no such injuries which could haye been infiicted by a sharp object we"e found on his head. Thers was only one 'ucerated wound caused by a hard and blunt object as mentioned above Hls testimony that the appellant Buishakhu assauited him by a tangia on the head and thereafter on •Ine tempie r-egion u-id lastly over the left ear, is thus rendered •wholly unre'iable. Simitar-ly, the testimony of Sukhdeo PW-4 in para-2 that the o.ppellant Baishakhu assaulted 7 times on his head by a tangia is raridered urii'-e'naoie since no such injuries were found by br', P.K.Patal PW-1 on his head. Vne.re was only one lacerated wound caused by a hard and blunt object. In view of the acquittal of co-accused Radhe Das and Madan &as by the learned triai Judge,the fuct that the State has not preferred any oppea! against the said acquitra! arid a!so the fact that both Radhe Das and Madan Das were not narnisd in the behdti Nalishi lodged by Sukhdeo ond in view of the facts and clrcumstances mentioned above. it is difficult to compr'ehend in this appea! that the appellant was acting in concert with Rad'ne &as and Madan Das and, therefore, could be convicted under Section-325 & Section-323 of 1PC ,•,•'' T P u i <i-.r' .^--. 1PC with the aid of Section-34 7. So far as the testimony of Sukhdeo PW-4 that whiie aceompanying. Saishakhu to the hote! of Rajnath Singh, a quarrel hac •HW' ..^'•. ensued in which Baishakhu had dealt a fist blow on his right eye is concemed, it i.s corroborated by the testimony of Dr. P.K. Patel PW-1 who had found a red contusion on the left molar prominence ?" In diameter' on Sukhdeo PVV-4. 'riis testimony that appellant Baishakhu ca.Tie to his house for asking Chilam and upon his refusal csked him to accornpwy to the hotei. of Rajnath and upon some discussion, a </.;- quui-rel ensued on way in whicltfhe was given a fist blow by appe!lant iaishakhu is whofly unrebutted'in cross-examination. It \s settled law that mere'y because the testirnony of a witness is exaggerated on some counts it cannot be brushed aside as wholly unreiiable. The ffiaxirri.jm falsus in uno faisus in omni bus has long open exploded as a irsyth. Although, the testimony of &r. Iqbai Singh PW-2 establishes inat Bhagat had sustained grievous injury, in the abovementioned facts and circums+ance it cannot be ruled out that the appellant was r.ot the autho" of the injuries sustained by Sukhdeo and Bhagat on rhe heaa since no injury. caused by a sharp object like tangia was found on both. oo. Zn the fncts and circumstances of the case mentioned ttbove, the pr'osecution has failed to bring home the guiit of the appellant unde" Section-325 of IPC for voluntarily causing grievous hurt to Bhagat by means of a tangia. However, it is estabiished by the evidence !sd by the prosecution fhat the appellant Baishakhu had dealt a fist blow to Sukhdeo causing simple injury on the left molar prominencs. In visw of the highly exaggerated testimony of Sukhdeo, the materia! contradictions in the statements of Sukhdeo PW-4 ano Bhagat PW-5, the fact that indepena'ent witness Shatr'ughan PW-6 -did not support the prosecution story and the possibiiit/ that the Injury sustained by Sukhdeo and Bhagat could not hdve been caused by the appellant by meaiis of a tangia, I am of the considered opinion that the conviction of tne appellnnt under Uiiinsf ^-- 5ection-325 of IPC for v&luntariiy causing grievous hurt to B oe.serve.s to be setaside. 9. In the r'esult, the appeai is partly ailowed. Conyiction of •fhe appeilant Baishakhu under* Section-323 of IPC for voluntarily causini simple hurt to Sukhdeo .is inaintained. Conviction of the appellant ui-'ide" Section-325 of IPC f.or v-oluntarily causing grievous hurt to Bhaqst and the sentence awarded thereunder a.r-e set aside. So far •as the sentence awarded to the appeliant for the offences under Section-323 of IPC Ts concerned, in yiew of the fact that the appejlant has suffered incarceration from 15-01-2002 to 23-01- 2002 for 9 days during tria! and thei-eafter from 30-03-2006 to 28- 04-200S i.e. 30 days dur'ing this appeal, I am of the considered opinion that ends of justice wouid be met, if 1+ie appellant Baishakhu is sentencsd to imprisonment aiready undergone by him nnd to pay a fine of Rs.3,000/- and in default of payment of fine to undergo additional siiT.ple ii^prisonment fof a period of 3 mon+hs. Ordered accordingly. Rs.3000/- shail be paid to Sukhdeo as compensation. -/ .'ji '^\''yi.^rG_