11/1 r '{ v ^"^ I- L^ ^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal AppealNo. 0<-^o /2008 ^^fte Begch APPELLANTS (In Jail) .r' r^'^> \A.^ ^^-3) 1) Jairam Binjhiya S/o Jeeti'ain Binjhiya, Aged about 20 years, R/o.- Gokulpur, Police Station Ramanujnagar, District Surguja (C.G.) 2) Foulu @ Tapeshwar S/o. Brijlal Binjhiya , Aged about 27 years Saryay S/o. Bnjlal Binjhiya, Aged about 23 years 4) Papu @ Maheshwar S/o.- Brijlal Binjhiya , Aged about 19 years. Appellant no. 2 to 4 are resident of Village Gangapur Police Station Khadgawan District Koriya (C.G.) VERSUS State of Chhattisgarh Through - PoUce Stadon Premnagar District Surguja (C.G.) ^'^ APPEAL UNDER SECTION 374 (21 OFTHE CRMINAL PROCEDURE CODE (In Jail) (On baU) (On bail) ^ 1 ^ ^".^ ^"" ^ ^ RESPONDENT .f (@1y^ y HIGH COURT OF CHHATTISGARH AT BILASPUR SB_: HON^BLB MR. JUSTICB PmTINKER DIWAKBR CR.A.K'O. 30S7200S APPELLANT8 RB8POHDBNT versus Jairara Biiijhiya & Otliers-.: State of Chhattisgarii Shri Ashok Kuisiar Shukla, counsel for fhe appellao.ts. SIni Vaibhav Goverdhao., P.L, for the State, '".•'.APPBALU7S 374 tSttOFTHECR.P.C. ... . JXJDGMENT (20.04.2010) The'present appeal is directed agsinst.fhe.jiidginent da.ted 5,3','!2008'-passed by..the Additk>ual;SessiDns Judge'iCTC) Surajpur Dislrict.'-.'-'Surguja. m Se.3sion- Case "No. 20/2007""'.•convictiiig the appellaat N-o.l ibr tiie offence punis'hable under Sections.. 307.. &» ,323 of'fhe •!ndian Peiial Code -and senteiiciiig hrai to.undergo .rigorous ioiprisoniaent for seven years and, to pay fine df'Rs. .500, in default of paymerit - of . iio.e to ftirtlier-'-uiidergo''simple iin.pri.soniiient fbr ten days & to undergo ri.gorous'miprisonm.eiit.'fQr. one yeai' and'to pay fm.e of-Rs..'.1005 HI'clefault^of-'|ine;to"'.furtlier undergo rigorous miprisoninenf' for two •'..days,. • convictiiig tlie appeUaiit No,2 forthe offence piinishable under'Sections 307/34 & 323/34 ofthe Indian Penal Code, and sentencmg hioi to undergo rigorous iaiprisonment for sevexi years, and to pay fine of Rs» 500, ia default of payio.ent of fine to fiirtJier irndergo xigorous imprisonnient for ten days & to irodergo rigorous imprisouinent for one year and to pay fine of Rs, 100, in defaiilt of fihie to farther undergo simple imprisoniiient for two days & convictmg tb.e appeUants 3 & 4 for fhe offence puiiishable uuder Section 323/34 of the Indiaa Penal Cx)de and sentencing tliem to undergo rigoroiis imprisonment for one year and to pay fiue of Rs, 100, in default of fiae to furth.er undergo rigorous imprisoniiieRt for two days. 2. Case of the prosecution in 'brief is fh.at ou 1.10/2006, FIR Ex.P/17 was lodged by Shyam Lal (P.W.-12) allegiag; in it that on .r ^ .Ib^. ^"^fs'^^ 30.9,06, at about 4,00 p.ni. when he was sleeping ia tlie house of his brofher-in-law Chhake Rain (P.W.-l) accused/appellants reached fhere and assaulted him as a result ofwhich he sustaiaed Buinber of iajuries, He has stated that at the tiiue of m.0ident Chhakke Lal was not at honie aad during the iiicident he caoie froiti outside aad when he fcried to intervene he too was assaulted by fhe accused/appeUara.ts. On the basis of the above report offences under Sections 452,323 & 506/34 of tlie IPC were registered agaiast fhe accused persons. After iavestigation, challan was filed for fhe offences imder SecUon 452, 323, 506 & 307/34 of the IPC aad fhe accused persons were prosecuted. 3. In support of its case, fhe prosecution has exaiCLiaed 14 witaesses. Statesnent oftlie accusecl/appeUaiits were also recorded under Section 313 oftbie Cr.P.C, in which tihLey denied the chai'ges leveUed agaiast them. aad pleaded their mnocence aiid false implication ia tlie case. This apart one defence witness has also been exaiaiaed by titie accused/appellaiit. 4. After hearmg the parties, the trial Court has convicted and sentenced fhe accused/appeUao.ts for fhe ofifence as nientioned above. However fhe accused persons have been acquitted for fhe offence punishable under Sections 452 & 506-11 ofthe IPC. Hence fhe present appeal. 5. Heaixl counsel for the parties aad perused fhe raaterial available on record mcludmg the judgment impugned. 6. Coatention oftiie couBsel for fhe appellaat is that even ifthe entire case of prosecution is taken as it is^ appellaixt 1 & 2 cannot be convicted for fhe offence under Section 307 & 307/34 of the IPC. He submits fhat tliere was no iateiitioii 011 the part of appeUants 1 & 2 to atterapt fhe raurder of Chhaldce Rauai aiid it was a case of simple mnaspeethaf wherc unfortunately Chhake Ram had sustained one injury on his head. He submits that only one iajur}^ has been sustaiaed by Chhake Ram (P.W.-l) aad fhereforc the appellaats 1 85 2 caanot be convicted for fhe offence zmder Sections 307 & 307/34 oftlie IPC. According to him, for assaultiag the victim Chhaldke Raoi at best the appellants caa be convicted under Section 325 of the IPC. According to him, tliese tivo appellants have already reinaisied ia jail for about two years acid fhree montiis aad fherefore after convictiug them under Section 325 IPC, appeUaats 1 & 2 be set free, He submits that in. respect of appellants 3 & 4 fhey have also reiaairied ia jail for about 24 days aad fberefore fheir sentence caa also be reduced to tlie period already uudergone by fhera aad som.e fme amount can be iEiiposed upon theni. He furfher subniits that tlie iacideiit had taken place between the relatives and duiiag tibie pendency of the appeal, the application has akeady been filed by tiie appellmits as I.A. No. 01/2010 for permission to coniproinise the offence. He fuilher subinits tiiat fhis application has been diily supported by the affidavit of victmi Chhake Ram (P.W,~01). He fairly submits that fhough the offence under Section 307 is not compoiradable but fhe eflfect of tiiis application can always be considered by this Court while considermg the sentence part. 7, On the ofher haad, supportmg fhe impugned judgment it has been argued by Shri Goverdhan tibat the impxigned judgment is ia accordaace with law and there is no iafirmity ia fhe same. He submits fhat fhe iajuries sustained by Chhake Ram was dangerous ia nature and fhereforc conviction of appeUajits 1 & 2 for fhe offence under Sections 307 & 307/34 IPC is ia accordance wifh law. 8. Admitedty Shyam Lal (P.W.-12) is the brother-m-law of tlie victim Chhake Rara axid llikewise Shyani Lal is also fhe brother iii law of appeUant No.l Jairani as sister of Shyam. Lal has been married wifh Chhake Raiu whereas sister of accused/appeUant No. 1 Jairam was marded wifh Shyam Lal but has expired. Chhake Ram (P.W.-l) has stated fhat on the date of incident Shyaai Lal came to his house aad at fhe tixae of iacident he was sleepiug. He has stated that he was not at home and had gone to the society to purchase rice aod when he retumed he saw fhe accused/appeUaat assaiiltiag Shyara Lal, He has stated that aU the accused persons were caayiag clubs in fheir hand aad had caused injuries to ShVam Lal on his wrist; fiagers aad knee and when he taried to ^^. •"..^:^^-., is?»^:^ ""-% intervene by saymg that as to why fhey arc assaulting him, accused/appellaat No.2 Folu farst gave him SL laihi blow on his head aad fhen appeUaat No.l assaulted him with his lathi Stateineut of fhis witaess has been diily supported by Shyam Lal (P,W,-12) who too, has categorically stated as to ia wbat maaner he was assaulted by fhe accused/appeUants. Bihari Lal (P.W.-2) is aaoth.er eye witaess aad is fhe younger brotlier of victmi Chhake Ram has also supported fhe prosecution case and bas narrated as to m what maaner Chhake Ram was assaulted by fhe accused persons. Janki Bai (RW.-3) has not supported fhe prosecution case and has been declared hostile. Shyam Bai (P.W.-4) aiiofher eye witaess has supported the prosecution case and has stated as to iti what niaaner Chhake Rain aiid Shyaixi Lal have been assaulted. Rajmania Bai (P.W.-5) mofher ofChhake Ram has also supported fhe prosecution case. Dr. S. K. Gupta (P.W.-8) aad Dr. M.K.Jain (P.W.-7) radiologist have supported fhe prosecixtion case, Dr. Gupta who had exaraiiied Chhake Raia aad Shyani Lal has given his report Ex.P/7 and P/8. In respect ofvictmi Chhake Raxa Dr. M.K.Jain has found mjiuy on fhe head aad the report is Ex.P/4. The ofhier witaesses have also supported ftie prosecution case iacludisig the iavestigating of&cer. 9. Considermg fhe entire evidence and lEiaterial available on record it is apparent that Shyam Lal aad Chhake Ram were assaulted by fhe accused/appeUants aad it is fhe accused/appellaats 1 & 2 who had caused iajuries to Chhake Rain whereas aU the accused persons have caused iajuries to Shyainlal. Froin fhe evidence it does not appear fhat there was aay intention on fhe part of appellaats 1 & 2 to coinniit the raurder of Chhake Rain aad their only iatention appears to be to assault him aad to cause iiijuries. After goiag through ffae evidence on record, fhis Court is of fhe opiaion fhat the conviction of the accused/appellaats 1 & 2 for tlie offence under Sections 307 & 307/34 IPC is not sustamable ia fhe eye oflaw. However, they are convicted under Section 325 & 325/34 of fhe IPC. So far as the appellaiit N0.2 is conceraed, he has already completed fhe seutence under Section 323 of fhe IPC. ...^- /" t. m So far as fhe appellaats 3 & 4 are conceraed, fbteir conviction uader Sectiou 323/34 ofthe IPC is maiiitamed. Lookmg to fhe fact that fhe iacident had taken place between the relatives; after fhe mipugned judgnient the parties have coraproiaised fhe matter and are Mving happUy, the fact fhat appellaQts 1 & 2 have reraained ia jail for about 2 yeai-s aad 3 inonfhs, fhey are sentenced to fhe period already undergone by fSiein. However ia Meu fhereof, fhe fine ofRs. 3000 eacli is imposed upon fhein. In respect of convictiou of appeUaats 3 &, 4 for tlie offence under Section 323 & 323/34 of fhe IPC is concenied, same is niaiatained. However, the sentence part is reduced to fhe period already undergone by fhem i.e. 24 days and fhe fine aoiount is enhaaced to Rs. 2,000 each. Out of this amount of Rs. 10,000 Rs.6,000 be given to fhe victim Chhake Ram and Rs.3,000 to fhe victim Shyaailal. AppeUants are directed to deposit this aisiount wifhia a period of three Bionfhs froni the date of receipt ofcopy of fhis order and if fhis amoiuit is not paid to fheui withia a period of three monfhs from today, The appellaiits shaU uiidergo fhe sentence of four niontlis each, I 1 Sd/- 1 pritinkerDiwaker Judge