a—«S?^M aSJHf < AAl SiBfe »i»su '. ^S- 'at IM 2BB Hiea GGQSS O? JW>IGAI B i AI JABAUPim. CBIBIB&i, APPBAI. S0.1212—/1897. l.^.&aBkuaar s/o BaB^raa Upadbyay, aged 21 years, BesideEt ef Vlllages &arhi Seiara P.S. Bakswah, Bistt.Chhat ^. Santosh Sapdr s/o BaBdram %)adtijiay,ag®a 19 years, ^o Village 6arhisemra, ?•?'.. Balcswah t>is1;t. GbhatarpUT (MP). .... APPSI.IAH1S nB-jAiLy Vs. State of M.p»^-- eBZHIIttJL AEEB&£ SEeciCT 374(21 Q? 2HB GSBE OF GBIMINA1 PBOGB1UBB* GOHVIG'EIOH^ SEN'ISHejSs —iffl^nwiW ^i-^T^i^ '\ lci ^ <^y)' HIGH COURT OF CHHATTISGARH. BiLASPUi I'BLESHR! PRASHANT ,J. iLLANTS Ramkumar and another. Versus iT State of M.P. snri prafu!! Bharat, counsei for the applicant. Shri Q. Aziz, Paiie! La'Ayerfo,'" the Stste. ORAL ORDER (20/07/2011) 1. This appea! is directed against the judgment of conviction and order of sentence dated 18/01/1997 passed by th.e 1st Addltiona! Sessions Judge, Durg, in S-T- No.318/1995 whereby learned Additional Sessions Judge after holding the appellants guilty under Section 307 of the iPC, sentenced each of them to undergo R .1. for 7 years and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo R.i. for 6 months. 2. Case of the prosecution is that on 06/05/1995 at about 07.15 a.m. the appellants assaulted Rajesh Trivedi and his son Tanmay Tri'/edi by a knife and caused grlevous injuries and has thus attempted on t'neir lives. 3. On the basis of statement made by injured Rajesh Trivedi (PW-6) and Tanmay Trivedi (P.<V-7) and Dr. R.S. Vaghmare (PW-3), the triai Court found that the prosecution has successfully brought home the charges as the injuries mentioned in the medical report Ex.P/8 with respect to Tanmay and Ex.P/9 with respect to Rajesh Trivedi have been duly proved. 4. Leamed counsel for the appellants would argue that even if the entire prosecution case is believed and the evidence available on record are property marshaled, the appellanis can be heid guilty only under Section 326 of I.P.C. and not under Sectlon 307 of I.P.C. He wouid further subrnit that the appetiants have already underaone about 2 years (1 year and 11% months) i.e. from 07/05/1995 to 15-16/04/1997, therefore, in the facts and cireumstances of the case, the sentence aiready suffered by them be taken to be sufficient and t'ne appellants deserve to be released. 5. On the other hand, learned State counsel supported the impugned judgment and ^ v/ould submit that the appellants 'nave caused injuries by means of knife, ~'y therefore, no other interference can be drawn. have heard iearned counssi for the parties at iengfh and perused the record of the tr'al Court. 7. Ex.P/8 is the medicai report of Tanmay who has suffered the following injuries:- "(1) (") (iii) (IV) (V) fvi) Lacerated jnjuries, ieft sub mandible reaion, 3x1 c.m. Superficial cut right infra orbita! reflion, % c.m. Cut injury about. % c.m. right sub beiow right scapula region. Injury on the upper part ofthe occipita! region, 1 x 2 c.m. Superficial iacerated wound on ieft infra mammary region 1 x % c.m. Ligature marks in neck." The above injuries were stated to be simpie but for intemai injuries the victim was referred to E.N.T. O.P.D. and Suraical O.P.D. Ex. P/9, the foilowing injuries on t'ne person of victim Rajesh were mentioned:- "(n Swelling of both eyes with biackness probably due to blunt Injury. (ii) Cut wound below right eye, 3x1% c.m. (iil) Cut injury upper lip 2 x % c.m. (iv) Cut injury on right index finger of the size of about1 x % c.m. (v) Cut injury on lower chest, 1 x % c.rn." (. In this report also, t'ne Docior has not siven any dennite opinion about the grievousness of the injury and it is written in Ex.P/9 that injuries may be grievous. !n hls statement, PW-3 Dr. R.S. Vaghrnare has again stated that injuries may have been grievous and the patient was advised for admission so thai detail investigation of injuries on his head and abdomen can be performed. In his cross- examlnation, this witness was asked as to whether the injuries were simple and he sa.id that it is dlfficult to say as to whether the injuries were simple because th^re might have been internal injuries, however, he admits that he has not given any clear opinion inthe report that any of the injury was grievous in nature, though, in the same breath he says that injuries on Rajesh Kumar Trivedi were grievous because he had sweliing in his both eyes and internal injury might have been caused because of the jn.iury on vital part. 10. Vietlm Rajesh Trivsdl was under treatment in Seetor 9 Hospitat, EhHa! from 6 Msv ts "i 7U! l^gw snd victiiTS Tsn?n2v Triysdi rsmssnsd 1" Hossits! ontv for thrss days. Though FW-6 Rajesh Trivedi has stated that both the appeliants tried to strangulate his son Tanmay Trivedi, however Tanmay Trivedi says t'nat skipping Y rope was used to strangulate him. ^ 11 .From the evidence of Rajesh, it appears that he was earlier posted at Chhati and the accused persons have been residing with them for !ast six years. 12.The injuries caused on the person of victim Rajesh Trivedi and Tanmay Trivedi appear to be simple in nature. Section 326 of 1.P.C. prescribes punishment for voluntari!y causing grievous hurt by dangerous weapons or means. 13.Considering that the injuries are found to be simple in nature and most of the injuries are on head or on chest are simple cut wounds and they have been caused by a knife which was not sent Tor examination as to whether the injuries received by the victim coutd be caused by same knife and further that the victim remained In hospital only for 11 days and 3 days respectively, this Court is of the oplnion that offence under Sectlon 307 of l.P.C, has not been proved and instead the appellant should have been convicted under Section 326 of i.P.C, 14.This Court is conscious of the Taci that to attract the provisions of Section 307 of i.P.C., nature of injuries are not the only relevant factor, but since in the present case, the appeilants were residing with the victim for last six years as servant and there is no aliegation that they have hatched a plan to commit the offence and have executed the plan to commit any ot'ner offence like Loot or dacoity it appears that the assault was not premeditated. In the opinion of this Court, the eiement of intention or knowledge that by their act whey would be causlng death of the victim is missing and, therefore, the nature of injuries would play an important roie to assess as to under wnich of the provision/the offence committed by the appeliant couid be covered. As eariier heid, the appeliants are found to be guilty of offence under Section 326 of I.P.C. for causing grievous hurt. 15.The appellants remained in jail from 07/05/1995 to 15-16/04'1997 l.e, ror aimost tv/o years. The incident has taken ptace on 06/05/1995 i.e. about 16 years back, therefore, taking into consideration the above features of the case, this Court is of the opinion that the conviction awarded to the appellants deser/es to be converted into one under Section 326 of l.P.C. and the sentence also deser/es to be reduced to the period alreadv undergone by them. 16.in the resuft, the appeai is partiy allowed. Conviction imposed on the appe!!ants under Section 307 of the IPC is sei aside and instead, they are convicted under Section 326 of the IPC and sentenced to the period a!ready undergone by them. The appeilants are on bail. Their bail bonds are discharged. Kamde —sr""wa