.s'^K"1'^ //s:"^ "^ tif ^ife;;<£^!'@!it-,. ii^Wiiie--ai^ii ^^sy •^ ,,.;YV ;:' '„ '<;' e HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: Criminal Anpeal No.204 of 2006 Santram Malik ^ RESPONDENT: Versus State of Chhattisgarh ^SSa... Post for pronounceinent ofjudgnient on 16th July, 2009 Sd/- T.P. Sharma Judge w ••;"^^^:.^ ,<!<^-!|i1. ~1:;*>. fi 'ftss^Sfc % \. ^^/ '^•^v-s^ fe HIGH COURT OF CHHAmSGARH, BILASPUR Criminal Appeal No.204 of 2006 APPELLANT: (InJail) RESPONDENT: Santram Malik, S/o Sadhuram Malik, aged about 28 yrs., Occupation Constable, R/o Village Garhphuljhar, Distt. Mahasamund (C.G.) Present Address: Village Bacheli, Police Station Bacheli, Distt. Dantewada (C.G.) Versus . State of Chhattisgarh, Through Incharge of Station House, Bacheli, Distt. Dantewada (C.G.) {Cruninal appeal ynder Section 374 (2) of the Code of Criininal Procedure, 1973} Present: Mr. Rajesh Pandey, counsel for the appellant. Mr. Avinash K. Mishra, Panel Lawyer for the State/respondent. Single Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 16ttlJuly, 2009) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 3-3-2006 passed by the Additional Sessions Judge, Dakshin Bastar Dantewada in Sessions Trial No.86/2005, whereby 8s whereunder learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence under Section 307 of the I.P.C., sentenced him to undergo rigorous imprisonment for ten years SE pay fine of Rs.2,000/-, in default of payment of fine to further undergo simple imprisonnient for three months. 2. Judgment of conviction 85 order of sentence are challenged on the ground that without any credible and clinching evidence the Court below has convicted and sentenced the appellant in the aforesaid manner and thereby committed illegality. 3. I have heard leamed counsel for the parties and perused the irapugned judgment as also the raaterial available on record. ^JI.^ ;3t.',: °"^s^ 2 4. Case of the prosecution, in brief, is that the present appellant is husband of injured Laxmi Bai, when he was on duty at Police Station Bacheli on 2-3-2005 at about 4.30 p.m., injured Laxmi Bai along with her sister Sangeeta & one another old lady went to Police Station Bacheli. At that time, the Station House Officer was not present in the Police Station. The appellant came out from the Police Station, abused his wife and caused gun shot injury on her by using his service rifle. The injured fell down and became unconscious. She was shifted to Apollo Hospital, Bacheli. Her sister Sangeeta lodged the F.I.R. vide Ex.P-2. Laxmi Bai was examined by the doctor vide Ex.P-4 and gun shot injury was found over her back on pelvic girdle. She was admitted in the hospital. The appellant was taken into custody. He has made diselosure statement of service rifle vide Ex.P-6 and the same was recovered vide Ex.P-8 at his instance. Bloodstained soil and plain soil were recovered from the spot vide Ex.P-7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation charge sheet was filed before the Chief Judicial Magistrate, Dantewada, who in tum committed the case to the Court of Sessions, Dantewada from. where learned Additional Sessions Judgereceived the case on transfer for trial. 5. In order to prove the guilt of fhe appellant in the crinie in question, the prosecution has examined as inany as nine witnesses. Stateraent of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against hira and pleaded innocence 85 false implication. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted SE sentenced the appellant as aforementioned. 7. Learned counsel for the appellant argued that the injury found over the body of Laxmi Bai was not fatal or dangerous to life and was simple in nature. The witnesses have not stated that the appellant has used fire arm and caused gun shot injury. The injured who is wife of the appellant was having inimical terms with the appellant and therefore she has falsely implicated him in the crirae in question. Leamed courisel further submits that the appellant was working as public servant (Police OfHcer) and he is in custody from 3-3-2005, he has lost his service. 8. On the other hand, judgment is supported on behalf of the State/ respondent and it is argued that the appellant who was on duty has caused injury by firearm shows his intention. In the case of injury by fire arm (gunshot injury), nature of injury is immaterial and it can safely be inferred that the accused has caused gun shot injury with intent to commit the murder or attempt to commit the murder of the injured. 9. Although the appellant has not admitted the injury found over the body of injured Laxmi Bai, but Laxmi Bai (PW-3) has deposed in her evidence that the appellant fired with gun upon her and Gaused injury over side of her waist. She became unconscious. Her version has been supported by her sister Sangeeta (PW-2). Police was not in a position to examine the doctor who has exaruined the injured, but has examined another doctor viz., Dr. Arvind Kumar Gupta (PW-4) who has forwarded the injury report of injured vide Ex.P-3. Defence has cross-examined Sangeeta (PW-2) & Laxmi Bai (PW-3), but in their detailed cross- examination, defence has not been able to elicit anything to show that Laxmi Bai has not received any injury by gun shot. On the other hand, defence has cross-examined Laxmi Bai in which she has stated that at the tirae of scufHing while she was snatching the gun, she received injury by gun shot, thereby the appellant himself has admitted the gun shot injury found over the body of the injured. / 10.In order to establish complicity of the appellant in the crime in question, the prosecution has examined injured Laxmi Bai (PW-3) who has specifically deposed in her evidence that the present appellant who is her husband has left her. At the time of incident she went to the Police Station for lodging report where the appellant was present, the appellant quarrelled with her and also assaulted her. While she was going back to her house froin Police Station she was advised by the Police staff to wait and report whereupon she stayed back in the Police Station and sat on the gunny bags lying there, at that time, the appellant came from ;:-B-s:i3SS if5ii"ss ',!!:;?«e"" •V S ^7 inside the Police Station holding gun and fired upon her and caused injuiy over her waist. She becaine unconscious. Her version is corroborated by Sangeeta (PW-2), her sister, who was also present at the tirae of incident. ll.Constable Rajkuniar Nag (PW-9) was also present at the time of incident. He has deposed that on the fateful day the appellant was on duty with rifle, at about 4.30 p.m. injured Laxmi Bai came to the Police Station along with his sister Sangeeta, she quarrelled with the appellant and scuffled with him, at the time of scuffling, the gun was fired and Laxmi Bai was injured. He im.mediately informed the Sfation Incharge and took Laxm.i-Bai to the hospital where she was admitted. 12,The present incident took place inside the Police Station, but the prosecution has not produced any report or Roznamcha relating to the incident. P.I.R. was lodged by Sangeeta in which she has specifically informed that the appellant came out from the Police Station and fired upon Laxmi Bai which has been corroborated by the ocular evidence of Laxmi Bai 85 Sangeeta. The present F.I.R. has been lodged within ten minutes of the incident. The F.I.R. has been recorded by B.N. Sharma (PW-5), Town Inspector. The present appellant has not lodged any F.I.R. against his wife or relating to the incident, especially for fire or accident by service rifle and causing injury to Laxrai Bai when he was on duty. In absence of such report, it is clear that Laxmi Bai was not injured while scuffling with the appellant,-but the appellant has caused injury to Laxmi Bai by gun shot. Although the injury found over the body of Laxmi Bai was simple in nature, but the appellant has assaulted Laxmi Bai by using fire arm and use of fire arm shows the grave intention ofthe appellant. IS.After appreciating the evidence available on record, learned Additional Sessions Judge has Gonvicted the appellant under Section 307 of the I.P.C. Conviction of the appellant is sustainable under the law. 14.As regards the question of sentence, admittedly, when the injured went to the Police Station where the appellant was on duty, the -.n.-SEa ii •«?•»%,j .!"/ Soraa 5 • offence fook place after some altercation. This shows the mitigating circumstances for commission of offence. Taking into consideration the mitigating circumstances and removal of the appellant from. service, sentence of the appellant requires reconsideration. IS.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 307 of the I.P.C. is maintained, however, sentence of R.I. for ten years & fine of Rs.2,000/- is reduced to R.I. forseven years 8s fine ofRs.2,OQO/-».in default of payment of fine to further undergo S.I. for three months. 8d/- T.P. Sharma Judge