XI-?iC-39 CFOOo6061'i"l'5" .^.^" .^A/'^ /.^. ^--T'"^ G^CSCS IN THE H.IGS COTJRT OF M&DHYA PRADESH AT JABAI.PUR « « .« * CRIMINAL APFEAL N0^. ^ ~7 2-. BF 1996 ^K. k APPELLANT TTB J&ILJ Krishna Kumar aged/abo-a.t 25 years son of Shrl'Thanwar Nai, Gccupation; Agriculturj.st »R/0 ^ j V^.lls.ge Mohanpur,Folice Statj-on i [ i { Bagnad^, Distriet :Rajnandgaon, {•^7>Pl1 j -Vs»- RESPONDENT State of Madhya Pradesh /" CRIMII^AL APPEAL UNDER SECTIOK 374(2} OF THE CODEOF CRIHIKAL PROCEDURE,1973. ^ AGAINST TI-iE CONVICTION AHD SENTENCE PASSED BY TIRST ADDITIONAL SESSIONS JT.IDGE, RAJI'iANDGAON, (M.B. )(LE&RNEB SHRI P.C.GUPT&), IN SESSION .TRI&L No.41/$$ D&'X'EB 28/2/$6 ,\ R.'oV-1'' IN CASEOF STATE VSoKRISHN^ ,KUMAR &,OTHERS< ft a '. / ^s%j HIGH COURTOF CHHATTISeARH AT BILASPUR Crimina! Appeal No.572 of 1996 KrishnaKumar -Versus- RESPONDENT: State of Madhya Pradesh (now Chhattlsgarh) Shri Parag Kotecha, counsel for the appettant. Shri Pradeep Singh, Pane! Lawyer for the Stats/respondent. Sinale Bench: Hon'ble Shri Prashant Kumar MjshiaLJ. ORAL JUDGMENT (10-8-2011) 1 2 The appeilant has been convicted for commisston of offence under Secfion 307 of the IPC and sentenced to unawgo R.l. for 4 years. 3 Case of fte prosecution, in short, is ft^t on 11-11-1994 at about 5 pm the appellant assauited injured Bishesar by means of axe knowtng fulty well that assauit may cause his death. 4. °F!R (Ex,-P/8A) was registered on 11-11-1994 and after completion of investjgation, charge sheet was flted. in the course of trial, injured Bishesar was examined as PW-5. He has stated that accused Krishna Kumar is his unele. He took him to his house for doing some work and thereafter his father Thanwar (co-accused convicted under Section 323 of the IPC) assaulted him by !afhi and ' passed pn axe/o appellant Krishna Kumar who thereafter gave towo axe btmvs on his head. His wife Belkunwar came on the spot and she was ateo assaulted by tathi by co-accused Thanwar. 5. The statement of the injyred was supported by PW-6 Belkumrar tei and ths ^ evidence regarding injQry has been proved by PW-11 Vasudev Mahadevrao .^'~ ^*" Lanje, Assistant Surgeon of Government Hospital Sakoli, Maharashtra, who had treated the injured at Devri Hospital. The injured was found to sustain 2 injuries onhis head. The first injury was lacerated wound in the size of 2" x %"x bone deep with no fracture and the second was lacerated wound in the size of 1" x %"x skin deep. According to this witness, the injuries could have been fatal if immediate treatment would not h'&ve been provided. 6. Finding the injury to be grievous and the fact that it was on vital partof the body, the trial Court has convicted the appellant for having committed an offence under Section 307 ofthe IPC. 7. Learned counsel for the appeHant argued that the prosecution has failed to prove its case and there are material contradictions and omissions in the case. He would submit that the offence would not fall within the ambit of Section 307 of the IPC and on proper appreciation ofthe medical evidence, the offence would be covered under Section 326 ofthe IPC. 8. On the other hand, learned counsel foi;, the State supported the impugned judgment. 9. Injured Bishesar has made categorical statement that the assault was made firstly by Thanwar and thereafter by the present appellant. It is not a case that the incident took place all of a sudden and assault was made without any pre- meditation. On the contrary, according to the evidence of Bishesar, he was called upon by Krishna Kumar and thereafter both he and his father Thanwar attacked the injured. Coupled with this, injury by means of axe has been caused - 6n the head of tMe injured which is vital part of the body, therefore, it cannot be said that the accused persons had no intention or knowledge that the injury will not eause death. On the contrary, the manner in which assault was made and the part of the body-which was chosen for assault proves that there was every i intention and knowledge that the actwould cause death. Therefore, in the given set of evidence available on record, offence under Section 307 of the IPC is made out. The appellant's conviction is, therefore, sustained. 10. Learned counsel would further argue thatin the facts and circumstancesof the case, sentence of R.l. for 4 years is harsh and excessive. He would rely on the judgment in the matter of Rajendra Harakchand Bhandari & Ors. V. State of Maharashtra & Anr. {2011 AIR SCW 2653}. 11.1n the present case, Bishesar has stated that appellant Krishna Kumar is his uncle. Their houses are adjoining. 'The injury was on his head but only 2 injuries were caused. 12. In the matter of Rajendra Harakchand Bhandari (Supra), the appellants were sentenced to undergo R.l. for 5 years for offence under Section 307 of the IPC for having caused 8 injuries, out of which 7 were caused on the head of the injured. Apart from that, another person was also injured in the said case. The parties were agriculturists and there was no previous criminal background. Therefore, the Hon'ble Supreme Court dir^cted that period of 2% years which the appellants have undergone would be sufficient sentence. 13.1n the present case also, the appellant is agriculturist. The injured and the appellant are relatives. The appellant has no previous criminal record. At the time of offence in 1994, he was aged about 25 years. The incident had taken place about 17 years back. The appellant remained in jail from 13-11-1994 to 28-11-1994 during investigation and thereafter from 28-2-1996 to 15-7-1997 during the pendency of this appeal. Thus, he has already remained in jail for -about 1 %years. / 14. Taking into consideration the above features of the case and the fact that the appellant has already remained jn jail for 1% years and that he has regained his roots in fhe society, this Court deems it proper to reduce the sentence to the '.>-•'• '•' ' .'., - • . . • • . ' •' 'period already undergon? by him. Therefore, the sentence of R.l. for 4 years 4 imposed on the appellant is reduced to the period already undergone by him. The appellant is on bail. His bail bonds are discharged and he need not surrender. 15. The appeal stands partly allowed. S.d//- PrashantKumarMislffa Judge Barve •• /•