;CF00600e')440 ^•^..-J ;i81 SSiS[ !i'^^-~@^;!-: ^'S^S^^ •^;;:s: •k^ y^^ch. • li;ii^ Is il KU Biil'E ti>i!. -M .f':«fs:si's^ g!.;.?:....?.^-"-—"-"" IIL.,......""-^*'06^6 •!-^-—""""y"^ ^ IN;,THE HSiSH' eOBE C®:.ireBIC&TgRgA®,.a%BA.bB'@a..».P. / ' ••• •• •••.•.'.. • . •... ............. ..„...,-..... '...„..........•..:„-„' ' ...- GRXMINM. APPE&L N0. _^'\tA_ __/1997. GICTIiaKMi AI^a&L ITNISR ^STI^ 374C2^JB£:^B®^<l ^liL^^ sssaas i973t- • . : .- . ' :': : ' . j'"'- .^. • • ' • ' • • -^"' ' . ,.•"'' "• '.-'"' .'• • /-^' ; . ^- • ^"': '.'•'•-. '-. iS'SBLiliKSfES ^i-t-SJ.. Rakegh Soai soa @f Shj.vrabaa, SpBi ageeL 23 years,,-, ! ' . : ' : ^ , j&- £2»/'SBlsfaaooSoni son @£Slirt SharawaaS©ai, aged 18 3fears, 1 Beth res.tdents o£^ol Ba2ar,Bl.las@ar,i, .P.S.Citey Kotwali.Bllaspar Taftsil aad Bistriet B.llasp-ur M.E«- ' Vtersas. BESPOBBBSTt— ..vsff^ ^/S'fcatee o:£ M.P.throQ^i S»H»048Et.S.City KQtwsli.al.laspiar D4.stet.BiXas;E»aEM*Pw Aasi.s.a.&g otitb ©fffalgiaeafe ,e<tet'i®t.i0ajaSai;: seB!t^)ae!e;.passed''']E>s',ttie'/'eeaEfJof..:IX,fi^E,a Sesal.wss^SvcSgetBtlassvixfSee^tQieQt^^wsff^ fey.shri, Hazhar :Tar •Kban:):iis,sj,T.lte«ll|i^|< en ®-6-97,eoB3Ei.etiBQ•N h,;;tth»•»is>E>e>J.3J!aa! Ifi I ^ HIGH COURT QF CHHATTISGARH: BILASPUR Criminal Appeal No.1461 of 1997 APPELLANTS: RESPONDENT: -Versus- Rakesh Soni & another State of Madhya Pradesh (now Chhattisgarh) POST FOR JUDGMENT ON ?.0"ftSEPTEMBER. 2011 Sd/- Prashant Kumar Mishra Judge :..**&! !l«y. HIGHCOURTOF CHHATTISGARH: BILASPUR Criminal Appeal No. 1461 of 1997 APPELLANTS: RESPONDENT: -Versus- Rakesh Soni & another State of Madhya Pradesh (now Chhattisgarh) Present: Shri Pramod Verma, Sr. Advocate with Shri Sumit Verma, Advocate for the appellants. Shri Pradeep Singh, Panel Lawyerforthe State/respondent. JUDGMENT (Delivered on ?'0 September, 2011) Prashant Kumar IVIishra, J. 1 1. The appellants have challenged their conviction under Seetion 307 of the IPC and imposition of sentence of R.l. for 3 years and fine of Rs.300/-, in default, additional S.l. for 2 months to each ofthem. 2. Case of the prosecution is that PW-7 Shankar Rai is the owner of M/s Laxmi Exports, Golpara, Bilaspur. AppellantRakesh residesas atenant in the house opposite to the said shop. The complainant and his friends used to play chess near the shop and at the relevant time, the accused persons eame to the shop armed with sword and hockey stick and threatened them if they do not stop playing chess, they will be killed: Shankar was dragged out from the shop and appellant Rakesh assaulted him by a sword and appellant Vishnoo assaulted him by hockey stick. He received injuries on his head. Dehati Nalishi wa^ taken down at 14.30 hours and on the basis of preliminary jnvestigationj FIR was registered at 17.00 hours on tfye date of the incident i.e; : 11 6.12.1993. Chargesheet was filed against the accused persons foc ^ s, II II -^ committing offence under Sections 307/34, 326 and 294 of the IPC, however, charge was framed against appellant Rakesh for committing offence under Section 307 of the IPC and against appellant Vishnoo for committing offence underSection 307/34 ofthe IPC. 3. The prosecution examined 1 1 witnesses to bring home the charges and the appellants, after abjuring guilt, examined one defence witness. The trial Court convicted the appellants under Section 307 read with Section 34 ofthe IPC and sentenced them as mentioned above. 4. Learned counsel for the appellants argued that in the absence of corroboration by independent witnesses against the appellants, offence under Section 307 of the IPC is not made out and in the worst case, offence would fall under Section 326 of the IPC. Lastly, he argued that the appellants having already remained in jail for 1 month and 22 days and the offence having been committed more than 18 years back, due to long lapse of time, the sentence imposed upon the appellants deserves to be reduced suitably. 5. On the other hand, learned counsel for the State/respondent supported the impugned judgment. 6. PW-7 Shankar Rai is the complainant. This witness has supported the allegations narrated in the FIR. According to him, on account of dispute regarding playing chess, altercation took place between him and appellant Rakesh. However, the appellants went away only to arrive later on with sword and hockey stick. They called the complainant outside the shop and when he came out, Vishnoo armed with hockey v stick assaulted him on his arm and Rakesh assaulted him by sword like weapon on his head. He somehow saved himself, but Rakesh again inflicted second blow which came to hit on his head. He came to the hospital on a rickshaw. According to him, his servant Santosh, Anil and Ashish were present at the time of occurrence. He was admitted in the hospital for 8 days. 7. PW-8 Manish Rai, PW-9 Santosh Bhosale and PW-10 Anil Kesharwani have been examined, but they have turned hostile. Similarly, PW-1 Sushil Soni, PW-2 Anil Saxena and PW-3 Vinod Soni have also turned hostile. 8. PW-4 Dr. K.K. Sao is the medical officer, who treated the injured at the District Hospital, Bilaspur. He has proved injury report Ex.-P/SA and query report Ex.-P/6A. He has found one incised wound of size 16 cm x 2 cm on left fronto temporal region x bone deep and the bone was cut under the wound. According to him, injury was grievous. In his query report, he has opined that injury was on vital region of the body and since wound was profusely bleeding and might have caused death if not provided immediate medical attendance. The patient was admitted to Male Surgical Ward and the wound was repaired in layers. He was discharged from the hospital on 15.12.1993 as mentioned in continuation sheet of the hospital, which is part of Ex.-P/7. PW-7 was referred for radiological examination and the said examination was conducted by PW-11 Dr. C.S. Sharma. He has proved radiological report (Ex.-P/25) in which he has opined that there was fracture of left parietal bone. ,/^ 9. In the matter of Shankar Lal Vs. State of Haryana , it has been held that evidence of victim alone is sufficient to convict the accused under Section 307ofthe IPC. 10. Thus, from the statement of PW-7 and the medical evidence (Ex.-P/5A) and opinion on query vide Ex.-P/6A together with X-ray report (Ex.- P/25), it is fully proved that the injured received fracture on his left fronto temporal region and the injury was caused by sword like sharp edged weapon. Sword like weapon has been seized from appellant Rakesh at about 17.45 hours on 7.12.1993 vide Ex.-P/12 on his memorandum recorded at 16.00 hours on 7.12.1993 vide Ex.-P/11. Though witnesses to the memorandum and seizure have turned hostile but the said witnesses namely, PW-8 Manish Rai and PW-9 Santosh Bhosale have admitted their signatures on the memorandum and seizure vide Ex.- P/11 and Ex.-P/12 respectively. 11. In the matter of Prabhu Rashu Machhi and Chunnilal Maganlal Vs. State of Gujarat, considering the nature of injury, the Hon'ble Supreme Court reduced the sentence of R.l. for 7 years to R.l. for 4 years. 12.1n the matter of Shanabhai Dhulabhai Parmar Vs. State of Gujarat, sentence of R.l. for 5 years awarded by the Sessions Judge and confirmed by the High Court was reduced to R.l. for 2 years on the ground of lapse of 14 years after the date of commission of offence. 13. Next point argued by learned counsel for the appellants is regarding offence being one under Section 326 of the IPC and not under Section " 307ofthelPC. ' AiR 1998 SUPREME COURT 3271 1980 Supp Supreme Court Cases 11 3AIR 1977 SUPREME COURT 1338 !^e) 14. Relevant factors for constituting offence under Section 307 of the IPC have been spelt out by the Hon'ble Supreme Court in the matter of Hari Singh Vs. Sukhbir Singh and others . It has been held therein that under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 IPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In the said case before the Supreme Court, the accused were armed with Ballam, but did not use sharp edge of it and even though the accused suffered injuries, but were not provokedor tempted to use the cutting edge of the weapon. In this view ofthe matter, acquittal ofthe accused under Section 307 ofthe IPC was not interfered. 15. In the present case, both the appellants came to the shop ofthe injured, started altercation and thereafter went away. However, they again came to the shop after one hour with sword like weapon and club in their hands, called the injured out of the shop and tried to hit the injured, lowever, tie saved himself, but appellant Rakesh inflicted another blow (1988) 4 Supreme Court Cases 551 -^ il on his head causing grievous injury coupled with fracture in the fronto temporal region. From the narration of incident by the injured, it appears that the appellants came to the place for the second time armed with sword like weapon and hockey stick. They gave two blows one after the another causing injury on fronto temporal region. Thus, the intention to commit murder is clearly spelt out from the manner and the drcumstances in which the injuries were caused. If death would have taken place, it would have been the case of murder, therefore, offence under Section 307 IPC is clearly made out because sharp edged weapon has been used and head of the injured, which is vital part of the body, has been chosen to cause injury. The argument made by learned counsel for the appellants to the effect that offence would be covered under Section 326 of the IPC has thus no substance. is.This Court shall now consider the prayer made by learned counsel for the appellants that in view of long pendency of the appeal and 18 years having elapsed after commission of offence, sentence may be reduced to the period already undergone, as the appellants have remained in jail for 1 month and 22 days. ir.This Court has given serious considerations in the prayer made by learned counsel for the appellants. 18. In the matter of Chinnadurai Vs. State of Tamil Nadu , it has been held that when injuries were caused on vital part of body by formidable weapon, injuries spell out attempt to murder and sentence of 7 years' Rl .^cannot be reduced. AIR 1996 SUPREME COURT 546 ^" 19. In the matter of Hirdai Singh Vs. State of Bihar and others , when injury in the abdomen of the injured was caused by a Bhala and the trial Court awarded R.l. for 10 years and on appeal, the High Court reduced the sentence to the period already undergone, the Hon'ble Supreme Court set aside the order passed by the High Court. 20. From the above judgments of the Hon'ble Supreme Court, it appears that offence under Section 307 IPC is considered to be very serious offence. At the time of occurrence, the appellants were 23 and 18 years of age respectively, their present age is thus 41 and 36 years respectively. Thus, the appellants are neither old age nor infirm. Mere long lapse of time by itself would not be a grpund to reduce the sentence if offence is otherwise serious. Had it been a case where the appellants have undergone a substantial period, the matter would have been different. However, the appellants have remained in j'ail only for 1 month and 22 days, therefore, this Court does not consider the present to be a fit case for reducing the sentence to the period already undergone. 21. In view of the above, the appeal fails and is hereby dismissed. The appellants are on bail. Their bail bonds are cancelled and they are directed to surrender before the trial Court forthwith to serve the remaining sentence imposed upon them. Bar/e Sd/- prashantKumarMishra Judge 1990 (Supp) Supreme Court Cases 636