./•; CF0000060403 \i •ti IH THE HIGHCOURT OF MAIHYA ERADESH, JABALPUR CRIHIBTAL APPEAL N0. -,.-,.- OF 1996 APPELLANT : (y^ RESPONDENT ^BISRURAH, Son of Firan.taF'am Sahu, age about 46 years, resident o£ village Bakli^ Police Station Kurud, Tahsil Dhamtarl, District Raipur, H.P VERSUS THE STATE OF HAEHYA PRADESH. ^6aatti^fli(j»trtrtmffiifi»iffl-tr-lr-i- / H ff ::':a< "-•••>.- '^ B i^ ''A HI6H COURT OF CHHATTISSARH AT BIL^SPUR Single Bench : Hon'ble Mr. Justice Pritinker Dh»aker Criminal ApDeal No. 1773 of 1996 APPELLANT RESPONOENT Bisrurom son of Firantaram Sahu State of Madhya Prodesh (now Chhattisgarh) Shri AA.D. Dhote, counset for the appeliant. Shri Vaibhav Sowrdhan, PL for the Stort-e/respondent. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JU DSM ENT (25.03.2011) This qppeal is directed ogainst the impugned judgment and order dated 6.9.1996 passed by.Additional Sessions Judge, Dhamtari in Sessions Trial No. 363/1993 convicting the accused/appellant for the offence punishable under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for fiveyears and payfine of Rs. 500, in defauit of paymsnt of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 9.2.1992 at about 3 p.m. F.I.ft. (Ex. P-1) was todged by Goverdhan Lai (PW-5) alleging in it that on that day at about 12.00 noon accused/appellant, who is uncle of the victim Manharan (PW-3), assaulted him by spade causing injuries to him, Based on this F.I.R.< offence under Section 307 IPC was registered against the accused/appetiant. After compjetion of investigation, challan was fited on 12.3.1992 under Sections 307, 294 and 506 part' II of the Indian Penal Code. '^..:\ 3. So as to ho!d the accused/appeltant guilty, prosecution has examined as many as 15 witnesses in support' of its case. Statement of the cccused/appeilant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charg® levelied Ggainst him and pteaded his innocence and false implication in the case. 4. After hearing the parties the trial Court- has convicted and sentenced the accused/appeliant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for th®appeltant submits that on the dote of incident there was some minor dispute between the victim Moinharan (PW-3) and accused/appeilant but it is the victim who was hotding the spade in his hand and unfortunately the said spade fell on his head, as a result of which he sustained injuries. Counsel for the appellant has referred thestatement of Norayan Sahu (PW-2) to this effect. He sjbmits that even if the entire case of the prosecution is taken as it is, accused/appellant cannot be convicted under Section 307 of the Indian Penat Code, According to him, at best offence under Section 324 of the Indian Pena! Cod®would be attroeted in the present case. He submits thcrt- as the appellant has already remained in Jai! for two months and the jait sentence is not mandatory for the offence under Section 324 of the Indian Penai Code, no usefui purpose would be served in sendin9 him to jail and it would be in the interest of justice if the sentence imposed on him is reduced to the period atready undergone by him. 7. On the other hand, counsei for the State submits thcrt victim Manharan (PW-3) has categorically deposed that as to in what monner he was assaulted by the accused/appeljwt. He submits that eye witness to the incident namely Binda Bai (PW-ll) has support-ed the proseeution case and likewjse Dr. V.K. Pandey (PW-13) who had medically examined the victim has also supported the prosecution case. 8. Heard counsel for the parties cmd perused the material availdbte on record inctuding thejudgment impugned, 9. Victim Manharan (PW-3) has stated in his evidence that accused/appeilant is his uncle and on the dote of incident he had gone to his house for some work and when he was returning from the house of the accused/appejlant, just near to his house accused/appeljant ossaulted him by spade as a pesuit of which he sustained two injuries, one behind his neck cnd another on his forehead. He has furt'her stated thcrt- thereafter he became unconscious and he was medically examined by Dr. V.K. Pandey (PW-13) in the D.K. Hospital. Statement of the victim Manharan (PW-3) has been duly supported by Bindabai (PW-11), she hos stated in her ewdence that when she was carrying the tiles, she saw the entire incident. Dr. V.K. Pandey (PW-13) is the witness who had medicdly sxamined the victim and given his report Ex.P-10 had noticed following injuries on his body. " (i) Laceroted wound in the size of l|-" x ^ " on the right side of frontal region, subcutaneous deep; bleeding pre^t. Tender muscular margin. ET (ii) Incised wound in the size of 1" x i-" on the right side of occipital region; bleeding present. (iii) Contusion in the size of 3"x 1 i-" on the left scapular reQion, dark red tender. (iv) Contusion in the size of l?" x 1" on the darcei spine level back tender dark red." In his court statement he has categoricatiy deposed thcrf' alt the injuries sustained by yictim were simpie in nature and he gave query rep)rt (Ex.P-14) cteariy stating therein thot injuries aistained by the vtetim were not arfficient to cause his death. Lalaram Sahu (PW-1) has stated in his evidence that he saw the accused/appellant running from the spot. Naroyan Sahu (PW-2) has stated in his evidence that on the dcrt'e of incident after heoring the noise of dispute between accused/appellont ond the victim when he reached there, he saw the injured holding spade in his hand and both of them were pushing to each other. According to this witness, during scuffle the said spade feil on the head of ths victim and thereafter, the accused/appellant had left the place. Dhanmot Bai (PW-4) - mother of the victim has stated thort' she had received the informart'ion about the dispute between his son and the accused/appellant. ^overdhan Lal (PW-5) is the witness who accompanied the victim AAanharan (PW-3) at the time of lodgin9 the F.I.R.. Dasru ftam (PW-6) is the witness who saw the victim in an injured condition. Khilu Das (PW-8) is a witness to sei2ure of ctothes made under Exs. P-2 and P-3. Sub Inspector D.S. Baghel (PW-9) is the witness who had done part of investigation. Lakhcnlal Sonwani r—--3S@ >•:•. SsS a6pnC jia^u*.*"" -spassons Aj+uDd sni(4. |D3ddy -gi la^ -IPS^-—- •+u8uiuosuduii snojo6i>i sii+uoui jno^ ^o pouad D joj. jiDf 8i|+ spisu! sq 04. a|qDi| 4.uo||addD ai|+ 8>jDiu p|noM 'pa+ojndi+s poijsd 8i|4. uiij+im +jno3 101^4. 3i|+ ajoj.sq +unouiD 3^4. 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