^!»'3TEa fyit^ ^ i? s, j 1 ^^J/ ^ .'•f-^v HIGH COURT OF CHHATTISGARH AT BILASPUR ISB: Hon'ble Mr.T.P.Sharma.J.t Criminal Appeal No. 907 of 2005 APPELLANTS Nakul alias Maheshwar and others VERSUS RESPONDENT State of Chhattisgarh Post for prpnouncement ofjudgment on'3°-9-2008 Sd/- T.P. Sharma Judge ^::... ''^•*~—-•;'•''/'' '"E.5;>-,Sry '"•^Vssv^^" HGHCOAjlRTLQFCHHATTISGARHATBILASPUR fSB: Hon'ble Mr.T.P.Sharma.J.I C^nminaLApeeal N^>. 907 of 2005 APPELLANTS RESPONDENT 1. 2. 3. VERSUS Nakul alias Maheshwar son of Shankar aged about 30 years Ptambar sonof Gurudayal Khairwar, aged about 51 years Shankar alias Shiv Shankar son of Gurudayal Khairwar, 'aged about 55 years Atl residents of village Lurgi, Police Station Ramanujganj, District Sarguja, CG. State of Chhattisgarh through police station Ramanujganj, District Sarguja (CG) Shri J.K. Shashtri counsel forthe appellants. Shri Pankaj Shrivastava PL for the respondent/State. CR1MINAL APPEAL UNDER SECTION 374121 OILTHE CODEOF CRIIWINAL PROCEDURE ^ A JUDGMENT (•3,°.9.2008) This appeal is directed against the judgment of conviction and order of sentence dated 03.12.2005 passed by the Additional Sessions Judge (FTC) Ramanujganj, in Sessions Trial No. No. 428/2000 convicting th,e accused/appellants for the offence punishabte under section 307/34 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for five years and pay fine of Rs. 2000.00 in default of payment offine to further undergo rigorous imprisonment for three months. 2. The judgment of the trial Court is challenged on the ground that without there being any evidence available on record regardjng the fact that the injuries allegedly caused by the accused/appellants to the complainant f t, were fatal in nature learned trial Court has committed an illegality in convicting and sentencing the accused/appellants as mentioned above. 3. The prosecution case in brief is that on 10.9.2000 at about 7 p.m. he was going to the house of one Mukutdhari to take his daughter and when he reached near the enclosure of Savni Bhuihar in which maze was sown all of a sudden accused Nakal alias Maheshwar came from behind and assaulted on his right rib as a result of which he fell down. Thereafter, he assaulted him with axe on his head. In the meantime, accused Shankar, Pitamberand Laxman also came there and assaulted him with axe and club on his left hand, fingers, thigh, and calf and also near the eyebrows. On hearing his cries, Savni Bhuihar, Arjun and Dwarika reached there and on seeing them the accused persons fled away. He narrated the incident to his daughter Sumitra and Kotwar Kasim. Dehati Nalisi Ex. P-1 was lodged. He was sent for medical examiantion vide Ex. P-5. Dr. B.R. Ratre examined him and found as many as 13 injuries on various parts of his body vide medical report Ex. P-5A. He was admitted to the hospital for treatment and his bed head ticket is Ex. P5-B. Dr. M.K. Jain (PW-11) took his x-ray and found fracture of third metacarpal bone of right hand, fracture of fourth and fifth metacarpal bone of left hand, fracture of phalanx, fracture of tibia and fibula of right leg and fracture of tibia of left leg vide report Ex. P-20-A. Blood stained towel and Dhoti were seized vide Ex. P-2. Spot map was prepared by Patwari vide Ex. P-3. Axe and club were seized from accused Nakal vide Ex. P-4. Spot map Ex. P-6 was prepared by Police. Blood stained soil was seized vide Ex. P-7. Copy ofthe FIR was sent to Magistrate vide Ex. P-11. Seized articles were sent to Forensic Science Laboratory for examination vide Ex. P-12. Presence of blood on the soil, towel and Dhoti was confirmed vide report ex. P-13. @ '"! F' ^ •f^s". 4. After recording the statements of the witnesses under section 161 of th& Code of Criminal Procedure and completion of investigation charge sheet was filed before the Judicial Magistrate First Class, Ramanujganj, who in turn committed the case to the Court of Sessions Judge, Sarguja at Ambikapur, from where learned Additional Sessions Judge, Ramanujganj received the same on transfer for trial. 5. In order to prove the guilt of the accused/appellants the prosecution has examined as many as 13 witnesses. Statements of the accused/appellants were recorded under section 313 of the Code of Criminal Procedure in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. They have also examined Kaeel and Shankar DW-1 and DW-2 respectively in their defence who have stated in their evidence that complainant Ram Narayan Tiwari was having enmity with so many persons and on the date of incident he was assaulted, but he was assaulted by whom, they were not in a position to say. 6. Heard counsel for the parties and perused the matrial available on record including the judgment impugned. 7. Counsel for the accused/appellants submits that the incident took place at about 7-8 p.m. and since at that time there was no light, it was not possible for the complainant to identify the person person who assaulted him because the complainant was having enmity with so many persons. He further submits that Savni Bhihar, Dwarika and Arjun did not see the incident and the doctor who examined the complainant, has also not opined the injuries to be dangerous in nature. He further submits that the prosecution has not been able to establish that the accused/appellants were having intention to kill the complainant and in the absence of such evidence they are entitled for acquittal. l^c;fesfe>... B»:*gfis«. 8. On the other hand counsel for the respondent/State supported the Judgment impugned and submitted that the accused/appellants were having enmity with the complainant and they assaulted him with club and axe with an intention to kill him. Savni Bhuihar (PW-2) and Sumitra (PW-3) also saw the accused/appellans running away from the spot and complainant was lying in an unconscious condition. According to„ the counsel for the accused/appellant the statement of the complainant is corroborated by medical evidence which is sufficient to warrant conviction and the judgment impugend requires no interference. 9. It is not disputed that the accused/appellants assaulted the complainant with axe and club. Rather it is established by the statement of the complainant (PW-1) and Dr. B.R Ratre (PW-9). Dr. Ratre has categorically stated that he examined the complainant and found as many as 13 injuries on various parts of his body. However, in cross examination he has stated that he did not give any opinion regarding injuries sustained by the complainant except injury No.8. 10. In this case, Dr. M.K. Jain (PW-11) has stated that the complainant was admitted in the hospital and after seeing his x-ray he described the injuries/fracture vide report Ex. P-20A according to which fracture of third metacarpal bone of right hand, fracture offourth and fifth metacarpal bone of left hand, fracture of phalanx, fracture of tibia and fibula of right leg anftl fracture of tibia of left leg, was noticed by this witness. According to the injury report Ex. P-5A and the statement of Dr. Ratre (PW-9) there was an incised wound and lacerated wound on the head of the complainant. 11. Although both the doctors have not specifically stated about the nature of injury, it cannot be said that the injuries were dangerous in nature. Admittedly fracture of bone is a grievous injury. 13 injuries on various parts of the body of the complainant were found including bony injuries. Considering the number of injuries, the parts of the body where they were caused that too bony injuries it is clear that cumulative effect of the same was fatal to life. 12. Conviction is based on ocular and medical evidence. For establishing the complicity of the accused/appellants in the crime in question, 1 have examined the material available on record. Ramnarayan (PW-1) has stated in his evidence that on the date of incident when he was going to the house of one Mukutdhari to take his daughter and when reached the enclosure of Savni Bhuihar where maze- was sown, accused Nakal came from behind and assaulted him on his right rib as a result of which he fell down and thereafter accused Shankar, Pitambar and Laxman also reached and assaulted him with axe and club on various parts of his body. On hearing the cries, Savni, Arjun and Dwarika came there and on seeing them the accused persons fled away. In cross examination he has stated that he had constructed a house on government land which the accused persons claimed to be their land and due to it they were having enmity with him. He has stated that he remained in the hospital for 18 days for the treatment of the injuries sustained by him. 13. Savni Bai (PW-2) has stated in her evidence that after hearing the cries of Ramnarayan Tiwari, she went to the spot and saw the accused/appellants running away and complainant was lying unconsQibus with injuries over his body. Meanwhile Dwarika and Pusa also came there and took the complainant to the house of Mukutdhari. Sumitra (PW-3) has stated in her evidence that after hearing the voice of her father, she saw that Nakal and Sakla were assaualting her father and thereafter they ran away and her father was shifted to the hospital. Narendra Kumar Singh (PW-4) has proved the spot map Ex. P-3. B.P. Yadav (PW-6) has supported the investigation. Kasim, Kotwari (PW-7) has stated that on the date of incident L_- at about 8 p.m. Arjun and Dwarika had come to him and told that accused/appellants assaulted the complainant, and then he went to the house of Mukutdhari where complaiant was lying with injury on his head. Thereafter, he informed the police and complainant was sent for medical examination. This witness has not supported the case of the prosecution and therefore has been declared hostile. Dwarika ^PW-8) has briefly stated the statement of the complainant and stated that after hearing the voice of the complainant he went to the spot where complainant was lying with injury over his head and then he was shifted to the house of Mukutdhari. Mukutdhari (PW-12) has briefly supported the statement of the complainant and has stated that when he reached the spot he saw him in injured condition and his head and hand were bleeding profusely. According to this witness, complainant did not disclose to him the name of the assailants. 14. In the instant case the complainant has specifically stated that he was assaulted by the accused/appellants due to enmity. Savni Bhuihar (PW-2) who immediately came to the spot after hearing the cries of the complainant has stated that she saw the appellants running away from the spot. In the cross examiantion she has stated that she saw the accused/appellants on the spot at the time of incident. 15. It is clear from the statement of the complainant which is supported by Savni Bai (PW-2) that the accused/appellants are the persons iWho caused injury to the complainant at the time of incident. 16. After appreciating the evidence available on record the trial Court has convicted and sentenced the accused/appellants for the offence punishable under section 307/34 IPC. 17. In the light of the statement of the complainant supported by Savni Bai (PW-2) that first of all accused Nakal assaulted him with club and axe i.lf^"8" ^"^. ^•' 1,s :iE,.BE; and thereafter accused Pitamber and Shankar also came and assaulted him causing grievous injuries on his both hands, legs, head, chest etc. sharing common intention to cause injuries fatal to life, 1 am of the opinion that the trial Court has not committed any illegality in convicting and sentencing the accused/appellants as above by the impugned judgment. Thus the judgment impugned does not call for any interference in this appeal. 18. Consequently, the appeal is without substance and the same is accordingly dismissed. Judgment of the trial Court is maintained. Sd/- T.P. Sharma Judge