,V HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ ‘ Criminal Appeal No. 916/ 1991 APPEAL UNDER SECTION 37412! OF THE CODE OF CRIMINAL PROCEDURE (SB .Hon’ble Mr. T.P Sharma, J ) Presént Shn Utkarsh Venna Advocate for the appenant Shn Shushil Dubey, G A /APP for the State/respondent ORAL-ORDER (Passed on 04f08/ 2008) ’I. This appeal Is directed against the Judgment of convxchon and order of sentence dated 20/9/91 passed by Sessions Judge Bilaspur in Sessxon Trial No 112191 where by learned Sessmn Judge after holding the appellant gUilty for the offence punishable under Section 333 of the Indian Penal Code sentenced rigorous imprisonment for 3 years ‘ 2. The judgment of commotion Is challenged on the ground that Without any ewdence to the effect that appellant has caused grievous injury to the, complainant who was public servant in drs charge of hrs duty as such publrc sen/ant or With lntent to prevent or deter that person or any other publlc servant from dis chargrng hrs duty as such public servant or inconsequence of anything done or attempted to be done by such person tn the lawful discharge of hts duty as a public servant conVIcted and sentenced the appellant aforementioned and committed illegality 3 - Shn Utkarsh Verma Advocate for the appellant and Shri Shushil Dubey G A [APP for the Statelrespondent are heard I ,\ is u r ' ‘ s APPELLANT ‘ ‘ Arun Kumar Jha son of Shn Purendra ’ Jha aged about 3O years Potar Res1dent of Rallway Statton Uslapur » Dlstnct Bxlaspur (M P} VERSUS RESPONDENT State of Madhya Pmdesh. 4. Story of the prosecution is \in brief, that the complainant PW1 V.K.S. Sundarrao was workirig as Assistant Station Master on 24‘“ August 1990 at Uslapur Railway Station, Bilaspur as public servant. Appeuant Amn Kmmar Jha was pointsman in Usiapur Raiway Station, 'Bilaspur. He was not present onduty at 4 pm. Afterwards he came then he was not taken in duty by the comptainant at that ‘ time appellant along with Virendra Kumar came to Railway Station armed with'club at about 12 at night complainant was discharging his public duty. Appellant assaulted to complainant with the help of club on the ground that he’ has not taken the appellant in duty and caused injury \over right palm, right thumb, left thumb, and fingers of left palm. He lodged a written report Ex. P—1 on the basis of written report Ex; P—1A was registered. Complainant was sent for medical examination where he was examined by (PW7) Dr. AK. Ojha. He found swelling and tenderness over thiner eminence of right palm and right thumb. (ii)- Swelling and tendemess over left thumb with few abrasions marks over lateral ‘ 'aspect. (iii)-Movement in 4 fingersof left palm is alsopainful vide Ex. P3-A. X-ray of the right palm and left skull was taken. Appellant’s‘right thumb was found fracture vide EX. P—7. Statement of witnesses were recorded after investigation charge—sheet was filed befcre the Chief Judicial Magistrate, Bilaspur whoin turns committed the case of Court of Session, Bilaspur. ‘ 5. lh order to establish the guilt of appellant prosecution examined as many as 7 witnesses. Examination of the’saccused is recorded under Section 81 3 of the Code iof Criminal ’Procedure, 1973 whereas appellant has denied the circumstances appearing against him and pleaded innocence and false implication in crime in question. After affording the opportunity of hearing to the : parties learned Sessions Judge after holdingthe guilty convicted and sentenced the appellant aforementioned. a 6.‘ lt is argued on behalf of the appellant that prosecution has not Q established the fact that appellant caused grievous injury to the complainant and. that too. while in discharge of his omcial duty or to prevent the complainant or in consequence ofdischarging of his official duty. lt is also argued on behalf of the \tt_)A»u.;_.....\_‘w .u...‘i.tuAgW-.4_...L;,a..ut.. ‘ ,. ..,..__...~__.- A.W_.M.;-..mu.. 4.- appellant that complainant was required to record the facts of the incident in the diary specially entry No. 1182 & 1183 but he has not made any entry which shows that no incident has taken place against him and he has falselysimplicated the appellants. Prosecution has not adduced any evidence relating to grievous hurt caused to‘the complainant. 7. Reliance in the matter of D, Chattaiah v. State of A.P‘. reported in AIR 1978 SC 1441 in which it has heid that in case of charge under Section 332 of the l‘lndian' Penal Code prosecution has required to estabiish that the complainant was public servant and assaulted as a result of his official duty or in consequence of dis—charge of his official duty. He has further placed reliance in the matter of Lam Java Rao v. State of A.Pz. reported in 1992 CRI. L. J. 2127 in which, it has also held that in case of Section 382 of the Indian-Penal Code there must be nefxuses betweenthe act and lawful discharge of the duty by the public servant ~ \ 8. On the other hand judgment is supported on’behalf of the respondent. 9. ln order torestablish the guilt of Section 3337of the tndian Penal Code again-st the appellantlaccused prosecution is required to prove the fact that (1) complainant‘was a public servant at the time of commission of the offence? (2)- He received grievousinjury. (3) Complainant was voluntarily assaulted by appellant/accused to deter or inc‘onsequence of his official duty. 10‘: ln order to prove the guilt of the appellant/accused prosecution has adduced the ocularrmedical and documentary evidence. 11.» ln order tofappreciate the contention of the parties l examined the“ evidence available on record as regard the grievous injury is concerned PW1 V.K;S. Sundarrao/ has stated that he received injury overihis body including right thumb and his right thump was fractured.‘PW7 Dr. A.K. Ojha has also stated that he has advrsed for X ray of right palm X ray report Ex P 7 & P 8 are admitted by the defence under Section 294 of the Code of Criminal Procedure 1973 On ‘AIR197s sown v 2,1992oRi.L.J.2127 > @f 13/8/91 Ex. P—7 shows the fracture of progjimal phalynix of right thumb by the ocularand medical evidence, it is established that complainant was assaulted at the time of incident and his bone of right thumb was found fractuted. Same is a grievous injury in accordance with Section 320 of theindian Penal Code! 12. Complainant was a public servant he was working as Assistant Master. PW1 V.K:.S. Sunderrao has stated that on 24/8/90 he was on duty. Complainant is also public servant. Appellant came late in his dutyi He dis-allowed then he went back at about 12 RM. at night when he was giving the charge of his, office to his successor. Appellant came with club and assaulted him. Witness PW2 Deobrat Patro and PW4 Balmukund came and intervene. He noted the facts in Station diary. He shifted to hospital by PW2 Deobrat Patro where he was examined and treated medically. He lodged the FIR Ex. P—1 on which basis registered FIR'was lodged vide Ex. P-1A. \PW2 Deobrat Patro who was aiso present at the time of incident has stated that appellant along with 2-3 person came to the complainant and assaulted him. He and Balmukund intervened and separated the complainant and the accused. Complainant noted the facts in diary and he was shifted to hospital. PW4 Balmukund has stated that atter hearing the commotion he came out from his office white he was going towards the place of incident. He fall down asa result ofslipping and injured. He wasinformed about r the injury by PW2 Deobrat Patro. PW5 R.K. Sur Assistant Station master has supported the incident which took place at 4 PM. when appellant wasnot taken in duty. According to him appellant entered intothe room of complainant then complainant assaulted the appellant. PW2 Deobrat Patro has stated that white taking the charge from complainant appellant assaulted the complainant but in L his cross examination he has admitted that incident took place before the gate of waiting hall and not committed inside the platform. He has admitted that while he was taking charge from complainant at theplatform m W incident . took place. PWS Gangaram “Marai, Station Master has proved the entry relating to the incident/PS in which complainant has made the entry relating to incident. He has ,' admitted in his cross examination that complainant has not made any gentry in ’Va I - ® entry No. 1182 & 1183 but he has noted the incident in the entry P—6 which is 1184. 13.; ‘ Complainant has stated appellant was assaulted to him on the ground that he has not taken the appellant in duty when he came late at about 4 pm. Defence has cross examined the complainant at length but defence has not elicit anything that complainant was not in duty, he was not assaulted by the appellant and hewas‘not assaulted on the ground of discharge of his omclal duty. Hie statement is supported by PW_2 Deobrat Patro, PWS Dyanand Mishra, PW4 Balmukund (in brief) and PW5 RK. Sur. Statement of complainant is supported by the ocular and documentary evidence nothing has been brought in the cross examination of the witnesses to discredit their testimony ln absence of any f adverse thing which make the statement unreliable. The statement of complainant and witnesses and statement of complainant corroborated by the ocularjand medical statement inspire confidence and trustworthy sumcient for ~ ’drawing inference that complainant Was public servant. At the time'of incident he was assaulted and caused grievous hurtby the appellant while discharging his omcial duty on the ground of discharge of his omcial duty as held in case of DA Chattaiah and Lam Jaya Rao (supra) relied by the appellant there is a nexus between act and discharge of ofhcial duty and appellant has caused grievous hurt to the complainant as a consequence of dis-charge of his official dutyt The evidence adduced by the prosecution is sufhcient for drawing inference that- appellant has committed the offence established under Section 323 of the IPCt After appreciating the evidence available on record learned Sessions Judge has convicted the appellant aforementioned. Learned Sessions Judge has not ' committed any illegality or infirmity in convicting the appellant; 14. As regard the question of sentence is concerned appellant has caused grievous hurt to the Complainant whose progjirnal phalynix of right thumb was.’ found fractured. Appellant is a public servant incident took place on 24/8/90. He is facing trial from last 12 years. Taking into consideration the nature of injury and .f) pad of the body assaulted and pendency of the criminal case since 19 years lenient view is required. A 15. Consequentiy, the appeal is partly allowed. The conviction under Section of sentence of rigorous imprisonment ne of Ré 5,000/— 333 of the IPC is maintained and instead is sentence rigorous imprisonment for 1 year and fl in default additional rigorous imp for 3 years h risonment for 6 months. Appellant has directed to deposit the a tine within 15 days from today. ’15 1 l“ Sd/— 'T.P. Sharma ///} Judge r 1 V "~\V., i