CFb"o'6'ro'6'i"i"^' IN ~ THE; ,HI®HC©BBT.J9@ICA'CTJEE-©K-•»»?<,,: ti-SeaSPXJR BIJBS1 Gr»»i>-^lot er 1996 < CrigaiMi * APPi-ICANT tPJ 3 -> 0-1 Baba ali^s Sekh^s/0 HohanBnad 'X'akub, ^aged 39 years^R/0 Sajay Hagar, Rai.pUE'> VERSUS RESPONDE.NT The state of MoP« througb PoSo Purani Basti Raipur» sS'.-*s::'!tSB '.^^^ CRIMINAL APPEXL U/S 5&®374 O? CR,P.C. •- / ^. ^ i^SIXv' ^{-^ zt ^:^^iS?"'?"Is^ iS';^-; '^^: HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 2106 of 1996 Baba alias Sekh Bashir APPELLANT RESPONDENT VERSUS State of Madhya Pradesh. Smt. Indira Tripathi counsel for the appellant. Smt. Smitha Ghai PL for the respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (20.01.2011) This appeal is directed against the judgment and order dated 7.10.1996 passed by the Additional Sessions Judge, Raipur in Sessions Trial No. 286/1991 convicting the appellant under Section 307 IPC & 25 (1-B) of the Arms Act and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 200 u/s 307 IPC and rigorous imprisonment for three years and pay fine of Rs.200 u/s 25 (1-B) ofthe ArmsAct, plus default stipulations. 2. Case of the prosecution in brief is that on 14.12.1990 FIR Ex. P- 8 was lodged by injured Raju Soni (PW-8) alleging that on that day at about 5 p.m. near Maharaj Betel Shop, accused/appellant stopped him and then there was some altercation between them in which he took out a knife and stabbed him on his stomach. It is alleged that thereafter other accused I^ohd. Kadar also tried to stab him which however was .prevented by him butwhile doing so hesustained injury in thethumbof his right hand. When the injured tried to run away, accused Mohd. Farukh assaulted him with khukhri on his right hand, Based on this repQrt, offence under Section 307/34 !PC was registered against the accused/appellant berein, one Mohd. Kadar and Mohd. Farukh. After investigation challan wasfiled on 25.1.1991 under Sections 307/34 IPC and 25/27af the Arms Act. S l(,f »te 9W — 2-~ 3. So as to hold the accused persons guilty, prosecution has examined as many as 1 1 witnesses in suppori: of its case. Statements of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence .and false implication in the case. 4. After hearing the parties the trial Court has acquitted accused Mohd. Kadar and Mohd. Farukh under Section 307 IPC and 25 (1-B) Arms Act but convicted and sentenced them under Section 324 IPC. However, accused/appellant herein has been convicted and sentenced as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgmentimpugned. 6. Counsel for the accused/appellaot submits that even if entire case of the prosecution is taken as it is the offence under section 307 IPC is not made out against him and at the most the act alleged against him would fall under Section 324 IPC as none of the doctors has opined that injuries sustained by the victim were grievous in nature. She submits that it is difficult to ascertain as to which injury was caused by the present appeltant and which one by the other accused persons. She submits that eyewitness Jagdish Prasad Tiwari (PW-4) has riot supported the case of the prosecution and has been declared hostiie. In respect oi offence under Section 25 of the Arms Act, she submits thaf'oiA of two seizure witnesses, only one namely Rajendra Kumar Sonkar (PW-5) has been examined by the prosecution but he has.not supported the case .of the prosecution and has been declared hostile. Lastly she submits that the appellant has already remained in jail for about nine months and therefore, if at all he is convicted under Section 324 IPC, he may be sentenced to the period already uridergone by him. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that nature of the injury has not been defined by the doctor though yndisputedly the victim remained hospitalised for about a week where he was operated upon by a surgeon and in fhese circumstances it cannot be said easily that the injury caused to him was grievous in nature. 8. Victim Raju Soni (PW-8) has stated in his court statement that on the date of incident at about 4.30 p.m. when he was near the Purena School, the accused/appellant along with some other persons stopped him and accused Mohd. Kadar asked him that he was regarding himself as a big goon and meanwhile accused/appellant herein came from behind, took out a knife and give a btow on he left side of his stomach and then he ran away fcom the spot. The injuries are also alleged to have been caused by the other two accused persons namely Mohd. Kadarand Mohd. Farukh in the finger of right hand and above he elbow. According to him when his condition worsened, he went to !odge the report. According to this witness, he remained hospitalised for 6-7 days. In cross examination this witness remained firm to what has been stated by him in the examination-in-chief and therefore there appears to be no reason to disbelieve the statement of this witness. Dr. A.P. Padarha (PW-1) who had medically examined the victim on 14.10.1990 and given his report Ex. P-1, has noticed following three injuries on his body: i) Stab injury on the left side of the stomach in the size of 3 x 2c.m. ii) Inci^ed wound on the index finger of right hand in the size of 2 x % c.m. Other injury o.n the same finger in the size of 4 x 14 c.m. Yet aftother injury between the thumb and index finger of the same hand in the size of 2 x % c.m. All the injuries in the finger were skin deep. iii) jncised wound in the fore arm in the size of 5 x % c.m. The injuries are said to have been caused by hard and sharp edged weapon. This witness however has not stated either in his evidence or B :N^!!g.':8afi —^— the report given by him about the injuries being grievous in nature. He has stated that injuries No. 2 and 3 were simple in nature and in respect of injury No.1 he has not stated anything. Dr. J.A. Naqvi (PW- 10) has stated that he had treated the victim after operation and the operation was performed by Dr. Barania and Dr. Mishra. This witness has also not given any opinion in respect of the nature of injury. Ramchandra (PW-2) is the Patwari who had prepared the spot map Ex. P-7. Tulsiram (PW-3) is the constable who had made certain entries in the police record. Jagdish Prasad Tiwari (PW-4) is the eyewitness to the incident but he has not supported the case of the prosecution and has been declared hostile. Rajendra Kumar Sonkar (PW-5) is the witness to the seizure made under Ex. P-14 and P-15 has not supported the case of the prosecution and has been declared hostile. He has stated that no recovery has been made in his presence. Tukaram Soni (PW-g) is the witness to seizure of cloths of the victim made under Ex. P-16. Dr. R.P. Nonhare (PW-7) is the witness who had prepared the bed headticket ofthe victim. Kirti Soni (PW-9) - the sister-in-law of the victim has stated that her brother-in- !aw had come to her house. Station House Officer S.R. Pathare (PW- 11) is the investigating officer who has supported the case of the prosecution. 9. Minute examination of the evidence avaitable on record goes to show that it is the accused/appellant and other accused persons who had assaulted the victim. Record alsb shows that on account of assault made by the accused persons victim had sustained three injiun'es. .However, there ,is n6 evidence on record regarding the nature of •• / injuries as none of the documents shows that the injury caused to the victim was of grievous nature. E^tdence does not reflect that there was any ihtention on the part ofthe accused persons to cause death ofthe victim. There is no report on record to show that the injury sustained by the victim was sufficient to cause death in the ordinary course of nature. In these circumstances, this Court is of the opinion that it would be appropriate to convi6t the accused/appellant herein under Section 324 IPC and not under Section 307 IPC. Similarly, as the witness to -s-_ seizure of knife namely Rajendra Kumar Sonkar (PW-5) has turned hostile and not supported the case of the prosecution, the accused/appellant cannot be convicted under Section 25 (1-B) of the Arms Act. 10. Accordingly, the appeal is partly allowed. Conviction of the accused/appellant under Section 25 (1-B) of the Arms Act is set aside and in stead of Section 307 the appellant is convicted under Section 324 IPC. As he has already remained in jail for about nine months, he is sentenced to the period already undergone by him. However, under the provision of Section 357 of the Cr.P.C. the appellant shall have to pay a fine of Rs. 6000 out of which Rs. 5000 would be paid to the victim. If this amount of Rs. 6,000 is not deposited in the trial Court within a period of six months from today, the appellant shall have to undergo rigorous imprisonment 6f six months. -—— Sd' Pritinker Biwaker Jadge S:l!: ^ / '**»-. llllliti