:i ..<] Tli !1 HIGH ©OURTtW CHHATTISGARH. BILASPUR Cirinainal AimealSo. 365 of 2006 AppeUant ResBondent Jagn.iram S/o Hungaram, Madiya, aged about 30 years, R/o Villa.ge- Marikoder Miripara, P.S. Mardum, Distt. BastarfC.G.) Kersus ~ StatepfChhattisgarh,Through:- Police Station - Mardum, Distt. Bastar(C.G.) Appearance: Shri J.D. Bajpai, Counsel for the appellant. Shri Arun Sao, Govt. Advocate fbr the State. ORAL JUDGaMENT (17.01.2008) SUNIL KUMARSINHA, J. (Ij; This appeal is dh^cted against theijydgment of conyiction aKd order!of sentenee ilated QI.5.20Q6 passed by tUe Sessions J?Adge, Jagdalpur (Bastar) in SessionsTriqlNo.512/2005 wliereby the appellant lias been eonvicted u/s 307 I.P.C.^and. senteneed to undergo R.I. Sor 5 years. (2) The facts of the case are that in the eveningof 04.11.2005 the complainant Botrylarain went to the house of the aGcused and when he was returning, the accused appellant said that he will also accbnipany him and he aGcompanied fhe Goniplainant; The allegations are that on the way the accused appellarit inflicted injuries to the coinplainant with the help of an Axe (Tangia) on which the complainant became uncoriscious. When he regained consciousnesS he hidden himself in to the bushes and remaihed there for whole of tUe night. In the next morning, Sanni Bai saw him and^then he was brought to his house with the help of villagers. Thereafter, a report Ex^P. 1 was lodged in tKepolicesfationori 05.11.2005 at about 17.00 hburs. DUrin|g th^ course1 of investigation, the Axe (Tfcing'ia) was seized und^r Ex.P.2. ' Plairt soil and blood sfained soil were seized ^und^r ''r :;. \ • V - \- ^ 1:-\:. .' :.':. :. ' :::.:::..' •i'^:. :H Ex.P.3,; The mctiin ,was serit lor medical examinatioh tja :Cclmmuiiity Health Cefafer, Lahodiguda iJinder requisNon --—° T; ^; F/".:; i ~ '. u~~\ v' SSSs's^M^&^sv^M^ i;BtS ia:: Cr.A.No.365/20B6 Ex.j:l;5 where he was fixamined by Dr.C.Maitri (P.W.5) who pre^ared his reporttEx.P.5-A. The seized axe was sent for its examination to the concemed Doctor uhder Ex.P.6 along-with sonie query about the nature of injuries, on which a report EX.P.6-A was received. According to the report, the injuries could be caused by the Axe and there was also a possibility of danger to life. About tbfi blood like stains on the axe, the Doetor stated that they may be human blood, which requires chemical exainination etc. According to the medical report, the victira has received one lacerated wound on the right hand. There was also a contusion bn'that hand and there was fracture of bone. There was a coritusion at the nose which was in size of 3cm x %cm x l/i cm. There was anbther contusion below the left eye in size of 2cni X % cin. A contusion was on the inid^dle occipital region in size of 5cm x 2cm x IVs cm. There were 3 contusions at the upper back below the neck in sizes of Scm x lcmx 1/2 cin, 4cm x 1 '/a cm x lcm and 3cm x lcm x % cm respectively. There was. a contusipn at the middle of rigUt seapula in size of 3cm x 2Gm x lcm. There was anQther contusion in size Qf 1.5cmx lcm x lcm. Another contusion was found in the left scapular region in size of SGIU x lcm x lcm. According to the report, aU these injuries were caused by hard and sharp object within a duration of 24 to 48 hours. Injury nos.l and 3 (head injuries) were grievous in nature. And other injuries were siniple injuries. f' . . ~ ' (3) After completion of the mvestigation the charge sheet was filed in the Court ofJudicial Magisto-ate, First Class, Jagdalpur, who in turn committed the case to the Sessions Judge, Jagdalpur, who after eonducting the, trial, convicfed and sentenced the appellant as aforemehtioned. 1 (4) Leamed counsel for the appellant argues tUat though it has been deposed by the complainanf Bomdaram (P.W.l) that he was assautted by Axe (Tangia), but he has not specifically stated that as to'whichpart pf the axe was usgd by the afficysed In assaulting him. He also argues that the Doctor has deposedl that there were incised woiands on the body of injiired fact there is no i!iention''regardingincis^dwoundsinthe laut^ui iWHBy Y repdrt (Ex.P5A) and according tp the report, all the iAjunes ..,,.,A.--4S,,—>-.. Cr.A.No.365/2006 caused to the victim appear to be contusions. He also argues that Dr.C.Maitri (P.W.5) has deposed in para 2 that injuries no.l and 3 were of grievous nature but no reasons have been assigned for the same. He draws the attention offhe Court that the doctor has deposed that all the injuries were caused by hard and rough object, whereas in his injury report he has mentioned that injuries were caused by hard and sharp object. He mainly argues that it does not appear that there was any intention to cause death ofthe victim, therefore, an offence u/s 307 IPC would not be made out. i (5) On the other hand, leamed State Counsel opposes these arguments. • (6) To appreciate the arguments of counsel for the respective parties, I have perused the records of the Sessions Case. P.W. 1 Bomdaram (complainant) has deposed that on the fateful day, he had gone to the house of accused appellant for the purpose of smoking. The accused appellant provided him Ere to light the Bidi, thereafter hesaid that he will also accompany him. On the way, all ofa sudden, the accused attacked him by axe [Tangia) due to which he sustamed serious injuries on his back, nose, right hand etc. He became unconscious and fell down on the spot. After some time, he regained consciousness and hidden himself in the nearby bushes because the accused was searching him to again assault him. He remainedin the bushes for whole of the night and in the next inoming he went to the field of Sanni Bai. Other persons also gathered there. Vide para 2, he deposed that thereafter Jairam, Karia, Budhu, Boti and Besu took him to hospital for his treatment and from hospital, these persons went to police staUon where they lodged report. He has deposed that he was in the hospital for 8 days. Though this witness has been put'to a lengthy eross examination, but nothing material has been brought on record against his testimony which shows complicity of the accused in crime in question. As far as the evidence of assault is Concemed, it is supported by the evidence ofDr.C.Maifri ^'.W.5) who prepared injury report Ex.P-SA but there is a eontradictioi'i in fhe evidence before the court and injury report becaus^ iri fais; injiuy report, he has not mentioned about any incised wounidi \^ llffil-1 1^'i Gl\A.No.365/2006 i^eeiyed tey the vic'tim whereas m his court statement, he has d^lSsed about the incised wounds received by hiin. In deposition, the placement and size of injuries are the same Which are mentiQned m the injury report but in the injury report, the word "contusion" has beeh inentioned whereas in his coT-trt evidence the word "Kata Ghao" (cut injury) has been deposed whichmeans t],ie incised wound. In para 2 of his evidence, he has deposed that injuries no.l and 3 were grievous injuries but all fhese injuries were caused by hard and rough object, whereas if we look into the injury reporitgiven by the Doctor, it would appear thafi the injuries were shown to be caused by hard and sharp object. Therefore, it appears that there is mistake in understanding the nature and kind of injuries and in the opinion of this Court, in such a situation the injury report ofthe doctor cannot be considered or relied on for determining the nature of injuries and only support which can be taken froinsutehevidence is that some injuries were received by the victim and those injuries were examined by this doctor, but there is no definife opinion about the nature and kind 6f thoseinjuries. As far as mention about the fracture is concemed, there is no X-Ray report in this regard. (7) In the matter of Sciriu Preiscid-Vs- State of Bihar. AER 1965 SC 843. the Apex Court held that in order to bring the offence home-to-accused, the prosecution must establish that his intention was one of the three kinds meniioned in section 300 I.P.C. The state 6f mind of the accused has to be deduced froin surrounding circuinstances and motive would be a relevant circumstance and where the evidence is not sufficient to establish with certainty, existence of requisite interition or knowledge of accused, the accused c&n be eonvicted only u/s 324 and notu/s 307 IPC. (8) The Apex Court further held in the matter of Hari Ktshun & State of Han/ana—Vs-Sukhbir Singh and others, AJR 1988 SC2127tha.t u/s 307 IPC, what the court has to |see is, wfaether the act UTespective of its result, was done wi|h thej intention or knowledge and under circumstances menfiohed ih; that section. The intention or knowledge.of the accused niust l3e| such as is neeessary to constitute murder. Without ttas) BI!S aii; WiK« il;H; tt'i-:' ••;; '^"l;y;M8i8i£9 ';:i; •Al?*sll—y'&;; !ilt^^ -T-LJ'-" :< - il' :*1^-^ ?^-^i^)±¥l^. •B III Bl &„.. ' :1 1 1 ~"i8S}l>, Y^ y s m:n ^ 4 \ !l'l!t /Sao/ Cr.A.No.365/2006 ingredient being established, there can be no offence of ''attempt to murder". U/s 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not inerely froin the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity 6f the blow, the part ofthe body where the injuiy is inflicted are some of the-factors that may be taken into consideration to dete.rmine the intention. (9) In the present case, if we examine the evidence of victim as also the doctbr, in light of^the evidence of dQctor, it cannot be said that the injunes caused to the victim were either dangerous to life or the accused was keeping an intention fo attempt fhe life ofthe victim. The evidence on record would show that the accused appellant has voluntarily caused hurt to the yictim by dangerous weapon by inflicting the above injuries and neither his intention nor his knowledge to attempt the life of the victim can be gathered from the facts and Gircumstances of this case and an olferice u/s 307 woiild not be made but in this case and the offence made outwould be u/s3240fI.P.C. (10) In the result, the appeal is partly allowed. The conviction and sentence awarded, to the appellant u/s 307 IPC are set aside. Instead, he is convicted u/s 324 IPC and sentenced to the period already undergone which comes about 2 years, 2 months and 10 days as the appellant is injail since6.11.2005. He be se't af Uberty forthwitU ifnot required in any other case. Ordered accordingly. Sd/- SunilKumar Sinha Judge