-s ^^1 'r ^ ^^w".^ ^•y ^v6? c^- "^^ v^^ s:<^nf-l IN THE HIGH COURT OF CHHATTISGARH AT BILAS_PUR_(C.GJ CRIMINAL APPEAL NO,S /^QF 2007 APPELLANT (IN JAIL) s^^^ ..^CZS;'^ -•"•^9"° yy- ^t JC^s^-v Sunil @ Raju Dubey Son of Shri Ghanshyam Dubey, aged about 28 years; Resident of Sarju Bagicha, Masanganj, Bilaspur, Police Station Civil Lines, Bilaspur District Bilaspur (C.G.). VERSUS State of Chhattisgarh, Through: The Police Station Civil Lines, Bilaspur, District Bilaspur, (C.G.). CRIMINAL APPEAL UNDER SECTION 374 f2) OF THE COD^_OF CRIMINAL PROCEDURE, 1973 RESPONDENT ^^^ A.P^ ^r HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No.817 of 2007 APPELLANT Sunil @ Raju Dubey versus RESPONDENT State of Chhattisgarh Shri Ashok Dixit, counsel for the appellant. Shri Praveen Das, Dy. Government Advocate and Shri Arvind Dubey, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (20-11-2009) This appeal is directed against the impugned judgment dated 6-9-2007 delivered by Additional Sessions Judge, Bilaspur in Sessions Trial No. 165/2006 convicting the appellant/accused for the offence punishable under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 7 years and pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for1 month. 2. Facts of the case in brief are that F.1.R. (Ex.P-7) was lodged by injured Ranu Gupta (P.W.-9) on 16-2-2004 alleging in it that on 16-2- 2004 the present accused Sunil @ Raju Dubey along with Surendra came to her house and told her that the accused's father is calling her. It is stated that thereafter the complainant Ranu Gupta (P.W.-9) accompanied the appellanVaccused and went to his house. It is further alieged that the complainant stayed in the house of the accused Sunil @ Raju Dubey in between 7 P.M. to 11 P.M. and thereafter she was "V -^- locked in the room and the acquitted co-accused persons namely Smt. Savitri Dubey, Reena Dubey and Mithlesh Dubey asked her to leave the company of the appellanVaccused Sunil @ Raju Dubey and thereafter the appellant/accused assaulted her with the help of a knife resulting 4 injuries on her person. 3. So as to hold the appellanVaccused Sunil @ Raju Dubey guilty, the prosecution has examined as many as 10 witnesses. The appellant/accused entered the plea of his innocence. Challan was filed against four accused persons and all of them were prosecuted for the offence under Section 307 read with Section 34 of the Indian Penal Code. However, by the impugned judgment the three co-accused persons Smt. Savitri Dubey, Reena Dubey and Mithlesh Dubey have been acquitted by the learned Court below whereas the appellant/accused Sunil @ Raju Dubey has been convicted for the offence under Section 307 ofthe Indian Penal Code. 4. Heard learned counsel for the parties and perused the materiat available on record including the impugned judgment with utmost circumspection. 5. Learned counsel for the appellant/accused submits that F.1.R. (Ex.P-7) was lodged on 16-2-2004 at about 11:30 P.M. whereas as per the own showing of the complainant Ranu Gupta (P.W.-9) she was in the house of the appellanVaccused from 7 P.M. to 1 1 P.M. He submits that immediately after sustaining the injuries, the complainant had gone to the hospital and, therefore, under no circumstances report could be | lodged at 11:30 P.M. He further submits that in the F.I.R. thumb impression of the complainant was obtained whereas in the hospital in the declaration form the complainant had put her signature. He further submits that the conviction of the appellant/accused is based on the statement of Smt.Sharda Sarraf (P.W.-1) whereas the statement of this witness is wholly unreliable. Learned counsel submits that as the complainant Ranu Gupta (P.W.-9) is a woman of easy virtue, her character becomes doubtful and, therefore, her statement cannot be relied upon. He also submits that Dr. Jawaharlal Shrivastava (P.W.-3) has categorically stated that when he had examined the complainant there was one stitched wound on the stomach of the complainant and he could not give any opinion about the said wound whereas it was the same doctor who got the wound stitched and who could give opinion. He also submits that Dr. N. Mandal (P.W.-4) has categorically stated that he had not given any opinion about the nature of injury in the report Ex.P-6. Lastly, it has been argued by learned counsel for the appellanVaccused that even if the entire case is taken as it is, at best the offence under Section 324 of the Indian Penal Code is attracted and as the appellant/accused has already remained in jail for about 17z years, he be acquitted forthwith. 6. On the other hand, learned counsel for the State/respondent supports the impugned judgment and submits that the injured complainant Ranu Gupta (P.W.-9) has categorically stated in the Court the brutal manner in which she was assaulted by the appellanVaccused with the help of the knife. The complainant has stated that she was intentionally called by the appellant/accused in his house which goes to show that the intention of the appeIlanVaccused was to cause her death. The complainant has further stated that she and the appellanVaccused got married in Ratanpur Temple about 3-4 ^- years back but the appellant/accused after some time left her and wanted to get rid off her. Learned counsel also submits that on account of the assault the complainant had suffered as many as 4 incised injuries on her chest and stomach and in this regard report Ex.P-5 has been submitted/by Dr. N. Mandal (P.W.-4). He further submits that Dr. Jawaharlal Shrivastava (P.W.-3) has categorically opjned (Ex.P-2) in the query put to him by the investigating officer that the injuries sustained by the complainant were dangerous to life in the normal course of nature. Learned counsel further submits that the complainant was assaulted at 10 P.M. which is clear from the F.I.R. She lodged the F.1.R. at 11:30 P.M. and at 11:45 P.M. she was medically examined. According to learned counsel for the State/respondent, there is no anomaly in the case of the prosecution and the distance between the concerned police station and the hospital is negligible. He also submits that putting of thumb impression by the complainant in the F.1.R. would not render the prosecution case worthless and it could be because of serious condition of the injured complainant where she was not in a position to sign the F.1.R. Moreover, no such question was put to the investigating officer. Learned counsel for the State/respondent further submits that the statement of Smt. Sharda Sarraf (P.W.-1) which has been doubted by learned counsel for the appellanVaccused does not make any difference in the case because even if the complainant was a lady of easy virtue, no one has any right to assault her in such a heinous and brutal manner. Lastly, it has been argued that looking to the | seriousness of the case, the impugned judgment convicting and ^s.. -^- sentencing the appellanVaccused, as mentioned above, is just and proper. 7. After undertaking a wide survey of the material made available to this Court, it is discovered that the complainant and the appellant/accused had an affair with each other. On the date of incident, the complainant was called by the appellant/accused in his house where the appellant/accused and other family members asked the complainant to leave the company of the appellant/accused and thereafter she was brutally assaulted by the appellant/accused. Dr. N. Mandal (P.W.-4) had examined the complainant and found the following injuries on her person: (i) Incised wound 1cm.x1/2cm.x1/2cm. on right iliac fossa (ii) Incised wounds 1cm.x1/2cm.x1/2cm. in lunbo sacral (L.S.) region, two in number (iii) Incised wound 1cm.x1/2cm.x1/2cm. on sacral region (iv) Incised wound 1cm.x1/2cm.x1/2cm. on right side of back of chest The aforesaid injuries have been supported by Dr. Jawaharlal Shrivastava (P.W.-3), who has categorically stated in his query report (Ex. P-2) that the injuries caused to the complainant were dangerous to life in the normal course of nature and death was possible if the complainant could not have been treated. It is clarified by Dr. Jawaharlal Shrivastava (P.W.-3) in the report (Ex.P-1) that the injured complainant was hospitalized on 16-2-2004 where she was operated and her gall bladder was also removed. From the report (Ex.P-1) it appears that one incised injury was also found on the corresponding abdominal wall ofthe complainant. ^ &ti'. -6- 8. To convict an accused under Section 307 of the Indian Penal Code what is necessary to keep in mind is the distinction between the act of the accused and its result, if any. It is not essential that bodily injury inflicted on the victim should be capable of causing death. If the act was done with the intention or knowledge and under circumstances mentioned in the section, the same is sufficient for conviction of the accused under Section 307 of the Indian Penal Code. In the case at hand, the incident took place in the house ofthe appellant/accused, the complainant was called by the appellanVaccused with some ulterior motive and the manner in which she was assaulted by the appellanVaccused itself speaks the intention of the appellant/accused. The injuries were very serious in nature from which the only thing which can be gathered is that there was every intention on the part of the appellant/accused to kill the complainant. It is not to be ignored that a young lady aged about 28 years was caused stab injuries on her chest and stomach and was left to live her whole life with the damage caused due to the injuries. Gall bladder of the complainant was removed at her young age on account of the injuries caused by the appellanVaccused and in no circumstances this can be termed as a pardonable act ofthe appellanVaccused. 9. Thus, the overall evidence available on record including the medicalone renders this Court unable to accept the submission of learned counsel for the appellanVaccused for conversion of the conviction from Section 307 of the Indian Penal Code to Section 324 of the Indian Penal Code. VL-— 1^ -7- 10. Accordingly, conviction part of the impugned judgment being just and proper is not required to be interfered with. As regards the sentence imposed on the appellant/accused; the prayer made by learned counsel for the appellanVaccused that looking to the young age of the appellant/accused the same be reducedcannot be accepted in view of the brutal act done by the appellant/accused. 11. I find no substance in the appeal which is accordingly dismissed. Sd/- Pritinker Diwaker Judge Gopal