APPELLANT: HI©HCOURT OF CHHATHSeARH. BILASPUR Criminal Appeat No.130 of 2006 Arun Potel RE5PONDENT: Versus 5tate of Chhattlsaarh Post for oronwnoementjof lujclQment on ^'? October, 2008 Sd/- T.P. Sharma Judge ^ 'cf APPELLANT: RE5PONDENT: H1@H COURT CT CHHATTESBARH. BILASPUft CnminaJ Appeal No.130 of 2006 Arun Patel, aged 18 year^s, S/o Harisingh Pate!, R/o Itwa'-i Bazaar, Bir^aon, Ur-ia, Raipur (C.©.) Versus State of Chhattisgarh, ThrouQh P,S- Khamtarai, Distt. Roipur (C.Q.} (Apped under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr- Utkarsh Verma, courssel for the appellant. AAiss Sangeeta AAishra, Panei Lawyer for the State/respondent. Sinole Bench: Hon'ble Mr. T.P. ShGrma. J JUD6MENT {Delivered on _l_^>bctober, 2(X)8} 1. This appea! i^ directed against the Judgment of conviction & order of sentence dated 3-2-2006 by the 8 Additjona! Jydge, Raipur in Session^ Trial No.225/2005 whereby lecrned Addltlonai 5essions Jud9e ofter hoiding th© accused/appeliont 9uilty for commEssion of offence under Section 326 of 1tie I.P.C«,sentenced him to undergo R.I. for seven years <& pay G fine of RslpCX)/-, in default of payment of fine to further undergo RJ. for three months. 2. The judament is challenaed on the ground thot without QW credible evidence, 1+ie Court bebw has convicted & sentenced the appellant as aforementioned. 3. I have heard learned counsel for the pcrties and perused the impugned judgment as also the record of the trial Court. 4. Case of the prosecution, in brlef, is that on 5-4-2005 ot about 10-11 p.m. Dharmendra Kumar (PW-2), friend of the accused, aiong with the accused went to hote!, they took tlffin in the hotel and while they were returnin9 from the hotel, complaincnt Dhcirmendra KumQr i^as rldiriQ the cycle and the accused was sittin9 on the carrier of the cycie, when they ^ere cro^sinq RQVcbhoto, the accused csssaulted the comploinant ^ith hands & fists. The compidriiant fell doi^n. Thereafter, the accu^ed took ovt hi^ knife and assaulted ov^r csbdomen <& back of ;^ .-^T^ @ l>.--fsp'~- ~% 1 1"^CJJJ \.: ^./ '^^^^^t^ the compldnant and caused fiye injuries, Biood started oozing out of the injurie^. The complainant lodged the first information report withjn four hours of the incident vide ExP-5. He ^as sent for medical examinatlon to Dr. B.R. Ambedkar Memorlai HospItGJ/Rolpur where he i^as ©xaminedby the Dr. S.B. 5<so (PW-8) vide Ex.P-11. The doctor found one injyry i^ound over abdomen and five stob injuries over back. Bbod was comin9 out of the injyries, The complainQnt was shifted to th©Deportment of Sur9ery. Picijrs soiE <& bbodstdned sojl were ^eized from the spot vide ExP-1. The accused was taken into custody. He made discbsure statement regarding the knife vide ExP-2 and at his instance secrch wos mctde in the river, bvt knife was not found, Panchnama to this effect was prepared vide Ex.P-3. Bbod stalned clothes were seized from the occused vide Ex.P-4. Spot map was prepared vide Ex.P-7. Bioodstdned & cut cloth was selzed from ttie compidnant vide ExP-6. 5eized articles were sent for chemicQi anaiysis to the F.S.L,, Raipur vide Ex.P-9 arsd same were received by the F.S-L. vide acknowiedgement receipt Ex.P-10. Fracture of spines process & lamina of D9 & D8 vertebra were noticed vide Ex.P-12. 5, After r©cordin9ttie statements undsr Section 161 of the CrP.C. ond compieting the investi9ation, charge sheet was filed in the Court of Judicial Ma9istrate, First Class, Raipur, who in turn, committed the case to the Court of 5essions Jsjdge; Ralpyr from where le-arned 8 Addltlonal Judge, RQlpur, received the case on trarKsfer for trial. 6. In order to prove the 9uiJt of the accused, the prosecution hos exomined as many GS nine witnesses. Statement of the accused was recorded under Section 313 of th©CrP.C. in which he denied the circumstances appearing against him, pleoded inrsocence and fate©implication. After affordin9 the opportunity of hearin9 to the parties, iearned trial Court ha5 convicted & sentenced the oppeiiant as crforementioned. 7, Leorned counsel for the appeJlant ar9ued that at the time of incident, 1fie csppeliont & the compldnant went to9ether to hotel where they took tiffin and they returned from the hote! in one cycie. It 3hows that there wos TO enmity between the accused & the compiainant or there was no cause for th©accused to cause any injury to the compidnctnt, thGt too fatal <& dangerous injuries. The prosecution hos not established the motive of 1+ie offence. The appellant is aqed obout 18 years and the prosecution has not shown any previous track record of ^^3SS!]^. ^ the Qppeliant or previous conviction aaainst him. Even in cose of conviction, the appeilant is entitted for the benefit of the Probotion of Offenders Act, 1958. 8. On the other hcnd, the jud9ment Is supported on behalf of the State/respondent and it is submitted that complainant Dhormendra Kumar (PW-2) hos cate9oricQlly 3tated that he was assauited by the appeiiont ond the Qppeliant has caused dan9erous injuries. The prosecutlon has Qdduced sufficient evidence against 1tie appelJQnt. 9. Injuries over the body of the complainwt are not much dlsputed by the appeltont, other^ise, same are proved by Dharmendra Kumar (PW-2), Banke Biharli (PW-4), &r. S.B. Sao (PW-8) <& &r. Anonci JayoswGi (PW-9). Dhormendra Kumar (PW-2) hcis stated that he WGS assauited with knife over obdomen & back, He iod9ed the FJ.R. vide ExP-5 and he was admitted in the hospital where he was examined & treated by the doctor. Hi5 version has been supported by his father Banke Bihari (PW-4). Dr. S.B. Sao (PW-8) has stated that on 6-4-2005 at about 4.15 a.m. he has excimined comploinant Dhormendra Kumar vide Ex.P-11 Qnd found one stob wound hcsvinq sufficient depth over abdomen & five stab wounds on back. Blood was coming out of the injurie^ and the compiainant was immediQtely shifted to the Department of Sur'^ery^ The injuries wer-e caused by hcrd & shorp object. Dr. Anand Jcyaswal (PW-9) has stoted thot on 3-5-2005 he conducted C.T. scan of DharmendpQ and found fracture of D-8 & D-9 ribs vide ExP-12. In view of the above evidence, it is ©stabiishedthat DharmendrQ Kumar received injuries Gt the time of incident over his abdomen <S bock which were cQused by hard & sharp object and the injuries were gri^yous in nature. 10, In order to ©stablishcomplicity of the accused in the crime in auestion, the prosecytion has adduced ocular & medical evidence. Dhcrmendra Kumar (PW-2) has stated in his ©vidence that on the fatefui day ot about 10-11 p.m. the QppeJtant ccsme to him and told to accompany him up to Banjari, he went along with the QppeJlant to Banjcri by cycle, they took tiffin and while they were returning from Banjari, he was driving the cycle, the appellGint was sitting on the carrier of the cycle and the appeliont assaulted him with fists & kicks. He fell down. Thereofter, the oppeilant a9dn assauited him. When he asked for the reason, the QppeilQnt said that "you hove asked for CD and quarrelied" that is why he is assQultir^ him. The appellant assaulted the complainant with the help of a knife over his abdomen <& ssde of chest ond caused six repeated injuries on his back. ^UWt ^HfV' He fell on the land whereupon the appeltont ran owoy. After some time, the appeliant flQain came to the place of incident and finaJly h@ fled Qway from the spot Thereafter, the compiainQnt narrated the incident to one stranger and requested the stran9er to inform his porent^, whereupon his father <& mGternai uncle came to the spot and took him to PoJice Station Urla where he iodged the report. Thereafter, he was shifted to the hospitd! and hls cbthe$ were seized vide Ex.P-6. 11. Arun Kumar Parihar (PW-3) has stated in his evidence thGt prior to the incident he has seen the cypellant <& the complainant together. Banke Bihori (PW-4), fother of the complainant, has supported the version of the complainant. 12. Defence has cross-examined the compldnant ot len9th. The complainant has admitted the dispute with the appellant on the 9round of some CD, but in his detaiied cross-excanination, defence has not been cdble to eficit anythin9 to discredit his testimony. Tt^e complainQnt has cQtegoricQlly stated 11hat ftrstly, the appelSant took him to hotel ond afterwards he repeatedly assauited him with knife and caused more than six injuries over his abdomen & back. His version is supported by the evidence of his father Banke Bihori (PW-4) and aiso by the medicai evidence of Dr. S.B. 5ao (PW-8) & Dr. Anond Jwaswal (PW-9). He has lodqed the F.I.R. promptly within four hours of the incident vide Ex.P-5. His evicience inspires confidence ond same is trustworthy. C?n the basis of his evidence leorned triQl Court has convicted the oppeliant for commission of offence under Section 326 of the IP.C. Conviction of the appellant is sustainabie under iaw. 13. As re9ards the question of sentence, it has been orgued on behalf of the oppeilant that the appellant is oged about 18 years ond the offence took place on the basis of a trivial dispute of C&. No previous trock record or bad conduct of the accused hofi been produced by the prosecution Qnd ttiis is his first offence. Therefore, the oppeliant is entitled for the benefit of Section 3/4 of tirie Probort-ion of Offenders Act, 1958. 14. In this case, the flppellont has caused repeated injurles with knife over Qbdomen <& bock of the complainant. The Qppeilant took the compidnant towords Ravabhata, which is cs loneiy pSace, with intent to caus©injuries and he cciused multiple injuries on the body of the compiainant. When the compJQinant feil dcwn, the appeSlant thought that the complainant hos died, then he fled Qway from 1tie t 1 T ^ 1»»' Soma spot. The triai Court has convicted the appeliant under Section 326 of the I.P»C. ond sentenced him to R.I. for seven yeors <& pay a fine of Rs.lWO/-. The appeilont is in custody from 6-4-2005 and he hos completed more than 3 i- years of jai! sentence. At the time of incident the appellant was aged about 18 years. The incident took place on a trivial 9round of CD dispute. Tbe doctcr has not deposed that the injuries were fatol or dan9erous to life, even the doctor has not stated about depth or size of the injuries. After receiving the injuries, the complainant was left unattended at least for more than 4 hours and thereafter, he was admitted to the hospital. This also dhows thot the irvuries were not so serious and sufficient for causin9 death in absence of proper trecrtment in time. TQking into consideration the age of the cippellant csnd the injuries caused by him on a trivial dispute, I om of the opinion that the sentence imposed upon him is disproportioncite to the act attributed to him. 15. Consequently, the appeai is portly aibwed, Conviction of the appeilant under Section 326 of the IP.C- is maintained. However, his sentence is reduced to RJ. for four year^ & fine of Rsl.OOO/-, in default of poynient of fine to further1 under9o RJ. for three months, instead of R.I. for seven y©ars & fine of Rs.l,CXX»/-. The appeilant is in custody from 6-4-2005 and he has completed more than 3 ^ yeors of iail sentence, same isdirected to be treated as set off. Sd/- T.P. Sharma Judge