•,t?r •^ r-'^'fc^^1';, HiGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeai No.S14 of 2008 APPELLANT: Vikash @ Vicky Versus RESPONDENT: State of Chhattisgarh AND Criminal Appeat No.881 of 2008 APPELLANT: RESR3NDENT: Badal @ Sughan Versus The Siate of ChhatUsgarh -f^ Post for Dronouneement of iudament 6n 1 ~b November, 2008 Sd/- T.P. Sharma Judge p?r nin^m -• '"», I? t: tit-^ APPELLANT: (!n Jai!) RESPONDENT: APPELLANT: (inJail) RESPONDENT: HIGH COURT OF CHHATTISGARH, BILASPUR Cnminal Appeal No.514 of 2008 Vikash @ Vicky, S/o Sahinder Rai Yadav, aged about 22 years, R/o fiamdtpw, Beena Shanhpur, Patori, Distt. Samastipur (Bihar). Versus State Qf Chhattisgarh, through the Police Station Dharsenwa, Distt. Raipur (C.G.) AND Criminai Appea! No.881 of 2008 Badal @ Sughan, S/o Shh^arasad Meravi, aged about 21 ysare, R/o Wtege Boriya, Police Station Bodla, Distt. Kabirdham (C.G.) Versus State of Chhattisgarh, Through P.S. Dharsiva, Distt. Raipur (C.G.) »[^w;»JKa»-»K&^ (Criminai appeats under Section 374 (2) ofthe Code ofCriminal Procedure, 1973) Present: Cr.A.No.SI4/2008 Mr. Malay Kumar Bhaduri, counset forttie appeliant. Cr.A.No.881/2008 Mr. P.K. Varma with Mr. Vimal Tondey, counsel forthe appeliant Mr. Pankaj Shmastava, Panel Lawyerforthe State/respondent. '^"SSktei Singte Bench: Hon'bie Mr. T.P. Sharma, J JUDQMENT (Detivered on 18'^Movember, 2008) 1. Cr.A.Nos.514/2008 & 881/2008 have been prrferred against the common judgment dated 26-4-2008 passed by the 10*^ Additionaf Sessfons Judge, Raipur, in Sessions Tn'al No.139/2007, therefore, they are being disposed of by this common judgment. 2. By these two criminal appeals, appettants Badal @ Sughan & Vikash @ Vicky have challenged legality & propriety of the judgment of conviction & order of sentence dated 26-4-2008 passed by the 10th Additional Sesslons Judge, Raipur, in Sessions Trial No.139/2007, whereby teamed Addittonal Sesstons Judge after hotding the appetlants guilty for commission of offence under Secttons 458 read wth SecUon 34 & 459 read wHh Section 34 of the I.P.C., tlllil '•H^." ''•--:!•("' 2 ':!'i:-.i3=eus^''' 0 sentenced each of fcem to undergo R.t. for tive years & pay a flne of Rs.200/-, in default of payment of flne to further undergo R.l. for one month, on both counts. 3. The Judgment of conviction is challenged on the ground that without being any sufRcient material to convict the appetlants, the Court below has convicted & sentenced ttiem and thereby committed iltegality. 4. Case of the prosecution, in brief, is that Nagina Prasad (PW-7), who was working as Watchman in Harivishnu Factory, Siltara, was residing in the factory quarters atong with Shrawan Kumar who is a labour. On 4-3-20)7 (intervening night of 3-3-2007 & 4-3-2007) injured Nagina Prasad (PW-7) & another injured Shrawan Kumar were sleeping in the room of main gate of the factory, at about 3 a.m. Ihey felt some disturbance i.e. entering of some persors whereupon they saw that accused Vikas Yadav, Dashrath & Dadu, who are residents of industrial area, were present inside the factory for commitUng theft, they assaulted Nagina Prasad & Shrawan Kumar by heavy wooden club & rod and caused injuries over their heads, hands & other parts ofthebody. Ther^ftsr, the accused persons fled away from the spot. The accused persons also took their mobile & snatehed Rs.430/-. Nagina Prasad lodged the report vide EX.P- 7 and on the basis of Ex.P-7, F.t.R. Ex.P-8 was registered. Both the injured were sent for medical examination to Community Hearth Cenb'e, Dhariswa. Nagina Prasad was examined by Dr. R.K. Chandravanshi (RW-1) vidte Ex.P-1 and following injuries were found over his body: - (i) Two lacerated wounds of 6 cms, x 2 cms. and 3 cms. x 1 cm. over fronto parietat area of head, blood was present; (ii) Lacerated wound of 3 cms. x 2 cms. over left mawtlary area, biood was present; pii) Lacerated wound of 1 cm. x 1 cm. above left eye, blood was ^esent; (iv) Lacerated wound of 3 cms. x 2 cms. over left tempo parietal area; (v) Lacerated wound of 5 cms. x 2 cms. over teft shoulder, bone was visible; (vi) Lacerated wound of 1 cm. x 1 cm. over right elbow; & (vii) Bteeding from the nose. The doctor advised for X-ray of Nagina Prasad. He also examined another injured Shrawan Kumarvide Ex.P-2 and found following injurias: - (i) Pain & sweiling over right forearm, movement was restricted; (ii) Lacerated wound of 1 cm. x 1 cm. over right wrist; (iii) Abrasion of % cm. x % cm. over micklle flnger of r^ht hand; (»/) Movement of right elbow was resfricted; & M Lacerated wound of 2 cms. x 1 cm. over left side of fece. ^ -A ET •t'-^. '; !>• •*'K" •:t"^^SS^s^^, The doctor advised for X-ray of right elbow of Shrawan Kumar. X-ray of ieft hand & right hand scapula of Nagina Prasad was taken by Dr. Vivek Keshari (PW-2) vide X-ray plates Ex.P-3A. Fracture of left humems & right scapula bones of Nagina Prasad was found vide X-ray report Ex.P-3, but no bone injury was found over the body of Shrawan Kumar vide X-ray plates Ex.P-4A and X- ray report Ex.P-4. One Babooi wooden piece was seized wde Ex.P-5 from accused Badal. Spot map was prepared by the Investigating Officer vtde Ex.P- 9. Accused Dashrath was absconding. 5. After recording the statements under Section 161 of the Cr.P.C. and after completion of investlgation, charge sheet was flled before the Judicta! Magistrate, Firet Class, Raipur. who in tum, committed the case to the Court of Sessions Judge, Raipur, from where learned 10 Addltional Sessions Judge, Raipur, received the case on transfer for trial. 6. In order to prove the guilt of the accused persons, Uie prosecution has examined as many as seven witnesses. Statemente of the accused persons were recordsd under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence & false implication. 7. After oonclusion of trial and affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & setrtenced the appetlants in the aforesaid manner. 8. ! have heard Mr. Malay Kumar Bhaduri, learned counsel appearing for accused/appellant Vikash @ Vicky, Mr. P.K. Varma with Mr. Vimal Tondey, teamed counsel appearing for accused/appellant Badal @ Sughan and Mr. Pankaj Shrivastava, learned Panet Lawyer appearing on behalf of the State/ respondent. 1 have pemsed the Judgment impugned and the record of the trial Court. 9 Mr. Malay Kumar Bhaduri, leamed counsel for Vlkash @ Vicky, submits that the prosecution has failed to adduce credible and ctinching evidance against the appeliants sufflcient for warrant of conviction. The evidence adduced by the prosecution is self-contradictory. In the report Ex.P-7 iodged by Nagina Prasad (PW-7) and in the F.I.R. Ex.P-8 motwe of offence has been shown as theft. in the requisitions for medicai examination (part of Exs.P-1 & P-2) of the injured persons, the Police has mentioned that there was dispute relating to money between the accused party & the complainant party and as a result of such dispute, the accused persons entered into the factory premises and caused injuries to the comptainant & his companion, The accused persons \ .;; ;;"T"»> ,? ,,r""l:l 't: ' "t '^•s1.^ -£^ 4 ?;»!:l.-a.^A' were not known to the complainant & his companion, but no identiflcation parade has been conducted to identify Uie accused persons. In absence of any identification, statement reWng to identificatfon report after lapse of nine months loses ils importance. 10 Mr. P.K. Varma, leamed counsel for Badai @ Sughan, submits that acct^ed Badal was not known to the complainant & his companion, but no identiflcatlon has been conducted. Evidence of the prosecution wtnesses suffers from iniirmity and material contradiction, not safe for placing reiiance. 11 Learned counsel for the appellants placed reliance in Uie matter of State of M.P. v. Rajaram in which it has been held that in the case of two sets of evsdence contradicting eachother, acquittal ofth®accused is proper. Learned counsel further placed reliance in the matter of Santan Singh & anr. v. State of M.P.2 in which it has been hetd that only presence of motive to commit a crime, shall not lead to the conclusion that in fact the crime was committed. 12.0n the other hand, learned Panel Lawyer appearing on behatf the State/ respondent has supported the judgment of the trial Court and submitted that the prosecution has adduced sufficient evidence for convicting the appeltants. Ewdence of Nagina Prasad who knows the appellante, is sufflcient for warrant of conviction. In the F.I.R. it has been mentioned that the appellants have entered into the factory premises for commitBng theft and same thing has been stated by Nagina Prasad (PW-7) in his evidence before the Court. The accused persons are known to the complainant & his companion. 13 As regards the injuries and their nature, same has not been disputed by the defence, otherwise, it is estabtished bythe evidence ofNagina Prasad (PW-7), Gaurishankar Deshmukh (PW-3), Narendra Mohan Kumar (PW-4) & Dwarika Prasad Shrivas (PW-S) who have stated that at the time of commission of offence, Nagina Prasad & Shrawan Kumar were injured and they have seen them in injured condition. Dr. R.K. Chandravanshi (PW-1) has stated in his evidence that on 4-3-2007 at about 8.05 a.m. he has examined Nagina Prasad and found the injuries as mentioned in Ex.P-1. He has atso stated that on the same day at about 8.15 a.m. he has examined Shrawan Kumar and found the injuries as mentioned in Ex.P-2. Dr. Vivek Keshari (PW-2) has stated in his evidence that he has conducted X-ray of Nagina Prasad and fracture of left humerus & rightscapula bones were found vide X-ray report Ex.P-3. but no bone injury was found over the body of Shrawan Kumar vide X-ray report EX.P- 4. in view of the above evidence, it is established that at the time of the 1'1985 MR/tfN 175 2 2001 (2) MPU (13) ,,.-j;:j!»dty^ .•f'tl^\l '.\ i ,;Es;-^t ti5*»i. ^:^^^-. alleged incident more than nine injuries were found on the body of Nagina Prasad along with fracture of two bones and flve injuries were found on the body of Shrawan Kumar, injuries found over the body of Shrawan Kumar were simple in nature, but the injuries found over the body of Naglna Prasact were grievous in nature. 14.As regards complicity of the accused/appellants in the crime in question, Nagina Prasad (PW-7), injured witness, has stated in his evidence that on the fateful day he along writh Shrawan Kumar was sleeping in factory premises, at about 3 a.m. some persons jumped the wall of the factory and entered into the factory premises, they were accused Dashrath, Vicky & Badal, they were hotding wooden piank & iron rod and they caused injuries over their head & hand. Both the accused/appeltante assaulted them and at the Bme of gofng back they snatehed Rs.430/- & mobile from them and ran way. He lodged the report Ex.P-7 and he was sent for medical examination to the doctor. l5.Gaurishankar Deshmukh (PW-3), supervisor of ths factory, has stated in his evidence that Nagina is their watchman and Shrawan is labour, on the fateful day at about 4-4.30 a.m. injured Shrawan came to him and tolcl that they were beaten by 2-3 persons, he saw injury over his head, then he telephoned to the Potice, at that time, Shrawan has neither told the names of the assailants nor he asked him, but afterwards he came to know that they were beaten by Vicky & Badal who were present on the date of examination of this witness in the Coun, Shrawan aiso told him that the accused persons had also assaulted Nagina who was lying inside the factory. He went to the factory to see Nagina, Nagina was in injured condition and btood was oozir^ out of the injury. Shrawan told him that the accused assaulted them with rod. Police came to the spot. 16. Narendra Mohan Kumar (PW-4) has stated in his evidenee that Shrawan totd him that he was beaten by 3-4 persons whereupon he advised him to go to the Police, after some time, the Potice came to the factory and he came to know that Nagina was also assaulted. He has furttier stated that he is not aware that as to who has assautted Nagina & Shrawan, he enquired from them as to who has caused the injuries, Uiey told that at the time of incident it was dark, therefore, they were not in a position to identify fte assailants. He has also stated that Vikas has worked with him, Vikas is resident of Bihar and Badai is working in another factory. 17. Dwarika Prasad Shrivas (PW-5), A.S.I-, hasstated in his ewdence that white he was on duty in Industrial Area, Siltara, he recewed informaUon on 4-3-2007, on which he went to Harivishnu Factory, Siltara where Nagina Prasad todged the r y\ '^ 6 s) ^'"i'ttii. ^\ report Ex.P-7, he took injured Nagina & Shrawan to Community Health Centre, Dharsiwa and afterputting into verification, he sent both the injured for madicat examination and recorded the F.I.R. vide Ex.P-8. He has admitted in cross- examination para 3 that white he was on duty near petrol pump he received information over mobile phone, whereupon he went to the place of incident. He has denied the suggestion that Nagina Prasad has not stated the names of the assailants, but he has admitted that in requisitions Exs.P-1 & P-2 he has mentioned that money dispute was the cause of quarrel, he has also stated that he has mentioned these facte on the basis of the information received from the injured. This witness has recorded the report Ex.P-7 which has been signed by Nagina Prasad who has lodged the report. tt has been specialty mentioned & written by this witness in Uie F.I.R. Ex.P-8 that the accused persons entered into the factory premises for committing the offence of theft. After writing the F.t.R. this witness has also prepared the requisitions Exs.P-1 & P-2 in which he has mentioned that the dispute of money was the cause for causing injury which does not bear the signatures of any of the injured persons. Ex.P-7 has been lodged at the instance of injured Nagina Prasad which contains that the accused persons had committed the offence when they entered the factory premises for committing theft and same is supported by Nagina Prasad (PW-7) in his evidence. It appeare from Ex.P-7 and Exs.P-1 & P-2, requisitions, that this witness {Dwarika Prasad Shrivas (PW-5)}, who was the Assstt. Sub tnspector, has recklessly recorded Exs.P-1 & P-2 that there was dispute of money. No money or mobile phone has been recovered from the accused persons and the Police have not conducted any test identification IS.Nagina Prasad (PW-7), injured witness, has specifically stated in his examination-in-chief & cross-examination ttiat the acci®edwere known to him and they have caused injuiy. He has denied the suggestlon that some unknown pereons have assaulted him and he has also denied the dispute of money with the accused persons. He has also denied the suggestton that instead of watching the factory, he was sie^)jng and when some persons entered into the factory premises for committing theft, with a view to save himself, he has lodged the false report. 19 Gaurishankar Deshmukh (PW-3) has admftted that when he came to know about the injury from Shrawan, he has not asked him that as to who has caused the injury, Shrawan has also not stated him anything in this regard, but after some time, he came to know that the accused persons are Ihe assaitants ~ who have caused the injury. f jy tfj' ^l V. ^ «-/ ..,-dS"a"v 1 ^^] ^^ AT Tli \-- 20. Narendra Mohan Kumar (PW-4) has stated that he asked Shrawan that as to who has caused injury whereupon Shrawan said that at the Sme of incidert it was complete dark, therefore, they were not in a position to identlfy the assailants. This witness has been declared hosttle by the prosecution. In his statement recorded bythe Police (Ex.P-6), he has stated that he came to know at the time of incident as to who are the assailants, but in his Court evidence he has not supported the case. 21.Nagina Prasad (PW-7), who is the injured witness, has specificafly told the names of the assailants to the Police within three hours of the incident, he was badly injured and Shrawan has also received more than five injuries. Nagina Prasad has specifically stated that the appellants entered into the factory premises where he was present and both the accused caused injuries. Injuries caused to Nagina Prasad were grievous in nature. He has no previous enmity in the assailants. Even Gaurishankar Deshmukh (PW-3) has stated that both the persons are of same vicinity and they are not unknown pereons. Evidence of Nagina Prasad inspires confidence and it is trustworthy. The accused persons entered into the factory and assaulted Nagina Prasad & Shrawan Kumar and caused injuries. 22. After appreciating tfie evidence, Court below has acquitted the appellants of the offence punishable under Section 394 read wth Section 34 of ttie I.P.C. and convicted each of them under Sections 458 read with Section 34 & 459 read with Section 34 of the I.P.C. for committlng the offences of lurking house- trespass or house-breaking by night after preparation for hurt, assauit, or wrongful restraint and also grievous hurt caused whilst commitBng turking house trespass or house-breaking. The evidence adduced on behalf of the prosecution is sufflclent to warrant conviction that ttie appellants entered the buitding which was used for human habitation and for keeping property and when the persons present in the house saw the appellants, they caused grievous injuries to Nagina Prasad and simpie injuries to Shrawan Kumar. Nagina Prasad has stated that the accused persons came after jumping the wai! of the factory. It shows that they have committed house-brealdng in terms of ctause (2) of Section 445 of the t.P.C. and caused grievous injuries to Nagina Prasad and also attempted to cause grievous injuries to Shrawan Kumar which is punishable under Section 459 with the afd of Section 34 of the I.P.C. In the present case, the accused persons have caused grievous injuries and attempted to cause grievous injury to Uie persons residing inside the buitding. Offence under Section 458 ofthe I.P.C-, in this case, is included in offence under Section 459 of the I.P.C. Conseiquentty, separate conviction & sentence under Section 458 of the I.P.C. is unnecessary and uncalled for, in ^ ^.~L •••^^"'^'^^^^•'g^1 ^higfc^fc^ »arf the present case. Conviction under Section 459 of the I.P.C. recorded by the trial Court is sustainable under the law. 23. As regards the question of sentence under Section 459 of the I.P.C., the appetlants had jumped thewall of the factory, entered into the factory premises and caused grievous hurtand atso attempted to cause grievous hurt. Taking into consideration the injuries fbund over tiie body of the injured pereons, R.l. for flve years & fine of Rs.200/- are neither excessive nor unjust. 24 The case of Rajaram (supra) reiied upon by learned counsel for the appetlants is a case in whlch there were two sets of evidence contradicting each other. But in the present case, there are no two sets of evldence or this is not a case of only intention to commit crime, in this case, actuatly ttie accused persons have committed the crime of house-breaking. causing grievous hurt and attempting to cause grievous hurt whilst committing house-breaking. The case of Rajaram is distinguishabte on facts to that of the present case. 25. For the foregoing reasons, technicalty, the appeals are partly allowed. Conviction & sentences imposed upon the appellants under Section 458 read with Section 34 of the I.P.C. are set aside and they are acquUed of the said charge. However, conviction & sentences imposed upon <hem under Section 459 read w'rth Section 34 ofthe I.P.C. are maintained. yoma Sd/- T.P. Sharma Judge