CF0000058023 t^) 9^- ^H^(C,. <\ -i^ €' ^f^^^ XN THE HIGH COURT OF MADHYA PRAQESH AT JABALPUR. CRIMIN^L APPEAL N0. iM^of 1994 APPLICANT ^el^^^L ^ SHaraia Son qf Ramd9s @^Panchram vaisiineiv aged about/ l7f ^years,^u1 tlv^tor , resident of vi* 11age sothl parsspsll, Pollce Station seepatt^, Dis.trlct Bllaspur ^ ^:y ^NON-APPUCANT -yersus- $ The State of Madhya pradesh ^.-( ^cC^ )C RIMINAL APPEAL UNDER SECTION 374(2) OF THE CR2MINAL PROCEDURE CODE BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 13:01:19 +0530 ^^3^.^ •^si \^ '^>..^ ^ HI6H COURT OF CHHATTIS6ARH AT BILASPUR Singi®Bench : Hon'bie Mr. Justic®Pritinker biwaker Criminal ApDeal No. 1480 of 1994 APPELLANT Sitaram, S/o Ramdas @ Ponchram Vaishnav Versys RESPONDENT State of AAadhya Pradesh (now Chhottisgarh) Mr. Sandeep Shrivastava, counsej for the appellant. Mr. Vivek Sharma, PL for the State/respondent. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUD6MENT (12.01.2011) This appeal is directed against the impugned judgment and order dated 6.10.1994 passed by 5th Additiond Sessions Judge, Bilaspur in Sessions Trial No. 429/92 convicting the accused/appellant for the offence punishoble under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years. 2. Brief facts of the case ore that on 28.7.1992 F.I.R. (Ex.P-5) was lodged by Badri @ Jai Singh (PW-6) alleging that on 26.7.1992 when he had gone to attend the nature's cdi, he saw the accused/Qppellant and his sister-in-law in an objectionable condition and after seeing him they got sepdroted. It is further alleged that on the next day i.e. 27.7.1992 at about 3 pm there was some altercation between him ond accused Sitaram and when they were returning from Temple, he was assaulted by the accused/oippeljotnt by means of Tabbal, os a result of which he sustajned injuries on his head and neck. After investigation, challan was filed on 8.10.1992 under Section 307 of the Indian Penal Code. tj ..^•••.; ^^...^ .^' "~-s:y 3. So as to hold to accused/appellant guilty, prosecution has examined as many as 10 witnesses in support- of its case. Statement of the accused/appellant was ajso recorded under Section 313 of the Code of Crimind Procedure in which he denied the chorges levelled against him cnd pleaded his innocence and fdse implication in the case. 4. After hearing the parl'ies the trioi Court has convicted ond sentenced the accused/Qppejiant for the offence as mentioned above. Hencethis oppeal. 5. Counsel for the appeliont submits that though the ailegation against the accused/appeliant 'is of using Tabbal but no T^^o/whatsoever has been recovered and recovery of one axe has been made from the accused/appellant vide Ex.P-6. He further submits that even the query report from the doctor had been sought for on the bosis of axe seized from the possession of the accused/oppejjant and the sam.e WQS answered in positive. According to him, when the axe was not used by the accused/appeijant, the question of causing injury by the said weapon does not arise. He furt-her submits that even if the entire case of the prosecution is taken as it is, accused/appellant coinnot be convicted for the offence under Section 307 IPC and at best the offence would faii under Section 324 of the Indian Penaj Code. He submits that prosecution hos utteriy failed to prove the nature of injury sustained by the victim as there is no medical report' showing the nature of injury. Lastly he submits that at the time of commission of offence, accused/appellont was 17 years of 096 and, therefore, a iiberal view may be taken while awarding sentence to him. 6. On the other hand, fiupporting the impugned judgment it has been argued by the state counsel that the statement of victim Badri @ Jai Singh (PW-6) has been duly supporj-ed by Jan Singh (PW-1) and ^hasiram (PW-5). He further submits that considering the nature of injury, it is apparent that intention of the accused/appellant was of killing the victim Badri @ Jai Singh. 7. I have heard counsel for the parties and perused the materiai avoiilable on record including judgment impugned. 8. Badri @ Jai Singh (PW-6) has stated in his evidence that prior to the date of incident, he saw the accused/appeilant and his sister-in-law {Bhabhi} in the compromising position ond after seeing him they got separated. He has stated that on the next morning at about 8 am the Qccused/appellant came to him and had osked him not to diselose the incident to onyone and, thereafter, at about 3 pm he again came to his house and had asked him not to disclose the incident of prevsous day to onyone. He has stated that thereafter, they went to the market and after purchasing the coconut they had gone to the Temple and when they were returning from the Temple, the accused/appellant assauited him with the help of Tabblee which was hidden by him in his 'Lungi'. He has stated that accused/appeijant Otssoulted him thrice. He hos stated that thereafter he hos cdled his friend Jan Singh (PW-1) ond then he narrated the entire incident to him. 9. Jan Singh (PW-1) has stated in his evidence thot on the date of incident when he was sleeping, he heord the noise of his friend Badri @ Jai Singh and whesn he came out from the '^^. house, he saw the injuries on the head and neck of the victim and he was bleeding. He has furt-her stated thoit upon being asked, Badri @ Jai Singh had informed him thot it is the accused/appeltant who had assaulted him by meons of tabfee. 10. Amreeka Bai (PW-4) has stated in her evidence that she runs a Kirana Shop and on the date of incident when she was sitting in her shop, the accused/appellant and Badri @ Jai Singh come to her shop oind had purchased the coconut and incense stick. ^hasidas (PW-5) is a seizure witness of Ex.P-4 by which axe was seized from the possession of the accused/appellant. Dr. A.P. Roy (PW-8) is a witness to whom the axe was sent for examination and he gave his report- Ex.P-7 by saying that injuries sustoined by the victim can be caused bythesaid axe. 11. Dr. A. Baloni (PW-10) had medically examined the victim Badri @ Jai Singh and had 9iven his report Ex. P-1A has categoricdly stated in his evidence that Bodri @ Joi Singh had suffered foilowing injuries :- "(i) One incised wound in the size of 2 ? X 1/2 X 1/2 in the back side of neck which was bleeding. (ii) One incised wound in the size of 1-i" X |-"X •!•" in the occipital region. (iii) One incised wound on the left temporaj region towards parietal region in the size of 4"X1"X1/2". (iv) Compound lacerated wound on right side of the occipital region in the size of 4"X1/2"X1/2" where biood was ciotted." 12. Minute examination of the witnesses reveals the fact that there is absolutely no evidence on record to show that the injuries sustained by the victim were grievous in nature. However, from the statement of the witnesses ound the 4P Dr. A. Balani (PW-10), it is clear that at least four injuries were sustained by the victim. Though there are some locunas in the prosecution case like the seizure of axe m the place of Tabfee, no quarry report- regording the nature of injury but even in the absence of these lacunas, the statement of the victim cannot be completely ignored, more so when he had suffered four injuries. 13. Considering the totdity of the facts, in particular that the intention which is the essential legal ingredient for convicting the accused/appellant under Section 307 IPC is altogether missing in this case, this Court is of the opinion that ot most the appellant can be convicted under Section 324 IPC and not under Section 307 IPC. 14. So far as sentence part of the accused/appellant is concemed, keeping in view the fact that the appellomt has already remained in jail for about 3 j months, incident had taken ptace about 18 yeors back ond at the relevant time the accused/appellant was aged about 17 years/jail sentence imposed on the accused/appellQnt is reduced to the period QJready undergone by him. 15. Appeal thus parl-ly ajlowed. ^ .. . sd/~. Pritinker Diwaker Judge