Qimq‘e Esnd': ‘IN THE HIGH COURT OF JUDI%TURE AT JABALFUR A/ IPC ) ,;., \ /U/s 307 ‘ 3 5-” L2 V LLANga; JAIL cr.§ppea1 No.§€§__0f 2000 : ’2) 1. Sukhiran Kaxé s/o Mehhatar g2. A u t . RE SP CNDEN‘I‘ / ‘Karsh. aged abeut 34 year$. .Maniram Ram Sahu S/o shri. Hira omupatian Kotwar. both are resident af Village Matiya. Tha&a Bilaigarh Distriet Raipur (MP) . Versus « me State 9f Madhya Pra&esh, thrOugh Dis trmt Magistrate Raipur (m) . Ram Sana; aged about 29 yearsg ) ) , r ‘ conviction U/ Section s1§0.r/7v) Sec ‘3 3g? of xpc R.I. Fbr 7 years ana fine af Rs. mac/«- to the ‘ appellant no.2 and gm Max defaun: o'f fine additional SIJ. for 6 months; RJ. for 7 yea£s and £ine af Rs. 1000/¢ In default af fine additional SJ. fer six month to Appellant No. « CF0000062942 ( Memoxandum of appeal U/Seation 374 of Stoke.) MORAImUM OF APPEAL UNDER SECTION 374 OF C13? .C. : yPE IN ! R 1 m HIH G COURT OF CTISGR HHATAH A 'F BR ILASPU (Hon. Mr. Justice Pritinker waker) Criminal Appeal No. 866 of 2000 APPELLANTS Sukhiram Karsh and anothe r VERSUS RESPONDENT State of Madhya Pradesh. Post for pronouncement of the judgment on g 1-1—201 1. V J. Sdl- Pritinker Diwaker Judge Di HIGH COURT OF CHHATT'ISGARH AT BILASPUR 1 (Hon. Mr. Justice Pritinker DiWaker) Criminal Appeal No. 866 of 2000 Sukhiram Karsh and another APPELILANTS VERSUS REspofNDENT i State of Madhya Pradesh. Smt. Indira Tripathi counsél for the appellants. Shri Neeraj Mehta PL for the respondent/State. V . t CRIMINAL APPEAL UNDER SECTION 374 (2} OF THE CODE OF xé CRIMINAL PROCEDURE. t ~ JUDGMENT (37 .o1.2o11) This appeal is directed against the judgment and order dated 22.3.2000 passed by the Additional Sessions Judge, Baloda Bazar, Raipur in Sessions Trial No. 436/1997 convicting the appellant No.1 Sukhiram under Section 307 and accused/appellant No.2 Maniram under Section 120-B IPC and sentencing each of them to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, ln\ default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that FIR Ex. P-1 was lodged by Mangtan Das (PW-1) alleging that on account of some dispute in respect of appointment on the post of village Kotwar accused/appellant N02 namely Maniram had helped accused/appellant No1 namely xx \l Sukhiram for which the complainant was also one of the aspiring/J \’\ candidates It Is alleged that on the date of lnCIdent when the Victim \ was taking bath In the Village pond along With his son Motl Das (PW 2) accused/appellant No1 namely Sukhiram came there and assaulted him wrth sword as a result of which he sustained various Injuries on his neck and nearby portion. It is alleged that the victim was first attended y r by Narayan Singh (PW-'11) who gave his report Ex. P—16A on 26.9.1997. Thereafter, the victim was referred to MEKAHARA hospital. L‘ Raipur and it is alleged that he remained hospitalised from 29.6.1997 to 8.7.1997 i.e. for about nine days. Ex. P-7 is the bed head ticket. After completion of investigation chaiian was filed'by the police on 6.9.1997‘under Sections 307and 120-B IPC. 3. So? as to hold the accused/appellants guilty, prosecution has examined as many as 19 witnesses in support of its case. Statements of the acoused/appellants were also recorded under section 313 of th Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the ‘case. This apart, five witnesses namely Natthulal (,DW—1), Pitamber A (DW—2), MulEutram (DW—3), Tilakram (DW-4) and Banshilal (DW-5) *Z’ have been examined bythe defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants herein as mentioned above. 5. Heard counsel for the parties and perused the material aVaiIabIe on record including the judgment impugned. 6. Counsel for the appellants submits that-there is absolutely no evidence on record to show the involvement of the accused/appellants either to the effect that appellant No.1 had made any assault on the victim or to the effect that appellant No.2 had hatched any conspiracy with the accused/appellant No.1 to assault the victim. She submits that medical report of the victim Ex. P-16A has not been proved by the prosecution as per the requirement of law and likewise the summary report dated 11.9.1997 Ex. P-18 which has been issued on the basis of ; the letter of the Station. House Officer dated 21.8.1997 has also not been proved by the prosecution as it was submitted by Dr. S. Mahilang 1 who too has not been examined by the prosecution. She submits that the %ummary report cannot be admissible in this case because the 3 same has been obtained after about three months from the date of i incident. Lastly it is argued that looking to the injuries sustained by the i victim at the most offence alleged against the accused/appellants would fall under Section 324 IPC. e \ ‘ 1 j 7. On the other hand supporting the judgment Impugned It has been argued by the counsel for the respondent/State that undISputedly the Vlctlm had suffered four Injunes and when It has been categorrcally deposed by the Witnesses that It Is the accused/appellant No.1 Sukhiram who had caused the said injury, he cannot take any advantage of the fact that initially the medical report Ex. P—16A has not beenlproved by the prosecution. He submits that query report Ex. P— 19-Ajhas been submitted by Dr. ‘Narayan Singh (PW-11) who had initially examined the victim makes it clear that one injury sustained by the vi‘cttm on his neck was grievous in nature and the same could have t been caused with the help of sword'and it was sufficient to cause death in the ordinary course of nature if the prompt medical treatment would not have been given to him. ’g_ Mangtan Das (PW-1) has stated in his evidence that on the date of incident at about 7 a.m. he along with his son Moti Das (PW-2) had gone to the pond for taking bath and at the time when his son was taking bath and he was cleansing his teeth accused/appellant Sukhiram assaulted him on his head With sword He has stated that accused/appellant Sukhiram had dealt 11 blows wrth the sword on his head, shoulder and wrlst which resulted In profuse bleeding. This witness has stated that on account of the appeal regarding the appointment to the post of Kotwar being made by him, accused/appellant Sukhiram had assaulted him with an intention to "I x l finish him. According to this witness, after the incident he was sent to I hospital at Bhatgaon and then he was referred to Raipur where he remained under treatment for a week. Plaster and stitches were put in his hand This Witness has stated that he himself andl accused/appellant Manlram both were claiming the post of Kotwar and his appeal for the same was rejected by the Sub DIVISIonal Officer against which he preferred the appeal before the Commissioner. However, he has denied the fact that Commissioner too has rejected l his appeal. This witness has denied the fact that there was any scuffle I 8. l between him and the accused/appellant Sukhiram. He has also denied l _I that he had sustained injuries as a result of fall on stone-pieces of I l #Q’ Pathri§hat. He has stated that he had not fallen even as a result of assauit with tabbal but he had gone asleep. He has clarified that sword 'and tébbal are two different things. At some places this witness has statedj the weapon of assauit as tabbal and at some places as sword but suoh minor contradictions being immaterial have to be ignored. lMoti Das (PW-2) — the minor son of the victim has supported the statement of his father. He has stated that when he was taking bath in the poQd‘and his father was cleansing his teeth, accused/appellant Sukhiram came there with a tabbal in his hand and assaulted his father with it‘twice. Thereafter, this witness has stated that accused/appellant Sukhiram Mas havin‘g sword in his hand. This witness has stated that thereafter leaving his father there itself he went home and disclosed the incident to his sister saying that accused/appellant Sukhiram had assaulted his father and then the victim himself had come home. In cross examination also this witness has stated the same thing as in the examination—in-chief. Sukh Sagar (PW-3) has stated that after the incident the police had prepared the spot map Ex. P—8. This witness l has also stated that plain as well ‘as blood stained soil, shirt of'the ‘ victim and his discharge ticket were seized under Ex. P-9, P-11 and P- 4 respectively. Deshram (PW-4) is the witness to seizure memo Ex. P- 13 and P—14 by which sword and cloths of the accused/appellant Sukhiram were seized. Shrawan Kumar Srivas (PW-5) is the witness who had seen the victim in an injured condition. This witness had also seen the accused/appellant Sukhiram holding sword in his handf Budhram Dewangan (PW-8A) is the Patwari who had prepared spotl‘ map Ex. P-6. Ravendra Singh (PW-7)—head constable, Madan ‘ Dewangan (PW-8) — constable and Chandra Prasad Tiwari (PW-9) — § head constable are the witnesses who have done part of the‘ investigation. Sub Inspector Anil Sharma (PW-10) is the investigating officer who has supported the case of the prosecution. Narayan Singh (PW-11) is the doctor who had first medically examined the victim on 29.8.1997 and given his report Ex. P-16-A describing the injuries noticed by him on the body of the victim which are as under: @ ,5; Wma$rmfq£i$¥i1§$rmar§m§amw1i WW?%H§W%IW€H$%W% Wwmmwwa§m£m§mw$fm%a% W$‘W%IWWWW$WWQ aéra%ma°m=rr€t%| This witness had not described the nature of injuries sustained by the victim ‘as he had referred him to some other hospital. He has however statedithat the injuries were caused with sharp edged weapon. 1Erom the evidence of this witness it appears that his initial statement was recorded in the Court on 13.10.1998. Thereafter on the parties 26.3.1999 he was again examined and cross examined by and there he has st‘ated that on 30.8.1997 vide Ex. P—19 a report was sought for about theQnature of injuries sustai ’ t ned by the victim and then he gave his report vide Ex. P-19-A stating that the injury sustained by rious in nature and could have been caused e has also stated that if immediate medical treatment the victim on neck was se with the sword. H was not m the weapon used in the offence was shown to him nor the victim-was ave proved he has stated that as neither ade available to the victim, the said injury could h dangerous to life. ln cross examination again referred to him, he could not say as to with which weapon the injury was caused. According to this witness, the discharge ticket Ex. oduced before him. He has stated that the doctor P-7 was also not pr / . who had first attended the victim could be the best person to give the [a d by the victim. r opinion about the nature of injuries sustaine prOpe e date of incident ‘1 Siyaram Chelak (PW-12) has stated that on th he had seen the victim drenched with blood. Photobai (PW-1 3) is the wife of the victim and she has stated that she was informed that her j husband was assaulted by accused/appellant No.1 herein. According 9to her, later the victim had also informed her about the incident. Dr. J.K. Sharma (PW-14) has stated in his evidence that on 29.6.1997 he ssor of ENT department and the wound of the victim was l ed by his juniors‘and the victim was discharged on 8.7.1997. He j l r 1 i espect of the victim but he had «1 j j l l was the Profe repair has stated that certificate Ex. P-7 is in r % *é_ not signed it. He has stated that Ex. P-18 bears the‘signature of Dr. S. Mahilang but he could not say as to where he was posted at that time. Bi‘rbal Pras-ad (PW—15) is the witness who had seen the victim in an Injured condition Ram Kumar (PW-16) has stated In his eVIdence that he had seen the Victim iying on the spot after sustaining injury and after regaining consolousness he told him that it was accused/appeiiant Sukhiram who had assaulted him; According to this witness, accused/appellant Maniram was not present on the spot. Ganesh Ram son of Claheduram (PW-17) has stated that he had seen the victim in an injured condition ‘but has been declared hostile. Ganeshram son of Dildar (PW-18) has stated that on the date of inCident he had seen accused/appellant No 1 Sukhiram assaulting the Victim With the help of sword. Smt. Parvati (PW-19) - the daughter of the Victim has stated that on the date of inCident she was informed by her brother that accused/appellant No.1 had assaulted her father with sword. According to this witness when she went to the spot, she saw that there was an injury on his neck This witness also states to have seen accused/appellant No 1 entering his house holding sword in his hand According to this Witness, the Victim had told her that accused/appellant Sukhiram had assaulted him. Defence witness Natthulal (DW-1) has stated that on 29.6.1997 accused/appellant Maniram had come to him. Pitamber (DW—2) has r stated that on 29.6.1997 he had gone to Tendubhata along with accused Maniram with respect to the measurement of land. Mukutram (DW—3) has stated that on the date of incident he saw the victim abusing accused/appellant Sukhiram. Tilakram (DW—4) has stated that when he was near the pond, he saw the victim and accused Sukhiram quarreling with each other. Banshilal Sahu (DW-5) has stated that on the’date of incident accused Maniram had come to him and then he went to the Patwari with respect to measurement of land. Having thus minutely examined the evidence avai/able on i it‘ll record, according to the opinion of this Court there appears to be some 9. \ l r V technicél flaw in the case of the prosecution. Victim was first medically examined by Narayan Singh (PW-11) but he has not given the full description of the injuries sustained. by the victim. When this witness Was again examined and cross examined by the parties on 26.3. 1999, he hasistated that in his query report he has described the nature of injury saying that the injury on neck of the Victim was serious and dangerous to life. This witness has done all this without seeing the documents including the discharge ticket or even without seeing the patient} He has clarified that the doctor who had done MLC can give better opinion in respect of injuries sustained by the victim. Likewise, gwDr. J.K. Sharma who was head of the ENT department has though proved thei summary report of the department Ex. P-18 which is admissible in law but he too has stated that he had not seen the injuries sustained by the victim and nature of injuries can be described by the doctor who had initially examined him. However, medical report of the victim cannot be ignored completely and considering the statement of the victim and the eyewitness to the incident apart from other related witnesses, it is apparent that the victim was brutally assaulted by accused/appellant No.1_ with sword as a result of which he sustained grievous injuries. Looking to the facts and circumstances ._7_. of the case and the nature of injuries coup/ed with medical evidence it cannot be said that the accused/appellant No.1 Sukhiram was having intention to kill the victim and therefore he cannot be convicted under Section 307 IPC. As the prosecution has not been able to prove the k nature of injuries to be grievous beyond all reasonable doubts, it will ‘ ‘ not be safe for this Court to convict him even under Section 325 IPC. Ignoring the nature of injuries it can safe/y be said that accused/appellant No 1 caused injuries to the victim with dangerous eapon and therefore at the most he can be convrcted under Section j 324 IPC As regards accused/appellant Mantram there Is no ewdence that he assaulted the Victim or hatched any conspiracy With i accused/appellant Sukhiram in doing so. 10. Accordingly, the appeal is partly allowed. Conviction of the accused/appellant No.1Sukhiram under Section 307 IPC is set aside. However, he is convicted under Section 324 IPC. wAs he has already remained in jail for two years and four months and that the incident had taken olace in the year 1997 i.e. about 13 years have elapsed since then, this Court is of the considered opinion that it will be in the interest ofjustide to sentence him to the period already undergone by him. Since there is no evidence against appellant Maniram with respect; to his involvement in the case in hand, he is acquitted of the charge‘ levelled against him. He is on bail. His bail bonds stand discharged ‘ \n Sdl- #8.. A f Pritinker Diwaker 7: "’ Judge ‘