IKBL^—L-d Criminal ADDeai No. 749 of 2005 (Sinate Bench: 1-ion'ble Mr T.P.Sharma. J /li- 1-;!^ ^ii! u-eiHy Har Sinah Gond Versus State of C.G, +s Order be posted for pronouncement on /? August, 2008 Sd/- T.P. Sharma Judge ^,--€ ^sg&, IARH AT n^ ?-~:1\ ,fft u'Ctiii 'npa Crimsrsa' ADRea! No. 749 of 2005 Hs' Singh Gond S/o Pu'aniR Gond,agsd -OS > <»^.—/^•n., n-^H.;»n •'-. «.ii.:->..l l*.r ,»i» ^s/uui. ^^ yw^i^ ^w'c»uup«au^u-/^y)i'i;Ui>,u's.;, R/o. Vlllage Ranipartewa, P.S. Chhura. Fki;i-4'r;^ 0-"ia>^s«r /f^ f"i ^ .-/i^i.j J^h i-~t<.£i;jyi \^-r.V^., Versus State of C.G., Through S.H.O, of P.S, Chhurs, DtStfiCt Rsipur (C.G.) APPEAL UNDER SECTiON 374 OF CODE OF CRiMiNAL PROCEDURE. 1973 (Sinale Bench: Hon'bie Mr. T-p. Sharma- J.) Shri Ravish Verma wjth Smt. Klran Jain. counse! for the aogefiant. r-S—'..'^.?~a-. ^S-^, F*t'- /~k-.~."?. A. .^...^.-.,-.. A-, ^-...A^A <;?A^.JL; OiiU t~\cii\.6:FS>ii ^iiis, L-/y. ^SUVL rtUVU^sAlt^ iUi E.ii<; Oi.cli,^?. JUDSMENT (Passed on 131" August, 2QQ8) This appeai is dirscted agalnst the judgment of conviction and order o* santepce datsd 18,7.2005 passed bv the Third Additionai Sessions Judge, Raipu'", in Sessions Tris' No. 288/2004 wherabv the laarned Th'rd A'ddltionai Ssssions Judae after hoidina the aDDsiiant au'itv for ths offence ounishabis under sections 450 (errQneousiv written bv the tria! court as 350'i, 307-307 snd 323-323 o? the Indian Pena.i Code. convicted a.nd ssntenced hlm to underso riaorous imorisonment for 3 vea.rs snd to oav a fine of Rs. 300/-. in default of Davment of fSne. to furthsr underao riaoi'ous imcrisonmeni for 6 months under section 450 of the India." Psnal Cods riaorous imonsonment for 5 vsars & 5 vears and to Dav a fire of Rs 500/- & Rs, 500/-. in defau't of Davment of f'ne, to further underoo riao'ous !~iD"son~isnt for 1 vear under section 307-307 oftha ind'sn Penal Code and riaorous IrnDrisonrr'ent for 6 months & 6 months under section 323-323 of the Indian Psna! Coo'e. ">. Juda'*ient of conviction te chaiienaed on the around that learned Third Addit'orsaS Sessions Judgs has convicted and sentenced the appetlant in piacing reliancs uoon wsek and unreliabte evidence 3. Csse of 'hs Rrosecutlo". in brief. is that on 10,7.2004 at viliaae Ranicsrtewa. Police Station-Chhu''a. D'strict RaiDur. iniured Smt. Parmeshwari Bai 'W.I-T} alona with her dauahters nameiv, Saroi and Khumiata were sittina in vorandh and injured Chetan was at his shop, tha appe!!ant Har Singh Gond came w'th sxe i" the shoo of Chstam and assarlted him with the heiD of axe over his head. He was iRiured and become unconsc'ous. Thereafter. ths aDDeilant went to injursd Pa.meshwari Bai and assauited over her head bv axe. Saroi and K.humiata triad to inter./ens, A.5De!!apt s.'lso assaulted to Saroi and Khumiata. Thev cried for helD. Fo' 'nearina fhs commotion. Dersons of the vieinib/ namelv, iViunna Shukla, Bhushan Glri, Kunjgi" car"e t"era and caught hold the appellant with axe and took out the aoReiiant from the house of the coir'DSainsant, Thev snatched the axe from the appsllant. The appel'ant escaped from tls spot. 4. Persons of the vicinitv took unconscious Chetan bv ieeD to the Govemir>ent HosDital. Ch'nura where FiR (Ex.P/4) wgs iodoed bv Parmeshwari Ba'. Par~seshwarE Bsi was exgmi'led bv Dr R.S, Paikrs ('PVi'-S') vide Ex.P/5 who noticed foiSowina iniuries:- D incissd like wound at venex (head and ieft tida! about 7 cm. above hairiine having dimansion of 2,5 x 0,5 x 0,5 cm. ii) Abrasio'i ieft forearm bacteide about 8 cm. above u!nar head hsvjng dimension of 1.0 x 0.5 cm. iii) Abrasion left forearm backside about 13 cm. above ulnar heaef havina dimension ofS.O x 2:0 cm. iv) Mu'tipie a.brasion ieft forearm bacR side having dimension OT 3.0 x 0.2 cm. Injured Chstan wss examined bv Dr. G,L. Tondon (PW-11) vide Ex.P/11 "A" and found foSiowina 4 iniuries:- i) Uw present mid of the h.ead frontai region longitudinai'y havi.ng dimension of2 %x %x 1 inches in Left temDoral reaion havina dimension of 1 x ~'/i x 34 inches iiH Riaht temisora! "eaion havina dimension OT 1 x % x % inches ivi Occioital reaion hav'na dimension of 1 x % x % inches „ ; He was shifted to Medical Coiiege Hospitai, Raipur for further invsst'gation and trs&tment. Hs was treated in Mociem Medicsi Institute, Ra'our vide Ex.P/12 Injured Saroj was examined by Dr. R.S. Paikra vide Ex-P'6 and noticed fo'lowing iniuries:- i) Abra.sion on forehaad (iust over ha'ir iine'' 7.0 cm. abovs mediation of ieft evebi'ow havina dimension of 0.5 x 0.3 cm, in Abrasion oostero medicai asoect of Isft forearm about, 12.0 cm. above ulnar hea.d hs.vina dimenslon of 0,5 cm. ^ iii) Abrasion oostero medicsi ascect of ieft forearm a.bout 135 cm. ahove ulnar head havlna dimension of 1.0 y 0.3 cm. injurad Khumlata wa.s a!so examined by Dr, R.S. Pa.ikra vide Ex.P/7 and found Toliowina injuries:- i) Lace'ated wound occigits.] reaion of haad havjno d'mension of 1.0 x 0,5 cm. ii) Sweiiina and radish discolomation left thumb wShoie distai Dha'anx, Spot r"iap (Ex.P/1) was prepared, Weapon of offence (axe) wa.s seized from the aDDeilant'accused vide Ex.P.'2. Blood stained bed sheet a.Rd dn/ blood was seized v?ide Ex.P/3. Setzed axe was examined bv Dr. G.L. Tondon vide Ex.P/8'A". 5. Statements of the witnesses were recorded under sactlon 161 of the Code of Crin'iinai Procadure, 1973 and after corr'pietion of investigation, charge sheet was fiied in t'ne Court of Judicia! Ki's.aistrata First Ciass. Garivaband who in turn commltted the case to the Court of Sessions Judge, Raipur from whers Third Additional Sesslons Judae. Raiour received the same on tra.nsfer fortrial. 6 !n order to prove the guilt of the appells.nt/accused, the prosecution has exa.!Ti~ed as many as 12 wtnesses. Statement of the secused/ appellant was recordsd undsr Ssction 313 of ths Code of Criminal Procedure, 1973. in which he denied ths materia! appearing sgainst him. He stated that he is innocent and has been fs.lselv imolica.ted in the crime in auestion. 7, Lesmsd Third Additionai Sessions Judas aftsr affordina an ooDortunitv of hsarinc to the 'esDsctive .oartiss, convicted and sentenced the sccused/aonsitent as 8. i have heard Shri Ravish Verma with Smt, Kiran .Jain, counsei fo' the aDDeilant and Shri Rakesh Jha Dv, Govt. A.dvocats for tha Stste and oerused the iudament jmouaned and record ofthe triai court, 9. Learned counsei for the appellant submits that the prosecution has utteriy faited to establish the auiiw saainst the aDDsiiant bv adducina cooent and reiiable evjcience. He further submits that iniured Chetan, Khumlata and Saroi wers the materia! witnasaas. but tha oroseeution has not examined them. Non-examination of the aforasaid materia'. wiinesses are fatal to the Drosecutlon, 10 in ordsr to connact the aDDellanS with f.he crime in auestion. the Drosecution has adduced ocular and madicsl syjdence. PW-7 Smt Parmsshwari Bai who is inlured witnsss-has statad ihat st the time of 'ncident. her son Chetan was sittina in his shop, appellant came inside fhe shop and asssu'ted her son Chetan. He fei! down and become unconscious. After assaultinn Chetan, aDoellant came to her. at that tlme she was sittina with her dauahters Khumlata and Saroi. aDDaliant a!so assaiiited over her head bv axe and slso assauited Khumlata. anci Saroi bv axs^ She and her dauahters crisd. Thsreafter. Dersons ofthe vicinitv ca.me and cauaht hold the appeiia.nt, Thay also took her unconscious son Chete.n by jeep to Govemmsnt Hosoital. C'nhura. and finaJ'v thev took her son from Chhura to Rsiour. Sha iodasd FiR fEx.PM). Shs was examined bv Dr. R.S. Paikra CPW-8) a.t Chhura, PW-2 Munna @. Nandkishore Shi-kia has statec! that when he went to tha shop of Seth Jaisinah Solanki, he saw Santosh wss unconscious and also heard crises. which is comina inside the house of Solank'. He entered in the house. at that time aDDe'lant was tn/ina to assault to mother and sisters of Santosh Solanki and he aionc with Kuniairi, Shushan stc. caucht hold the aooeiisnt and took out from ths house of Soianki. Thev took iniured to Chhura HosDita! snd finallv thev took the iniured 'o Moaern Msdicai Snst.itufe RalDur. PW-3 Duraesh Kumar V]shwa.i<a!'ma has stated that he Vi'as workina in t'ne shoD of Chetan Sola.nki, At that time, aooeisant came wjth axe and attackad over ths head of Chetan Solanki wjth axe. •He was afrsid and run swav from ths snot, PW-4 Purushootam Yadav has aiso suonortsd t'ne version of PW-3 Duraesh Kumar Vishwaksrma, PW-6 Viiav Kumar Sahu has stated that at the tSme of jncjdent he saw crowd In front of the house of Santosh Soianki. D'amond K.umar toid him that aDpaliant has assauSted Chetan Solanki by axe, Villagers took Chetan Soianki to Chhura Hospitsl and finaily, Modern Medicsl Institute, RaiDur. 11, PW-8 Dr, R.S, Paikra has stated thst on 10,7.2004 he has examined psr'reshwari Bai vjde Ex.P?5 and found i.niuries a.s mentioned Jn Dara-3 of the said ludc'ment. 'rie has ateo axamined Saroi and Khumiata vide Exs, P/6 s.rid P/7 and foun.d iniuries as mentioned in Dara-3 of the said iudament. PW-11 Dr. G.L. Tondon has exam'ned inlursd Chetan Solanki vide Ex.P/11 "A" on 10.7.2004 and found injurias as mentioned in psra 3 ofthe said judgment. PW-12 Dr. Rajesh Jain hss statec that he was worksng in the Modern Medicai institute, Raipur as Neurosuraeon. He has examined Chetan Solank' on 13,8.2004, He was unconscious. MuitJDle iniuries were found over his head. One bone of ths head was a!so frsctured. PuDils of the eves were not workina. On citv scan, ha found that ona bia bone of 'nead was inserted in brain, After fractured of the bone huae ,y^fsa, "^ yg-^ -^ 'Ti ''^ISSh 8 ^' smount of blood was c'outed in brg.jn. Immediate suraicai ODeration was necessan/. He conducted suraical oDera.tion. ReDort is Ex.P/12, PW-2 Munna O. Nandkishore Shukia ha.s admittad 'n para-4 of his cross-exsmination that the appaiisnt 'nas not asssulted Santosh or his mother and sisters before him. but PW-3 Duroesh Kumar Vishwakarrrsa has denied t'ne suaaestion that he has not ssen the inc'ident PW-4 Purushootam Yadav has also denied the suagestion that he has not seen the incident i.e. aDDeilant has not assaulted Chetan before him. PVA/-7 Smt. Parmsshwari BsJ has admltted in her cross-examination that she hgs not seei tha aDpallant sssauitina his son Cheta.m bv sxe. 12, Accordlna to statements of PW-11 Dr. G.L. Tondon and PW-12 Dr, Raissh Jain. arievous and dancisrous iniuries were caused to Chetan, but accordinq to statemsnt of PW-2 Munna (®.Nandkishore Shukla. Santosh wa.s unconscious and was ivina over the bed-sheet. PW-6 Vijav Kumar Sahu has stated that he saw crowd near the house of Santosh Solanki. Diamond Kumar told him that the aDDsllant has assauited Chetan Solanki bv axe. it shows thg.t Ssntosh and Chetan are not one and the same, but, they are djfferent persons, According to statament of PW-2 Munna @ Nandkishore Shukia, Santosh was injured and become unconscious. but accordina to statements of PW-3 Duraesh Kumar Vishvrfakarms and PW-4 Purushootam Yadav, Chetan Soiankl wa.s injurad, but both the witnesses hs.ve stated that thav had run awav from the SDot. Thev had not tried to inteprena. The prosecution has not examined jnjured Chetan. who i? at present residina at Rsiasthan. Chetan wss ina.teria! vi/itness, The prosecution has not established anv intsntion or cause for assaultina Chetan bv the aopeilant. 13. Considering the contradictory statements of PW-2 Munna @ Nandkishore Shukla, PW-3 Dumesh Kuma.r Vishwakarma, PW-4 Purushootam Yadav and PW-7 Smt. Parm.eshwari Ba.i, exs.mi.nation of Chetan was necessaA' to estahlish the fact tha.t he was assaulted by ths a.ppeliant; but the prosecution bas fa'led to examine Chet.an. In absenca of his exa.mination and taking into considerStion the conti'adictorv statements of the slleaed eve witnesses, it is difficuit to ho!d thst Chets.n was assauited by the appellant. The prosecution has s!s6 not examined injured Khumls.ta and Saroj and in absence of their sxamination, it is difficult to hold that the appeilant has assaulted Khumlata and Saroj. 14. As regards the injury of PW-7 Smt. Parmeshwari Bai is concerned, she has specifically stated that the appellant has assaulted by axe over h@r head.She was examined bv Dr. R.S. Paikra vide Ex.P/5 and found one inside wound over left side oTthe hsa.d having dimension of 2.5 x 0.5 x 0,5 cm. injury No. 2, 3 and 4 were BRt 'i over left hsnd, Oniy one injury over the head, According to doctor; al! injuries wsre simpie in nature. The prosecution has not adduced anv svidence that iniun' of Parmeshwarj Bai was grievous in nature. It is ciear from the injury No. 1, which was over her head that denth snd width was onlv 0.5 cm. it is clea.r from the statemente and medica! examination report (Ex.P/5) that injury caused to pgrmeshwari Bai was simDie in ns.ture, 15, After appreciating the evidence availa.ble on reeord, !eaTned tris! court has convicted the aDoellant for attemDf to commit murder of Chetan, Parmeshwari Bai after committina house trass-Dass for the offence Dunishabie with life snd csused simple injury to Saroj and Khumla.ta. In absence of examinat'on of jnjured Chetam, Khumlata and Saroi and takina into consideratjon the contradictorv statements of the alieaed eve witnesses, the conviction of the apoeliant for attemDt to commit Sections murder of Chetan, causing simple injury to Saroj and Khumlata, 307-307 and 323-323 cannot be sustained, 16, As regards the conviction of the appelfant for the offanee of s.ttempt to commit murder of Parmeshwari Ba.i is concarned, accordina to medicai evidence, the appeHa.nt has only cs.used simpie injury by sharp edge wea.pon, which is oun'sha.ble under section 324 of the indian Pena.l Code. It*. 17. On careful examination of the materia.l ava.ila.ble on record, the conviction of the appellant for the offence punishabie under sections 307-307 and 323-323 of ths !ndian Penal Code is not sustgjnabje. Act of the appellant squarely fa.ils within the ambit ofthe offence nunishabie under section 324 ofthe Indian Penai Code, 18. For the foregojng rsasons, the appeai is partiy aHowed. The convlction & sentence imposed upon the appellant for the offence punisha'Dte under Sections. 307-307 and 323-323 of the India.n Penal Code are set aside, h'e is acouitted of the said charaes. The convlction & sentence of the appeiia.nt for sttsmnt to. commit murder of Pgrmeshwari Bai is also sst aside and instead thereof he is convicted under section 324 of the Sndian Pena.l Code and sentencad him to undergo riaorous jmorisonment for 3 vears and to pav a. fine of Rs. 1000/-. in defa.uit of payment of fine, to further undergo rigorous jmprisonment for 6 months. The aDDei'ant has served the sentence more than 3 vears. He be sat at IJbertv forthwith, if not required in any other case. Sd/- T.P. Sharma Judge