R HIGH COURT OF CHHATTISGARH AT BILASPUR §§: Hon’ble Shri Justice Radhe Sh am Sharma Criminal Aggeal No.55l1 996 Jahaju alias Jahaji Versus State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Post for ILJ-12-201 1 : Sd/. x " ’ ’ R.s. Sharma 4 Judge ~‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Radhe Styam Sharma, J. \ \ ‘ ‘ \ \ G ‘ ‘Appellant ‘ Jahaju alias Jahaji, S/o. Indro Gada, aged 47 years, R/o. Navapara, Thana Sariya, Present Address Paikin, Vs. Respondent Criminal Appeal No. 55/1996 Thana Baramkela, District Raigarh gState of Madhya Pradesh (Now State of Chhattisgarh) Criminal Ap_peai under Section 374(2) Cr.P.C. Present: Smt. Indira Tripathi, counsel for the appellant Shri MPS hatia,Dy. Govt. Advocate for the étgte/respondent. JUDGMENT (Delivered on .jHrDecember, 201 1) This appeal is directed against judgment dated 19th December, 1995 passed by 2nd Additional Sessions Judge, Raigarh in Sessions Trial No.14/95. By the impugned judgment, accused/appellant Jahaju alias Jahaji has been convicted under Sections 307 and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and rigorous imprisonment for two years, respectively. Both: the sentences are directed to run concurrently. 2. Facts of the case, in brief, are as under: Complainant Nohar Bai (PW-1) is the wife of appellant Jahaju and she was residing separately.{rom the appellant. Being aggrieved against her residing separately, the appellant, in order to teacha lesson, assaulted f \her. On 14.8.94, when Nohar Bai (PW-1),was going for purchasing sugar, : s; Ne 4‘ @ the appellant met her on the way, threatened and assaulted her with a knife and gave her knifeblows on her shoulder, chest and abdomen. Blood was oozing tout of the injuries sustained by her. When Khageshwar (PW-3 - ‘father of Nohar Bai) tried to save her, the appellant assaulted hirrl also with the knife. Khageshwar (PW-3) also sustained injuries. Nohar Bai (PW-1) lodged lFirst Information Report (Ex-P/1) in Police Station Raigarh. Nohar Bai (PW-1)»and Khageshwar (PW—3) were sent for medical examination. Dr. l Kamleshwar Maravi (PW—7) examined injured Nohar Bai (PW-1) and gave report vide‘ EXP-8 in which he found (1) one incised wound 5cm x 2cm x t skin deep on the lateral side of right arm (2) one incised wound 2 cm x 1/2 cm x skin d‘eep anteriorly placed just above right elbow joint (3) one incised wound 2cm x 1/2 cm x muscle deep on the right side of the chest at medial side (4) one incised wound of 2 cm x 1/2 cm x muscle deep at low sternal eregion (5) one incised wound of 2 cm x 1/2 cm x muscle deep on right side of the chest just below right breast (6) one incised wound 2 cm x 1cm depth not elicited on left side of the abdomen. He opined that injuries No.1 to 5 were simple in nature and injury No.6 was grievoUs in nature. He also examined injured Khageshwar (PW-3) and gave report vide Ex.P-9 in which he found one incised wound of 2 cm x 1/2 cm x skin deep at left lower sternal 6 area, which was caused by a sharp cutting object. The injury was simple in nature. ln further investigation, sari of complainant Nohar Bai (PW-1) was seized vide Ex-P/4. Blouse was also seized vide Ex-P/3. Memorandum statement of the appellant was"?écorded under Section 27 of the Evidence Act vide Ex-P/6 and at his instance, a chakoo (knife) was seized vide Ex- \\ P/7. Seized articles were sent for chemical examination and report of the ‘\ . \ @ chemical examination was received vide Ex-P/17 and serologica| report was also received vide Ex-PI18. After compietion of the investigation, charge sheet was filed in the G Court of Judicial Magistrate, First Class, Sarangarh, who, in turn, committed the case to the Court of Session‘ Raigarh‘ from where, 2m Additional l Sessions Judge, Raigarh received the case on transfer and conducted the i trial, convicted and sentenced the appellant as mentioned above. 3. Sm‘t.‘ Indira Tripathi, learned counsel appearing for the appellant g argued that the evidence of complainant Nohar Bai (PW-1) is full of contradictions. The First Information Report (EXP-1) was not lodged by Nohar Bai (PW-1) and.the First information Report (Ex.P-1) was not proved by the prosecution. Khageshwar (PW-3) is the father of the complainant .oand he is an interested witness. His presence at the place of occurrence is doubtful. Statements of prosecution witnesses are contrary to each other. According to Nohar Bai (PW-1) and Khageshwar (PW—3), the appellant assaulted them with a knife, but the investigatingofticer seized pursool, which is different from knife. In the FSL Report (EXP-17) and in the serological report (EXP—18), it is not mentioned that the seized pursool was r7 smeared with human blood. The origin of blood was n9»; mentioned in the serological report (EXP—18). Therefore, the conviction recorded by the learned Additional Sessions Judge against the appellant is not sustainable and the appellant deserves to be acquitted. 4. n, Shri MPS Bhatia, Dy Govt. Advocate appearing for the . _ State/respondent, supporting the impugned judgment of conviction and \ \ \ \ \ @ sentence, submitted that the same is impeccable and does not warrant interference by this Court. 5. l have heard learned counsel for the parties at length and perused the material available on record with utmost circumspection. Conviction of the appellant is based on the evidence of NoharBai (PW—1), Khageshwar (PW- l 3) and Daulat Ram (PW-4). 6. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the ljon’ble Supreme Court held as follows: “21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be'idiscarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to Iay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible evidence. ....... 22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is aivitness that comes within a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness. ........... 7. v Nohar Bai (PW-1) deposed that the appellant is her husband. She resides separately from him. She further deposed that on the date of incident, when she was going to the shop of’Sarpanch for purchasing sugar, ‘ l \\\ \ @ the appeiiant, who was coming from opposite direction, caught her hair and assaulted her with knife. The appeiiant inflicted knife blows on her 1 abdomen, shoulder and chest. She further deposed that the appellant i infiictedlfive knife blows on her body. Upon hearing her cry, KHageshwar (PW-3),, Jagantheen (PW—2) and Daulat (PW-4) came there and extricated her. Kh‘ageshwar (PW-3) also sustained injuries. 8. Khageshwar (PW-3) deposed that when her daughter Nohar Bai (PW- l l 1) wasigoing to the shop for purchasing sugar, the appellant, who was coming fr opposite direction, stopped her and inflicted knife blow on her abdomn. When he tried to extricate his daughter, the appellant assaulted e a him als with the knife. He sustained injury on his abdomen and blood was o oozing out of it. ulatram (PW—4) deposed that the appellant inflicted knife blows on 9 Da the body of Nohar Bai (P-1) and she sustained injuries on her right W shoulder, abdomen and below her nipple. 10. Dr. Kamaleshwar Mavi (PW-7) deposed that he examined Nohar ar Bai (P-1) and he found (1) one incised wound 5cm x 2cm x skin deep on W the latal side of right arm (2) one incised wound 2 cm xal/z cm x skin deep anteorly placd just above right elbow joint (3) one incis‘‘éd wound 2cm x 1/2 cm x muscle deep on the right side of the chest at medial side (4) one incised wound of 2 cm x 1/2 cm x muscle deep at low sternal region (5) one incised wound of 2 cm x 1/2 cm x muscle deep on right side of the chest just below right breast (6) one’inctsed wound_2 cm x 1cm depth not elicited on left side of the abdomen. He opined that injuries No.1’to 5 were simple in ~ \ nature and injury No.6 was grievous in nature. He also deposed that he om § er ri e \ @ examined injured Khageshwar (PW—3) and found one incised wound of 2 cm x 1/2 cm x skin deep at Ieft Iower sternal area, which was caused by a sharp cutting iobject. The injury was simple in nature. 11. Date and time of incident was 14.8.1994 at 8.00 a.m. and the First Information Report (EX—P/1) was Iodged on the same day at about 1.50 p.m. The distance between the police station and the place of incident is about 15 kmt It appears that the FIR‘(Ex-P/1) was Iodged without delay. Therefore, it cannot be said that the FIR (Ex.P-1) was Iodged belatediy. “g 12. l have carefully perused the evidence of Nohar Bai (PW—1), Khageshwar (PW-3) and Dauiatram (PW-4). They specifisaHy deposed that on the date of incident, the appellant assaulted Nohar Bai (PW—1) with a knife and he also assaulted Khageshwar (PW-3) with the knife. Their evidence are corroborated by medical evidence. From the above, it is apparent that the testimonies of Nohar Bai (PW-1), Khageshwar (PW-3) and Daulatram (PW-4) are reliable and cogent. 13. Now, it is to be seen whether the offence of the appellant is punishable under Section 307 IPC. 14. Smt. Indira Tripathi, learned counsel appearing“for the appellant v" argued that it is obvious from the statement of Nohar Bai (PW-1) itself that the appellant had come to her all of sudden and gave her knife blows. The injured were sent for medical examination. Dr. Kamleshwar Maravi (PW—7) specincally deposed that injuries No.1 to 5 sustained by Nohar Bai (PW-1) were simple in nature and in regard to h'er injury No.6, the prosecution did \ not prove the X—ray report. Complainant Nohar Bai (PW-1) deposed that ~q- @ she was admitted in hospital for one day only. It appears that the injuries of Nohar Bai (PW-1) were not grievous in nature. The prosecution has not been apie to prove that the injuries sustained by the compiainant were fatal i to her iife. Therefore, the offence is punishabie under Sectiori 324 IPC. The appellant was in jail for about 4 1/2 months. The ends of justice would be servied if the appeiiant is sentenced for the period already undergone by him. i 15. Shri MPS Bhatia, Iearned Dy. Govt. Advocate appearing on behalf of the State‘o'pposed the above arguments. 16. Nohar Bai(PW-.1) deposed that when she was going for purchasing sugar, the appellant, who was coming from opposite direction, caught her hair and inflicted knife blows on her shoulder, chest and abdomen. Dr. Kamleshwar Maravi (PW-7) deposed that injuries No.1 to 5 sustained by Nohar Bai (PW-1) were simple in nature and her injury No.6 was grievous in nature. He also deposed that injury sustained by Khageshwar (PW-3) was simple in nature. 17. Nohar Bai (PW-1) deposed that she was admitted in Baramkali Hospital for one day and on the next morning she was brought to Raigarh hospital and thereafter, she was taken to Bilaspur fd‘f‘ taking X—ray. it appears that she was not admitted in the hospital for further treatment. Her X—ray report was not proved by the prosecution. The report was affixed in B-File. in the X—ray report the doctor opined that there was no evidence of abnprmality. (Z? 18. To constitute an offence under Section 307 IPC, twoingredients of the offence must be present—— (é) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 IPC, what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the G t intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge, which is the necessary ingredient of Section 307 IPC, there can be no offence of attempt to murder. 19. In the case on hand, the prosecution has not been able to prove that the appellant had intention or knowledge to commitmurder. The evidence on record reveals that the prosecution has been able to prove that the appellant gave knife blows on the shoulder, abdomen and chest of the complainant. The injuries sustained by the complaina‘Qt were simple in nature. Therefore, the offence, so far as it relates to complainant Nohar Bai (PW—1), falls within the purview of Section 324 IPC and not under Section 307 IPC. 20. V From perusal of the record, it appears that the appellant has suffered jail sentence for 4 months and 19 days. The offence‘was committed on 14.8.94 and the appellant was convicted and sentenced on 19.12.95. The appeal remained pending since 10.01.96 and the case remained pending for about 17 years. Looking to the circumstances, i am of the view that it would meet the ends of justice, if the jail sentence awarded to the appellant G is reduced to the period already undergone by him. 21. In the result, the appeal is partly allowed. Conviction and sentence awarded to the appellant under Section 307 IPC is set aside. ‘lnstead thereof, lthe appellant is convicted under Section 324 IPC. Conviction of the appellant under Section 324 IPC regarding Khageshwar (PW—3) is maintained: So far as the sentence is concerned, the appellant is sentenced for both the offence under Section 324 IPC to the period already undergone by him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. -. 7," sd/_ . R.S. Sharma Judge