iyle Bl IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.1 CRIMINAL APPEAL N0. f(/? ^3 /2004 fS.B.1 CRIMINAL APPEAL U/S 374 f21 OF CRIMINAL_PROCEDURE CODE APPELLANTS/ACCUSED: [IN JAIL] ^V^-r-l ;..,"e->le Jl w^ RESPONDENT 1] Shiv Kumar aged 37 years S/o Muniwar Sahu, R/o Village R.B. Pipmen, P.S. Basna, Distt. ';• Mahasamund [C.G.] 2] \ Upendra Kumar aged 30 years 'S/o. Chaturbhuj Sahu, R/o. Vaindeepa, P.S. Basan, Disrt. Mahasamund [C.G.] VERSUS State of Chhattisgarh Through:- S.H.O. Basna, Distt. Mahasamund [C.G. 118» ^ ts WGH COURT OF CHHATTiCSGARH AT BILASPUft •I,, (Hon. Mr. .lustice Pritinker Diwaker) Criminal Appeal No. 1051 of 2004 APPELLANT Hemkumar and another VERSUS RESPONDENT State of Chhattisgarh s^riutiis.itjte^ Shri Vinod Deshmukh, counsel for the appellants. Smt. Smita Ghai, P.L. for the State Criminal Appeal No. 1063 of 2004 APPELLANTS Shiv Kumar and another VERSUS RESPONDENT State of Chhattisgarh Shri Manoj Paranjpe, counsel for the appeltants Smt. Smita Ghai, P.L. for the State :^E!teN'is>a!^ ta.iliii.Si-r rt m.s&M i.'.''i>&" ^.L: ' . '.' .-/' 'h <»'. i;?l;-%ASn^ •""^^:-XSSi^' CRIMINAL APPEALS UNDER SECTION 374 (2) OF THc CODE OF CRIMINAL PROCEDURE. 3 U DGM ENT (25.03.2011) Since the aforementioned two appeals arise out of the sajpne judgment dated 7th December, 2004 passed by Second Additional Sessions Judge, Mahasamund in Sessions Trial No. 286/200^, both are disposed of by this common judgment. 2. The appeltants Shiv Kumar and Upendra Kumar have been convicted under Section 307, 307/34 of IPC and sentenced each of them to undergo rigorous imprisonment for five years and pay fine of Rs.5,000, in defaulf of payment or fineto further undergo rigorous imprisonment for one year whereas appetlants Hemkumar and B. Kumar have been f~~ ! f'".^r •" ^-f .-^.'^v.! !"?;! •>^:2 y -2- convicted under Sectipn 323/34 of IPC and sentenced eacrt of them to undergo rigorous imprisonment for six months and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for one month. 3. Facts of the case in brief are that on the basis of Dehati Nalishi B<. P-4 dated 12.02.2004 lodged by the victim G^a Rai (PW-6), FIR Ex.P-7 was registered on 12.02.2004 for tRT offence under Sections 307, 294, 506B/34 IPC against the accused persons. It is alleged that on 12.02.2004 at about ll a.m. appeltant B. Kumar came to the house of the victtm and told him that his brother Shiv Kumar was catling him. When the victim reached the house of Shiv Kumar, the appellants Hem Kumar and B. Kumar tied him up with rope and abused him. It is further alleged that after some time the appetlants Shiv Kumar and Upendra Kumar came there and forclbly took him on a motor cycle to a place known as Chain Dipa. In front of Khub Chand's cycle shop they caused him to get down from the motor-cycleand abused him by saying that he got his daughter eloped, therefore they woutd kilt him. Therea§:or appellant Shiv Kumar assautted on his head and chopped up his all toes along with three fingers of each hand by axe. tt is alleged when the injured was being assaulted by Shiv Kumar, the appellant Upendra Kumar was hotding htm. After investigation challan was fited on 07.05.2004 against the four accused/appellants under Sections 307, 294, 506B, 367 and 120B of IPC whereas the Court below framed charge against them under Section 307/34 of IPC. 4. So as to hold the accused/appellants guilty, prosecution has examined 13 witnesses in support of tts case. Statements of the accused/appeltants were atso recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levetled against them and pleaded their innocence •tt 'l 'ssss's |6^alSii&:j^aj>? •NIKr?;isa!!ta 'Slb ; ^ /,-5'ff SW-S&''; •%^'?' ''•^-^^^CF":^ :;?'ffi ^: r^-iS -3- and false implication In the case. Apart from this, rour witnesses namety Nityanand (DW-l), Suwelal Chouhan (DW- 2), Shiv Kumar (DW-3) and Upenctra (DW-4) have also been examined by the defence in support of its case. 5. After hearing the parttes e triat €ourt has conviaed and sentenced gll the accus^d/appett^nts as mentloned in paragraph-2 of this judgment;' 6. Contention of Shri Vinod Deshmukh, leamed counsel ror the appellants Hem kumar and B. Kumar is that he is noc pressing this appeal as far as it relates to conviction part or the impugned judgment and would confine his argument to the sentence part thereof only. According to him, the appellant B. Kumar has served the entire sentence imposed on him whereas the appellant Hem Kumar has alreaay remained in jail for more than three months and it would be in the interest of justice if the sentence imposed on him is reduced to the period already undergone by him. 7. In respect of appellants Shiv Kumar and Upendra Kumar It has been argued by Shri Manoj Paranjpe that these two appellants have been falsely implicated in this case. He submits that even if the entire case is taken as it is ihe offence under Section 307 of IPC is not made out against them. 8. On the other hand supporting the impugned judgment ic has been argued by the leamed counsel for the State that rlne brutal act of the appetlants shows thelr criminal mentality,. therefore they do not deserve any lenlenoy. She submits thai: the manner In which they chopped up the toes and three fingers of each hand of the injured shows the gravifry or offence and therefore the judgment impugned is strictly in accordance with law and there is no Infirmity in the same. • \'^.^ ^ i=all /S!l : ^n<'-?1 "."'' 's --^w' -tl- 9. Heard counset fpr the partles and perusect the material available on record including thejudgment tmpugned. 10. Gadda Rai (PW-6), the victim in his court statement has stated that on the date of incident, appetlant B. Kumar came to hls house and asked him that hls brother Shlv Kumar was calting hlm. After an hour when he went to the house; <i ' > appellant Shiv Kumar; the appellants B. Kumar and Hem Kumar tied him up wlth rope and told him that the daughter of Shlv Kumar had eloped and he knew about e same. Me has stated that after about an hour the appellants Shlv Kumar and Upendra came there and forcibiy took him on a motorcycle to the viltage Chain Dipa. While he was taking to the village Chain Dipa, the appellant Shiv Kumar used to press his neck whenever any person met on the way. At Chaln Dipa the appellant Shlv KUmar first assaulted him on his head by axe and thereafter chopped up his all toes and 1 three fingers on each hand. He has further stated that the appellant Upendra also assautted him by axe and thereafter both the appellants fled way from the spot. In cross examination this witness stood very firm and has reiterated what is stated In his examinatlon-ln-chief. Lalsing (PW-1) has stated that on the date of incldent while he was retuming from the market he saw the injured Gadda Rai lying along the road and his toes and fingers were chopped up. Khub Chand (PW-2) has stated that he heard that the victim was assaulted by some persons. Subelal Chouhan (PW-3) is a seizure witness of soil cotteted form the spot vide Ex. P-2. Netro (PW-4) has not stated anythlng against the appeltants. Sanat Kumar (PW-5), Mahadev (FW- 7)- the vlltage Kotwar and Tej Prakash (PW-13) have not supported the prosecutton case and they have been declared hostlle. Ram Manohar Verma (PW-8), the Head Constabte had 4^ s.ri—.''' liiia" :^-rf,s Sf?^ '•"•^Ks'nl'.S'y :::'-^:^£^.-' -5'- recorded the FIR B(. P-7. Sajan Das (PW-9), the Head Constable who had record^d DehaU Nalishi Ex. P-4. Diiip Kumar Mishra (PW-10) is the Patwari who had preparsd the spot map vide Ex.P-8. The Ii'ivestigating Officer D. S. Rajput (PW-ll) has supported the-prosecution case. Dr. Jayshree Sahu (PW-12) who had medicalty examined the victim Gadda Rai has found following injuries vide Ex. P-9: 'i. ,<; 1) Muttiple Incised wounds on (he head caused by shsrp edged object and all were grievous in nature, 2) Index, Middle and ring fingers of right nand were ctiopped up. 3) Index; Middte and ring fingers of teft hand were choppea up. 4) Atl the toes or left and right leg were chopped up. 5) Muttiple incised wounds on right knee caused by hara and blunt object and all were grievous in nature. 11. Minute examination of the evidence in particutar viain-i Gadda Rai makes it clear that on the date or Incident he wos brutally assautted by the accused/appettants Shiv Kumar ar,a Upendra Kumar and his statement is duty corroborated by nis medical report Ex.P-9A where tr>e doctor has ogined i:lr>5c three fingers of each hand and atl the toes of the victim \ivci-= chopped up and multipte injuries sustained on his heaa ana right knee were grievous in nature. According to the doctor.. if prompt treatment was not given to him, the in]uries sustained by him were sufficient to cause his death. On ths basis of the evidence as adduced by the prosecution; conviction of the appetlants as has been recorded by the trici court is just and proper and needs no interference. As tne accused/appellant Hem Kumar is on bail, his bail bonds stanc cancelled and he is directed to be sent back to jail forthwith CQ serve out the remaining part of the jait sentence whareas '"-"-.'•-.r,~.:~f^?'-^:'. wr^^\l^<^ :.Wh iB5S -6— accused/appeltants B. Kumar, Shiv Kumar and Upendra Kumar have alreayy undergone the entire sentence imposed on them by the Court below and therefore they are not required to be sent back to Jall. ^ Sd/- Pritiriker Diwaker Judge 's'tJUyiys