HIGH COURT OF CHHATnSGAR AT BIUMWim Cr. Aoneal No. 1118/2003 Abdul Raies Khan (% Baba and fhree ofhers Vs. State ofChhattisgarh Judgment for consideiatfoii Sd/- Dilip Raosaheb Deshmukh Judge Hon»ble8lul Jnstlce Pakhrnddin ^iO^is^ Acg. ClaiefJusUce $'.10.2005 Postfor: <6.10.2005 •<:{ Sd/- Fakhruddin Judge •£8 HIGH COURT OF CHHATHSQAR AT BILASPVR C».ABpeaI Mro. 1118/2003 Abdul Raies Khaa@ Baba and fhree otfaers Vs. State of Chhattisgarh Corain; Hon>hle Sbrt JiMrtAce BkalrlidaaMpIn. ArfdaiaF Chtef JiiatAce HontMe SIurl Jnstice DiBp Raoaaheb DeslMatukh. J. Shri Anui Kochar for fhie appeUants. Shri Raviadra Agrawal, P.L. for the State. JUDGMBHT (DcHyercdon .10.200^ Per DUJB Raosaheb DedunuUi. J. The appeflaats have assaited fheir ccm.viction under Section 307 and 294 read wifh Section 34 I.P.C. in special caae No. 107/2001 vide judgnient dated 15.10.2003 delivered by Smt Maitriae Mathiir, Special Judge, Rsgnaxulgaoii whercby fhe appellaats were sentenced to undeigo imprisoiiment for life axid to a fine of Rs.25,000/- each under Section 307 of the I.P.C. and in default to undergo r^orous imprisonment for one year each axid under Sectfoii 294 of tfae I.P.C, to undergo rigoxoua imprisoninient for fhrce monfhs. 2. The factural matrix lies wifhia a xiarrow coxxipass, Santosh Kumar was workmg as Clerk ia Bharat Txavels^ near Bus stand, Rajnandgaon. The narrow maigui between de^urtare tioadbags of @ fhe buses ofAJmeri Travels aad Indian Travels frequenfly gave rise to quarrel between fhe rivalbus owners. On 10.06.2001 at about 2.15 P.M. appeUaiit No. 1-Abdul Raies Khaa @ Baba anned wifh a sword aad accompaiiied by other appeUaats No.2, 3 & 4 went to fhe oflSce of Bharat Travels to f^ht wifh one Raies of Bharat Travels. They entered tiie office ui aa agitated inood aad hurluag abuses said awhere is Maadardwd Raies^. Saatosh Meshrani P.W.l told the appeUants fhat Raies was not available and they should not filthUy abuse iaside fhe office. Upon fhis, fhe already agitated appeUaats started quarreUing wifh Saatosh Meshram P.W.l. The appeUaats No.2, 3 & 4 assaulted Saatosh Meshrani by firsts aad kicks aad held him whereupon appeUaat No.l-Abdul Raies Khan gave a siagle blow by the sword on fhe right side of frontal region of skuU of Saatosh Meshraai. Blood started flowiag from fhe wound. Abdul Raies Khaa, appellaat No. 1, was about to assault Saatosh Meshram for fhe second tmie by fhe sword but Santosh Meshram ducked, A^al P.W.7 bus conductor, who was present in fhe ofl5ce, saw fhe occurrence. A crowd gafhercd whereupon fhe appeUaiits went away hurUng filthy abuses fsMaadarchod Chamra to Santosh Meshraoi. 3. AQal P.W.7 brought Saatosh Meshram to the District Hospital, Rajnaadgaon where Dr. Lohia P.W. 10 exaaiined Saatosh aiid found aa incised wound 6^ x W x bone deep on fhe right fix)ntal region of skuU oxid an. abrasion over right cheek V^ cin x 1/4 cni. In titie opinion of Dr, Lohia P.W.10, fhe iacised wound was caused by hard aad sharp object wifhia 6 hours. Santosh w. Meshram was adinitted ia niale siirgical ward for obser^ation an^d treataient on 10.06.2001. He was discharged after a week. 4. Upon receiving iaformation, Inspector V.S.Dwivedi P.W.ll reached fhe District Hospital and wrote Dehati Nalishi on fhe basis of narration by Saatosh Meshram vide Ex. P.1. An offence under Section 307 & 294 read wifh Section 34 offhe I.P.C. along with 3 (1) (x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herciaafter referred to as the 'Act^) was registered agamst fhe appellaats vide Ex.P.5, On fhe basis of memoraadum Ex. P.10 of appeUaat No.l-Abdul Raies Khan, one sword 20^ ia length having a haiidle of5^ ia lengfh aad widfh of W was seized from appeUant No.l vide Ex.P.ll. On 16.6.2001 Dr. Lohia P.W. 10 exammed fhe swoid and opiaed vide Ex.P. 15 fhat the incised iajury sustamed by Saiitosh Meshrami could have been iaflicted by it. Upon opiaion beirig sought regardiag fhe nature of injuiy, Dr. Lohia P.W.10 opined on 14.7.2001 fhat the injuiy sustaiaed by Saatosh Meshram was simple. He also opiaed that the iajury could have been fatal if not treated unniediately, as per opiaion given by Surgical SpeciaUst. After conipletion of iavestigation, the appeUaats were prosecuted under Section 307 & 294 read wifh Section 34 offhe I.P.C. aad also under Section 3 (2) (v) oftheAct. 5. The appeUaats abjiired the guUt, pleaded ianocence aad exaniiaed Gopal D,W.l aad Kaiaal Gupta D.W.2 ia defence. The prosecution examined as niaay as 11 witaesses. In defence, Gopal D.W,1 deposed that duiiag fhe scxifEle, Saatosh had a faU and ,.^ sustaiaed injxuy due to beiag hit by the table. Kamal Gupta D.W.2 testi&ed fhat Saiitosh was abusin^g appeUant No. 1 filfhUy aad no incidence as atleged by fhe prosecution took place. 6. The tdal Judge negatived the defence version, reUed upon fhe testiinony of Saatosh Meshram P.W.l and A^al P.W.7 which was corroborated by Kaahaiya P.W.6 aad fhe testimony of Dr. Lohia P.W. 10 aad convicted the appeUants under Section 307 and 294 read with Section 34 of fhe I.P.C. aad sentenced fhem to iniprisomaient as aforesaid ia paragraph-1. The appeUaats were acquitted offhe charge under Section 3 (2) (v) ofthe Act 7. Shri Kochar, leamed counsel for fhe appellants, has argued that Santosh Meshram had sustaiaed onty one injuiy on the right frontal rcgional of skiiU which in fhe opinion of Dr. Lohia was a sioiple iojury. The prosecution led no evidence to prove fhat fhe injuiy sustauied by Saoitosh Meshram was eifher grievous or daagerous to Ufe siace fhe evidence of Dr. Lohia P.W.7 was coiapletely sUent on fhis poiat aad fhe Surgical Specialist was not exacained by fhe prosecution. He also contended fhat even as per fhe prosecution version, fhe appellaats had gone to the ofifice to quarrel wifh one Raies aad not wifh Saatosh Meshram. AppeUant No. 1-Abdiil Raies Khaii was alleged to have dealt only a single blow on fhe head of Santosh Meshram iaflictiag a sunple injuiy and fhereafter no further injuiy was inflicted by fhe appeUaat No. 1. He fhereby contended fhat the ofiFence, if any, committed by fhe appeUaats would not travel beyond Section 324 read wifh Section 34 offhe I.P.C. He contended fhat fhe appeUaats were ia jail suice .^•^ 13.06.2001 to 14.6.2001 and thereafter since 15.10.2003 the appeUao^ts were undergoiag sentence siace ahnost two years. A coniproniise had been affected between fhe parties aad an appUcation (M.Cr.P.No.803/2004) dated 24.12.2003 aad I.A.No.3153/2005 dated 27.09.2005 had been ffled by Santosh Meshram. Therefore, m view of the compromise, a lenient approach should be adopted whUe awardiag fhe sentence to the appeUaate. In support of his contentions, he placed reliance on Bcidrilal vs. State of M.P. reported in 2005 (7) SCC 55. Fantiva Ss Ors. Vs. Stcite of M.P. reported in 1992 (3? C^-imes 900. Sattan Saham vs. State ofBihar 8s others reported in 2003 (1) CCSC 295, Kailash Prascul Kmwdia and cawther v. State of Bihar, reported ia AJ.R.1980 SC 106, Ram Kumar RaQhunath Prasad Goutam v. State ofM.P. rcported in 2000 (2) M.P.L.J. Babu Sinah and others u State ofHaryana reported in 1995 Cr.L.J. 2630 SC aad Mdthai Vs. State ofKerala rcported in 2005 (1) Crimes 181 (8C). On tfae ofher haad, Shri Ravmdra Agrawal, P.L. for fhe State placiag rcUaace on State of Madhiia Pradesh Vs. Saleem alicus Chamaru and another reported ia 2005 Cri.L.iJ.3435 argued that fhe assault by a dangerous weapon to wit a sword on vital part i.e. fhe skuU was sufiBcient to prove that fhe appeUaats iatended to cause fhe deafh of Saatosh Meshram, aad fherefore, fhe raere fact tiiat fhe iojury sustaiaed by Santosh Meshram was a sunple injuiy would not dUute fhe ofifence froia Section 307 I.P.C. to Section 324 I.P.C. 8. We have heard the rival contentions at length aad have also perused the record. Santosh Meshram P.W.l has stated that all the four appeUaiits came to the office and hurling filthy abuses to fhe owner quarreUed wifh. him aad beat him wifh haads and fists. He has further stated that whUe fhe appeUaats No.2, 3 & 4 caught hold of himi, the appellaiit No.l-Abdul Raies Khaa iaflicted aa iajuiy on his head by a sword. He did not depose about aay second atteinpt by Abdul Raies Khaxi, appeUaat No.l, to assault him by sword. It is pertment to note fhat alfhough A^al P.W.7 has stated fhat aU fhe appeUants were assaultiag Saatosh Meshram by haads aad fists, yet no such iajiiry was found on fhe person of Santosh Meshram by Dr. Lohia P.W.10. It is also noteworfhy fhat A^al P.W.7 does not specify as to what filthy abuses werc actuaUy hurled by fhe appeUants, A^al P.W.7 also did not depose fhat the appeUaats No.2, 3 & 4 had caught hold ofSaatosh IVIeshraia P.W. 1 whUe beiag assaulted by the sword by appeUant No.l. Kanhaiya P.W.6 only narrated fhat he saw fhe appeUant No. 1 coming out of the ofi5ce of Bharat Travels with a sword while being accoinpanied by fhe appeUaats No.2, 3 & 4 but he also did not state as to fhe actual words spoken by the appeUants or fhe actual abuses hurled by fheni. Santosh MeshramL P.W.l, Kaahaiya P.W.6 and AQal P.W.7 inerely say fhat fhe appellants were hurlmg abuses of inofher aad sister. However, so far as titie quarrel by all the appeUants inside fhe ofiEice of Bharat Travels on the aftenioon of the date of occurrence wifh Saatosh Meshram P.W.l aad the assault by fhe sword on the head of Santosh Meshram RW.l by ..^ fhe appellaat No.l-Abdul Raies Khaa is conceraed, fhe testmiony of Saatosh Meshraai P.W.l aad AQal P.W.7 is reliable aad consistent, The defence taken in. fhe cross--examAnation of fhese witaa.esses is also consistent wifh such aa iaference fhat aU fhe appeUaats had gone to fhe office of Bharat Travels and iadu^ed in a quarrcl wifh Saatosh Meshram during which fhe appeUant No. 1- Abdul Raies Khan inflicted a siagle iajuiy on the skuU of Saatosh Meshraoi P.W. 1 by a sword. 9. The only residual question which requires our consideration is as to what oflTence was coinmitted by fhe appeUaats. So far as fhe oflTence under Section 294 of fhe I.P.C. is concemed, fhe prosecution is required to establish first of all fhat the act committed by fhe appellaat was obscene; secondly that it was coimnitted ia a pubUc place aad thirdly such act caused aanoyaace to ofhers. The testimony of Kaahaiya P.W.6 and AQal P.W,7 does not clearty depict the actual words spoken by fhe appeUants while hurlmg abuses. The word uMaadarchod9 is an abuse which is coninionly used by ruffiaas dxiriag fights or quarrel aad does not per se show obscenity, Such abuses arc now colloquial expressions of aager aad have litde substance. The testimony of Saatosh Kuxnar Meshrani P.W.l, AjQal P.W.7 aad Kanhaiya P.W.6 also does not show fhat fhe abuses hiirled by the appellan.ts had caused annoyaace to fhem.. Their evidence also shows fhat the abuses were hurled iaside the of5ce of the Bharat Travels which raay not be a public place siace no evidence to fhat efiFect has been led by fhe prosecution. Thus, none of fhe i l iagredients to bring home fhe guilt under Section 294 offhe I.P.C. have been estabUshed by the prosecution. In our considered opinion, the conviction of the appeUaats under Section 294 of fhe I.P.C. aad fhe sentence awarded thereunder cannot be sustamed underlaw. 10. So far as fhe assault on Saatosh Maeshraai P.W.l by a sword by appeUaat No. 1 is conceraed, it is clear not only frora fhe Dehati Nalishi Ex. P.1 but also by fhe testimony of Santosh Meshram P.W.l that the appeUants had gone to the office of Bharat Travels to indu^e iato a quarrel wifh one Raies aiid not wifh Saatosh Meshram P.W.l. So far as fhe participatlon of fhe appeUauts No.2, 3 &4 in assaultmg Santosh Meshram P.W.l is conceraed, fhe testimony of Saatosh Meshram fhat he was held by appellaats No.2, 3 & 4 while fhe appellant No.l assaiilted him by fhe sword on the head is not reUable siace AJgar P.W.7 who saw the occurrcnce did not corroborate Saatosh Meshrain P.W. 1 on the point that fhe appeUants No.2, 3 & 4 had held Saatosh Meshram while he was assaulted wifh sword by appellaat No. 1-Abdul Raies Khaa. Therefore, it cannot be iaferred that appeUaats No.2, 3 & 4 had shared the common mtention to attempt to commit murder of Saatosh MeshraDi. So far as the appeUant No.l is concemed, a siagle blow was dealt by hua on the nght side of the frontal region of Santosh Meshram P.W.l. So far as fhe injury sustained by Saatosh Meshrana^ P.W. 1 is concenied, fhe testiinony of Dr. Lohia P.W. 10 has been recorded in a veiy sUpshod maaner by fhe torial \^ Judge who did iiot even thxTtlC It necessary to record fhe fiadiags and fhe opiaion expressed by Dr. Lohia ia fhe examination-ui- chief. Thus, fhere is no evidence on record to estabUsh fhat the mjuries sustamed by Saatosh Meshrani could have proved fatal, if not treated immediately. Even ifwe look iato fhe opiaion Ex. P.14 of Dr. Lohia, we arc unable to coinprehend as to how aa injuiy which was a siaiple injury could be opiaed to be fatal if not treated mimediately. In fhe opiaion Ex.P.14, it appears that Dr. Lohia's opinionwas based on the opiaion given by fhe Surgical SpeciaMst. However, neifher fhe Surgical SpeciaMst was examined by the prosecution nor fhe opiaion was avaUable on record. In cross- examination, Dr. Lohia P.W.10 has categorically stated that fhe uijury sustaiaed by Saatosh MeshramL was of a sunple nature. 11. In State pf Mcidhtfa Pradesh Vs. Saleem alias Chamaru and another reported in 2005 Cri.L.J.3435 cited by fhe learaed counsel for the State, it was held by the Suprenie Coiut that it is sufficient to justify a conviction under Section 307 I,P.C. if fherc was prcsent aa iatent coupled wifh soine overt act ia execution thereof aad it was not essential that bodUy injiiry capable of causiag deafh should have been uiflicted. In Vasant Vithu Jadhav v. State of Maharashtra reported m 2004 Crl. L.J.1786 the Apex Court held as under: <To justfcfy a conviction under fhis section, it is not essential fhat bodity iojury capable of causiag deafh should have been mflicted. Alfhough fhe nature of iajuiy actually caused Diay often give considerable assistance ia coiniag to a findiag as to fhe intention of fhe accused, such iatention may also be deduced froin ofher circuinstaaces, aad inay even, ia sorae cases, be ascertaiaed wifhout aay reference at all to actual wounds. The section makes a distinction 10 between an act offhe accused and its result, ifaay. Such aa act niay not be attended by aay result so far as fhe person assaulted is concemed, but stUl fhere may be cases in which fhe culprit would be Uable under fhis section. It is not necessary fhat fhe injuiy actually caused to the victim of the assaiilt should be sufficient under ordmaxy circumstances to cause fhe deatii of the person assaulted. What fhe Coiirt has to see is whefher tiie act, irrespective of its result, was done with the iatention or knowledge aad under circunistances raentioned ia the section, An atteiapt ia order to be crixnuial need not be fhe penultunate act. It is sufficient ia law, if tiiere is present aa intent coupled with some overt act ia execution fhereor l^ We are fhercfore required to see whefher in fhe facts aad circunistaa.ces it caii be iaferred that the appeUaat No.l-Abdul Raies Khaa uitended to cause fhe deafh of Saatosh Meshraia. It would be worthwhile reiterating here fhat the appeUants had not gone to the office of Bharat Travels to quarrel wifh Saatosh Meshram. It is also not disputed fhat fhe appellant No. 1-Abdul Raies Khaii did not assault Santosh Meshram for a second time siace Saatosh Meshrain P.W.l has ia his testioiouy not deposed about any second atterapt of aa assault wifh sword by fhe appeUaat No. 1. The force with which fhe assault by tiie sword was made would also, ia our considered opiaion, be relevaat m fhe facts aad circunistaiices of fhis case. The testunony of Dr, Lohia P.W.7 does not say anythmg about the dimensions of fhe mjuiy sustamed by Abdul Raies Khaa due to utter callousness on fhe part of fhe trial Judge. It only shows fhat fhe uijuiy sustaiaed by Santosh Meshrani was a siaiple iajuiy. The testiinony of Saatosh Meshraia P.W, 1 clearly shows that he was hospitaUzed oiily for a period of seven days ia fhe Distodct Hospital, Rajnandgaon. No Lci 11 @) evidence has been led by fhe prosecutiou to show that aay fracture iindemeafh fhe incised wound was sustaiaed by hiin. Goiag by fhe inedical report Ex.P. 13 by any stretch of imagiaation, it caa at fhe inost be said fhat Saatosh Meshrani had sustaiaed only a sitaple iajuiy though by a daagerous weapon to wit a sword. Although Santosh Meshraxii had ia fhe Dehati Nalishi stated fhat fhe appeUant No. 1-Abdul Raies Khaa had atteiapted to assault him twice by fhe sword, yet ia his evidence ia the Court he did not niake a stateinent to that effect. After inflictiag fhe siagle injuiy, which ia the opiaion of Dr. Lohia, was a siraple injuiy, fhe appeUaats left fhe place. Thus, fhere is absolutely no evidence on record which would go to show that fhe appellants had the iatention of causuig deafh of Santosh Meshrami. The appellants had simply gone to fhe ojffice to quarrel due to fh.e simultaneous departure tiDiiags of fhe rival buses and a sudden quarrcl had ensued during which fhe appeUaat No.l had inflicted a sunple injuiy on fhe head of Saatosh Meshraia by fhe sword. 13, In the facts aad circzinistaaces ofthe case aad considering the inaaner ia which fhe evidence was recorded by fhe trial Judge, we are of fhe considered opiaion fhat fhe offence under Section 307 rcad with Section 34 offhe I.P.C. is not brought honie agam.st the appeUants. Fromi fhe evidence on record axid fhe niaaner ia which aU the appeUants had gone to quarrel ia the ofiEice of Bharat Travels duriag which fhe appellaat No.l-Abdul Raies Khan iiiflicted a simple iiicised iajury on the head of Santosh Meshrain P.W.l, we have no hesitation ia concludiag fhat tiie offence 12 committed by fhe appeBants does not teavel beyood Seetfon 324 read wifh Section 34 offhe I.P.C. 13, In fhe result, fhe appeal is parfly aBowad, The convictkni of fhe appeUants under Sectioxi 294 of fhe I.P.C, and fhe senteace awarded tliercunder by fhe trial Judge is set aside and fhe appeUants are acquitted offhe chax^e under Section 294 read wifh Sectfcon 34 of fhe I.P.C, The appeBants are also acquitted of fhe chax^e under Section 307 read wifh Sectk>n 34 of fhe I»P,C. smd fhe sentence awarded fhereumler is abo set aside, Iiistead the appeBaiits are convicted under Section 324 read witti Sectbii 34 crf tfae I.P.C. la BadnkfJ vs. Sfate ofM.P. rcported in 2008 (7| SCC 55 upon a compromise between tfae pardes, ia a ca^se under Section 307 of flie I,P.C., the sentence of iaiprisooment was reduced to period already undergoue ie. about 14 monfha, In fhe present case, Saatosh Meshraai has filed a compioxxiise application wliich is M.Cr.P.No.803/2004 dated 24.12.2003 mid I.A.No.3153/2005 dated 27.09.2005. We talse note offhe factfhat a compromise has been afiFected voluntarily between Saatosb Meshram and the appeUante. The appeUan.ts have imdex^oxie imprisonment from 13.06.2001 to 14.6.2001 and fhereafter icom 15.10,2003 tiU date. In fhe facts and circumstaaces of fhe case and ia view of fhe compxomise between fhe parties aad also considering fhe iiature of iajiuy sustahaed by Saatosh Meshram, awardiag custodial sentence already uxideigoxie by tibe appeBaaits would, in our opuuon, meet fhe ends of justice, We order accorduigfy, 13 '^'Q^ 14. If fhe appellaats are not held dn custody in any f^her case, fhey shaU be set at liberty forthwifti. Sd/- Ag. Chief Justice Sd/- Dilip Raosaheb Deshmukh Judge 0^10.2005 ~ c..:' ' -' L