HIGH COURT OF CHHATTISGARH AT BII.ASPUR Criminal ApReat No. 78S of20_07 SB : Hon'bSe Mr. T.P. Shs.-ffsa, J. Appeltant Vs. ResRondent Sahukar, S/oT Kali Ram, aged about 30 ysars, PanchayaS Karmi Ri'o. Vanshapur, P.S. Latpur, Distt. Biiaspur (C.G.) Stete ofChhattisgarh, Through P.S. Lalpur, BiSaspur, DistS. Biiaspur (C.G.) CRiMINAL APPEAL UNDER SECTIQN 374 OF THE CODE OF CRIMINAL PROCEDURE.1S73 ^!ii^^;^ .w-'^a i ^iSJIh. "® Present:- . i Shri Suni! Sahu, counsel for the appeltant. Shri Pankaj Shm'astava, Pansi iswyer for the State. JUDGMENT (Passed on 25UI August. 2008) Thjs appea! is directed against the judgment of conviction and order of sentence dated 16.11.2006 passed by Ihe Additional Sessions Juc^e, Munaeli jn Sessions Tria! No. 177/2005 wherebv ttie tearned Additional Sessions Judge after holding the appellant guilty for commission of offenc® under Sections 323 read with section 149, 148, 323 rwd with section 149 and 324 read wlth section 149 of the Indian Penat Code was directed to pay flne of Rs, 500/- for each offence, in default of payment of flne to undergo rigorous imprisonment for 3 months for each offence. 2, The judgment is challenged on ttie ground that ctKS of frie prosecution has not been supported by any indepenctent witnesses sufficient for coovicting the appellant and wlthout there being sufficient evidence the triat court has convicted and sentenced the appellant as aforementioned. 3. Case of the prosecutipn, in brief, is that on 3,1.2005 at about 6.30 p.m,, complainant PW-1 Ashwani Kumar, PW-2 Ratanlat, PW-3 Prem Kumar and PW-6 Top Singh wore busy in their agricultura! operation, Children of Shivprasatl were answering the cat! of nature near the way they were objected grandmother of PW-1 Ashwani Kumar, at that time appellant and other co-accused came to the complainant armed with tabbali and sttek and assaulted PW-1 Ashwani Kymar, PW-3 Prem Kumar and PW-6 Top Singh ^$s~~~ ^y""'4 .^ ''SSw&k a ~'"S 1 ^ .^! •A. '•* .<»•' 2- -v^^gy 'ia. by tabbali and stick. Ashwani Kumar lc>dged the FIR vide Ex.P/1. Map was prepared vide Exs. P/2 and P/3. Injured were examined by RW-12 Dr. Chav Singh Patte, who examined Ratan vide Ex.P/12 A and found swefting & pain over the back of teft hand havjng dimension of 9 x 7 cm., tweratect wound over the fingers having dimension of ,5 x .5 cm. and one abrasion over left forearm having dimension of 2 x 1 cm. Prem Kumar was also examined by Dr. Chav Singh Patle vid®Ex.P/13 and found one Incised wound of size 5 x% x bone dip over top of scalp (head), incised wound with swelling of size 9x5 cm. over the head and lacerated wound of sfee 2x1 cm. over left side of the head. Top Singh was also examined by cloctor vide Ex.Rf14 A and found following injuries:- (i) Incised wound ^i 5 x 2.5 x muscie teyer left sicte of the head \' over parietal part^from mid line (ii) Lacerated wound of size 2 x .5 x muscte dip over ftie head (iii) Swelfing and pain of size 7x6 crn. over the right forearm <rf back side, (iv) Abrasion of size 3x2 cm. over left chin. Ashwanl Kumar was examined vide Ex.P/15 A and found one Incised wound of s'ee 10 x % cm. x bons dlp which is right side of parieta! temporal area and swelling and pain of size 8x5 cm. over the rightforearm, Doctor has ateo examined tebbali and sttek. X-ray was taken over the head of Ashwani Kumar and Top Singh and fracture of parietal bone of Ashwani Kumarwas found vide Ex.P/40. 4, After completion of investigation, charge sheet was fl!ed in the Court of Judteial Magistrate Firet Class, Mungeli who in turn committed the case to the Court of Sessions Judge, Bilaspur from where Additional Sessions Judge, Mungeli received the same on transfer for trial. 5. In order to estabiish the guilt of the appellant/accused, the prosecution has examined as many as 13 witnesses. Statement of the accused/ aooeilant was recorded untfer Section 313 of the Code of Crimina! Procedure, 1973, in which he denied the cireumstances appearing against him, He steted that he is innocent and has been falseiy impiicated with the crime in question. •~ 3 — B^lls.itSte "•"•SISf' ^.•.;^!^^.m. '>;£''^&!:s^s^^» 6. Learned MdWonal Sessions Judge after hearing the counsel for thg respective parties, com/icted and sentenced the aceused/appellant as aTorementioned. 7. I have heard Shri Suni! Sahu, counsel for the appellant and Shri Pankaj Shmastava, Pane! lawyer for the State and perused the judgment impugned and records of the courts court. 8, Learned counsel for the appellant submits that the prosecuUon has required to establish Hs case beyond all shadow of doubt, but in this case prosecution has utterly failed to prove its case beyond al! reasonabie doubt. Their injured wtnesses have not supported the case of the prosecution and PW-1 Ashwani Kumar, who ai^cording to th& prossciition lodged the FIR, has declared hostite and accused persons were also raceived injuries during the same transaction, but it has not been explained by the prosecution. Learned counsel for the appelte.nt further submMs that appellant Sahukar is a govemment servant and conviction and sentence would be fetal for him and that would be doubtejeopardize. 9. On the other hand, judgment impugned te ajpported on betalf of the respondent/State. In order to establish the guilt of the appellsmt, the prosecution has required to establish the foflowing essentel jngredientt qfthe offence, (i) That th®appellant along with ofter co-aecused censtituted uniawful assembly. (ii) That the appellarrt and ofter co-accused were armed with deadly weapons. (ii) That the appellant along wlth other eo-accused in furfterance of the common objeet of the unlawful assembly as^ulted and caused injuries to the complainants. 11. |n order to prove the guilt of the appellant, frie prosecution has adduced oral and medical evidence. PW-1 Ashwani Kumar, PW-2 Ratanlal, PW-3 Prem Kumar and PW-6 Top Singh who are injured witnesses, have specifically stated that they were working In their twrn and children of Shivprasad were answering Uie cal! of nature near the vmy they were objeeted grandmother of PW-1 Ashwani Kumar, at that time appeltant Sahukar came armed with tabbabli and other accused vrith having stick and tabbali, They assaulted PW-4 Awhwani Kumar, PW-3 Pram Kumar and 4- ^^ ;;'^i:i;Nt-f^ ' ^ <i^!Ig- 31- PW-6 Top Singh Appellant Sahukar assaulted tehwani Kuniar over his head. PW-10 Dr. S. Chaterjee has examlned the injured vide Exs. P/40, P/41, P/42 and P/43 and found injuries as aforementioned. Injury of Ashwanl Kumar was over ths head and there was tectured of parietal bon®and same was gnevous in nature, PW-1 Ashwani Kumar has stated in para-3 of hls statement that his father Ratan Lal has lodged the report, but he has admitted the signature in FIR*(Ex.P?1) and prosecution has declared him hostile, but in his cross-examinatiQn he has supported the case of the prosecution. PW-2 Ratan Lal, PW-3 Prem Kumar and PW-6 Top Singh have a!so supported the case of the prosecution. Injury found cwer the body of Ashwani Kumar was incised.wound of stee 10 x % x bone dip, incised of parietal bone was found fractyred and incised injury over the head coupted with the fracture is grieyous infcry. RW-2 Ratan Lal, PW-3 Prem Kuraar and PW-6 Top Singh have supported the case of the prosecution. They have admitted in their cross-examination that they were aggressor and they have caused injury to the appellant and other co-accused. hijury found over the bocty of.Prem Kumar and Awhwani Kumar are incised wound and according to prosecution they are caused by tabbali by the appeltant. 12. Evidence adduced on behatf of the prosecution is suffident to connect the appellant with the crime in quesHon. Although the learned trial court has considered the injury found over the body of injured Ashwani Kumar and Prem Kumar, which was incised wound arKl injury of Ashwani Kumar was also resulted into fracture. The iearned fria! court has convlcted the appellant for commission of offence punishable under sections 323/148 and 324/149 of the indian Penal Code. The State has not preferred any appeal against the said jydgment. At ttiis stage especially when the State has not preferred any appeal, 1 do ncrt find thrt it shoutd be remanded. 13. For the foregoing reasons, the conviction accorded by the trial eourt is sustainable. As regards the question ofsentence, the trialcourt has already taken lenient view aven in convicting the appeltant after reoording the finding that the complainart Ashwani Kumar has received grievous injury and incised wound, tt would not b©propw to set aside the impugngd judgment and remand the cas®for re-trial, 14. Consequently, the appeal being devold of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge