' >-^'~L-Z..l.'^ .^ ^-^.^^^^ ^N !8S HIGH CDUH'T: OF MADMA ERADSSH AT JABALPUR -Griminal Appeal Ko. 1 ./1995 ^- Appellant CM^ttan ° son of Be^iet Issai, •^ ^ ^. aged about 22 yearfe, Kaja Salab,^^ <^ ' . ' • ' • . . . ' l:L Ra tpur, Digtt i Raipur (MP). /<"" '. • • . • • ' . . . ^ ' . • • - • "/ Verms Respond^it afcate ofM.P« ' ^ APPSAL UNDSR SE3GTX)K 57Z<-(2> of CR.P.G, r-"-s ••^ m_ HieH COURT OF CMHAmSGARM AT BIl.ASPUR (Mon, Mr, Justice Pritinker Diwaker) Criminal AppeaS No. 281 of 1995 APPELLANT RESPONDENT VERSUS Chhuttan State of Madhya Pradesh. Smt. Indtra Tripathi, counsel forappetlant. Shri Pravin Das, Dy. G.A. for the State. CRIMINAL APPEAL UNDER SECTXON 374 (2) OF THE CODE OF CRIMSNAL PROCEDURE. J UDGMENT (03.02.2011) The present appeaj arises out of the judgment and order dated 03.02.1995 passed by Third Additjonaj Sessions Judge, Raipur in Sessions Trial No. 430/92 convicting the accused/appellant for the offence under Sections 307 and 324 of IPC and sentencing him to undergo rigorous imprtsonment for two years u/s 307 and rigorous jmprisonment for one year u/s 324 of IPC. Both the sentences were dlrected to run concurrently. 2. Brief facts of the case are that on 06.10.1992 at about 8 p.m. Dehati Nalishi ex.P-3 Was recorded by the victim Kalakunj Soni (PW-4) aileging in it that on that day at about 7 p.m. the accused/appellant Chhottan and the aasuitted accused Jugnu assaulted him, Panalal (PW-2), Ashok Kumar (PW-3) and Navin Marpal (PW-5). Based on this Dehati Nalishi/FIR Ex.P-5 was registered on 06.10.1992 itself under section 307/34 of IPC against the two accused persons. The case ofthe prosecution is that on 06.10.1992 there wassome dispute between the accused persons and the injured party as a result of whfch the accused persons assautted four persons' by means of knlfe. After investigatjon, chalfan was filed on 22.10.1992 under sections 307, 324, 323 read wtth section 34 of IPC. Mowever the Court below framed charge against the accused persons under Sections 307 and 324 read wjth Section 34 of IPC 3, So as to hold the accused persons guilty^ prosecutfon has examined 14 witnesses in support of its case. Statements of the accused persons were aiso recorded under section 313 of the Code of Crimlnal Procedure in which they denied the charges leveJSed against them and pleaded their (nnocence and false impdcation in the case. 4. After hearing the parties the trial Court has acquitted co-accused Jugnu of the offence under Sections 307 and 324 read with Section 34 of IPC but convicted and sentenced the accused/appellant for the offence under Sections 307 and 324 of IPC. 5. Contention of Smt. Tripathy.. learned counsel for the appellant is that as on the basis of same set of evidence once the trial Court has acquitted the co-accused Jugnu, the present appellant aiso ought to have been acquitted. She submits that though the accused/appeilant was not known to the victim prevjously yet the named FIR has been lodged against him. She submits that the witnesses have also admitted the fact that the name of the appellant was told to them by the poiice authority. She submits that the inddent took place in dark nlght^ therefore question of identlfication does not arise. It has also been argued that the injured and other witnesses have not specificalty stated as to which injury has been caused by which accused and therefore the liability cannot be fastened on the accused/appelSant alone. Lastly it has been argued that at best the offence under Section 324 of IPC is made out against the appetiant and not under Section -3- 307 of IPC. She submits that considenng the fact that the appejlant has already remained in jaiS for about three months and 18 days^ the sentence imposed on him may be reduced to the period already undergone by hjm. 6. On the other hand supportlng the impugned judgment has been argued by Shri Das^ learned counsel for the State that djfferent role has been assigned to the two accused persons and as specific allegations have been made against the appellant in Court Statements/ he has rightly been convicted by the Court below. He further submits that as the witnesses have categoricaSly deposed against the appellant attributing a specific role to him, looklng to the nature of the injurles sustained by the victims in particular Navin Harpal (PW-5)/ the convlctjon of the accused/appellant under section 307 of IPC is fully justifled. 7. Heard counsel for the parties and perused the material available on record includlng the judgmentimpugned. 8. Madhukar rao Dhawre (PW-1) who is a selzure witness of Exs. P-l 81 P-2 by which certaln cloths of the victims had been sejzed has dully supported the prosecution case. Panalal (PW-2) who is one of the injured wltnesses has statect in his court statement that on the date of incldent when he was returning after witnessing Dashera festival along wlth his family members^ he heard certain noise on the way and asked his famlly members to go to the house. Thereafter he proceeded towards the spot where he saw the accused persons assaulting 2-3 persons of his locality and when he tried to intervene in the matter, the accused/appellant gave him a knife blow from behind. The accused persons also assaulted Navin Harpaly Kalakunj Soni and Ashok and at that time the appellant was carrying a knife in his hand and the ^ '•^ -4- accused Jugnu was aiso actively invoived. In cross- examination he has reiterated that It is the accused/appedant who gave him a knife blow and on account of injur^ sustalned by him he became unconscious and after 3-4 hours of his operation he regained his conscious. In cross-examjnatjon he admits that there are certain facts which he had jnformed to the poiice authorjty at the time of his case diary statement and if the same have not been recorded^ he cannot tell the reason. Me has clarified that before the police he had dlsclosed the fact that he was assaulted by both the accused persons but he confirms that he was assaulted by the accused/appellant, He has further clanfied that as h©was not aware of the name of the acquitted accused Jugnu/ he has not mentioned the same. Me admits that at the time of Incjdent it was dark but he has clanfied that it was not so dark to affect the vjsibjlity. Ashok Kumar (PW-3) has stated in his evidence that on the date of incident when he along with his friends was retuming from High School^ accused persons who were approaching them in a drunken condjtion coltjded with them and started hurling abuses. Thereafter accused/appellant Chhuttan took out a knife and dealt a blow with it on his right elbow. According to this witness, the appellant also assaulted his colieagues Katakunj (PW-4), Navin (PW-5) and Lachhu. From Paragraphs - 4 &6 of his cross-examlnation it appears that there are some contradjctions in his Court statement from that of his case diary statement Ex.D-2 but on the basis of the same.. his entire Court statement cannot be disbelieved. Kalakunj Soni (PW-4) has also stated that on the date of incident the accused/appellant and the acquitted accused collided with Ashok (PW-3) on account of which there was some scuffle between them. Thereafter the appellant chhuttan took out his knife and started assaulting him^ Navin and Ashok and when Panalal came to intervene^ he too was ^NNf, 'cr- assauited by the appellant. u In cross-examinatjon he has stated that as it was dark/ he cannot tell as to who was assaulted first. He has stated that even after the assautt he was fully conscious. After incident he first went to the police station hiring a rickshaw and then to the hospital where he Was operated upon. Me admits the fact that before inddent he was not acquainted with the accused persons and their names were disclosed by the police. If the opening paragraph of this witness is taken into consideration/ in the Court^ he has categorically identifted the accused/persons. He has reiterated that it js the accused/appellant who gave hjm a knife blow. There appear to be some contradsctions and omissions in paragraph-6 of his cross-examjnation but they are not of much jmportance, Navjn Marpal (PW-5) after identjfying the accused persons in the Court has stated that on the date of incident the accused persons ftrst colSjded with them and started abuslng him and his friends, thereafter the accused/appellant Chhuttan gave a knife blow to him^ Kalakunj and Panalal. Me has stated that due to jnjuries sustained on his stomach and chest he became unconscious. He admits that jt was dark night but he has categorically denied the fact that due to darkness the accused persons collided with them. There appear to be some contradictions and omissions in paragraph-3 of his cross- examjnation but they are not much significant, He admits that the accused persons were not known to him by their names but he knew them by their face and dentes the fact that it is the poljce authorittes who disdosed to hlm the names of the accused persons. Laxmi Narayan Sahu (PW-6) has stated that on the date of incident the accused/appellant assaulted Navin^ Kalakunj and Ashok but Pannalal was assaulted while he was trying to settle the matter. In cross- examination he has clarified as to how the incjdent took place -6- and has made aSmost similar statement as made by the other injured eye-witnesses. Madan Netam (PW-7) is the police constable who took Dehati Nalishl Ex.P-3 to the dvil line Police Station. Dr. Sanjay Pandey (PW-8) who had medically examined Panalal and Ashok found followlng injuries on them vide his report Exs.P-6 and P-7: Ex.P-6 - 1) Stab injurles below left rib in the size of 3X1 cm. 2) Lacerated wound on the right stde of the face in the size of l X l cm. Ex.P-7- Incised wound behind right hand in the slze of 3 X 2 cm. According to him,. injury No.l sustained by Panalal was caused by a sharp edged weapon whereas snjury No.2 was caused by blunt object. In respect of nature of the injur/ No.l, he has stated that the opinion can be given by the operating surgeon however the injury No.2 was simple in nature. In respect ot' injuries sustained by Ashok he has opined that they were simple in nature. R. L. Tiwari (PW-9) is the sub-inspector who had done part of investigation. Hariram Verma (PW-10), the head constable had taken the injured Navln Marpal and Kalakunj for medical examination. Pawan Kumar (PW-ll) had taken the jnjured Panalal for his medlcal examination. R.B.S. (PW-12) - the Investigating Officer has supported the prosecution case. Dr. Pradlp Agrawat (PW-13) is an assistant surgeon and hls reports are P-10A & P-llA. According to him/injury sustained by Panalal was not on the vital part of his body and was simple in nature however the Snjury sustained by Navin Marpal (P.W.-5) on his chest was on the vital part '^ of his body and dangerous. According to him if the treatment was not given urgently/ the patient ccwild have died. In respect of other injur/ sustained on the stomach of Navin Harpal, he has defined the same to be simple in nature. His report further reveals that air bubbles were coming out from his chest injury, Dr, K, Gopjnath (PW- 14) had medically examined Navin l-iarpal and Kalakunj Soni and submltted his report Ex.P-SA 81 P-9A respectively. According to him injuries sustained by them were caused by sharp edged weapon. 9, M.inute examination of the evidence makes it clear that on the date of incident the accused/appellant gave knife blow to Panalal (PW-2); Ashok Kumar (PW-3), Kalakunj Soni (PW- 4) and Navin l-tarpal (PW-5) and caused injuries to them. Thus it cannot be said that the accused/appeltant is not involved jn the commlssion of the present crime. Minor contradictions and omissions in the statements of the witnesses are of no significance because if the evldence is taken in its entirety, all the witnesses have stated in one voice that it is the accused/appellant who had assaulted these four persons by means of knife. Even Laxmi Narayan Sahu (PW-6)^ who was jn the company of the injured persons has aiso supported the prosecution case. I fsnd no force in the argument of Smt. Tripathy that since the co-accused Jugnu has been acquitted, on the ground of parity, the appellant herein also deserves to be acquitted. The evldence in respect of partlcipation of both the accused persons is different and specific ailegations have been leveled against the appellant for causing injury by means of knife and therefore the appellant is liable to be convicted under Sections 307 and 324 of IPC. Considering the nature of injury sustalned by Navin Harpai..the report of Dr, Pradeep Agrawal .^v f^. (^- (PW-13) vide Ex.P-llA/ jt can be safely held that the convictjon of the accused/appellant under section 307 of IPC is justifjed. I further find no force in the argument of Smt, Tripathi that as the appellant has already remained ln jail for about three months and 18 days/ the sentence imposed on hlm may be reduced to the period already undergone by him, In thls regard.. as the triaj Court has already taken a lenlent view while passing the judgment impugned by awarding two years jmprisonment under Section 307 IPC and one year under Section 324 IPC, the same cannot be interfered with by thls Court. 10. In view of the aforesaid discussions this Court is of the opinion that the conviction of the accused/appellant under sections 307 and 324 of IPC is just and proper and no Interference therewith is called for. In the resutt, the appeal being devoid of any merit is tiable to be dismissed and it is dismissed as such. • Sd/- Pritinker Diwaker Judge