$66) ‘ RES PONDENT State of Chhattisgarh HIGH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon’ble Mr.T.P.Sharma,J.] Criminal Aggeal No. o7 of 200W APPELLANT Kamta Prasad Nishad VERSUS JUDGMENT BE POSTED FOR PRONOUNCEMENT ON [?-9-2008 "* m Sdl~ T. P. Sharma Judge ‘ ‘xww HIGH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon’ble Mr.T.P.Sharma,J.1 Criminal Ap_peal No. 07 of 2006 rs i Shri Manoj Paranajpe counsel for the appellant. Shri Ravindra Agrawal P.L. for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT ( ($92008) This appeal is directed against the judgment of conviction and order of sentence dated 13.12.2005 passed by the Additional Sessions Judge, Mahasamund, in Sessions Trial No. 328/2005 convicting the accused/appellant for the offence punishable under section 307 of the lndian 'Penal Code and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 1000.00 in default of payment of tine to further undergo rigorous imprisonment for one. 2. The judgment of the trial Court is challenged on the ground that the trial has committed an illegality in convicting and sentencing the accused/appellant on the basis of unreliable evidence. 3. Case of.the prosecution in brief is that on 11.7.2005 at about 8 a.m. when Keja Bai (PW—1) was working in her field, accused/appellant came there and started using filthy language against her. He also assaulted her l l l t l APPELLANT Kamta Prasad Nishad son of Tijram Nishad, Aged about 32 years, resident of village Shergaon, Police Station Mahasamund, District Mahasamund, CG. VERSUS RESPONDENT State of Chhattisgarh through Police- Station Mahasamund, District Mahasamund. with ciub, feHed her down and after lifting her Sari he inserted the stick into her private part with an intention to outrage her modesty and commit her murder. Thereafter, she went to the police station and lodged the report Ex. P-1, Dr. Alka Pardal (PW-7) examined the complainant and vide Ex. P-8 she noticed abrasion on her right arm, and near that injury there was lacerated‘ wound in the size of 3x2 cm. there was injury on the cervix bleeding profusely. lnjury in private part was dangerous to life. Accused/appellant was taken into custody and on interrogation he informed vide Ex. P-2 that the stick was in his house and on the basis of his information it was recovered vide Ex. P—3 from the accused/appellant. Sari of the complainant and the documents relating to land were seized form her vide Ex. P-5. Spot map Ex. P-6 was prepared. 4. After recording the statements of the witnesses under section 161 of the Code of Criminal Procedure and completion of investigation, charge sheet was filed against the accused/appellant in the Court of Chief Judicial Magistrate, Mahasamund who in turn committed the case to the Court of Sessions Judge, Raipur from where Additional Sessions Judge, Mahasamund, received the same on transfer for trial. 5. ln order to prove the guilt of the accused/appellant the prosecution has examined 8 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the material appearing against him in the prosecution case and pleaded his innocence and false implication in the case. He also examined one Sonia and Kunti Bai as defence witnesses. Sonia (DW‘1) has stated that on the date of incident accused and his mother had gone to work in her field and no quarrel between the accused and the complainant took place in her field. Kunti Bai (DW-2) has stated in her evidence that when she was \ going to purchase the grocery items, she heard quarrel—like sound vu( wW > am, \\ emanating from the house of the complainant, she knocked the door but nobody opened it. She also heard the cry of her aunt for heip. She has also stated that the complainant used to say that she would not give any share of her land to the accused and one Bhagwati and some day would implicate the accused in a false case. 6. After hearing counsel for the parties and perusing the material available on record learned trial Court convicted and sentenced the accused/appellant as mentioned above. 7. It is submitted on behalf of the accused/appellant that the evidence adduced by the prosecution to the effect that the accused/appellant with the 4V help of his mother lifted the Sari of the complainant with an intention to outrage her modesty, who is none else but his real aunt (father‘s sister) and thereafter, inserted stick into her private part intending to kill her is, not worthy of credence. It is further argued that the prosecution has also not established the fact that the injury caused in private part of the complainant was sufficient to cause her death. It is argued that due to previous dispute the accused/appellant has been falsely implicated in the crime in question. 8. On the other hand the judgment impugned is supported on by the é counsel for the State/respondent and it is argued that the accused/appellant e has caused the fatal injury by inserting the stick into her private part in an inhuman manner. lt is argued that if the timely medical treatment was not provided to her, the injury would have been dangerous to her life. It is argued that the prosecution has proved its case beyond reasonable doubt, and no interference with the judgment impugned is called for. 9. In order to connect the accused/appellant with the crime in question, l have examinedthe statement of the complainant and other witnesses. Complainant Keja Bai (PW-1) who is the aunt of the accused/appellant has stated in her evidence that while she was working in the field, accused/appeilant went there, staited hurling abuses on her, felled her down and after Iifting her Sari inserted the stick into her private part as a result of which she started bleeding profusely and then she went to the police station and lodged the FIR. Dr. Alka Pardal (PW-7) who medically examined the complainant has stated that there was one abrasion on her elbow in the size of 3 x .2 c.m. and lacerated wound over the cervix which was’bleeding profusely and the injury in her private part was dangerous in nature Sonia (DW—1) has stated in her evidence that on the date of incident accused/appellant was working in her field as labourer. He worked there till 7 p.m. ln the cross examination she has denied the suggestion that with a view to save him she has given a false statement. Kunti Bai (DW—2) has stated in her evidence that 8 days prior to the incident Keja Bai said to her that she would not give any share in her property to the accused/appellant and Bhagwati and would implicate them in a false case. She further stated that a day before the incident when she was going to purchase the grocery items, she heard the quarrel-like sound emanating from the house of the complainant. She knocked the door but nobody opened it. Thereafter she also heard the cry for help raised by the complainant. ln her cross examination she has denied the suggestion that she gave the false statement with a view to save the accused/appellant. By examining Kunti Bai (DW—2) the defence has tried to explain that the complainant received the injury much before the incident. Her act of knocking the door shows that there was some emergency and some unknown person was inside the house of Keja Bai. But this witness has not tried to call the other witnesses for help and even she did not narrate the incident to anyone. Her conduct does not appear to be natural. ltappears that this witness has concealed something which is true and has stated the thing which is not true. The trial Court has rightly rejected her statement. ist“; 10. In this case the incident took place on 11.7.2005. It is not disputed that complainant was injured and she lodged the report. But Sonia (DW-1) has not stated that she came to know about the injury received by the complainant. Defence has tried to establish that on the date of incident when complainant Keja Bai was working in the field, she fell down and sustained injuries though no explanation has come from the defence as to how the complainant sustained injury. It Was not the duty of the defence to explain the injury received by the complainant. lt is not a case of outraging the modesty of a woman but it is a case of condemnation due to the enmity between the accused and the complainant to condemn the accused/applicant. Statement of the complainant inspires confidence. 11. The statement of the complainant which is supported by medical evidence shows that the accused/appellant assaulted her with inserting stick into her private part. However, since the injury was caused with stick and not by any weapon like the pointed iron rod used for stabbing, the offence committed by the accused does not travel beyond section 326 of the lndian Penal Code. The trial Court has reached a wrong conclusion that the accused/appellant has committed the offence punishable under section 307 of the lndian Penal Code. Thus the conviction and sentence under section 307 IPC is set aside and in stead thereof the appellant is convicted under section 326 IPC and sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs. 1000.00, in default of payment of fine to fuither undergo rigorous imprisonment for one month. lt is stated that the appellant is in custody since 12.7.2005. He be set at liberty forthwith if not required in any other case. 12. Thus, the appeal is partly allowed. Sdl- T. P. Sharma Judge 77., l