@ CD IN THE HIGH COURT OF JUHICATURE AT BILASPUR CR. APPEAL No. 5&7 / 2002; APPELLANTV :_ 1, SHANKAR SON OF PUNIT Gem Accusm , AGE) ABOUT— 20' YEARS, REsmENT OF KUTHREL ( Ens. RANCHIRAI) MSTRICT ; Ema ( CHEATTISGARH). ’ 2 ) BAIGA ALIA; YUWRAJ SW SOB OF Emmm , AGE - 25 YEARS R/o MAR KALA; Rs. GURUR BISTT. BU§G (C.G.’). ::VERSUS:: STATE OF CHriATTISGARH : @> HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 991 of 2002 SH RAWAN Vetsus STATE OF CHHATTISGARH Criminal Apjeal No. 389 of 2002 SHANKAR & ONE ANOTHER V3311! STATE OF CHHA’I‘TISGARH Post for; 18.05.2007 Sd— - Sunil Kumar Sinha Judge 1705,2007 APPELLANT RESPONDENT APPELLANTS RESPONDENT Criminal Ap£eal No. 991 of 2002 SHRAWAN SON OF ITWARI GOND, AGE 22 YEARS, RESIDENT OF VILLAGE KU’I‘HREL, P.S. GUNDERDEHI, DISTRICT DURG (CHHATTISGARH) Versus STATE OF CHHATFISGARH & Criminal Appeal No. 389 of 2002 1. SHANKAR SON OF PUNIT GOND, AGED ABOUT — 20 YEARS, RESIDENT OF KUTI-IREL (RS. RANCHIRAI), DISTRICT DURG (CHHATTISGARH) 2. BAIGA ALIAS YUWRAJ SAHU, SON OF BUDHRAM, AGE — 25 YEARS, R/o ARMARI KALA, Rs. GURUR, DISTr. DURG (c.G.) Versus STATE OF CHHA’I’I‘ISGARH (Appeals under Section 374 {2) of Cr.P.C.) Appearance: Shli S.P. Agrawal and Neelkanth Malviya, Advocates for the appeHants. Shn' Sandeep Yadav, Dy. Govt. Advocate for the State. l Sunil Kumar Sinha, J. (1) Being aggrieved with the judgment of conviction and Older of sentences dated 28.3.2002 passed in Sessions Trial No. 144/2001 by JUDGMENT (18.05.2007) the First Additional Sessions Judge, Durg, whereby the said Court, after holding the appellants guilty of offence punishable u/ ss 341 8n 307 r/ws. 34 I.P.C., sentenced them to undergo R.I. for 1 year and R.I. for 10 years 8:. to pay a fine of Rs. 500/—, in default of” payment of fine to further HIGH COURT OF CHHATTISGARH, BILASPUR R) Criminal Appeals No. 991/2002 & 389/2002 a? und€rgo R.I. for 6 months respectively, the appellants have preferred these appeals under Section 374 (2) Cr.P.C. (2) The brief facts are that the victim namely Ku. Domeshwmi and appellant- Shrawan, both were students of Class 1}“! and were studying in High School, Barrel. Prior to the date of ulcident, appellant—Shrawan had teased and assaulted the Victim, on which, some repmt was made by the victim Emd this appellant was taken into custody by the. police and later on, he was released. The case of the prosecution is that on‘ 15.3.2001 at about 2.00 p.m., Domeshwari (P.W.-1) was returning from her School to village— Gatapar. She was on her bicycle and was accompahied by her three fn'ends namely- Yamuna, Ku. Jageshwari (P.W.-2) and Nityanand (P.W.-3), who wen: also on their bicycles. On the way, when they reached near the foxest nursery, on account of previous animosity, appellant-Shrawan and his two associates came on the mad and Shiawan caught the handle of the bicycle of Domeshwari (P.W.—1), due to which, she fell down on the ground and thereafter, he gave her multiple knife blows on her head, neck, stomach and other vital parts of the body. The other two appellants also assaulted the victim with the knife. In the meanwhile, a public bus came over there, seeing which, the appellants ran away from the seen of occurrence. The victim became semi unconscious. This message was sent to her father namely- Khuman (P.W.-9), who immediately reached to the spot and took the victim to Dr. Baldauram (P.W.-6) in village Batrel, who after giving the first add t2 her, advised to take her to Dhamtari Hospital, on which, she was taken to Dhamtan’ Hospiml. In Dhamtari Hospital, the victim was medically examined by Dr. NB. Singh and Drt (Suit) Vina Chattexjee (P.W.-13) and medical report Ex.—P/25 was prepared. The contents of the report would show that the llowing injuries weie noticed by the Doctom : 1) An incised wound on the front portion of head admeasuring 6 cm. x V2 cm. x 1 cm; 2) An incised wound on the left side. of the head admeasuring 7 cm. x 1/2 cm. x 1 cm; a \ o Except injuries No. 1 & 2, all the injuries were simple in nature. Later on, the victim was admitted to the hospital on 15.3.2001, where she Iemained upto 26.3.2001. During this period, a Dehati Nalishi was xecorded on 15.3.2001 at about 20.30 hours vide Ex.’-P/ 1 and her dying declaration was also recorded by the Executive Magistrate at about 8.10 p.m. on the same day vide Ex.~P/2. Based on Dehati Nalishi, F.I.R. (Ex. P/ 17) was registered. (3) During the course of investigation, the appellants were airested under Ex —P/ 18 to Ex -P/ 20 and appellants Shankar &. Baiga Yuwraj were put to identiiication on 1 4 2001 and were duly identified by Jageshwan (P.W. 2) and Nityanand (P W -3) The identification memo is Ex —P/5. In fuither investigation, the memorandums of appellants Yuwraj, Shankar 85 Shrawan were recorded under Ex -P/9 Ex P/ 10 8n Ex P/ 11 and three knifes were seized, 1n consequences oi these memorandums. The bed— head-ticket of the Victim (Ex.-P/ 26) and X-Iay Plate (Ex.—P/ 27) were also seized and after recording 161 Cr.P.C. statements of witnesses and further after completion of usual investigation, a charge-sheet under the aforesaid Sections of I.P.C. was tiled. At the trial, the Sessions Judge recorded a finding that the injuries sustained by the victim were fatal to her life and the (4) 3 Criminal Appeals No. 991/2002 & 389/2002 An incised wound on the back side of the 1 head admeasuring 12 cm. x V2 cm. x cm.; A11 incised wound on the back side of neck " admeasun'ng 10 cm. x V2 cm. x 2 cm.; An incised wound on the lower portion of the 3 neck admeasuring 12 cm. x V2 cm. x 3 cm.; An incised Wound on the stomach admeasuring 1/2 cm. x 1 cm. x 1 cm.; An incised wound on the lower poriion of the 1 stomach admeasun'ng V7 c'm. x 1 cm. x cm.; An incised wound on the buttock and admeasuring ‘/2 cm. x 1 cm. x 1 cm.; and Another incised wound just above buttock admeasuring V2 cm. x 1 cm. x 1 cm. 4 Criminal Appeals N0. 99112002 & 389/2002 death may have been caused as a consequence of these injLuies. He also reconled a fmding that all these appeHants had participated in causing injuries to the victim, therefore, they all were guilty of offence u/ s 307/ 34 I.P.C. along with Section 341 I.P.C. (5) Learned counsel for the appellants argued that the injuries sustained by the victim were not sutticient to cause death in the ordinarily course of nature, therefore, it is not a case of attempt to life and an odence u/s 307/34 I.P.C. Would not be made out against appellant-Shiawan. For 2 other appellants, they argued that their participation is doubtful, therefore, they may be given beneht of doubt. Alternatively, they also aigued that the sentences imposed against the appellants are too harsh, Which may be reduced to the minimtun, preferably to the petiod already undergone. They submitted that appellant-Shrawan is in jail since 20.3.2001 and he has completed more than 6 years and 2 months and other 2 appellants have also undergone for a period of about 1 year and 8 months. (5) On the other hand, learned counsel for the State opposed these arguments. He supported the judgment of conviction and order of sentences passed by the Sessions Court. (7) I have heard the learned counsel for the parties at length and have also perused the records of the sessions trial. (8) First of all this to be seen as to whether an offence u/s 307/34 I.P.C. is made out or not, and in case, it is made out, who are the culprits ? (9) So far as constitution of offence under Section 307 of IPC is concerned, it has been held by the Apex Court in the matter of Sarju Prasad —Vs- State ofBihar, AIR 1965 S.C. 843, that in order to bring the offence home to accused, the prosecution must establish that his intention was one of the three kinds mentioned in Section 300 I.P.C. The state of mind of the accused (i 5 Criminal Appeals No. 991/2002 & 389/2002 has to be deduced fmm surrounding circumstances and motive would be a relcvant circumstance and Where the evidence is not sudicient to establish with certainty, existence of requisite intention or knowledge of accused, the accused can be convicted onlV under Section 324 and not under Section 307 of- IPC. [10) In the matter of Hari Kishan & State of Haryana —Vs- Sukhbir Singh and others Am 1988 S.C. 2I27, the Apex Court further held that under Section 307 IPC, What the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessaw to constitute murder. Without this ingredient being established, there can be no oEence of “attempt to murder.” Under Section 307 theintention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely hum the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inilicted are some of the factors that may be taken into consideration to determine the intention. (1 1) lfwe look into the evidence of P.W.—1 K11. Domeshwan', she deposed that when she was returning from school along with her friends namely Yamuna, Ku. Jageshwari (P.W.—2) and Nityanand (P.W.-3), 3 boys came out from the side of the nursery. Shrawan has been named by her. She deposed that Shrawan caught her ycle, abused her and he gave two knife blows in her stomach, r ' hereafter he also gave knife blows towards her left eye, neck ' and on the back portion of the neck and on her head etc. She specihcally deposed that the repeated blows were made on her head and many blows were made on the left arm and left thigh, and also on her back. She fell down, when her friends intervened for rescue, then, the assailants ran away from the place of occurrence. In 3‘d paragraph of her evidence, she Q c t 6 Criminal Appeals No. 991/2002 & 389/2002 @ depOS6d that flrstly Shrawan had assault on hcr stomach by knife, themafter, other 2 persons had assaulted by knife and all 3 .persons had participawd in assault. This witness has not named the 2 oth€r assailants. Th6 velsion of this witness is fully con‘oboratcd by medical cvidence, as her mcdical report (Ex.~ P/25) would show that she received as many as 9 incised wounds, which \vers admeasun'ng from 12 cm. .to 1 cm. having soms depth and Dr (Smt.) Vina Chatteljee (P.W.-l3) has opined that out of 9 injun'es, injun'es No. 3 to 9 were of simple in nature, whereas injulies No. 1 8a 2 were of grievous in nature. In para—7, she deposed that if the victim would not have been given medical assistance in time, then, she would have died out of injun'es' sustained by her. The becl~head~ticket (Ex-P] 26) would fuither show that the victim was admitted in the hospital from 15.3.2001 to 26.3.2001 and she was brought unconscious and was vomin'ng at the time of her admission The weapons of the offence (Knives) which were used by the appellant Shxawan and other 2 assailants were having long length (15 cm. to 9 V2 cm.) and breadth of their sham edges was l ‘/2 cm. (12) P.W.-2 Ku. Jageshwari has turned hostile but P.W.‘3 Nityanand has supported the evidence of P.W.‘1 Domeshwaii and has Clearly deposed that she was mainly assaulted by appellant Shrawan by knife and when she‘fell down, the 2 other assailants had assaulted her by knife. According to P.W.~1 Domeshwari, prior to this incident, on some small matter, an assault was made to her in the school itself, for which, she has raported the matter to the Head Master, who thought it better to take the police intervention and at the instance of this girl, appellant Shrawan, who was her class mate; was taken into custody and was, later on, released. (13) The out come of all these evidence would show that the deadly weapons were used and the accused persons had ambushed at the place chosen by them, which was a lonely place and there was a motive for the crime with accused] appellant Shrawan because he was not happy with the 7 Criminal Aggeals N0. 991/2002 & 389/2002 conduct of the girl on account of the a§ove instance and the accused persons have severely given blows to the victim and th€v had chosen the vital parts of the body of the victim like head, neck and stomach etc., therefore, the intention and knowledge of the assailants, particulariy appellant Shrawan is wn't large on record that he wanted to attempt the life of the girl, which has pleceded the act attributed to him and in the facts and circumstances of the case, an oil‘ence u/s 307 I.P.C.. would be made out in this matter. (14) Now question arises as to who were the assailants ? On the basis of above evidence ie evidence of P.W.-1 Domeshwari and P.W.-3 Nityanand, it is established beyond reasoriable doubt that appellant ShraWan was one of the assailants, who actively palticipated in commission of crime and most of the fatal blows, particularly causing injuries No. 1 85 2 were inflicted by him and he was responsible for commission of the said offence along with other 2 assailants. About participation of the other 2 appellants, Shankar and Baiga @ Yuwraj, (as 2 of the other assailants) the evidence is shakey. Admittedly, 2 other assailants were not known to the victim or witnesses, therefore, they have not been named by them. The inst—hand information regarding commission of crime was Dehati Nalishi dated 15.3.2001 (Ex.— P/ l), which was recorded on the information of the victim herself. In this document, the names of these appellants are not there. Later on, in the dying decimation also, their names have not been mentioned and even in this document, the victim has not attributed any role to 2 other assailants. The contents of the dying declaration would show that the victim had made allegations against appellant Shrawan only and even the participation of other 2 assailants has not been mentioned in it. ln the dying declaration, statement regarding manner of injuries received is vital because according to the dying declaration, only one person (Shrawan) had assaulted the victim, who alone had participated in commission of crime. After the arrest, the other 2 assailants were put to identification and the content of the (V 8 Criminal Appeals N0. 991/2002 & 389/2002 36” identiflcation memo would show that they were duly identjfled by P.W.2 Jageshwan' and P.W.-3 Nityanand. Why the idsntiflcation was not conducted by victim, has not bcen explained by the prosecution. The victim was the best witness to identify the assailants. This identiflcation was conducted on 1.4.2001 at about 12.30 p.111. Admittedly, the victim was hospitalized from 15.3.2001 to 26.3.2001, therefore, she was oxtlinan'ly available with the police on 1.4.2001 and she could have been called by the Magistxate to identify the other 2 assailants, which has not been done. Moreover, as stated above, P.W.-2 Jageshwari has tunled hostile and she has not supported the case of prosecution. In one line, she has stated that she had identified the accused persons. P.W.-3 Nityanand has stated that he had put his signature on identitication memo, at the time of identitication of accused persons. ln the cross examination pala-la, he has deposed that they had gone to jail for three times for the purpose of identification but two times T.I. parade was not conducted for some reason and 3rd time, it was conducted, he had identined the appellants. (15) If we evaluate the evidence of identification on the face of evidence of P.W.-1/vic.tim Domeshwan', particularly with reference to her dying declaiation, some doubt is cmated, as the Victim has not stated in the dying declaration that 2 other persons were also involved in assaulting her and she has only said about one paiticipant naming the appellant Shiawan. When the omission was put to her in her cmss examination, she stated ' vide‘ para-12 that she has told about 3 persons. On the basis of her dying declaration, the actual involvement of 2 other persons becomes suspicious and in light of above, the evidence of identification, cannot be given much weightage and a shadow of doubt is created as to whether 8 persons had actually participated or not and if participated, whether the other 2 appellants were the same persons. Therefore, these 2 appellants namel 7 Shankar and Baiga @ Yuwraj are entitled for benefit of doubt and in consequences acquittal. a ' v 9 Criminal A_pgeals N0. 99112002 & 389I‘2002 (16) Coming to the quantum of sentences against appellant Shrawan, looking to the peculiar facts and circumstances of the case that the victim and this appellailt, both were studying in the same institution in Class 11th and on some small dispute, this appellant was taken into custody at the instance of the victim and further looking to his age, which was 2O years at the time of incident and also that he is continuously in jail since 20.3.2001 thereby he has already undergone for a period of 6 yeaxs & 2 months, I deem it proper to reduce his sentence to R.I. for 7 vears. (17) [n the result, Cr.A. No. 991/2002 is partly allowed. The conviction awarded to appellant Shrawan u/ ss 341 an 307/34 I.P.C. are maintained. Sentence u/s 341 is also maintained. However, the jail sentence 11/5 307/34 LRC. is reduced to 7 Shankar and Baiga @ Yuwraj are set aside giving them benefit of doubt. They are acquitted for the charges framed against them. Sd- Sunil Kumar Sinha Judge V h“.— “wwwn