-^t' '^ % IN Ti-iE Ha^I'BLE HIGH COLJRT OF CHHATTISGABH AT BILASPUR ADpellant C In Jail) Mesoondent ^ a; QS o CBIMINAL APPEA N@<yc?99~~ of 2001 S/o Kunwar Singiys'amhoe aged about 52 years, Occupation - Cultiva^, B/o Villege Baijee, Thana Beinetara Qisit. Durg (C.jG.^ -versus^ State of Chhattisgarh Through Police Thana- Bemetara Dist1,«, Durg (0»<3^) 0= , ^^ __ . . • ' 374 GRIMINAL APPEAL UNDEB SECTia^/&3^ OF GGDE OFfflIMXNAL PBOCEDURE w f7'' \. HIGHCOURT OF CHHATTISGARHAT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeai No. 887 of2001 APPELLANT RESPONDENT VERSUS Kunwar Singh State of Chhattisgarh. Shri Pankaj Agrawal counsel for the appellant. Shri Neeraj Mehta PL for the respondent/State. CRIMINAL APPEALUNDER SECTION 374 OF THECODE OF CRIMINAL PROCEDURE. JUDGMENT (20.01.2011) This appeal is directed against the judgment dated 31.8.2001 passed by theAdditional Sessions Judge (FTC) Bemetara District Durg in Sessions Trial No. 1 58/1997 convicting the appellant under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years and pay fine of Rs. 2000, in defaultof payment of fine to further undergo rigorous imprisonment for three months. 2. Case of the prosecution in brief is that on 31.5.1992 at about 10.30 hours FIR Ex. P-1 was lodged by Ram Singh (PW-1) alleging that on that day at about 8.30 a.m. when he along with other persons was setting the tiles on the roof-top of his house, he saw the accused persons taking away the wood from his Kothar and on objection being raised by him, they retorted that they were carrying the same as it belonged to them. Meanwhile, some altercation ensued between them and in the process the accused/appellant herein picked up the axe lying nearby and caused injury on the right ear of thecomplainant extending up to the neck and also on the left year which started bleeding profusely. According to the case of the prosecution, the incident was witnessed by Kartik (PW-2), Mahroo (PW-3) and other villagers. After investigation challan was filed on 21.8.1992. .\ -Z-— w 3. So as to hold the accused persons guilty, prosecution has examined as many as12Witnesses in support of its case. Statements of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. This apart, one Bhav Singh (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has acquitted accused Konda ofthe charge levelled against him but convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that complainant Ram Singh (PW-1) himself was the aggressor in the incident. He submits that no independent witness has been examined by the prosecution except one namely Raj Kumar (PW-10) but he too has not supported the case ofthe prosecution and has been declared hostile. He also submits that the weapon used in the offence i.e. axe has also not been sent for chemical examination. Alternatively, he submits that the appellant has already remained in jail for about two months and the incident had taken place about 18 yearsback and in these circumstances no useful purpose would be served in again sending him to jail and it would be in the interest of justice if the sentence imposed on him is reduced to the period already undergone by him. He submits that the accused/appellant is willing to adequately compensate the victim under the provision of Section 357 ofthe Cr.P.C. 7. On the other hand counsel for the respondent/State supports the judgment impugned. 8. Ram Singh (PW-1) has stated in his evidence that on the date of incident when he along with his brother and father was sitting on the roof top of his house for setting the tiles thereon, he saw the accused/appellant taking wood from his Kothar and when he objected to his act and asked to return the same, accused/appellant picked up ^^^^3^U^^^^^^^,^AP,^ ^-^ ~%. y ;^&^^'" --5- V, the axe lying nearby and assaulted him on both sides of his neck as a result of which he became unconscious.According to this witness, entire incident was witnessed by his brother, father and one Thanuram of the same village. In cross examination also this witness remained firm and has not stated anything new to the help of the accused/appellant. Kartik (PW-2) - younger brother of the complainant and one of the eyewitnesses to the incident has supported the statement of the complainant Ram Singh (PW-l)stating that he saw the accused/appellant assaulting his brother and when he reached the spot, he ran away from there. According to this witness, after sustaining injuries his brother had become unconscious and was taken to hospital at Bemetara from where he was shifted to Durg. Mahru (PW-3) - the father of the complainant has also supported the case of the prosecution. Birbal (PW-4) - younger brother of the victim Ram Singh has stated that on the date of incident there was some dispute between the appellant and his brother. According to this witness, after making the accused/appellant understand he went to get the tiles but when he returned thereto he saw his brother lying there with injuries on his neck. Rambrij (PW-5) - the son of the victim and eyewitness to the incident has also supported the case of the prosecution. Bedan Bai (PW-6) - sister-in-law of the victim has also supported the case of the prosecution. Dr. Vinay Kumar Tamrakar (PW-7) is the witness who had medically examined the victim and given his report Ex. P-5 has noticed following injuries on his body: (i) Cut wound on face extending from just above and anterior to right pinna up to the neck in the size of 6 and ^ x 1 x 3/4" (ii) Cut wound on face at and below the left pinna left ear- lobule is missing with sharp clean cut margin size 3 x 1 area and oblique in 1/^" deep direction and involving the neck. According to this witness injuries are grievous in nature. B.R. Sahu - Naib Tehsildar (PW-8) is the witness who had prepared the spot map Ex. P-6. Station House Officer S.R. Pradhan (PW-9) is the investigating officer and he has supported the case of the '/^v^ §.,^..'1. 1 l£aslj ^..... ^ ^' %--^y "~^'.s&^^^"~ -4. prosecution. Raj Kumar (PW-10) is the witness to seizure of axe under Ex. P-8 has not supported the case of the prosecution and has been declared hostile. Rajoram Sahu (PW-11) is the witness to seizure of axe under Ex. P-10 has to some extent supported the case of the prosecution. B.D. Pahare (PW-12) who has done part of the investigation has also supported the case of the prosecution. Bhav Singh(DW-l) has stated in his evidence that on the date of incident there existed some dispute between the accused/appellant and the victim and they are not on talking terms with each other. According to him, accused/appellant is residing in a different village for last 13-14 years. 9. Minute examination of the evidence of the witnesses reveals that though the injuries have been caused by the accused/appellant, the medical report does not show that the said injuries were dangerous to life and in this view of the matter and also in view of the judgment of the Supreme Court in the matter of Neelam Baheland another v. State of Uttrakhand (2010) 2 SCC 229 this Court is of the considered opinion that accused/appellant is Ijable to be convicted under Section 326 instead of under Section 307 of the IPC. Taking the facts and circumstances of the case this Court is of the view that the case in hand would not fall under Section 323 or 324 of the IPC because out of the injuries sustained by the victim, one injury was grievous in nature which has been certified by Dr. Vinay Kumar Tamrakar (PW-7). 10. Accordingly, the appeal is partly allowed. In stead of Section 307 the appellant is convicted under Section 326 IPC. He is sentenced to undergo rigorous imprisonment for one year. However, the appellant is directed to pay a fine of Rs. 21,000 in terms of Section 357 Cr.P.C. Out of this amount Rs. 20,000 will be paid to the victim as compensation within a period of six months from the date of receipt of copy of this order failing which he shall undergo rigorous imprisonment for six months. Sd/- Pritinker Diwaker Judge ^>\^