i.eiiitii^itiiSit'iMiiUSi \'- IN THE HIGH COURTOF CHHATTISGARH AT BILASPUR ^\'"; : ^! - ;, • :^~ CRIMINAL APPEAL N0. '^-^c) QF 2005 APPELLANT (INJAIL) ^^•^^...-- 1.-^^'^^— SHAMBHU PANIKA, S/0 SHRI DHARMA, AGED ABOUT 30 YEARS^RESIDENT OF VILLAGE-KAROUNTI, POLICE STATION JHILMILI, DISTRICT SURGUJA, (C.G.). tt VERSUS STATE OF GHHATTISGARH, THROUGH: THE POLICE STATION, JHILIMILI, DISTRICT SURGUJA. CRIMINAL APPEAL UNDER SEGTION374'f2y OF THE CODE OF CRIMINAL PROCEDURE, 1973. XI-HC-78 3TI^Tq5TR-)i* aW3<l^l!*)t|i°h *11*1CTI Sh*fich 3^ •^MMI, wAv'iio, Ricii«y __ ^r. A,Mo,^ads] ^ 200 &~ 3ll^l wn (l^rfg^^T) ?T(TRKWf?(T3fI^T 13-07-2006 This oppeal was finoill^ Shri A.K.Shukla, lean Sessions Co.se. No.417/2004 the appellont had assaulted »i<ifCT<fltiiiaT^''te^t-<Ri«;i< ^sri^iTsn^r Appellant Shambhu Po^ika by Shri A.K.Shukla. Advocate. State by Shri D. C, Pojidey. Ponel Lawyer. heard today, (ied counsel for the oppelkmt at the very outset submitted th^it he would not ossail tfie finding recorded by the IInd Ad^litional Sessions Judge, Surajpur in vide judgment dated 21-03-2005 that Indramani wjth a wooden plank on the head as also on the right n^etacarpel bone due to which she had sustained simple injuries on| of fifth right metacarpel b^ submitted that he would a^sail the conviction of the appellont under Section-307 of IPC ^»nly on the ground that even on the to show that the injuries dangerous to life. It was the head ouid had sustained fracture ne. Learned counsel for the appellou'it basis of facts established b^ the prosecution. the offence did not travel beyond 5ection-352 o|f the IPC since there was no evidence sustained by Indramani PW-6 were xlso contended that considering the nature of injuries and the ap|pellant being in jail since 23-07-2004, the sentence awarded to •(tie appellont should be modified to sentence already undergone N'. 3y him. ^^ XI-HC-78 *irH^tl iElrHTtft 'FSS -t{wm^, wS\w\e, Rinwy . (3-. A ,No,^^3," ^ 2005" 3< 1^1 <<a«n(t?if^'st<<.6T) 311^1 mf^TRi cwan^TCTra ^ffRK^fersn^T •rL- <;tii<it<li<11-i >iitiCTTfftecfl'<Ri'Ki< ^i3:rf^T3n^T On the otherAond, phri D.C.Ponctey, leamed Pcmel Lawyer oppearing for the State fai^ly conceded while arguing that in view had sustained a fracture in the fifth ^ple injuries on the head. the offence would not travel beyond Section-325 of the fact that Indramoni metacarpel bon®besides'si committed by the appeltanl of IPC. l-lavin9 heard rival c^ntentions. I have perused the record of Sessions Case No.417/^004. Although Indramoni PW-6 was declured hostile. by the p|rosecution yet her testimony clearly revealed that she had sustl the appellant. Obviously, be| PW-6 had suppressed the| depose the whole truth w| tined injury due to an ossault made by ng the wife of the appellant,Indramoni genesis of the offence cmd did not hich was clearly borne out from the testimony of her father Kujsau PW-4 who deposed that Indramani had visited her matrimonial oppellant h'ad also visited V home on the date of occurrence. The llage-Bhaiyyathan and during a quarrel with his wife Indramani, th^ oppeltant assaulted her with u wooden plank on the head. Medicjit evidence of Dr. B.C.Puikra, PW-12 clearly establishes that Ir(dramcmi had sustqined as mony as 4 injuries cn her head and tfier®was omother injury with swelting and bruise size 2"xl^" on the upper purt of right. trt.t;<?ig»WMini< XI-HC-78 sn^TqirR-ficb ciwsn^Tsbxiti w fis?s;'' *ii*ini s»»*ii<ti 353' '-ill'Mlcl'y, ®Tfl*f'16,Rlclltiy ^CT..A:N".^./..^200^ 311^1 4^* (li?l3's"<'ST) S«lli9T?rf^g'311^T -— conducted Dr.M.KJainPW-Zwho not find any grievous injur^ fractur®of fifth metacarp41 per report Vide Ex.P-2:'tEt i| PW-12 has in his testimoi|iy sustained by Indramani on] could have resulted in her ^ evidence led by the prosecuj had gone to Vilt(xge-Bhaiyya|l to her matrimonial housel admitt-ed by the oppellantif^ Cr.P.C. Upon refusal by the appellant oaid Indram|ini inflicted injuries on evidence led by the sustained by Indramani on a gnevous injury i.e. sustained by her. F.I.R. Ex.| to Police Station-Jhilmili, &i irt l^. indicate that the oppelloht »i<<FM41-iii*inl"ffte<^t'<Ri<<;i< ^isil^Tsn^r the radiological examination did on the head of Indramani and only a bone of the right hond was found as pertinent to note that t)r. B.C. Paikro nowhere stated that the injuries her head were dongerous to life or |eath, if not treated immediately. The jt'ion also establishes that the oppellant jthan to bring back his wife Indramani at Village-Karroti which fact was his examination under Section-313 of l^amani, a quarrel had ensued between jpn'i during which the appellont had ^imcmi with a wooden plank. Medical clearly shows that injury Indhamani Indr^imcmi pro|secution h^r head were simple in nature and only )u^C' frn<jture on fifth metacarpel bone was .P-15 also shows that she herself went i|strict-Sarguja to lodge the F.I.R. In this yiew of the ifiatter, there isnothing on record to |had intended or attempted to cpy%_ in :»1" XI-HC-78 II Rt''-liw M sn^T^rfiaiq; tWW^TTstiHltt) *II*IMI Sh*1|Ch 3^r •<<i<iiw<i, ©Tn^'is,Rioiuy ri3-.Cr-.A.'.M.0;.1^.3^ ^200^ Sll^ifl isitn (l^ts't'yT) •^ ^arw^a'sn^T — Thejrefore, •.." ibn- the death of Indramani. appellont squarely falls und^r cnusing grievous hurt to of ths oppellant under 5^Sti(»n- be set aside ond altered to The only question the sentence to be awardetl Indramani PW-6 clearly sh^ws against her husband. It a Village-Karroti, i.e. her evidence. Shri A.K.Shukla, whlch also submitted that IndHamomi etfe*^ matrimonial home,after the undergone incarceration period of almost 2 years. Considering the fact^ the injuries sustained by opinion that the interest appellcmtis sentenced to imj ond aiso to pay a fine of Rs,^ <ni<llCT<fl-< IIHaTff^SfS <Rl«l<, ^srf^irsn^T :, the offence committed by the Section-325 of IPC for voluntarily Inipramani by a wooden plonk. Conviction i-307 of IPC, therefore, deserves to $ection-325 of IPC. now requires 4we- consjderation is to the oppellant. The testimony of that she did not want to depose |so shows that she was residing at mcfrrimonial home on the date of her sarned counsel for the appelkmt has ndilamomi PW-6 was residing at her |occurrence. The oppellant has already frbm 23-07-2004 till date i.e. for a and circumstances of the case and Endramani, I am of the considered of justice would be served if the im|prisonment already undergone by him tooo/-. ^tf ^ XI-HC-78 3II^T?iTR-fi* traT3iR?Tst)H|ch ^s? •<<i<ii^<i, ®Tn*i'i6,Riciit(y w^rg^.^^.^^^ 200ST 3ii^l 4a«n('yt^q^dT) \ s^nwtriN'sn^T ^J ap^eal In the result. this appellont under Section-301 thereunder are set aside ai' under Section-325 of Bi>C cuhd undergone by him and .to p(|<y which the oppellont would period of 6 months. Fine avji paid, shall be adjusted, ^. 'bl'illcl'ifl-f HIIClTffFs^ <Rl^K ^3Tf^T3II^T is partly allowed. Conviction of the of IPC ond the sentence owurded id instead the appellant is convicted sentenced to imprisoninent already a fine of Rs.5,000/-in defoult of undergo simpte imprisonment for a wrded by the_tearned trial Judge, if Jud