HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 690 of 2007 APPELLANT , Sita Ram son of Ram Sharan Sahu. VERSUS RESPONDENT State of Chhattisgarh. Shri H.S. Ahluwalia counsel for the appellant. Shri Pankaj Shrivastava, PL for the respondentIState. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. J U DGMENT (12.11.2009) This appeal is directed against judgment dated 16.1.2007 passed by Additional Sessions Judge Rajnandgaon in Sessions Trial No. 136/2005 convicting the‘appeiiant for the offence punishable under Section 307 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 5000, in default of payment of fine to further undergo Rl for six months. 2. Facts of the case in brief are that FIR (Ex. P—25) was registered, by (PW-20) - C.S. Uikey, Assistant Sub inspector, Police Station Dongargarh, to the effect that on 9.9.2005 at about 9.30 p.m. injured Abdul Kalam (PW—18) was assaulted by four persons namely Sita Ram Sahu, Aaskaran Sahu, Devendra Kumar and Ram Sharan S‘ahu. In the FIR it is also alleged that when injured Abdul Kalam was standing in the betel shop of one Radhe Shyam, accused Sita Ram assaulted him with knife causing several injuries on his chest. j 3. .So as to hold the accused/appellant guilty, prosecution has examined' as many as 21 witnesses, Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled ,2>_ against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appeliant for the offence punishabie under Section 307 of the Indian Penai Code. However, the other accused persons namely Aaskaran Sahu, Devendra Kumar and Ram Sharan Sahu have been acquitted of the charges levelled against them. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that looking to the nature of injuries caused to the victim the offence under Section 307 IPC cannot be made out against the appellant. He submits that there was no intention on the part of the appellant to cause death of the victim and before the incident they were good friends and it is on account of so'me minor dispute relating to transaction of Rs. 8,000, the incident took place. He submits that when the complainant demanded back Rs. 8,000 given by him to the appellant, the appellant assaulted him. During his argument, counsel for the appellant referred to the statement of Dr. Manish Lal Jaiswal (PW—13) who has categorically stated in his evidence that depth of the injury caused on the chest of the victim could not be measured as it was bleeding. This witness has further stated that the injuries caused to the victim could not have been caused with the weapon which was sent to him for examination. Counsel for the appellant submits that the witnesses to the seizure of weapon have turned hostile and thus it can be presumed that no weapon whatsoever was used by the appellant. He submits that taking intqconsideration the injuries caused to the victim at the most offence under section 324 can be made out as according to him there was no intention on the part of the appellant to finish the victim as no damage to his vital part has been noticed. He further submits that the statement of the victim/complainant was recorded under Section 161 of the Code of Criminal Procedure on 7.11.2005 whereas the incident is said to y “3’_ have taken place on 9.9.2005. He submits that the doctor who treated the victim i.e. Dr. K.H. Ramesh (PW-14) has stated that though the victim was conscious, he did not disclose the name of the assailant. Lastly he submits that looking to the injuries sustained by the complainant/victim, conviction may be converted into section 324 in stead of 307 IPC and as the appellant has already remained in jail for about three years and three months, he may be sentenced to the period already undergone by him. In support of his argument counsel for the appeliant plaeed reliance on the judgment of the Supreme Court in the matter of Sarju Prasad v. State of Bihar reported in AIR 1965 SC 843 in which it has been heid 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 of the IPC. He submits that in this case the prosecution has not brought any material available on record to show that the appellant, was predetermined or having prior intention to cause such bodily i injury to the complainant which are sufficient to cause his death in the ordinary course of nature and therefore the appellant is entitled for acquittal. 7. On the other hand counsel for the State supports the impugned judgment and submits that three injuries were caused by the appellant on the vital part of the body i.e. chest of the victim and had the timely medical treatment not been provided to him, he would not have survived. As regards intention, it is submitted by the State counsel that when the complainant demanded money which he had already given to the appellant, he told him that he would just get the money and give it to him but when he came back he was having knife instead of money and gave fatal blows with it to the vital parts of the victim. Thus, according to the State counsel intention to kill the victim was writ large on the part of the appellant but fortunately l i 1 i the because victim of had adequate to remain medical hospitalized treatment for he 41 surVIved days and He he submits was even that / required to surgical operation by Dr. Jogesh Chandra Morwal’i‘ (PW—15). He submits that according to Dr. Manish Lal Jaiswal" ® ”qr (PW-13) and Dr. Jogesh Chandra Morwal (PW-15), the injuries caused to the victim were grievous in nature and sufficient to cause death in the ordinary course of nature. ln support of his submission counsel for the respondent/State placed reiiance on the decision of the Supreme Court in the matter of State of M.P. v. Kashiram and others reported in AIR 2009 SC 1642 and submits to justify conviction under Section 307 IPC intent coupied with some overt act in execution thereof is sufficient and it is not essential that bodily injury capable of causing death should have been inflicted. Lastly he submits that as the injuries were caused on the vital part of body of the victim, the conviction under Section 307 IPC and resultant sentence is just and proper and need not be interfered with. 8. After undertaking a wide survey of the material made available to this Court, it is discovered that when the complainant demanded his own money amounting to Rs. 8,000 which was previously given by him to the appellant as loan, the appellant got enraged and instead of returning the money, he inflicted knife blows onthe vital part of the victim. One of the injuries was so deep that its depth could not be measured as due to bleeding from it. From the statement of complainant it is apparent that he was assaulted by the appellant so brutally that soon after the incident he became unconscious and was taken to the hospital by one Juned Khan (PW- 21). Dr. Manish Lal Jaiswal (PW-13) has categorically stated that the injuries were grievous in nature and if the adequate medical treatment was not given to him, he would have died. The injuries noticed by this witness are as under: lnjury on the left side of the chest in the size of 2 1/2 x “/2 c.m. (depth could not be measured due to bleeding from the wound). Below that injury one incised wound in the size of 2 1/2 x ‘/z c.m. and third one was in the left side of the chest in the size of 2 x 1/2 c.m.. In his left hand there was an incised wound in the size of 3 x 2 x 1 c.m. and one more incised wound in the left thumb in the size of 3 x 2 c.m. The aforesaid injuries have also been supported by Dr. Jogesh Chandra Morwal (PW-15). This apart, he has stated that the victim @ WS‘, was operated upon by him along with two othe’r doctors. This witness has stated that in the stomach of the victim two orifices i.e. in the back and front, were there, two injuries were there on his small intestine and in the membranes also there was injuries. 9. To convict an accused under Section 307 IPC, what is necessary to keep in mind is the distinction between an act of the accused and its result, if any. It is not essential that bodily injury inflicted on the victim should be capable of causing death. If the act was done with the intention or knowledge and under circumstances mentioned in the section, the same is sufficient for conviction of the accused under section 307 IPC. ln this case, the incident of assault appears to have taken place just due to the demand made by the complainant of his own money given to the appellant earlier. When the complainant asked the appellant to return the money, the appellant went home and came back with knife instead of money ~ and inflicted blows with it on his vital part i.e. chest. One of the injuries, according to the doctor examining the victim, was so deep that due to prOfuse bleeding, its depth could not be measured. This all shows that after the demand of money raised by the complainant, the appellant was of firm determination to do away with him. It is also not be forgotten that for medical treatment the complainant/victim was required to remain hospitalized for 41 days and he was also required to undergo surgical operation for the same. Further the doctor has also stated that had the proper medical treatment not been made available, the complainant could not have survived. Thus the overall evidence available on record including the medical one renders this Court unable to accept the submission of the counsel for the appellant for conversion of the conviction from section 307 to that of 324 IPC. 10. Accordingly, conviction part of the judgment being just and proper, is not required to be interfered with. 11. As regards sentence imposed on the appellant, counsel for the appellant submits that the appeilant is in jail for three years and 6a~ -é, three months and the ends of.justice would meet if the appellant is sentenced to the period already undergone by him. After considering the facts and circumstances of the case the appellant is sentenced to undergo Rl for five years in stead of R.l. for seven years. Sentence of fine is left undisturbed. Sd/- "~»m.‘Pritink‘er Diwak.er Judge 12. The appeal thus partly succeeds.