HIGH COURT OF CKHATTKSGARH, BILA3?UR CRlMlNAL APPEAL No. 694 of 1994 Pq .Igmmpur DJsfnct RJa‘mur (C-GJ —Versus— APPELLANT K’mhmya G11“ snn nf SLdama Clr l ‘ Aged a8 years, resment 01 Iv’ukLa, § I J l l § ‘T'he swie of Madhva Pradwh wow pnhathsgarn) mmugh rohcc ‘ qm‘rmn Iagmpur, Distxict Bilaspur’ . (C Q I RESPONDENT Post ibr pmnouncement of Judgmgnt on 3 {’K day of March, 201 1. 77 Sd/- PRITINKER DIWAKER Judge 0g. 03.2011 w EigiEQQviE’ILQF, 91;!E§2TISGW§,HL§§?§R CRKMINAL APPEAL No. 694 of 1994 ._,V.A.V.V_v.-.w. _ . W. .. - -_, ,MWvm, --._._..,~,,,V, . i rKanhaiya Gir, $011 0f Sudama (hr i 1Aged 38 years, resideni of Mukta, l l RS: Jaijajvpur DiSfzict Bjlaspur§ 1 Ham J ’ l ‘ ~Versus- §E§135N3YENT " Tbs Statk"6?’i§/f§iiiz§§f5§é&§§£ (Now‘ Chhattisgarh), ’t‘nmugh Poiice § Statian Jaijaipur, Di$t1i¢t Bilasgmr jam ‘ {St}: HON’BLE SHRI JUSI‘ICE PRI'l‘INKER DIWAKEK} (Criminal Appeal Under S6ction 374 {2) OF the CrJ—RC.) Mr. Deepak Jain, counsei for the appdiant. Mr. Vaibhav A. Govexdha‘m, Pan€1 Lawyer fer m5 Stata. {JUDGMENT} {PaSSsd on this 3ft; day ofMaxch, 201 1) ’l‘bis ammal is dixected against tha impugned jud gment and order datsd 10.06.1994L passed by the Additional Sessions Judge, Sakti, Dismct - Bilaspm‘ in Sessiom; ’l‘n‘al No. 21] 1991, cbnvicting ths accused appeuant under ssction 397 of 1P6 and sentencing him to undergo RJ. for 7 yeals and to yay a'flne of RsJOUO‘ig in defauit of payment of fine amount to furthor undergo Rtl. for one ‘ yew“. 2. Brief facts of the case are that on 05.05.1990 at about 1.30 pm, the First information Report. (Ex.P.1) was lodged’ by the complainant ltwari (PM/.1} aileging that on 04031990 at about 5.30 gm. when he was going to viliage Kalimber from his viiiage Mukta to refund the amount of Rs.3000_]— to his father~ in-law, @> which he had borrowed from him. On the way, near Chorbhati Pond, the accused appellant Kanhaiya, who belong to the same Village i.e. Muktha, came from behind the complainant, he toe him nd assaulted on his head, le and hand. Thereafter, sppd a g he robbe Rs.3000/- fro the ket of the colainant and fled d m poc mp fro the ne. Based o this rert, an offence u/s 394 IPC was m sce n po 5 regter agast the accsed. After investigation, the challan s filed on 30.8.1990 u/s 341 6 3 of . However, the wa 0 8 25 IPC hare as frd u/ 397 of I on 03.0.1991. cg w ame s PC 4 o s to hold the accued‘appellant guilty, t prosecution has S a s he exami 9 witnesses. One witness naely Fagu Gir was ned m examined as defense itness and th statement of the w e accused/allant as record uder Section 313 of the Ci‘.P.C., ppe w ed n who bjued the guilt an prayed for tril. After appreciation of ar d a th‘e evic he Court below has coicted nd sentence the dene t nv a cused appella, as described above. ac nt T onntion hr J e c he cte of Si Deepak ain, larned ounsel for the aellant is that no covery whatsoevr has been made from the pp re e accused apellant and therore, he aot be convicted u/ s 397 p ef cnn of IPC. ‘He submits that but for the statment of the complainant, e hee is no other mateal against the appeant and on that count tr ri ll also, e annot b conicted. e further submits that in his h c e v H stateen o the police the complainant has tated that he was mt t s ltd th ccued yva wooden lub ( 6mm, whereas in the assaue by e as b c cout statement h h deposed that the ccused/appellant had r e as a assaultbd him y crowr and this inconsistent stateinent make b ba s lear tht the coplainant has falsely implicated the accused. it c a m Leared counsel next bmits t in he Ct statement the n su hat t our ,i. ‘2 M ised in u complainant has deposed that he had borrowed the money from his maternal uncle, whereas in his statement to the poiice he has . stated that he had bonowed the moneV from his father—in—laW. On the other hand: supporting the impugned judgment it has been argued by Shn‘ Goveldhan, learned counsei appearing for the State that even 1t no Iecoverv is made from the accused, his conviction 'is fully justified on the basis of statement of the comglainant itwan’ (PM/.1). He submits that as the victim had suffered gn‘evous injury, therefore, the case uls 397 of IPC is apparently made out against the accused] appehant. There has been minor contradich‘ons and omissions in the statement of the / complainant, which are to be ignored as his court statement was recorded after about 1V2 years of the incident. «l have heard leanied ecunsel appearing for the paities and perused the pleadings and documents available on record. The complainant ltwan’ P.W.1 in his Court statement has stated that he knows the appellant and on the date of incident when he was going to Datod from his village Mukta to refund the amount of Rs.3000j— to his maternal uncle, which he had borrowed from him, near Chorbhatti the accused/appellant was standing carrying a crowbar (W ) in his hand and when he reached near to him, the accused assaulted. him with the said crowbar, as a result of which, he sustained inj ury on his head. He has further stated that thereafter the accused again assaulted. him by the said crowbar on his armpit and the third blow was caused on his right thigh. He has stated that thereafter he caught hold the said crowbar but the accused appellant threw him on the field and beaten his right ear with his teeth. Then he became unconscious ‘I\ and the accused appellant took' out money from his pocket and fled from the scene. It has also been stated that thereafter one Sukhi Chand and Kotwar of the village namely Chatram came to him. He had requested them to inform the incident in his house that the accused/appellant has assaulted him and then the information was given in his house. His mother, sister and younger brother had attended him and he was taken to the police station where the First Information Report (EX.P/ l) was lodged. He has further stated that portion of his right ear was got amputated. In his cross examination he has denied the fact that before 11/2 years of the incident, there was any dispute between him and the Wife of the accused/appellant. He has further stated that about 10 people have surrounded him after the incident including Puniram, but he has not informed to said Puni Ram about the fact that his money has been ro‘bbed ‘by the accused/appellant, however, he informed this fact to Sukhi Chand and the village Kotwar. He has further clarified that he had informed the police that he was assaulted by a crowbar and he cannot tell the reason as to why the ‘club/lathi’ has been mentioned in the FIR or in his case diary statement u/s 161 Cr.P.C. Further, he has clarified about the Width of the club and the crowbar. He has further stated that he'had borrowed money from his maternal uncle as well as from his father-in—Iaw and on ‘the date of incident, he was going to his father-in—law, not to his maternal uncle. He has denied the suggestion that on the date of q incident, he had consumed liquor. Arjun (P.W.2) who is a seizure witness of ‘club/lathi’ has not supported the prosecution case. Siyaram (P.W.3) who is also a seizure witness to EX.P.2 by which some clothes of the complainant were seized has also nt o supported the prosecution case. Puni Ram (P.W.4) has stated that on the date of incident, when he was going towards village Mukta on the way he saw the crowd and he was informed by one Sukhi Ram that the accused/appellant has assaulted the Victim Kanhaiyalal and requested him to inform the relative of the Victim at Mukta and accordingly, he had informed the sister of the victim about the incident. Sundarlal (P.W.5) who is the maternal uncle of Victim has stated that when he met the victim in the hospital, he saw him in the injured condition and the victim had informed him that when he was going, he was assaulted by some one who had also taken Rs.3000/- from him. He has further stated that some clothes of the Victim were seized in his presence vide Ex.P.2 and he had signed the said seizure memo. Dr. C. S. Sharma (P.W.6), the radiologist who had taken X-rays Vide EX.P.‘-4 85 P—5 has found fracture on the left scapula bone. Dr. P. S. Sisodiya (P.W.7) had medically examined the accused/appellant Vide EX.P.6 on 7.5.1990 and has found one abrasion on temporal region, which was simple in nature. He has further stated that he had also examined the victim ltwari on 6.5.1990 and had given his report (EXP/7) by which he‘found the following injuries: (i) Lacerated wound 6cm x 1cm X 1 cm over left parietal bone. (ii) Swelling and tenderness over middle of right thigh. Movement painful. (iii) Pinna of the right ear separated or amputated. (iv) Contusion on left shoulder. In his Court statement this witness (P.W.&) has also described the injuries. He has further clarified that the injury sustained by the victim on his left ear cannot be sustained due to fall and like Wise, the injuries on the shoulder cannot be sustained by falling on the ground. Dhansai (P.W.8), brother-in-law of the victim has stated that the Victim had borrowed Rs.2000/- from him and after about 4-5 days of giving the said amount to the victim, he came to know that somebody has robbed the money of the victim. This witness was declared hostile. S. S. Raj (P.W.9), the Investigating Officer has supported the prosecution case. Minute examination of the evidence of the complainant Itwari (P.W.l) makes it clear that on the date of incident he was robbed by the accused/appellant. He is very consistent in his court statement and has described the entire incident as to in what manner he was subjected to robbery by the appellant. While assaulting the complainant, the appellant had caused him four injuries which have also been proved by Dr. C. St‘Sharma (PW—6) and Dr. P.S. Sisocliya (PW-7). I find no force'in the argument of Shri Jain that as no amount has been recovered from the possession of the appellant, he cannot be convicted for the offences under Sections 392 and 397 of IPC. Minor contradictions in the statement of the complainant (PW-1) do not give any benefit to the appellant because there is absolutely no evidence on record to suggest as to why the complainant would falsely implicate the appellant. Minor discrepancics‘like nature of weapon, correct denomination of robbed amount are required to be ignored in view of the reliable statement of the complainant. The complainant was examined in the Court on 16.12.1991 whereas the incident is dated 04.05.1990 and therefore minor contradictions or discrepancies in the statement of the complainant appear to be . A 0bvious. Thus, this Com is 0f ths considered opinion that the convic1ion of the accused] appellaxit is strictly in accoxdance with iaw and there is no infirmitv in the same. 10. 1 fulther find no force in. the argument of Shri Jain that the appeliant has been convicted under Section 3g7 of [PC which is not a substantive offence and as 110' charge of substantive oifence ie. in the present case 392 of IPC, has been named by the learned txial judge, the conviction of the accusedj appeilant under Section 397 oflPC is vitiated. True it is that the provisions of Section 397 of 1P0 do not create any substantive oEence and the leamed trial judge ought to have framed charge of substantive offence i.e. in the pmsent case under Section 392 of 1H; but merely on that ground the conviction of the accused] appellant under Section 397 would not vitiate. So far as not framing of charge under any other Penal provision is concerned, it has to be seen as to whether conviction under any other provision for which the charge has been framed, is sustainable in law or not. This issue is no longer res-integra and has been considered in several decisions by various. Courts from time to time. As per law, the accused must be aware as to what is the case against him and What defence he could take. Unless the accused satisfy the Court that there has been a failure of justice from non—framing of charges under a particular Penal provision and some prejudice has been caused to him conviction under such provision. of law is sustainable. In thecase in hand, though the charge undenSectign 392 of [PC was not framed against the accused/appellant but from reading Section 392 and 897 of IPC it is Clear that the accused was well aWare as to for What offence he was being tried and no prejudice whatsoever has been caused to him. The complainant was examined at length by the accused] appellant and the appellant was given fair and full chance to defend himself. ’l‘he fact makes it clear that the accused was aware about the basic ingredients of offence of robbery and there is nothing on record to suggest that due to non-naming the changes of substantive otfenc any prejudice has been caused to the accused which resuted in failure ofjustice. 12. in the result, the appeal fails and the same is ismissed. ’l‘he d accusedfaypellant is convicted under Sections 92 read with 3 Section 397 of ll’C. Accusedjappellant is on bail, his bail bonds stand cancelled. l-le be sent to jail forthwith to serve out the remaining sentence imposed on him. Sd/- PRITINKER DIWAKER i Judge e l