Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 33 (CHH)

SUKHlRAM KARSH v. STATE OF M. P.

2011-01-31

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 22.3.2000 passed by the Additional Sessions Judge, Baloda Bazar, Raipur in Sessions Trial No. 436/1997 convicting the appellant No.1 Sukhiram under Section 307 and accused/appellant No.2 Maniram under Section 120-B IPC and sentencing each of them to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that FIR Ex. P-1 was lodged by Mangtan Das (PW-1) alleging that on account of some dispute in respect of appointment on the post of village Kotwar accused/appellant No.2 namely Maniram had helped accused/appellant No.1 namely Sukhiram for which the complainant was also one of the aspiring candidates. It is alleged that on the date of incident when the victim was taking bath in the village pond along with his son Moti Das (PW-2), accused/appellant No.1 namely Sukhiram came there and assaulted him with sword as a result of which he sustained various injuries on his neck and nearby portion. It is alleged that the victim was first attended by Narayan Singh (PW-11) who gave his report Ex: P-16A on 26.9.1997. Thereafter, the victim was referred to MEKAHARA hospital, Raipur and it is alleged that he remained hospital from 29.6.1997 to 8.7.1997 i.e. for about nine days. Ex. P-7 is the bed head ticket. After completion of investigation challan was filed by the police on 6.9.1997 under Sections 307 and 120-B IPC. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 19 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, five witnesses namely Natthulal (DW-1), Pitamber(DW-2), Mukutram (DW-3), Tilakram (DW-4) and Banshilal (DW-5) have been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits that there is absolutely no evidence on record to show the involvement of the accused/appellants either to the effect that appellant No.1 had made any assault on the victim or to the effect that appellant No.2 had hatched any conspiracy with the accused/appellant No.1 to assault the victim. She submits that medical report of the victim Ex. P-16A has not been proved by the prosecution as per the requirement of law and likewise the summary report dated 11.9.1997 Ex. P-18 which has been issued on the basis of the letter of the Station. House Officer dated 21.8.1997 has also not been proved by the prosecution as it was submitted by Dr. S. Mahilang who too has not been examined by the prosecution. She submits that the summary report cannot be admissible in this case because the same has been obtained after about three months from the date of incident. Lastly it is argued that looking to the injuries sustained by the victim at the most offence alleged against the accused/appellants would fall under Section 324 IPC. 7. On the other hand supporting the judgment impugned it has been argued by the counsel for the respondent/State that undisputedly the victim had suffered four injuries and when it has been categorically deposed by the witnesses that it is the accused/appellant No.1 Sukhiram who had caused the said injury, he cannot take any advantage of the fact that initially the medical report Ex. P-16A has not been proved by the prosecution. He submits that query report Ex. P-19-A has been submitted by Dr. Narayan Singh (PW-11) who had initially examined the victim makes it clear that one injury sustained by the victim on his neck was grievous in nature and lie same could have been caused with the help of sword and it was sufficient to cause death in the ordinary course of nature if the prompt medical treatment would not have been given to him. 8., Mangtan Das (PW-1) has stated in his evidence that on the date of incident at about 7 a.m. he along with his son Moti Das (PW-2) had gone to the pond for taking bath and at the time when his son was taking bath and he was cleansing his teeth, accused/appellant Sukhiram assaulted him on his head with sword. He has stated that accused/appellant Sukhiram had dealt 11 blows with the sword on his head, shoulder and wrist which resulted in profuse bleeding. This witness has stated that on account of the appeal regarding the appointment to the post of Kotwar being made by him, accused/appellant Sukhiram had assaulted him with an intention to finish him. According to this witness, after the incident he was sent to hospital at Bhatgaon and then he was referred to Raipur where he remained under treatment for a week. Plaster and stitches were put in his hand. This witness has stated that he himself and accused/appellant Maniram both were claiming the post of Kotwar and his appeal for the same was rejected by the Sub Divisional Officer against which he preferred the appeal before the Commissioner. However, he has denied the fact that Commissioner too has rejected his appeal. This witness has denied the fact that there was any scuffle between him and the accused/appellant Sukhiram. He has also denied that he had sustained injuries as a result of fall on stonepieces of Pathrighat. He has stated that he had not fallen even as a result of assault with tabbal but he had gone asleep. He has clarified that sword and tabbed are two different things. At some places this witness has stated the weapon of assault as tabbal and at some places as swora but such minor contradictions being immaterial have to be ignored. Mati Das (PW-2) - the minor son of the victim has supported the statement of his father. He has stated that when he was taking bath in the pond and his father was cleansing his teeth, accused/appellant Sukhiram came there with a tabbal in his hand and assaulted his father with it twice. Thereafter, this witness has stated that accused/appellant Sukhiram was having sword in his hand. He has stated that when he was taking bath in the pond and his father was cleansing his teeth, accused/appellant Sukhiram came there with a tabbal in his hand and assaulted his father with it twice. Thereafter, this witness has stated that accused/appellant Sukhiram was having sword in his hand. This witness has stated that thereafter leaving his father there itself he went home and disclosed the incident to his sister saying that accused/appellant Sukhiram had assaulted his father and then the victim himself had come home. In cross examination also this witness has stated the same thing as in the examination-in-chief. Sukh Sagar (PW-3) has stated that after the incident the police had prepared the spot map Ex. P-8. This witness has also stated that plain as well as blood stained soil, shirt of the victim and his discharge ticket, were seized under Ex. P-9, P-II and P-4 respectively. Deshram (PW-4) is the witness to seizure memo Ex. P-13 and P-14 by which sword and cloths of the accused/appellant Sukhiram were seized. Shrawan Kumar Srivas (PW-5) is the witness who had seen the victim in an injured condition. This witness had also seen the accused/appellant Sukhiram holding sword in his hand. Budhram Dewangan (PW-8A) is the Patwari who had prepared spot map Ex. P-6. Ravendra Singh (PW-7)-head constable, Madan Dewangan (PW-8) constable and Chandra Prasad Tiwari (PW-9) -head constable are the witnesses who have done part of the investigation. Sub Inspector Anil Sharma (PW-10) is the investigating officer who has supported the case of the prosecution. Narayan Singh (PW-11) is the doctor who had first medically examined the victim on 29.8.1997 and given his report Ex. P-1 6-A describing the injuries noticed by him on the body of the victim which are as under : eaxru nkl dks xnZu esa da/ks esa ¼ck;sa½ ck;sa dykbZ esa rFkk flj esa /kkjnkj gfFk;kj ls pksV igqapk gSA xnZu dh pksV lka/kkfrd gS ftlds dkj.k izkFkfed mipkj ds ckn esdkgjk jk;iqj ys tkus dh lykg nh tkrh gSA leLr pksVksa dk urhtk Hkh esdkgkjk jk;iqj ls ysus dh lykg nh tkrh gSA This witness had not described the nature of injuries sustained by the victim as he had referred him to some other hospital. He has however stated that the injuries were caused with sharp edged weapon. He has however stated that the injuries were caused with sharp edged weapon. From the evidence of this witness it appears that his initial statement was recorded in the Court on 13.10.1998. Thereafter on 26.3.1999 he was again examined and cross examined by the parties and there he has stated that on 30.8.1997 vide Ex. P-19 a report was sought for about the nature of injuries sustained by the victim and then he gave his report vide Ex. P-19-A stating that the injury sustained by the victim on neck was serious in nature and could have been caused with the sword. He has also stated that if immediate medical treatment was not made available to the victim, the said injury could have proved dangerous to life. In cross examination he has stated that as neither the weapon used in the offence was shown to him nor the victim was again referred to him, he could not say as to with which weapon the injury was caused. According to this witness, the discharge ticket Ex. P-7 was also not produced before him. He has stated that the doctor who had first attended the victim could be the best person to give the proper opinion about the nature of injuries sustained by the victim. Siyaram Chelak (PW-12) has stated that on the date of incident he had seen the victim drenched with blood. Photobai (PW-13) is the wife of the victim and she has stated that she was informed that her husband was assaulted by accused/appellant No.1 herein. According to her, later the victim had also informed her about the incident. Dr. J.K. Sharma (PW-14) has stated in his evidence that on 29.6.1997 he was the Professor of ENT department and the wound of the victim was repaired by his juniors and the victim was discharged on 8.7.1997. He has stated that certificate Ex. P-7 is in respect of the victim but he had not signed it. He has stated that Ex. P-18 bears the signature of Dr. S. Mahilang but he could not say as to where he was posted at that time. Birbal Prasad (PW-15) is the witness who had seen the victim in an injured condition. P-7 is in respect of the victim but he had not signed it. He has stated that Ex. P-18 bears the signature of Dr. S. Mahilang but he could not say as to where he was posted at that time. Birbal Prasad (PW-15) is the witness who had seen the victim in an injured condition. Ram Kumar (PW-16) has stated in his evidence that he had seen the victim lying on the spot after sustaining injury and after regaining consciousness he told him that it was accused/appellant Sukhiram who had assaulted him. According to this witness, accused/appellant Maniram was not present on the spot. Ganesh Ram son of Chheduram (PW -17) has stated that he had seen the victim in an injured condition, but has been declared hostile. Ganeshram son of Dildar (PW-18) has stated that on the date of incident he had seen accused/appellant No.1 Sukhiram assaulting the victim with the help of sword. Smt. Parvati (PW-19) - the daughter of the victim has stated that on the date of incident she was informed by her brother that accused/appellant No.1 had assaulted her father with sword. According to this witness when she went to the spot, she saw that there was an injury on his neck. This witness also states to have seen accused/appellant No.1 entering his house holding sword in his hand. According to this witness, the victim had told her that accused/ appellant Sukhiram had assaulted him. Defence witness Natthulal (DW-1) has stated that on 29.6.1997 accused/appellant Maniram had come to him. Pitamber (DW-2) has stated that on 29.6.1997 he had gone to Tendubhata along with accused Maniram with respect to the measurement of land. Mukutram (DW-3) has stated that on the date of incident he saw the victim abusing accused/appellant Sukhiram. Tilakram (DW-4) has stated that when he was near the pond, he saw the victim and accused Sukhiram quarreling with each other. Banshilal Sahu (DW-5) has stated that on the date of incident accused Maniram had come to him and then he went to the Patwari with respect to measurement of land. 9. Having thus minutely examined the evidence available on record, according to the opinion of this Court there appears to be some technical flaw in the case of the prosecution. Banshilal Sahu (DW-5) has stated that on the date of incident accused Maniram had come to him and then he went to the Patwari with respect to measurement of land. 9. Having thus minutely examined the evidence available on record, according to the opinion of this Court there appears to be some technical flaw in the case of the prosecution. Victim was first medically examined by Narayan Singh (PW-11) but he has not given the full description of the injuries sustained by the victim. When this witness was again examined and cross examined by the parties on 26.3.1999, he has stated that in his query report he has described the nature of injury saying that the injury on neck of the victim was serious and dangerous to life. This witness has done all this without seeing the documents including the discharge ticket or even without seeing the patient. He has clarified that the doctor who had done MLC can give better opinion in respect of injuries sustained by the victim. Likewise, Dr. J.K. Sharma who was head of the ENT department has though proved the summary report of the department Ex. P18 which is admissible in law but he too has stated that he had not seen the injuries sustained by the victim and nature of injuries can be described by the doctor who had initially examined him. However, medical report of the victim cannot be ignored completely and considering the statement of the victim and the eyewitness to the incident apart from other related witnesses, it is apparent that the victim was brutally assaulted by accused/appellant No. 1 with sword as a result of which he sustained grievous injuries. Looking to the facts and circumstances of the case and the nature of injuries coupled with medical evidence it cannot be said that the accused/appellant No.1 Sukhiram was having intention to kill the victim and therefore he cannot be convicted under Section 307 IPC. As the prosecution has not been able to prove the nature of injuries to be grievous beyond all reasonable doubts, it will not be safe for this Court to convict him even under Section 325 IPC. Ignoring the nature of injuries it can safely be said that accused/appellant No. 1 caused injuries to the victim with dangerous weapon and therefore at the most he can be convicted under Section 324 IPC. Ignoring the nature of injuries it can safely be said that accused/appellant No. 1 caused injuries to the victim with dangerous weapon and therefore at the most he can be convicted under Section 324 IPC. As regards, accused/appellant Maniram there is no evidence that he assaulted the victim or hatched any conspiracy with accused/appellant Sukhiram in doing so. 10. Accordingly, the appeal is partly allowed. Conviction of the accused/appellant No.1 Sukhiram under Section 307 IPC is set aside. However, he is convicted under Section 324 IPC. As he has already remained in jail for two years and four months and that the incident had taken place in the year 1997 i.e. about 13 years have elapsed since then, this Court is of the considered opinion that it will be in the interest of justice to sentence him to the period already undergone by him. Since there is no evidence against appellant Maniram with respect to his involvement in the case in hand, he is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. Appeal Partly Allowed.