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2011 DIGILAW 42 (CHH)

Chhuttan v. State of M. P.

2011-02-03

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. The present appeal arises out of the judgment and order dated 03.02.1995 passed by Third Additional Sessions Judge, Raipur in Sessions Trial No. 430/92 convicting the accused/Appellant for the offence under Sections 307 and 324 of IPC and sentencing him to undergo rigorous imprisonment for two years under Section 307 and rigorous imprisonment for one year under Section 324 of IPC. Both the sentences were directed to run concurrently. 2. Brief facts of the case are that on 06.10.1992 at about 8 p.m. Dehati Nalishi Ex.P-3 was recorded by the victim Kalakunj Soni (PW-4) alleging in it that on that day at aoout 7 p.m. the accused/Appellant Chhottan and the acquitted accused Jugnu assaulted him, Panalal (PW-2), Ashok Kumar (PW-3) and Navin Harpal (PW-5). Based on this Dehati Nalishi, FIR Ex.P-5 was registered on 06.10.1992 itself under Section 307/34 of IPC against the two accused persons. The case of the prosecution is that on 06.10.1992 there was some dispute between the accused persons and the injured party as a result of which the accused persons assaulted four persons by means of knife. After investigation, challan was filed on 22.10.1992 under Sections 307, 324, 323 read with Section 34 of IPC. However the Court below framed charge against the accused persons under Sections 307 and 324 read with Section 34 of IPC. 3. So as to hold the accused persons guilty, prosecution has examined 14 witnesses 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 charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted co-accused Jugnu of the offence under Sections 307 and 324 read with Section 34 of IPC but convicted and sentenced the accused/Appellant for the offence under Sections 307 and 324 of IPC. 5. Contention of Smt. Tripathy, learned Counsel for the Appellant is that as on the basis of same set of evidence once the trial Court has acquitted the co-accused Jugnu, the present Appellant also ought to have been acquitte J. She submits that though the accused/Appellant was not known to the victim previously yet the named FIR has been lodged against him. She submits that the witnesses have also admitted the fact that the name of the Appellant was told to them by the police authority. She submits that the incident took place in dark night, therefore question of identification does not arise. It has also been argued that the injured and other witnesses have not specifically suited as to which injury has been caused by which accused and therefore the liability cannot be fastened on the accused/appellart alone. Lastly it has been argued that at best the offence under Section 324 of IPC is made out against the Appellant and not under Section 307 of IPC. She submits that considering the fact that the Appellant has already remained in jail for about three months and i 8 days, the sentence imposed on him may be reduced to the period already undergone by him. 6. On the other hand supporting the impugned judgment it has been argued by Shri Das, learned Counsel for the State that different role has been assigned to the two accused persons and as specific allegations have been made against the Appellant in Court Statements, he has rightly been convicted by the Court below. He further submits that as the witnesses have categorically deposed against the Appellant attributing a specific role to him, looking to the nature of the injuries sustained by the victims in particular Navin Harpal (PW-5), the conviction of the accused/Appellant under Section 307 of IPC is fully justified. 7. Heard counsel for the parties and perused the material available on record including the judgment impugned. 8. Madhukar rao Dhawre (PW-1) who is a seizure witness of Exs. P-l & P-2 by which certain cloths of the victims had been seized has dully supported the prosecution case. Panalal (PW-2) who is one of the injured witnesses has stated in his court statement that on the date of incident when he was returning after witnessing Dashera festival along with his family members, he heard certain noise on the way and asked his family members to go to the house. Panalal (PW-2) who is one of the injured witnesses has stated in his court statement that on the date of incident when he was returning after witnessing Dashera festival along with his family members, he heard certain noise on the way and asked his family members to go to the house. Thereafter he proceeded towards the spot where he saw the accused persons assaulting 2-3 persons of his locality and when he tried to intervene in the matter, the accused/Appellant gave him a knife blow from behind, The accused persons also assaulted Navin Harpal, Kalakunj Soni and Ashok and at that time the Appellant was carrying a knife in his hand and the accused Jugnu was also actively involved. In cross-examination he has reiterated that it is the accused/Appellant who gave him a knife blow and on account of injury sustained by him he became unconscious and after 3-4 hours of his operation he regained his conscious. In cross-examination he admits that there are certain facts which he had informed to the police authority at the time of his case diary statement and if the same have not been recorded, he cannot tell the reason. He has clarified that before the police he had disclosed the fact that he was assaulted by both the accused persons but he confirms that he was assaulted by the accused/Appellant. He has further clarified that as he was not aware of the name of the acquitted accused Jugnu, he has not mentioned the same. He admits that at the time of incident it was dark but he has clarified that it was not so dark to affect the visibility. Ashok Kumar (PW-3) has stated in his evidence that on the date of incident when he along with his friends was returning from High School, accused persons who were approaching them in a drunken condition collided with them and started hurling abuses. Thereafter accused/Appellant Chhuttan took out a knife and dealt a blow with it on his right elbow. According to this witness, the Appellant also assaulted his colleagues Kalakunj (PW-4), Navin (PW-5) and Lachhu. From Paragraphs - 4 & 6 of his cross-examination it appears that there are some contradictions in his Court statement from that of his case diary statement Ex.D-2 but on the basis of the same, his entire Court statement cannot be disbelieved. According to this witness, the Appellant also assaulted his colleagues Kalakunj (PW-4), Navin (PW-5) and Lachhu. From Paragraphs - 4 & 6 of his cross-examination it appears that there are some contradictions in his Court statement from that of his case diary statement Ex.D-2 but on the basis of the same, his entire Court statement cannot be disbelieved. Kalakunj Soni (PW-4) has also stated that on the date of incident the accused/Appellant and the acquitted accused collided with Ashok (PW-3) on account of which there was some scuffle between them. Thereafter the Appellant chhuttan took out his knife and started assaulting him, Navin and Ashok and when Panalal came to intervene, he too was assaulted by the Appellant. In cross-examination he has stated that as it was dark, he cannot tell as to who was assaulted first. He has stated that even after the assault he was fully conscious. After incident he first went to the police station hiring a rickshaw and then to the hospital where he was operated upon. He admits the fact that before incident he was not acquainted with the accused persons and their names were disclosed by the police. If the opening paragraph of this witness is taken into consideration, in the Court, he has categorically identified the accused/persons. He has reiterated that it is the accused/Appellant who gave him a knife blow. There appear to be some contradictions and omissions in paragraph-6 of his cross-examination but they are not of much importance. Navin Harpal (PW-5) after identifying the accused persons in the Court has stated that on the date of incident the accused persons first collided with them and started abusing him and his friends, thereafter the accused/Appellant Chhuttan gave a knife blow to him, Kalakunj and Panalal. He has stated that due to injuries sustained on his stomach and chest he became unconscious. He admits that it was dark night but he has categorically denied the fact that due to darkness the accused persons collided with them. There appear to be some contradictions and omissions in paragraph-3 of his cross-examination but they are not much significant. He admits that the accused persons were not known to him by their names but he knew them by their face and denies the fact that it is the police authorities who disclosed to him the names of the accused persons. There appear to be some contradictions and omissions in paragraph-3 of his cross-examination but they are not much significant. He admits that the accused persons were not known to him by their names but he knew them by their face and denies the fact that it is the police authorities who disclosed to him the names of the accused persons. Laxmi Narayan Sahu (PW-6) has stated that on the date of incident the accused/Appellant assaulted Navin, Kalakunj and Ashok but Pannalal was assaulted while he was trying to settle the matter, In cross-examination he has clarified as to how the incident took place and has made almost similar statement as made by the other injured eye-witnesses. Madan Netam (PW-7) is the police constable who took Dehati Nalishi Ex.P-3 to the civil line Police Station. Dr. Sanjay Pandey (PW-8) who had medically examined Panalal and Ashok found following injuries on them vide his report Exs.P-6 and P-7: Ex.P-6 - (1) Stab injuries below left rib in the size of 3 X 1 cm. (2) Lacerated wound on the right side of the face in the size of 1 X 1 cm. Ex.P-7 - Incised wound behind right hand in the size of 3 X 2 cm. According to him, injury No. 1 sustained by Panalal was caused by a sharp edged weapon whereas injury No. 2 was caused by blunt object. In respect of nature of the injury No. l, he has stated that the opinion can be given by the operating surgeon however the injury No. 2 was simple in nature. In respect of injuries sustained by Ashok he has opined that they were simple in nature. R. L. Tiwari (PW-9) is the sub-inspector who had do;..; part of investigation. Hariram Verma (PW-10), the head constable had taken the injured Navin Harpal and Kalakuni for medical examination. Pawan Kumar (PW-11) had taken the injured Panalal for his medical examination. R.B.S. (PW-12) the Investigating Officer has supported the prosecution case. Dr. Pradip Agrawal (PW-13) is an assistant surgeon and his reports are P-10A & P-11A. According to him, injury-sustained by Panalal was not on the vital part of his body and was simple in nature however the injury sustained by Navin Harpal (P.W.-5) on his chest was on the vital part of his body and dangerous. According to him if the treatment was not given urgently, the patient could have died. According to him, injury-sustained by Panalal was not on the vital part of his body and was simple in nature however the injury sustained by Navin Harpal (P.W.-5) on his chest was on the vital part of his body and dangerous. According to him if the treatment was not given urgently, the patient could have died. In respect of other injury sustained on the stomach of Navin Harpal, he has defined the same to be simple in nature. His report further reveals that air bubbles were coming out from his chest injury. Dr. K. Gopinath (PW-14) had medically examined Navin Harpal and Kalakunj Soni and submitted his report Ex.P-8A & P-9A respectively. According to him injuries sustained by them were caused by sharp edged weapon. 9. Minute examination of the evdence makes it clear chat on the date of incident the accused/Appellant gave knife blow to Panalal (PW-2), Ashok Kumar (PW-3), Kalakunj Soni (PW-4) and Navin Harpal (PW-5) and caused injuries to them. Thus it cannot be said that the accused/Appellant is not involved in the commission of the present crime. Minor contradictions and omissions the statements of the witnesses are of no significance because if the evidence is taken in its entirety, all the witnesses have stated in one voice that it is the accused/Appellant who had assaulted these four persons by means of knife. Even Laxmi Narayan Sahu (PW-6), who was in the company of the injured persons has also supported the prosecution case. I find no force in the argument of Smt. Tripathy that since the co-accused Jugnu has been acquitted, on the ground of parity, the Appellant herein also deserves to be acquitted. The evidence in respect of participation of both the accused persons is different and specific allegations have been leveled against the Appellant for causing injury by means of knife and therefore the Appellant is liable to be convicted under Sections 307 and 324 of IPC. Considering the nature of injury sustained by Navin Harpal, the report of Dr. Pradeep Agrawal (PW-13) vide Ex.P-11 A, it can be safely held that the conviction of the accused/ Appellant under Section 307 of IPC is justified. Considering the nature of injury sustained by Navin Harpal, the report of Dr. Pradeep Agrawal (PW-13) vide Ex.P-11 A, it can be safely held that the conviction of the accused/ Appellant under Section 307 of IPC is justified. I further find no force in the argument of Smt. Tripathi that as the Appellant has already remained in jail for about three months and 18 days, the sentence imposed on him may be reduced to the period already undergone by him. In this regard, as the trial Court has already taken a lenient view while passing the judgment impugned by awarding two years imprisonment under Section 307 IPC and one year under Section 324 IPC, the same cannot be interfered with by this Court. 10. In view of the aforesaid discussions this Court is of the opinion that the conviction of the accused/Appellant under Sections 307 and 324 of IPC is just and proper and no interference therewith is called for. In the result, the appeal being devoid of any merit is liable to be dismissed and it is dismissed as such.