Deepak Nag vs State Of Chhattisgarh
2021 Latest Caselaw 3424 Chatt

                                                                                NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No. 190 of 2020

   • Deepak Nag, S/o Sadanand Nag, Aged About 22 Years R/o Behind Ayyappa
     Mandir, Chigdupara Bacheli, Police Station Bacheli, District Dantewada
     Chhattisgarh.

                                                                         ---- Appellant

                                       Versus

   • State of Chhattisgarh Through Police Station Bacheli, District Dantewada
     Chhattisgarh.

                                                                      ---- Respondent




       For Appellant            :      Shri P.R. Patankar, Advocate.
       For State/Respondent     :      Shri Ravish Verma, G.A. and
                                       Shri Rajendra Tripathi, P.L.




                Hon'ble Shri Justice Arvind Singh Chandel
                              Judgment on Board


01/12/2021


  1.     This appeal has been preferred against the impugned judgment dated

         16/01/2020 passed in S.T. No.16/2019 by the Sessions Judge, South

         Bastar, Dantewada, (C.G.) wherein appellant has been convicted and

         sentenced as under :


                   Conviction                             Sentence

               U/s 307 of the I.P.C.       R.I. for 10 years and fine of Rs.2,000/-
                                                   with default stipulations.
 2.   Facts

of the case, in brief, are that on 16.11.2018 at about 12:15 PM,

complainant Manohar Chouksey (PW-2) had gone along with Arun

Kumar Shridhar (PW-3) and Bula Shrinivas (PW-4) to Prakash

Vidhyalaya, Bacheli, for inspection of a school. When they were doing

inspection of the school, appellant assaulted Manohar Chouksey (PW-

2) from back side with the help of 'gaiti' due to which he sustained

injury on his body. Then, Arun Kumar Shridhar (PW-3) and Bula

Shrinivas (PW-4) caught hold the appellant. A written complaint was

made by complainant Manohar Chouksey (PW-2) vide Ex.P-2 and on

the basis of the said, F.I.R. was registered vide Ex.P-3. Statements of

the witnesses were recorded under Section 161 of Cr.P.C. After

completion of the investigation, a charge-sheet was filed. Trial Court

framed the charge under Section 307 of the I.P.C. To prove the guilt of

the accused/appellant, prosecution has examined as many as 10

witnesses. No defence witness has been examined. Statement of

appellant under Section 313 of the Cr.P.C. was recorded, wherein

accused/appellant has pleaded innocence and false implication in the

matter.

3. After completion of trial, the trial Court has convicted and sentenced

the appellant as mentioned in paragraph 1 of this judgment. Hence,

this appeal.

4. Learned Counsel appearing on behalf of the appellant submits that trial

Court has wrongly convicted the appellant without there being

sufficient and clinching evidence against him. If the entire case of the

prosecution is taken as it is, no case under Section 307 of the I.P.C. is

made out. The alleged act committed by the appellant fall within the purview of Section 323 of the I.P.C. only because the injury sustained

by the victim is simple in nature which is also found to be one month

old. Therefore, conviction of the appellant under Section 307 of the

I.P.C. is not sustainable.

5. Per contra, Shri Ravish Verma, learned Counsel appearing for the

State supports the impugned judgment and submits that sentence

awarded by the trial Court is just and proper and requires no

interference.

6. I have heard learned Counsel appearing for the parties, perused the

statement of witnesses and other annexed documents available on

record minutely.

7. With regard to the alleged incident, complainant Manohar Chouksey

(PW-2) in his Court statement has deposed that on the date of

incident, when he was doing inspection of the school along with Arun

Kumar Shridhar (PW-3) and Bula Shrinivas (PW-4), the appellant

came there from back side and assaulted him with the help of 'gaiti'

due to which he sustained injury. Arun Kumar Shridhar (PW-3) and

Bula Shrinivas (PW-4) are the eye-witnesses of the incident and they

both have supported the case of the prosecution and deposed

accordingly. All the above three witnesses remained firm during their

cross-examination. There is no reason to disbelieve the statements of

these above witnesses. Looking to the statement of above mentioned

witnesses, it is well-established that on the date of incident Manohar

Chouksey (PW-2) was assaulted by the appellant.

8. With regard to the injury sustained by Manohar Chouksey (PW-2), he has deposed in his Court statement that he sustained injury on his

back behind head. Arun Kumar Shridhar (PW-3) and Bula Shrinivas

(PW-4) have also deposed that Manohar Chouksey (PW-2) sustained

injury on his back. Dr. Gajendra Sakya (PW-5) who examined Manohar

Chouksey on 12.12.2018 deposed that during examination, he found

that there was one deep injury on the back side of neck of injured

Manohar which was healed and it was one month old injury. There was

swelling and abrasion mark on his neck. According to this witness,

injury was simple in nature. As per the M.L.C. report i.e. Ex.P-7 of

Manohar Chouksey, the injury found on the neck was one month old.

But as per the Court statement of Manohar Chouksey (PW-2), Arun

Kumar Shridhar (PW-3) and Bula Shrinivas (PW-4), the injury caused

to the injured was on the back. In such condition, as per the M.L.C.

report, there was one deep injury on back side of neck of injured

Manohar which was healed and it was one month old injury, and the

said injury caused by the appellant is suspicious. Further, immediately

after the incident, a written complaint Ex.P-2 was made on 16.11.2018

by Manohar Chouksey (PW-2) and as such on the said date the

injured has to be medically examined but he was examined on

12.12.2018 i.e. after one month. Delay occurred in the medical

examination of the injured is not explained by the prosecution.

9. On minute examination of the above evidence, it makes clear that on

the date of incident, Manohar Chouksey (PW-2) was assaulted by

appellant due to which Manohar sustained injury on the back below the

neck as mentioned in M.L.C. report i.e. Ex.P-7. The said injury caused

to Manohar by the appellant is suspicious. Further, considering the fact

that the injury caused to Manohar Chouksey (PW-2) is simple in nature. In my considered opinion, the act of the appellant does not fall

within the purview of Section 307 of the Indian Penal Code, but would

fall within the purview of Section 323 of the I.P.C. Accordingly,

conviction of the appellant is altered from Section 307 of the I.P.C. to

Section 323 of the I.P.C.

10. The maximum sentence prescribed for the offence punishable under

Section 323 of the I.P.C. is one year. It is reported that the appellant

has already suffered jail sentence of about two years. He be released

forthwith, if not required in any other case.

11. Consequently, the appeal is allowed in part to the extent indicated

above.

12. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Prakash