Suryakant @ Surya Bhatriya vs State Of Chhattisgarh
2021 Latest Caselaw 3183 Chatt

                                     1
                                                             Cr.A. No. 1409 of 2016


                                                                             AFR
               HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No. 1409 of 2016

                         Judgment reserved on : 27/10/2021
                        Judgment delivered on : 17/11/2021


   Suryakant @ Surya Bhatriya S/o Sumanlal Bhatriya, Aged about 19 years,
    R/o- Kundrapara, Near Shiv Mandir, Behind Holy Cross School, P.S. -
    Kotwali, Raipur, District - Raipur (C.G.)
                                                             ---- Appellant

                                  Versus

   State of Chhattisgarh, Through : Police Station - Kotwali, Raipur, District
    Raipur (C.G.)
                                                       ---- Respondent/State

For Appellant        :     Shri Naveen Shukla, Advocate
For Respondent/State :     Shri Anand Verma, Deputy Government Advocate


                Hon'ble Shri Justice Gautam Chourdiya, J
                             C.A.V. Judgment


1. This appeal arises out of the judgment of conviction and order of sentence

    dated 08.11.2016 passed by IX Additional Sessions Judge, Raipur, District

    Raipur (C.G.) in Sessions Trial No. 87/2016, whereby the appellant stands

    convicted and sentenced as under:-


                    Conviction                      Sentence
           Under Section 307 of IPC         R.I. for five years and pay
           aggravated form of offence       a fine of Rs.500/-, in
           under Section 324 of IPC         default of payment to
                                            further undergo additional
                                            R.I. for three months



2. Facts

of the case in brief are that on 24.01.2016 at 10:30 pm when

complainant/victim- T.K. @ Tilak @ Tilak Kumar @ Chhedu (PW-2) was

sitting in his basti with his friend namely Daud Harpal (PW-1) and talking

with each other, the appellant came there saying that why they were sitting

Cr.A. No. 1409 of 2016

here and started abusing the victim filthily and threatened him for his life.

Thereafter. the appellant took out a pointed weapon like knife and assaulted

on the right side of abdomen of the victim as a result of which his intestine

came out from the abdomen. Prompt F.I.R. (Ex.-P/3) was lodged by the

victim on the same day which was registered under Sections 294, 506 &

324 of IPC against the appellant under Crime No. 15/16 in Police Station

Kotwali, Raipur. The incident was witnessed by Lalubagh, Suhan Bagh,

Dinesh Tandi.

3. Complainant T.K. @ Tilak @ Tilak Kumar @ Chhedu (PW-2) was sent for

medical examination to Government Hospital Raipur vide Ex.-P11. PW-2

was medically examined by PW-7 Dr. Santosh Bhandare who gave his MLC

report vide Ex.-P/5 and found following injuries on the body of PW-2:-

i. Incised wound in size of 1½ cm x 1 cm over lower part of abdomen, blood was oozing from it;

Dr. Santosh Bhandare (PW-7) opined that the injury was caused

within 0-8 hours from the examination of PW-2 and the same was caused by

hard and sharp object. Thereafter, PW-5 was sent for surgery department of

MCHR for further examination, expert opinion.

4. During investigation, blood stained clothes of the victim were seized vide

Ex.-P/1. Spot map was prepared by PW-10 Dilip Kumar Sahu, Assistant

Sub-Inspector vide Ex.-P/2. Nazrinaksha (Ex.-P/4) was prepared by PW-6

Patwari M.K. Pandey.

5. On 25.01.2016 the appellants/accused was arrested by the police vide arrest

memo Ex.-P/09. Memorandum statement of the appellant was recorded vide

Ex.-P/7 consequent to which a knife was seized from his possession vide

Ex.-P/8. Seized articles were sent for examination to Forensic Science

Laboratory, Raipur, from where FSL report was received vide Ex.-P/21. As

per FSL report, blood was found on Articles 'A', 'B', 'C' & 'D' i.e. clothes of

victim (PW-2) and Article 'E' knife seized from the appellant. It also

Cr.A. No. 1409 of 2016

mentioned in that report that in Article 'C' human blood was found.

6. After recording the statements of the witnesses and completion of the

investigation, charge-sheet was filed against the appellant/accused under

Sections 294, 506, 324 & 307 of IPC and Section 25 & 27 of the Arms Act.

While framing the charges, IX Additional Sessions Judge, Raipur framed the

charges against the appellant/accused under Sections 294, 506 (Part-II),

324 & 307 of IPC and under Section 25 (1) (1-a) & 27 (1) of the Arms Act

which were denied by him and prayed for trial.

7. So as to hold the appellant/accused guilty, the prosecution examined 11

witnesses namely PW-1 Daud Harpal, PW-2 Tilak Kumar Tandi, PW-3

Dinesh Tandi, PW-4 Sudama, PW-5 Lalu Bagh, PW-6 M.K. Pandey, PW-7

Dr. Santosh Bhandare, PW-8 Surtaz Harpal, PW-9 Ashish Nayak, PW-10

Dilip Kumar Sahu and PW-11 Dr. S.N. Gole in support of its case. Statement

of appellant was also recorded under Section 313 Cr.P.C. in which he denied

the circumstances appearing against him in the prosecution case, pleaded

innocence and false implication. No defence witness examined by appellant.

The appellant stated that he lodged the report against the complainant,

therefore, the complainant and his friend falsely implicated him.

8. The trial Court after hearing counsel for the respective parties and

considering the material available on record, by the impugned judgment

while acquitting the appellant of the charges under Sections 25 (1) (1-a) & 27

(1) of the Arms Act, convicted and sentenced him as mentioned in para-1 of

this judgment, hence this appeal.

9. Learned counsel for the appellant submitted that the appellant has been

falsely implicated in this case by the complainant. He submitted that the

case is not made out under Section 307 of IPC because the case has been

compromised between the parties. He further submits that appellant also

lodged the report against the complainant on 24.01.2016 which is counter

Cr.A. No. 1409 of 2016

case and the appellant and the complainant has compromised in the trial

Court. Copy of F.I.R. No. 16/2016 and compromise application are

collectively filed herewith as Annexure-A/2. The prosecution has failed to

prove its case beyond all reasonable doubt and the trial Court has

committed grave error and illegality by recording conviction of the appellant

under Section 307 as an aggravated form of offence under Section 324 of

IPC.

10. On the other hand, learned counsel for the State supporting the impugned

judgment submitted that the trial Court considering the overall evidence

available on record has right convicted and sentenced the appellant/accused

by the impugned judgment which calls for no interference by this Court.

11. Heard learned counsel for the respective parties and perused the material

available on record including the impugned judgment.

12. PW-2 Tilak Kumar Tandi has specifically stated that on the date of incident

i.e. 24.01.2016 at about 10-11:00 pm, when he alongwith his friend Daud

Harpal (PW-1) was coming toward Shiv Mandir, the accused/appellant

abusing him filthily, assaulted him by knife on his abdomen and his intestine

came out from the abdomen. The incident was witnessed by nearby persons

who took him (victim) to the Police Station City Kotwali, and he lodged

prompt F.I.R. (Ex.-P/3) against the appellant. Thereafter, the police took him

to Medical College Hospital, Raipur where he was treated for 15 days. PW-2

further stated that he could not say that the police has prepared spot map

(Ex-P/2) in his presence. He stated that thereafter the police has seized his

clothes worn by him at the time of incident, the seizure of cloths is Ex.-P/1.

There is no reason to disbelieve the evidence of PW-1 because he is the

victim/complainant. The evidence of PW-2 is supported by PW-1 Daud

Harpal who is the eyewitness of the incident and has duly proved seizure

(Ex.-P/1) & spot map (Ex.-P/2) and he also remained firm in his cross-

Cr.A. No. 1409 of 2016

examination.

13. The version of PW-2 Tilak Kumar Tandi has been duly supported by the

evidence of PW-3 Dinesh Tandi, PW-4 Sudama and PW-5 Lalu Bagh. PW-6

M.K. Pandey is the Patwari who prepared the Nazrinaksha vide Ex.-P/4 and

has duly proved the same.

14. PW-7 Dr. Santosh Bhandare conducted MLC of Tilak Kumar Tandi (PW-2)

and gave his report vide Ex.-P/5 as mentioned in para-3 of this judgment

and has duly proved Ex.-P/5.

15. PW-8 Surtaz Harpal and PW-9 Ashish Nayak are witnesses of memorandum

statement (Ex.-P/7) of the appellant, they have not supported the

prosecution case and have been declared hostile by the prosecution.

16. PW-10 Dilip Kumar Sahu, Assistant Sub-Inspector, has stated that he

prepared the spot map (Ex.-P/2) and recorded memorandum statement (Ex.-

P/7) of appellant consequent to which he seized one knife from appellant in

the presence of witnesses PW-8 Surtaz Harpal and PW-9 Ashish Nayak vide

seizure memo Ex.-P/8. PW-10 has admitted his signature on the documents

of Ex.-P/2, Ex.-P/7 & Ex.-P/10 and has duly proved the same.

17. PW-11 Dr. S.N. Gole is the Associate Professor in Dr. Bhimrao Ambedkar

Hospital, Raipur. PW-11 has stated that Tilak Kumar Tandi (PW-2) was

admitted in hospital on 24.01.2016 and there was injury on the right side of

abdomen of PW-2 and surgery of PW-2 was conducted. During surgery, he

noticed that there was a hole in one intestine and mizioapedics was also torn

which was operated. PW-11 has duly proved bed-head tickets vide Ex.-

P/19. He also stated that PW-2 was discharged from the hospital on

09.02.2016.

18. In the present case, the incident happened on 24.01.2016 at about 10:30 pm

and the F.I.R. (Ex.-P/3) was lodged by Tilak Kumar Tandi (PW-2) at about

Cr.A. No. 1409 of 2016

11:15 pm. Looking to the entire evidence available on record, it appears to

this Court that on the basis of statement/evidence of victim Tilak Kumar

Tandi (PW-2) and other witnesses namely PW-1 Daud Harpal, who is the

eyewitness, Dinesh Tandi (PW-3) , Sudama (PW-4) & Lalu Bagh (PW-5)

duly supported and corroborated by MLC report (Ex.-P/5) and bed-head

tickets (Ex.-P/19) of the victim (PW-2), the prosecution has fully proved its

case against the appellant beyond all reasonable doubt. The injuries

sustained by PW-2 being on his abdomen, it was definitely dangerous to life

in the ordinary course of nature and the accused/appellant assaulted in such

a manner that the death of human being was attempted and it can safely be

inferred that the accused/appellant voluntarily caused such injury with intent

to commit murder of the victim. Therefore, the offence under Section 307

which is aggravated form of offence under Section 324 of IPC is duly made

out against the appellant. The trial Court has rightly convicted the appellant

for the offence under the aforementioned Section of IPC.

19. As regards the sentence, in the matter of George Pon Paul Vs. Kanagalet

and Others, (2009) 13 SCC 478 the Hon'ble Surpreme Court considering

the fact that fine amount has been deposited and paid to the victim as also

the long passage of time, sentence the accused to the period already

undergone by him. In the matter of Nasir Vs. State of Uttar Pradesh

reported in 2010 (13), SCC 251 the Hon'ble Supreme Court considering the

fact that the appellant was sentenced to 5 years imprisonment under

Sections 399 and 402 of IPC, occurrence took place 29 years ago, the

appellant remained in custody for period of 6 months, allowed the appeal in

part and reduced the sentence to the period already undergone by the

appellant. In the present case, considering the fact that the incident took

place 2016, the appellant at that time was 19 years old, as per recent report

dated 11.11.2021 received from the Office of Jail Superintendent, Central

Cr.A. No. 1409 of 2016

Jail Raipur (C.G.), appellant was in jail from 26.01.2016 to 07.11.2016; from

25.01.2020 to 10.11.2021; from 08.11.2016 to 03.02.2018 for about three

years, nine months & 26 days and presently he is in jail, further that though

the offence is not compoundable, victim Tilak Kumar Tandi and the appellant

have filed the compromise petition before the trial Court and compromise

taken place between them, keeping in view the decisions in the matter of

George Pon Paul (supra) & Nasir (supra), in the considered view of this

Court, ends of justice would be served if the appellant is sentenced to the

period already undergone by him while keeping the fine sentence with

default sentence imposed by the trial Court intact.

20. Consequently, the appeal is allowed in part. While maintaining the conviction

of appellant under Section 307 which is aggravated form of offence under

Section 324 of IPC, he is sentenced to the period already undergone by him.

However, the fine amount with default sentence imposed by the trial Court

shall remain as it is. The appellant is in jail and therefore, he be set free

forthwith if not required in any other case.

Sd/-

(Gautam Chourdiya) Judge

vatti