Hem Singh @ Hemchandra Thakur vs State Of Chhattisgarh
2021 Latest Caselaw 2283 Chatt

                                          1

                                                                              NAFR



                 HIGH COURT OF CHHATTISGARH, BILASPUR

                        Criminal Revision No. 570 of 2009

       Hem Singh @ Hemchandra Thakur, S/o. Purushottam Thakur, aged
       about : 29 years, R/o. Village : Dudhli, Police Station : Balod, District Durg
       (C.G.)

                                                                      ---- Petitioner

                                       Versus

       State of Chhattisgarh, Through : Police Station - Daundilohara, District :
       Durg (C.G.)

                                                                    ----Respondent

For Petitioner : Ms. Nand Kumari Kashyap, Advocate on behalf of Mr. Pushpendra Kumar Patel, Advocate.

For Respondent          :     Mr. Vaibhav K. Agrawal, Panel Lawyer.


                    Hon'ble Shri Justice N.K. Chandravanshi

                                  Order On Board
13.09.2021

(1)    This Criminal Revision has been preferred against the impugned judgment

dated 23.11.2009 passed by Additional Sessions Judge (FTC), Balod, District

Durg (C.G.) in Criminal Appeal No. 111/2008 affirming the judgment of conviction

and order of sentence dated 25.09.2008 passed by Judicial Magistrate, First

Class, Balod, District Durg in Criminal Case No. 35/2005 convicting the

petitioner/accused for the offence punishable under Section 324 of the Indian

Penal Code and sentenced him to undergo rigorous imprisonment for six months

with fine of Rs.500/-, with default stipulation.

(2) Case of the prosecution, in brief, is that on 25.10.2005 at about 7.30 PM

when complainant Bhanuram, after taking meal, went outside the home for

walking and on the way, he is talking with Laxmi Bai (PW-1), who is wife of

Babulal, at that time petitioner came there from his back side and assaulted upon

his head with axe, as a result thereof, he sustained grievous/multiple injuries on

his head. After usual investigation, charge sheet under Section 324 of IPC was

filed before Judicial Magistrate, First Class, Balod. Charge under Section 324

IPC was framed and the same was read and explained to the petitioner/accused,

which he denied and his plea was recorded.

(3) In order to prove the guilt of petitioner/accused, the prosecution has

examined as many as 9 witnesses. Statement of the petitioner/accused was also

recorded under Section 313 of Cr.P.C. in which he denied the circumstances

appearing against him in the prosecution case, pleaded innocence and false

implication. Apart from this, the petitioner/accused has also examined one

witness namely Devendra Kumar (DW-1) in his defence.

(4) Trial Magistrate, after hearing learned counsel appearing for the respective

parties and considering the material available on record, has convicted and

sentence the petitioner/accused as mentioned in opening paragraph of the

judgment. In an appeal preferred by the petitioner/accused, judgment passed by

the trial Magistrate has been affirmed by the appellate Court. Hence this Criminal

Revision.

(5) Learned counsel appearing for the petitioner/accused submits that none of

the prosecution witnesses have supported the statement of complainant -

Bhanuram (PW-1) that petitioner/accused assaulted on his head and injured him.

He further submits that even Dr. Vinod Kumar Chorka (PW-7) has admitted in his

cross-examination that the injuries sustained by the complainant could be

caused on collusion with wooden door in an intoxicated condition. She also

submits that there had been some previous enmity also between them, therefore,

learned trial Magistrate ought not have convicted the petitioner/accused on the

basis of statement of complainant Bhanuram (PW-10), despite that learned both

the courts below have convicted and sentenced the petitioner/accused as

aforementioned, which is erroneous, perverse and unsustainable in law. She

next submit that if conviction of the petitioner/accused is maintained then since

the petitioner has already remained in jail after passing of the appellate

judgment i.e. 23.11.2009 till bail order granted by this Court on 30.11.2009

whereas sentence awarded to the petitioner is only of six months imprisonment

and incident had taken place in the year 2005 and thereby more than 15 years

have rolled by since then, therefore, ends of justice would be met if the

petitioner/accused is sentenced to the period already undergone by him. He

submits that fine has already been deposited by the petitioner/accused.

(6) On the other hand, learned counsel for the State while supporting the

impugned judgment would submit that the impugned judgment is based on well

founded evidence, which does not call for any interference by this Court.

(7) I have heard learned counsel for the parties and perused the material

available on record of both the courts below including impugned judgment with

utmost circumspection.

(8) Complainant - Bhanuram (PW-1) has stated in his court statement that on

25.10.2005 at about 6 pm when he was going outside from his home for walking

after taking meal, and on the way he is talking with Laxmi Bai (PW-2) [wife of

Babulal], at that time petitioner/accused came there from his back side and

assaulted upon his head with axe, thereafter, he (complainant) ran away by

screaming towards square (pkSd) of the village and narrated the entire incident to

Babulal (PW-3) and Bisalu Ram. His statement is well supported by FIR

(Ex.P-1), which was lodged by complainant himself after about 1 ½ hours of the

incident.

(9) Laxmi Bai (PW-2), Babulal (PW-3), Bisalu (PW-4), Kaushal Kumar (PW-5)

have not supported the statement of complainant that they had seen the incident

but Laxmi Bai (PW-2) has deposed in her court statement that complainant was

talking with her while going from home. Other aforesaid witnesses have also not

supported the version of complainant regarding assault made by

petitioner/accused but have stated that when they were standing near betel

shop, at that time, complainant came towards them by screaming, at that time,

the blood was oozing out from his head. Although aforesaid witnesses have not

supported in their court statement that they had seen assaulting the petitioner by

axe upon complainant but Babulal (PW-3) & Kaushal Kumar (PW-5) have stated

that complainant has told them that petitioner/accused has assaulted him with

the axe.

(10) From medical evidence of Dr. Vinod Kumar Chorka (PW-7) and M.L.C.

report of complainant, which has been proved by Dr. Vinod Kumar Chorka

(PW-7) also supported the statement of complainant, in which, it has been stated

that two lacerated wounds was found on the head of complainant and the blood

was oozing out from there. He has also opined that aforesaid injuries were

caused by hard, blunt and sharp edged mixed object. Although, he has admitted

in his cross examination that in an intoxicating condition, on being collided with

wooden door, such injuries could be caused but there is nothing in cross-

examination of any of the witnesses that complainant had collided with any

wooden door in an intoxicating condition whereas from the evidence available on

record it is apparent that the aforesaid injuries, sustained by the complainant,

were caused to him by the petitioner/accused with the axe. The defence has

cross-examined these witnesses in detail but has not been able to elicit anything

in their cross-examination to discard their testimony. Statement of Devendra

Kumar (DW-1) that complainant had fell on door in his house in an intoxicated

condition is not inspire confidence of the Court because such fact has not been

asked from the complainant in his cross-examination.

(11) Looking to the aforesaid evidence and material available on record, I find

that the trial Magistrate as well as First Appellate Court have rightly held guilty

under Section 324 of IPC to the petitioner, therefore, the conviction part of the

judgment impugned deserves to be and is hereby maintained.

(12) So far as sentence part of the impugned judgment is concerned,

suggestion taken in the cross-examination from complainant and other witnesses

shows that there had been some dispute between both the parties regarding

writing of letters by complainant mentioning character of the wife of

petitioner/accused. Moreover, the petitioner/accused has remained in jail after

passing of the appellate judgment i.e. 23.11.2009 till bail order granted by this

Court on 30.11.2009 whereas sentence awarded to the petitioner/accused is only

of six months imprisonment and incident had taken place in the year 2005 and

thereby more than 15 years have rolled by since then. Nothing has been

mentioned in record of the courts below with regard to previous criminal

antecedents of the petitioner. Thus, the petitioner is sentenced to the period

already undergone by him. However, fine sentence, as imposed upon the

petitioner, is hereby maintained.

(13) Accordingly, the criminal revision is partly allowed.

Sd/-

(N.K. Chandravanshi) Judge

D/-