Deepak Yadav vs State Of Chhattisgarh
2021 Latest Caselaw 2506 Chatt

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                                                                          NAFR



               HIGH COURT OF CHHATTISGARH, BILASPUR

                       Criminal Revision No. 368 of 2020

      Deepak Yadav son of Naveen Yadav, aged about 23 years, resident of
      Khairabhatha, Mahasamund, Police Station, Tahsil & District -
      Mahasamund (C.G.)                                         (In Jail)

                                                                   ---- Applicant

                                    Versus

      State of Chhattisgarh, through the Station House Officer, Police Station -
      Mahasamund, District - Mahasamund (C.G.)

                                                              ----Non-applicant



For Applicant          :   Mr. Vivek Tripathi, Advocate.
For Non-applicant      :   Mr. Afroj Khan, Panel Lawyer.


                    Hon'ble Shri Justice N.K. Chandravanshi

                               Order On Board
23.09.2021

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

dated 17.12.2019 passed by Sessions Judge, Mahasamund (C.G.) in Criminal

Appeal No. H 33/2019 whereby judgment of conviction under Section 326 of the

IPC and order of sentence of rigorous imprisonment of one year with fine of

Rs.1,000/-, with default stipulation passed by Judicial Magistrate, First Class,

Mahasamund in Criminal Case No. 1046/2016 vide order dated 27.03.2019 has

been upheld.

(2) Brief facts of the case are that on 17.03.2016 at 2.30 pm complainant Hari

Banjare was standing near chicken shop of Alok Pandey at Khaira mode,

Mahasamund, at that time, applicant came there in a drunken condition and

abusing and threatening to complainant and when he restrained him for the said

act, then applicant assaulted him by means of sharp edged weapon (Chapad+),

which is used for cutting of chicken, thereby, applicant caused injuries to the

complainant. Within ½ hour of the incident, complainant lodged FIR against the

applicant/accused i.e. at 3 pm. Thereafter, the complainant was medically

examined by Dr. Lekhram Chandrakar (PW-4). After usual investigation, police

filed charge sheet against the applicant under Sections 294, 323, 506 & 326 of

IPC & Sections 25 & 27 of the Arms Act, 1959 before Chief Judicial Magistrate,

Mahasamund. Charges under Sections 294, 506, 326 IPC & Section 27 of the

Arms Act, 1959 was framed and the same was read and explained to the

applicant/accused, which he denied and his plea was recorded.

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

examined as many as 7 witnesses. Statement of the applicant/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. Applicant has not examined any witness in support of 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 applicant/accused as mentioned in opening paragraph of the

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

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

Revision.

(5) Counsel for the applicant/accused would submit that witnesses of this

case are relatives to each other, therefore, merely on the basis of their

statements, both the courts below ought not to have been convicted the

applicant/accused. More so, seizure of said Chaped has not been proved and

there is contradictions about the size of Chaped as has been mentioned in the

seizure memo (Ex.P-3) and query report (Ex.P-8). Looking to these

contradictions and involvement of interested witnesses in the case, judgment of

conviction passed by both the courts below is erroneous and unsustainable in

law, therefore, impugned order deserves to be set aside and the applicant be

acquitted of the charge levelled against him.

(6) Per contra, 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 - Hariram Banjare (PW-1) has clearly stated in his deposition

that when he refused to give money to the applicant, which he was demanding to

purchase liquor, then applicant abused him and assaulted upon him by Chapad

and injured his leg. He has denied that he got injured in the scuffle took place

between them. His statement is well corroborated by his brother Sushil Kumar

Banjare (PW-2) and his wife Bed Bai (PW-5), who are the eye-witnesses of the

case.

(9) Dr. Lekhram Chandrakar (PW-4) had examined the complainant at 4

O'clock on the date of incident. As per his deposition, he found cut injuries on

right knee of the complainant from where blood was oozing out. He has also

opined that aforesaid injuries were caused by sharp edged object within 0 to 6

hours of the medical examination. According to him, he had also examined X-ray

of complainant, in which, he found fracture on his right patella bone. The

aforesaid statement is well supported by medical report (Exs.P-6 ) & (Ex.P-7)

prepared & proved by him.

(10) Perusal of record of court below would show that FIR (Ex.P-1) naming

applicant/accused was lodged within ½ hour of the incident, which has proved by

its maker Sub-Inspector Sidhheshwar Pratap Singh (PW-6). Within one hour of

the lodging of FIR (Ex.P-1), the complainant was medically examined by Dr.

Lekhram Chandrakar (PW-4) and on the next day, on examination of X-ray plate

of complainant by said doctor (PW-4), his right patella bone was found fractured.

Looking to the chain of aforesaid incident, that too, without any delay, only on the

basis of the fact that eye witnesses to the incident are relatives of complainant,

their statements cannot be discarded. Therefore, arguments advanced by

counsel for the applicant in this regard is not helpful to him.

(11) Head Constable - Virendra Seth (PW-7), in his court statement, has

deposed that he has seized chapad as per memorandum statement (Ex.P-2) of

applicant/accused and had prepared seizure memo (Ex.P-3) in this regard. But

his statement has not been well supported by Sushil Kumar Banjare (PW-2) and

Nutan Das Vaishnav (PW-3). Although, they have admitted their signature in both

the documents but it has not been mentioned in seizure memo (Ex.P-3) that from

which place of Chicken shop of Alok Pandey, applicant discovered the said

chapad, therefore, memorandum and seizure has not been proved in this case.

There is also difference of size of Chapad as has been mentioned in the seizure

memo (Ex.P-3) and query report (Ex.P-8) of said Chapad, despite that since from

the evidence of complainant and other eye witnesses, it has been proved that

applicant assaulted the complainant by means of chapad, therefore, non-proving

of seizure of Chapad will not adversely affect the case of the prosecution

because it is settled law that if eye-witnesses proved the fact that

accused/applicant inflicted injuries by sharp edged weapon and in medical

examination also such injuries i.e. cut injuries is found proved, then non-seizure

of that weapon will not affect the truthfullness of statement of eye witnesses.

(12) In view of the aforesaid discussion, I am of the opinion that both the courts

below have not committed any error in convicting the accused/applicant for

commission of offence under Section 326 of IPC. Thus, it is hereby maintained.

(13) So far as sentence part of the impugned order is concerned, after due

consideration of the submissions made by counsel for the parties, I find that

sentence imposed by the trial Magistrate as upheld by learned Sessions Judge

also does not call for any interference by this Court.

(14) In the result, criminal revision, being devoid of substance, is liable to be

and is hereby dismissed.

(15) Since, as per report received from Central Jail, Mahasamund, after getting

benefit of remission & completion of sentence, applicant - Deepak Yadav has

been released from jail on 30.07.2021,therefore, he need not to surrender before

the trial Court as he has already completed his jail sentence.

Sd/-

(N.K. Chandravanshi) Judge

D/-