Chattisgarh High Court

Rajesh vs The State Of C.G on 18 August, 2022

                                1

                                                         NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR
              Judgment Reserved on : 01.07.2022
              Judgment Delivered on : 18.08.2022
                      CRA No. 9 of 2000

      Rajesh S/o Manoranjan, aged 24 years, R/o village
       Kishunpur, P.S. Ambikapur, District Surguja (C.G.)
                                                  ---- Appellant
                             Versus

      State of Chhattisgarh Through. - P.S. - Ambikapur
       (Surguja) (C.G.)
                                                ---- Respondent

For Appellant : Mr. Sandeep Yadav, Advocate. For Respondent/State : Mr. Vinod Tekam, P.L.

Hon'ble Smt. Justice Rajani Dubey

C A V Judgment

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

order of sentence dated 13.10.2000 passed by the Additional

Sessions Judge, Surguja at Ambikapur (C.G.), in S.T. No.287/97

convicting the accused/appellant under Section 307 of IPC and

sentencing him to undergo R.I. for ten years.

2. The prosecution story, in brief, is that injured Narendra

Majumdar (PW/5) was allotted a piece of land on lease by the

Government for farming and he had been doing agricultural

work on the said land but the father of appellant had fled a

civil suit, which was decreed in favour of injured Narendra

Majumdar and owing to this, the appellant had an enmity with

him and used to damage the crops of his feld by grazing

animals. On the date of incident i.e. on 19.06.1997, injured

Narendra Majumdar (PW/5) was sufering pain in his chest and

had gone to Dr. Vishwas at village Sargaon, and at 10.00 pm,

when he was returning home after taking treatment, the

appellant met him near Sendu Cherwa's house. Appellant

Rajendra was holding iron rod (crowbar), co-accused Ravindra

was holding sword and other persons who were accompanying

them were holding club. All these persons, due to old enmity

with regard to land, assaulted Narendra Majumdar (PW/5), as

a result of which, he sustained grievous injuries over his body

and was lying on the ground in bloodbath condition. The

incident was informed to Mamta Majumdar (PW6), wife of

Narendra Majumdar (PW/5) by Sendu Cherwa, thereafter the

injured was frst taken to Police Station, Surguja, and FIR

(Ex.P/8) was registered against the appellant, from where he

was taken to District Hospital, Ambikapur, where Dr. S.K. Sinha

(PW/8) examined injured Narendra Majumdar and gave his

report Ex.P/11 noticing following injuries:-

(1) Black eye with edema over both the side having bluish in the size of 7 cm x 5 cm.

(2) Lacerated wound over chin in the size of 5 cm x 1 cm x bony deep having fracture of mandible.

(3) Bleeding from both nostril.

(4) Lacerated wound over lower lip in the size of 1 cm x 0.5 cm x 0.5 cm deep.

(5) Lacerated would over right shin in the size of

2.5 cm x 0.5 cm edema and movement was restricted with bony crepitus.

The Doctor has opined that injury Nos. 1 and 2 were

grievous in nature and injury Nos. 1, 3 & 4 were simple in

nature caused by blunt and hard object and adviced for x-ray

of face and right leg for confrmation. In query report

(Ex.P/12), the doctor opined that although the injuries

sustained by the injured were not dangerous to life but the

same could be fatal if proper treatment was not done.

3. Dr. Prashant Shrivastava (PW/3), who examined eye of

injured Narendra Majumdar, gave his report in bed head ticket

(Ex.P/5) and further opined in query report (Ex.P/7) that the

injury was grievous in nature. Likewise, injured Narendra

Majumdar was also examined by Dr. H.S. Bhalla (PW2), Dental

Surgeon and Dr. M.K. Jain (PW/1), who gave their reports in

bed head ticket (Ex.P/5).

4. After completion of usual investigation, charge-sheet

was fled against the appellant and other co-accused persons.

After fling of charge-sheet, the trial Court framed charges

against the appellant and other co-accused persons under

Section 307 read with section 34 of IPC.

5. So as to hold the accused/appellant guilty, the

prosecution examined as many as 09 witnesses. Statement of

the accused/appellant 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. Three defence witnesses were also

examined in the case.

6. The trial Court, after hearing counsel for the respective

parties and considering the material available on record, while

acquitting co-accused Ravindra Kumar, has convicted and

sentenced the present accused/appellant as mentioned in

para-1 of this judgment. Hence, this appeal.

7. Learned counsel for the appellant submits that the

appellant is not in any way connected with the crime in

question. On the date of incident, the applicant had gone to

village Ganeshpur to attend marriage function, which is

evident from the defence witnesses DW/1 and DW/2, whose

statements remained unrebutted. He further submits that

evidence of Mamta Majumdar (PW/6), wife of injured, is not

reliable being interested witness and further she was not

present at the time of incident & she was informed by one

Sendu Ram, who frst saw the incident, but the prosecution

has not examined this witness for the reason best known to

them. As such, non examination of Sendu Ram creates a

shadow of doubt over the prosecution story. Learned counsel

also submits that according to the prosecution, there were as

many as four persons armed with club and possibility of

assaulting by them cannot be ruled out. It has been also

argued that the treating doctor did not opine that the injuries

sustained by the injured were dangerous to life, as such, the

case of the appellant would fall within the ambit of Section

326 of IPC and not under Section 307 IPC as has been done by

the Court below. It has been argued that the appellant has

already remained in jail for about nine months, the incident

took place in the year 1997 and thereby 25 years have rolled

by since then and no useful purpose would be served in again

sending him back to jail, therefore, after converting his

sentence into Section 326 of IPC, his sentence may be

reduced to the period already undergone by him. To buttress

his submission, he would rely upon the judgment of Hon'ble

Apex Court in the matter of Neelam Bahal v. Sate of

Uttarakhan reported in AIR 2010 SC 428.

8. On the other hand, supporting the impugned judgment it

has been argued by learned counsel for the State that

conviction of the accused/appellant is strictly in accordance

with law and there is no infrmity in the same.

9. I have heard learned counsel for the parties and perused

the material available on record.

10. Dr. M.K. Jain (PW/1) examined x-ray flms (Ex.P/1 and

P/2) of injured Narendra Majumdar and gave his report Ex.P/3

noticing fracture in mandible bone, right parietal bone and

dislocation of temporal joint. This witness has not stated

anything about the nature of injuries.

11. Dr. H.S. Bhalla (PW/2), Dentist, has also examined

injured Narendra Majumdar and gave his report on the basis of

case-sheet as the injured was discharged from the hospital.

He has mentioned his report in discharge head ticket (Ex.P/5)

that mandible was fractured and it takes seven weeks for its

restoration. In para 6, this witness has stated that the injury in

particular fracture of mandible bone was grievous in nature. A

query regarding nature of injury was put to this witness,

whereupon, in para 7, he has stated that the same could have

been fatal to life if mandible bone is not joined. This witness

has also stated that wiring of mandible bone was required for

restoration of it.

12. Dr. Prashant Shrivastava (PW/3) is eye-specialist, who

has examined injured Narendra Majumdar and gave his report

on bed head ticket (Ex.P/5). Though, this witness has given

vivid descriptions of injuries and stated it to be grievous but

he has not stated that the injuries sustained by injured were

fatal to life.

13. Hiraman Singh Chauhan (PW/4) and Suresh Chandra

Shukla (PW/9) are the investigating ofcer, who have duly

supported the prosecution case.

14. Narendra Majumdar (PW/5) is the injured/victim. He has

stated that he was alloted a piece of land by the Government

for agriculture purpose and a civil suit was fled by the

appellant regarding this land, which was decreed in his favour,

therefore, the appellant was having grudge against him. He

has also stated on the date of incident, when he was returning

to his house after taking treatment, on the way, near Sendu's

house, appellant Rajesh along with three others came to him.

Appellant Rajesh was holding iron rod and co-accused

Ravindra was holding sword. Both the appellant Rajesh and

co-accused Ravindra assaulted him by their respective

weapons as a result of which he sustained grievous injuries

over his body. Thereafter, Sendu, whom he narrated the

incident, called his wife (PW/6), who took him to Ambikapur.

He has also stated that the FIR of the incident was lodged by

his wife Mamta Majumdar (PW/6) as he was not in a position

to talk. Thereafter, he was taken to Government hospital

where he remained hospitalized for about one month and from

where he was shifted to Mission Hospital. In cross-

examination, this witness remained frm.

15. Mamta Majumdar (PW/6), wife of injured/victim, is the

lodger of FIR. This witness has made almost similar statement

as has been made by injured (PW/5). This witness has

admitted that when she reached the place of incident, she

saw his husband Narendra Majumdar (PW/5) who told her that

it is the appellant and Ravindra who inficted injury over his

body. Defence has cross-examined these witness (PW/5 and

PW/6) at length but has not been able to elicit anything in

cross-examination to discredit their testimonies especially to

the fact that the appellant has not caused any injury to the

injured (PW/5).

16. Banmali Mandal (PW/7) is the hearsay witness. He has

stated that when he was sleeping at his house, Sendu Ram

came to him and informed that injured Narendra Majumdar

(PW/5) has been assaulted and thrown in the feld, whereupon

he went there and saw injured Narendra Majumdar lying on

the feld. On being asked, he (injured Narendra Majumdar) told

that it is the appellant who assaulted him.

17. Dr. Surya Kishore Sinha (PW/8) is the witness who frst

examined injured Narendar Majumdar (PW/5) and gave his

report (Ex.P/11). This witness, in para 5, has specifcally

stated that he gave query report (Ex.P/12) opining that the

injuries sustained by injured were not dangerous to life,

however, he states that the injured could have been died if

timely treatment was not given to him.

18. In the instant case, injured Narendra Majumdar (PW/5)

has categorically stated that it is the appellant who caused

injuries to him over his eye, chin, right leg, lip by iron rod.

Evidence of this witness gets corroboration from the promptly

lodged FIR (Ex.P/8) naming the appellant to be the perpetrator

of crime and also x-ray report Ex.P/1 given by Dr. M.K. Jain

(PW/1), medical report Ex.P/5 of Dr. H.S. Bhalla (PW/2),

Dentist, and Dr. Prashant Shrivastava (PW/3), eye specialist,

and medical report (Ex.P/11) by Dr. Surya Kishore Sinha

(PW/8). In these circumstances, the complicity of

accused/appellant in crime in question stands proved beyond

reasonable doubt.

19. Now the question to be considered by this Court is

whether the act of the appellant makes him liable to be

convicted under Section 307 IPC.

20. Injured Narendra Majumdar (PW/5) was frst examined by

Dr. Surya Kishore Sinha (PW/8) who noticed injuries as

mentioned in medical report Ex.P/11. Though, this doctor has

stated that the injuries sustained by injured are grievous in

nature but in his report (Ex.P/11), he has not stated it to be

dangerous to life. Likewise, Dr. M.K. Jain (PW/1), who

examined x-ray report of injured and submitted his report

(Ex.P/3), Dr. H.S. Bhalla (PW/2), Dentist, and Dr. Prashant

Shrivastava (PW/3), Eye Specialist, who gave their reports in

bed head ticket (Ex.P/5), opining that the injuries sustained by

the injured were grievous in nature. A query was put to these

witnesses, whereby PW/2 vide query report Ex.P/6 and PW/3

vide Ex.P/7 gave their respective opinion that the injuries

sustained by injured were grievous in nature. All these

witnesses have not stated in their evidence that injuries

sustained by the injured were fatal to life. That apart, the

prosecution has not brought any such material in this regard

which could establish the fact that the injuries sustained by

the injured/victim were fatal to life.

21. Supreme Court in the matter of Neelam (supra), held in

para 8, which reads thus:-

"8. A reading of the above would indicate that though the general condition of the patient was very bad yet there is no categoric statement in the medical certifcate issued by Dr. S.M. Sehgal that the injuries were in fact dangerous to life. We are unable to fathom as to whether this was a deliberate omission or an oversight but whatsoever it may be the beneft must accrue to the accused. We have also gone through the evidence of Dr. S.M. Sehgal and fnd that he had admitted that he had not mentioned that the injury was dangerous to the life as he did not think it necessary to do so."

22. Thus, looking to the facts and circumstances of case, the

nature and number of injuries coupled with the medical

evidence and further considering the fact that there is nothing

in the medical report of four doctors that injures sustained by

the injured were fatal to life, it would not be safe to hold that

the appellant caused injury to injured Narendra Majumdar

(PW/5) in an attempt to commit his murder. However, the

nature and number of injurires caused and the weapon used

for causing such injury, it can safely be said that the accused/

appellant had caused grievous injuries to the injured with

dangerous weapon iron rod making him liable to be convicted

under Section 326 IPC.