Jai Dinesh Gupta vs State Of Chhattisgarh
2023 Latest Caselaw 711 Chatt

                                                                                   NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                               Cr.A. No. 366 of 2002

     Jai Dinesh Gupta Aged About 28 Years Village Paunsara, Police Station
     Koni, District - Bilaspur (C.G.)

                                                                            ---- Appellant

                                       Versus

                         The State of Chhattisgarh
                                                                     ---- Respondent

For Appellant        : Shri Wasim Miyan, Advocate
For State            : Shri Ajay Kumrani, P.L.


                    Hon'ble Shri Justice Narendra Kumar Vyas

                                Judgment on Board

03.02.2023

1. This appeal is directed against impugned judgment of conviction and order of sentence dated 09.03.2002 passed by the learned V th Additional Sessions Judge, Bilaspur in Sessions Trial No. 146/2001 whereby and where under, the appellants has been held guilty of commission of offence and sentenced as described below :-

     Conviction                                       Sentence
U/s 353/34 of IPC       R.I. for 06 month & Fine of Rs.100/-, in default of payment of
                        fine further undergo R.I. for 01 month.

U/s 332/34 of IPC       R.I. for 01 year & Fine of Rs. 200/-, in default of payment of
                        fine further undergo R.I. for 01 month.

U/s 307/34 of IPC       R.I. for 07 year & Fine of Rs. 1000/-, in default of payment of
                        fine further undergo R.I. for 01 month.

All the sentence are directed to run concurrently

2. Appellant No. 1 Somnath Tiwari @ Ashish Tiwari has already expired during the pendency of the appeal as such this court vide its order dated

01/05/2014 has abated the appeal so far as it relates to this appellant.

3. Case of the prosecution in brief is that on the fateful day i.e. on 09/02/2001 at about 11:30 pm at Sakri, Irrigation Colony Police Station - Bilaspur, complainant Atindranath Bagchi was working as sub- Inspector traffic and while discharging his duties, all of a sudden appellant No.1 attacked him on his neck by using deadly weapon i.e. Gupti with an intention to commit his murder and caused grievous injuries to the Public Servant.

4. On the basis of FIR, Police has done the investigation and submitted the challan before the J.M.F.C., Bilaspur which was subsequently committed the trial before the learned Vth Additional Session Judge, Bilaspur. Learned Session Judge vide its order dated 27/07/2001 has framed charges against the appellant for commission of offence u/s. 353/34 332/34 and 307/34 of the I.P.C. .

5. In order to prove the guilt of the accused, the prosecution has examined as many as 09 witnesses namely Ashok Bajaj (PW/1), Munna Thakur (PW/2), Amit Mishra (PW/3), Alok Verma (PW/4), M.B. Singh (PW/5), Dr. N.S. Chandel (PW/6), Harishankar Sahu(PW/7), Bhola Prasad (PW/8) and Atindranath Bagchi(PW/9). Accused were examined under section 313 of the Cr.P.C., pleaded no guilty and had stated that they have been falsely implicated and would pray for defense witnesses. The accused has examined Rupesh Shastry as DW/1. The appellants exhibited statement of witness Alok Verma (D/1), Rognamcha-sana exhibit D/2 and D/3, and the statement of the Atindranath Bagchi exhibit D/4.

6. The prosecution has examined victim DW/9 Atindranath Bagchi who has deposed before the trial court that Ashish has assaulted him with Gupti on his neck which he has prevented from his hand and made an attempt to control him. He has also stated that thereafter they have thrown chilly powder in his eyes. The second person who was also in the crime has taken away the Hero Puch vehicle. The said witness was cross- examined by the defense counsel but it remained unshaken in the cross- examination.

7. The prosecution has examined Dr. N.S. Chandel (PW/6) who has examined the victim has stated that all the injuries sustained by the victim is simple in nature and he has given his report which was exhibited as

Ex.P/14. The doctor who has examined the complainant has opined in para - 4 and 5 of his examination which is as under:-

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8. The learned trial court after appreciating the evidence and material on record has convicted the appellants as detailed above. The learned trial court while convicting the appellant has recorded a finding that accused Somnath Tiwari has assaulted the victim with weapon Gupti and if the victim has not taken self defence then definitely he would have been killed by the victim. The trial court recorded his finding that there was no intention of the appellant to kill the victim, therefore, injury was not fatal to bring home guilt of the appellant for commission of offence u/s. 307 of the I.P.C. Accordingly, appellants were convicted.

9. Since, the appellant No.1 has already expired and this court has already directed that appeal so-far-as for appellant No.1 stand abated as such this court has examined the case of appellant No.2 only. The learned counsel for the appellant No.2 would submit that the trial court without appreciating the evidence and material on record has convicted the appellant for commission of offences under sections 353/34 332/34 and 307/34 of the I.P.C. He would further submit that the learned trial court has ignored the evidence of PW/6 Dr. N.S.Chandel and Ex.P/14 & 15 which are the opinion of the doctor who has deposed that injury sustained by the victim is simple in nature, therefore, offence u/s. 307 of the I.P.C. is not made out. The learned counsel for the appellant would further submit that the finding recorded by the trial court that the offence u/s. 307/34 of the I.P.C. has been made out is perverse finding of fact which deserves to be interfered by this court exercising its appellate power. He would further submit that in worst view of the matter the offence u/s. 324/34 of I.P.C. can be made out against the appellant No.2 and as per Section 324 of the I.P.C. maximum sentence which can be awarded to appellant No.2 is up to 03 years whereas appellant No.2 remained in jail for more than 01 year, 09 month and 10 days. He would

further submit that the incident is of the year 09/02/2001 and 21 years have already been elapsed. The appellant is appearing before the trial court since then and even after granting of bail by this court on 15/02/2002 he has misused the liberty granted to him, therefore end of justice would be served if the sentence imposed by the trial court is reduced to the period already undergone by the appellant.

10. Record of this court would reflect that this court has granted bail to both the appellants vide its order dated 15/02/2002 thus appellant No.2 (Jai Dinesh Gupta) remained in jail from 11/02/2001 till 15/11/2002 i.e. 01 years 09 month and 10 days.

11. Learned counsel for the State would opposing the prayer made by the learned counsel for the appellant would submit that since the appellant made an attempt to commit murder of the Police Officer when he was discharging official duties as such, it is a serious offence against the society, therefore, no leniency may be carried out in favour of appellant No.2 and appeal may be dismissed.

12. I have learned counsel for the parties and perused the record with utmost satisfaction.

13. From perusal of the reports (Ex.P/14 and Ex.P/15) and evidence of PW/6 it is quite vivid that the injuries sustained by the victim are simple in nature and also considering the evidence of PW/9 victim who has stated that Ashish assaulted him with the Gupti. The prosecution has examined PW/4 Alok Verma who has also stated that person who was sitting back of the driver has assaulted the victim. Thus the prosecution has proved the case of causing hurt by deadly weapon to the victim has been proved beyond reasonable doubt now this court has to examine whether the injuries caused upon the victim are so grievous which can cause death or not. The medical report Ex.P/14 & 15 would demonstrate that the victim has sustained scratch in right palm which is 01cm and scratch in the right knee which is 1cm x 1cm which is of simple in nature. Thus, the finding recorded by the trial court that offence u/s. 307/34 of the I.P.C. is made out against the appellants and erroneous finding of fact deserves to be set-a-side by this court. Whether the evidentiary value of medical witness as crucial to the case of prosecution or not has come up for considering before Hon'ble Supreme Court in the matter of Anuj Singh Vs. The Sate

of Bihar, AIR 2022 SC 2817 whereas Supreme Court has examined the evidentiary value of medical witnesses and held at para,18, 20 and 21 as under :-

"18. The evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged. In the case at hand, PW-8, Dr. Himkar who examined the informant PW-6 has clearly stated that all the injuries attributed on the informant were caused by firearms and that tattooing may not appear over the wound (injured area) if a person fires from 6-7 ft.

20. It is a well-known fact that the term "hurt" simply means performing an act which leads to physical pain, injury or any disease to a person. At times, hurt may be caused voluntarily or it can by caused by using dangerous weapons or mean. A person will be liable to have caused hurt voluntarily through dangerous weapons and means under Section 324 IPC which reads as under:-

"324. Voluntarily causing hurt by dangerous weapons or means.

--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

21. To establish an offence under Sec 324 IPC, the presence of following ingredients is a must which are as follows:-

1. Voluntary hurt caused to another person by the accused, and

2. Such hurt was caused:

a. By any instrument used for shooting, cutting or stabbing, or any other instrument likely to cause death, or b. By fire or other heated instruments, or c. By poison or other corrosive substance, or d. By any explosive substance, or e. By a substance that is dangerous for the human body to swallow, inhale, or receive through blood, or f. By an animal.

When a person commits an offence of voluntarily causing hurt by dangerous weapons and means under Section 324 of Indian Penal Code, then such person shall be punished with imprisonment for a period of three years, or with fine.

14. In the light of above stated legal position, evidence and material brought on record by the prosecution, offence u/s. 307/34 of the I.P.C. is not made out. Instead of Section 307/34 of the I.P.C. offence u/s. 324/34 of I.P.C. is made out.

15. Thus appellant No.2 is convicted u/s. 324/34 of I.P.C. in place of 307/34 of I.P.C. Since the appellant No.2, who was involved in assaulting the

victim and also used the criminal force to deter Public Servant from discharging of his duty has been convicted by the learned trial court for 06 months with fine amount of Rs.100/- and similarly he has been convicted u/s. 332/34 of I.P.C. for voluntary causing hurt to deter Public Servant from his duty and has been sentenced to undergo for 01 year and fine amount of Rs.200/-, the same shall be maintained. Since the sentence as awarded by the learned trial court u/s. 307/34 I.P.C. sentenced has been altered into Sections 324/34 of I.P.C., considering the fact that the appellant remained in jail for 01 year 09 month and 10 days and there is no minimum sentence prescribed u/s. 324 of I.P.C., I am inclined to impose sentence to the period already undergone by the appellant by enhancing the fine amount of Rs.10,000/-.

16. Fall out and consequence of above discussion the appeal filed by the appellant no.2 is allowed in part. Conviction of the appellant u/s. 307/34 of I.P.C. is altered to 324/34 of I.P.C. and the appellant is awarded the sentence to the period already undergone by him i.e. 01 year 09 months and 10 days with enhanced fine amount of Rs.10,000/-. The appellant No.2 shall deposit the enhanced fine amount of Rs.9,000/- before the Sainik Welfare Board, Bilaspur within two month 15 days from today. As learned counsel for the appellant informed that the appellant No.2 has already deposited fine amount of Rs.1000/- before the trial court failing which the appellant No.2 shall undergo imprisonment for 06 months. It is also directed that appellant No.2 shall submit copy of the order before the Sainik Welfare Board, Bilaspur who will allow him to deposit Rs.9,000/- in compliance of the order passed by this court today.

17. With the aforesaid direction, the criminal appeal is allowed in part.

Sd/-

(Narendra Kumar Vyas) Judge

Ashish