Chattisgarh High Court

Timak Ram vs State Of Chhattisgarh on 9 January, 2023

                                        1

                                                                           NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR
                           CRA No. 1046 of 2002
   Timak Ram s/o. Daseram Satnami, aged 32 years, r/o.l village Parsada,
    Police Station Masturi, District Bilaspur (CG).
                                                                  ---- Appellant.
                                      Versus
   State of Chhattisgarh through Station House Officer, Police Station,
    Masturi, District Bilaspur (CG).
                                                                 ---- Respondent

For Appellant - Mr. Akhtar Hussain, Advocate For State - Ms. Abhyunnatti Singh, PL.

For Injured - Mrs. Reena Singh, Advocate.

(Hon'ble Shri Justice Narendra Kumar Vyas).

Judgment on Board

9-1-2023

1. The appellant has fled this appeal against the impugned

judgment dated 23-09-2002 passed by 3rd Additional Sessions

Judge, Bilaspur (CG) in Sessions Trial No. 45 of 2002 convicting

him under Section 308 of IPC and sentencing him to undergo

rigorous imprisonment for three years and six months and pay

fne of Rs. 1000e-, in default of payment of fne, to undergo

further RI for two months.

2. The facts of the case, in brief are that on 13-11-2001 at about

9.00 am in the morning some dispute had taken place between

Gokaran & Sheetal Bai and at about 6.00 pm in the evening

husband of Sheetal Bai namely Shatrughan Suryavanshi asked

the appellant as to why appellant quarreled with his wife.

Aggrieved with the question of Shatrughan Suryavanshi,

appellant along with other two co-accused appellants assaulted

the victim by sticks on his head as a result of which victim

sustained injuries.

3. Victimeinjured went to police Station and made oral complaint on

the basis of which FIR (Ex.Pe6) was registered by Police Station

Masturi for commission of ofence under Section 324 of IPC. After

completion of investigation charge-sheet was fled before the

learned Sessions Judge. Appellant however denied the charge

framed against him and claimed trial.

4. Prosecution to bring home the guilt of the appellant, has

exhibited documents I.e,application for taking dying declaration

on 26-6-2002 (Ex.Pe1 & Pe2), Nakal Rojnama (Ex Pe3 and Pe3c),

application for examination (Ex.Pe4), property of seizure memo by

which wooden stick was seized from the present appellant (Ex.Pe

5), FIR (Ex. Pe6), medical query (Ex.Pe7), examination of wooden

stick (Ex.Pe8), arrest memo of the appellant Ex Pe9), Najri Naksha

(Ex.Pe10), report of the Doctor (Ex.Pe11), examination report of

wooden stick (Ex.Pe12), X-ray report (Ex.Pe13), X-ray place

(Ex.Pe14), opinion of the Doctor (Ex.Pe15) about the injuries.

5. In order to prove its case the prosecution has examined as many

as 13 witnesses; ie.., Shatrughan Suruavanshi (PWe1), Sheetla

Bai (PWe2), Horilal Suryavanshi (PWe3), Sanjay Kumar Kesharwani

(Suryavanshi (PWe4), Investigating Ofcer, Harishchandra Singh

(PWe5), Sub Inspector C. Kerketta (PWe6), Kotwar, Ghasidas

(PWe7, Rajesh Kumar Suryavanshi (PWe8), Leela Bai (PWe9), Sahid

Ali (PWe10), Dr. Rajlalan Tiwari (PWe11), Dr. R.G. Jitpure (PWe12)

and Dr. D.R. Patle (PWe13).

6. Statement of the accusedeappellant was also recorded under

section 313 of the Code of Criminal Procedure where he pleaded

his innocence and false implication in the same. Defence has

exhibited documents De1 to De5 in support of its case.

7. Learned Court below by the judgment impugned has convicted

and sentenced the accusedeappellant as described above. Hence

this appeal. During trial the appellant remained in jail from 22-

11-2001 to 27-12-2001.

8. On the basis of material collected, by the prosecution, the

appellant was charge-sheeted for commission of ofence

punishable under Section 307e34 along with two other co-

accused persons namely Gokaran and Kalyan Singh. On the basis

of evidence adduced by the prosecution and material available

on record, learned trial court acquitted the other co-accused

Kalyan Singh and Gokaran on the ground that testimony of

prosecution witnesses is not reliable so far as connecting Kalyan

Singh and Gokaran with the ofence is concerned. The trial court

has further recorded a fnding that prosecution has successfully

established the assault by the appellant to victim as a result of

which the trial court has convicted the appellant under section

308 of IPC and awarded the sentence as aforementioned.

9. Learned counsel for the appellant would submit that the

prosecution has not proved its case that the appellant has caused

injuries to the victim and because of the injury sustained by the

victim he remained unconscious for two days and after some

time he was discharged from the hospital, still the trial court

convicted the appellant for commission of ofence under Section

308 of IPC and on the same set of facts and evidence, the other

two co-accused persons have also been prosecuted and

acquitted by the learned trial court, therefore, conviction of the

appellant under Section 308 of IPC is bad-in-law and perverse

fnding requires to be set aside.

10. Learned counsel for the appellant would further submit that the

prosecution has not proved the case of the appellant beyond

reasonable doubt and whether the assault given by the present

appellant has caused injury to the victim, therefore, beneft of

doubt can be extended to the present appellant. He would

further submit that from the evidence of Dr. D.R. Patle (PWe13) it

is clear that the Doctor has also not given any exact opinion

whether injury sustained by the victim was grievous in nature or

not. On the contrary, in para 5 of his cross examination he has

stated that the injury sustained by the victim is simple in nature

and tried to explain as to why he has written the grievous injury.

Even the victim in his examination-in-chief has nowhere stated

that the present appellant has assaulted the victim and there is

no direct evidence brought on record by the prosecution to prove

the guilt of the accused. He would further submit that the

fndings recorded by the Court below holding the

accusedeappellant guilty as mentioned above is not based on just

and proper appreciation of the evidence on record. He would

next submit that there are several contradictions and omissions

in the evidence of the important witnesses including the victim

on material particulars, and therefore, the conviction of the

appellant based on such shaky testimony cannot stand.

Therefore, the appellant be acquitted from the charges levelled

against him.

11. Learned State counsel however supports the judgment impugned

to be just and proper and submits that the Doctor after

examining the victim has given opinion and the Doctor is the

expert over the subject, no diferent view can be given and on

the basis of opinion given by the Doctor, it is clear that the

victim has sustained injury which is grievous in nature. It is

further submitted that the stick by which assault was made was

seized from the appellant, therefore, there is clear evidence that

the appellant assaulted the victim and there is clinching evidence

against the appellant, therefore, conviction under Section 308 of

IPC is legal and justifed warranting no interference.

12. Heard counsel for the parties at length and gone through the

material available on record including the judgment impugned in

depth.

13. Learned trial court has convicted the appellant for commission of

ofence under Section 308 of IPC, therefore, it is expedient for

this court to extract the provisions of Section 308 of IPC which

reads as under:

"308. Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fne, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fne, or with both. Illustration A, on grave and sudden provocation, fres a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the ofence defned in this section".

14. What will be essential ingredients to prove the case for

commission of ofence under Section Section 308 of the IPC, has

come up for consideration before the Hon'ble Supreme Court in

the case of Bishan Singh and another vs. State1 wherein

Hon'ble Supreme Court has held in para 11 as under:

"11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a fnding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt-act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body".

15.In the light of the above legal settled position of law, now the

case has to be examined by this court.

16.From the evidence adduced before the trial court it is clear that

the victim Shatrughan Suryavanshi (PWe1) has stated in his

evidence that all the three accused persons have assaulted him

by sticks as a result of which he sustained injury on his head. In

his cross examination he has stated that he was unable to say by

whose assault he sustained injury on the head and he fell down.

He has further stated that present appellant with no intention to

cause death has caused injury on his head by stick. In Ex.De1 he

has not stated that he fell down because of appellant Timak Ram

assaulted him on his head. Sheetla Bai (PWe2), who is eye-

witness of the incident has also stated in examination-in-chief

that all the three accused persons have assaulted her husband

as a result of which her husband became unconscious and fell

down. She has denied that the appellant Timak Ram has brought

stick and assaulted her husband. She has stated that Kalyan and

Gokaran have also brought sticks and assaulted her husband by

1 (2007) 13 SCC 65

sticks. In para 11 she has stated that all the three accused

Timak Ram, Gokaran and Kalyan have assaulted her husband by

sticks thrice or four times.

17.The other eye-witness namely Sanjay Kumar Suryavanshi

(PWe14) has stated in examination-in-chief in para 3 that

Gokaran, Timak Ram and Kalyan have assaulted his uncle by

sticks as a result of which his uncle's uncle got fractured and in

the cross examination this witness denied that only Timak Ram

assaulted his uncle and rest of the accused have not assaulted

the victim.

18.Dr. D.R. Patle (PWe13) who was working as Surgical Specialist has

examined the victim and has given opinion why he has written

the injury sustained by the victim is grievous in nature. In the

cross examination he has admitted that in para 5 that there was

no fracture in the head bone, therefore, the injury sustained by

the victim is simple in nature.

19.After appreciation of the evidence, it is quite clear that

Shatrughan Suryavanshi (PWe1) in his evidence has stated that

all the three accused appellants who have been prosecuted by

the prosecution have assaulted him, but he has not stated that

by whose stick he sustained injury on the head. Similarly, in the

cross examination he has again stated that all the three accused

persons assaulted him three or four times, thereafter he became

unconscious but he cannot say that by whose stick he sustained

injury on the head and he has also stated that present appellant

has not assaulted him with intention to cause him death. PWe2

Sheetla Bai, eye witness who is wife of the victim has also

deposed before the trial court that when her husband came from

courtyard, all the three accused persons namely Gokaran, Timak

Ram and Kalyan have come with sticks and assaulted her

husband, but she has nowhere stated that the appellant Timak

Ram assaulted the victim and in the cross examination she has

also stated that the accused Timak Ram, Gokaran and Kalyan

have assaulted her husband three or four times by sticks. Even

the Doctor is not confdent about the injury sustained by the

victim. In the cross examination he has admitted that the injury

sustained by the victim is in simple in nature as there is no

fracture on the head.

20. Learned trial Court did not notice the ingredients of Section 308 of IPC which provides for existence of intention or knowledge. It is well settled position that before an accused can be held to be guilty under Section 308 of IPC, it was necessary to arrive at a fnding that the ingredients thereof namely requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Three personsthe injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259]". allegedly accosted the injured. They had previous enmity. Although overt- act had been attributed against each of the accused who were having lathis, only external injury was found on the head and no fracture was found and injury is simple in nature, as such, it cannot be held that the prosecution is able to prove the charges under Section 308 of IPC against the present appellant.

21.Learned trial court while convicting the appellant has not

considered the statement of injured PWe1 Shatrughan

Suryavanshi who has categorically stated in the evidence that all

the three accused have assaulted him by sticks as a result of

which he sustained injury on his head. In thew cross

examination he has stated that he was unable to say by whose

assault he sustained injury on the head and fell down. The

injuredecomplainant is unable to identify the accused person

who had assaulted causing injury and the learned trial court

ignoring the statement of the injured person has convicted the

appellant under section 308 of IPC whereas Hon'ble Supreme

Court has examined the credibility of an injured person to prove

the case of the prosecution in the case of State of Uttar

Pradesh vs. Naresh and others2 wherein Hon'ble Supreme

Court has held in para 26 & 27 which read as under:-

"26. The High Court has disbelieved Balak Ram (PW.5), who had sufered the gun shot injuries. His evidence could not have been The High Court has disbelieved Balak Ram (PW.5), who had sufered the gun shot injuries. His evidence could not have been brushed aside by the High Court without assigning cogent reasons. Mere contradictions on trivial matters could not render his deposition untrustworthy.

27.The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efcacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the ofence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259]".

22.On minute scrutiny of the aforesaid evidence, material available

on record since the complainant and independent witnesses have

also failed to support the case of the prosecution, nothing

emerged on record against the accused Timak Ram to connect

2 (2011)4 SCC 324

him with the crime in question, therefore, the appellant is

acquitted of the ofence charged under Section 308 of IPC.

23.Accordingly, the appeal is allowed and impugned judgment

passed by the trial court is set aside. It is reported that the

appellant is on bail. His bail bonds shall continue for a further

period of six months in view of Section 437-A of the Cr.P.C.

Sd//-