Vijay Kumar Patel v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 826 of 2004 Appellant Vij'ay Kumar Patel VERSUS Respondent State of Chhattisgarh CRIMINAL APPEAL U/S. 374(2) OF THE CRIMINAL PROCEDURE CODE SB: Hon'ble Shri Goutam Bhaduri. J. Present: Shri C.Jayant K. Rao, Advocate for the appellant. Shri Neeraj Pradhan, Panel Lawyer for the State. Shri Kamleshwar Prasad Sahu, Advocate for the complainant. JUDGMENT (Passed on 01s* day of November, 2013)

This is an appeal against the judgment dated 24.09.2004 passed by the Fourth Additional Sessions Judge (F.T.C.) Raigarh, in Sessions Trial No. 164/2003, whereby, the appellant has been convicted under Section 307 of IPC and sentenced to undergo R.l. for 7 years and fine of Rs.100/-, in default of payment of fine, further R.l. for 1 month.

The prosecution story, in brief, is that at village Basnajhar, one mango tree was existing at a square near pond. At about 1 O'clock, nephew of the complainant Shobharam went there to get the mango from the tree. At time, Bhim, son of Hemlal abused him, which was reported by Madhav to his house. At that time, Rohit Kumar objected to such abuse. At that moment, Bhim was holding a Lathi and started beating. The other persons namely Rohit Kumar, Basant and Yadram rushed there and they also joined quarrel and out of such quarrel Rohit has sustained grievous injury on his head and he also sustained injury over his face. Thereafter, the report was lodged to the police and the police after investigation has filed the charge sheet under Section 294, 506B, 307 and 323 of IPC.

After evaluating the evidence on record before the learned Court below, the prosecution has examined Dr. Mayank Dewangan as PW-1. Dr. Sajan KumarAgrawal as PW-4, Dr. D.K.Tandan as PW-5, Madhavram as PW-6, Shobharam as PW-7, Bhojram as PW-8, Rohit Kumar Patel as PW-9 and B.P.Singh as PW-10.

Learned Court below after evaluating the evidence came to a conclusion that the accused has committed an offence unde'r Section 307 of IPC and sentenced him 7 years R.l. and fine of Rs.100/- and further held in absence of payment offlne, 1 month R.l. was additionally awarded.

Learned counsel for the appellant submits that the quarrel happened in between the family members of the complainant and also that of accused over a trivial issue of plucking and taking out mango, which resulted into the quarrel and thereby injury. He further submits that reading the evidence the intention to cause death was absent and therefore, finding of the learned Court below is perverse. He further submits that during the pendency of this appeal, the appellant and the injured complainant have moved an application under Section 320 (2) of Cr.P.C. on the ground that they are closed relative to each other and they have arrived into the family settlement; therefore, they wanted to compromise the offence and the issue.

The complainant Rohit Kumar is present in person before this Court and was also represented by the counsel Kamleshwar Prasad Sahu, who also supported the same and identifies the complainant.

On the contrary, the learned counsel for the State opposes and submits that the order is well merited which does not call for any interference.

I have heard the learned counsel for the parties and perused the documents on record. Pagel (35. ^L..i;..-.teah Page3

The complainant is examined as PW-9. He states that the accused are all brothers. He further submits that when they went to pluck mango from the tree then they are abused. The compiainant then said that he asked Vijay Kumar, the accused, why he had abused as the mango tree do not belong to him, as it belong to government. On such issue, the accused Vijay Kumar had given a blow on the head of the complainant by way of Lathi. He further says thereafter four persons namely Vijay, Basant, Bhim and Kondu pressed him inside the pond water whereby he sustained injury on his right head. The witness further says that since lot of bleeding had caused, he lost his conscious, thereafter, he was taken to the hospital wherein he was treated and the x-ray was also taken out. He had stated that the accused wanted to kill him by life. In his cross examination, this witness has said that earlier there had been a quarrel over the drainage of water with Vijay. He admits the fact that in the scuffle and quarrel, Vijay had also sustained injury. He further says that he had suffered with the polio and therefore he cannot walk in the speed and whenever he tries, he falls and get injury on the hand and it had happened many a times. So far as the exaggeration of the attack, he was confronted with the police statement on D-3, wherein except the statement made the injury caused by Lathi nothing is deposed.

The prosecution had examined Madhavram as PW-6. He has also supported the fact of the dispute. This witness has said that Rohit is his father. He further says when he was taking out mango from the tree, was objected by brother of accused Bhim and he was abused which he told his father. His father thereafter, came to the spot and objected to such abuse, at that time, the other brother of accused Vijay Kumar, Basant and Yadavram also came and threw his father to the pond. Thereafter, the witness says when he came out Vijay had caused a blow over the head of Page, his father. In the entire cross examination by this witness, this fact is not reverted that the blow was caused by this accused Vijay.

Similar statement is given by Shobharam PW-7. He has supported the case of the prosecution that the quarrel happened with respect to plucking out the mango from the tree and he reiterated the fact that Rohit was abused and thereafter Vijay had caused a blow by way of Lathi over the head of Rohit (complainant). The report was Iddged which is proved as Ex.P-12. Nothing has come out in contradiction of this witness in the cross examination.

One witness Bhojram was examined as PW-8. He has also seen the incident but he corroborate the fact the there had been a quarrel between the accused and the complainant and he had seen both the complainant and the accused as both had injury over their head. He further corroborate the fact that Lathi was seized from Rohit, which was proved as Ex.P-14 and further has said that during the investigation Lathi was also seized from Vijay. In para 4 of the statement, this witness in the cross examination has said that Rohit, the complainant, also had a quarrel with accused and he had also abused the accused, which was objected by Vijay. This witness has further narrated that Rohit also had caused a blow to the accused during such quarrel.

The Doctor Sajjan Kumar Agrawal is examined as PW-4. He had examined the complainant Rohit in respect of his injuries. The injury report was proved as Ex.P-6. According to such report, one lacerated wound 2x % cm was present, tissue deep and the right eye was having contusion. According to the opinion, the injury was caused by hard and blunt object and the accused was referred to the district hospital. The Dr. Agrawal had further given a report as Ex.P-7 being the query report. hle had also examined one more Natthuram but then about the report also, it was said Page5 that it was simple in nature; however, this fact do not find much relevance, as this witness was not examined by the prosecution. The Doctor in his query, as to the nature of injury whether the injury caused to Rohit Kumar were fatal in nature, opined that such type of injury are life threatening in nature and such report is Ex.P-8. This Doctor also had proved in respect to the query raised that the injuries were could have been caused by the Lathi, which was seized and sent for query, which is proved as Ex.P-9.

The complainant was further referred to X-ray. The X-ray report Ex.P-10 & P-11 proves that there was a fracture in the right side parietal bone. The X-ray has been proved by Doctor PW-5 and bears his signature, which is not in dispute.

Closed scrutiny of the evidence adduced in the case points out that the accused had caused one injury by way of Lathi over the head of the complainant Rohit. This fact is also established that the quarrel took place over plucking of the mango. Under the circumstances, if so happened, all of a sudden, when the boy was plucking mango from the tree, it was obj'ected and when his father, the complainant, tried to intervene, at that spur of moment, during such quarrel, a single blow of Lathi was given to the complainant. In these circumstances, the intention of accused to cause death over such trivial issue is lacking. Evidence suggests that at the spur of moment one blow of Lathi was caused when both the parties were in hot exchange of words over plucking mangoes from tree. Furthermore, this is also established by the evidence of Doctor that initially the injuries were appeared to be superficial. It was proved to be simple injury. However, when the X-ray was taken out, the fracture was found. Had there been any intention there would have been more injuries over the head. A single blow of Lathi by the accused over the head of complainant when he objected the abuse to his son do not reflect any Page6 •^ intention to cause death of complainant. The evidence on record also do not support the same.

Under these circumstances, the conviction made under Section 307 of IPC by the learned Court below is altered to Section 325 of IPC, which takes within an ambit the voluntarily causing grievous hurt. Since the fracture was caused and, as such, the accused cannot escape from the provisions of Section 325 of IPC.

Now coming to the part of sentence, this fact cannpt be ignored that both the parties have said that they are closely related to each other and filed an application under Section 325(2) of Cr.P.C. for compounding the offence. The parties are identified by the respective counsel. The application purports that they out of their own will and wish without any pressure or coercion wants to make compromise. The fact has come on record that they are the closed relative;

The appellant has already served jail sentence of 4 days during the trial and after the order, the appellant suffered about 40 days in the jail. The case is pending since 2003 and no purpose will be served in sending the accused again to the jail. Under the circumstances, considering the fact the appellant and the complainant have filed an application for compromise, the substantive sentence would be enough, if the appellant is released as undergone.

It is submitted that the appellant is on bail. The bail bond of appellant shall remain continue for a period of six months from today. Sd/- Goutam Bhaduri Judge