Nafr High Court
Case Details
1 2025:CGHC:4358 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2218 of 2024 Kuman Singh Marko S/o Kuwari Lal Aged About 28 Years R/o Dewarikala Out Post Kotmi Police Station Pendra District - Gaurela Pendra - Marwahi (C.G.) versus ... Appellant State Of Chhattisgarh Through - S.H.O. Of The P.S. Pasan District - Korba (C.G.) ... Respondent For Appellant For Respondent/State : : Mr. Abhishek Saraf, Advocate Ms. Anuradha Jain, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 21/01/2025 1. Heard on IA No.02/2024, application for condonation of delay in filing the appeal. 2. On due consideration and for the reasons mentioned in the application, which is duly supported with an affidavit, IA No.02/2024 is allowed and the delay of 09 days in filing the appeal is condoned. 3. Since the appellant has filed affidavit, IA No.03/2024, application for
Decision
exemption from filing the affidavit of the appellant, stands disposed of. 4. Learned counsel for the appellant submits that this is a jail appeal and the same has been filed through Legal Aid, and the appellant is in jail since 09.9.2022, therefore, the matter may be heard finally. BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.01.27 15:32:11 +0530 2 5. Learned counsel for the State has no objection on the above submission. 6. 7. In view of the above, the matter is heard finally. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 27.9.2024 passed by Second Upper Sessions Judge, Katghora, Distt. Korba in Session Case No.20/2023, whereby the learned Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- Sl. Conviction under Jail Sentence Fine Default No. Section 01. 307 IPC Sentence stipulation RI for 10 years Rs. 500/- RI for 01 month 8. Facts of the case in nutshell is that Rai Singh Armo along with his wife Brihaspatiya bai and the appellant along with his wife Yumati Bai, few days prior to the incident, had gone to their in-law’s house i.e. parental house of their wives to attend the nava khai programme. The appellant used to doubt the character of his wife Yumati Bai. On 08.9.2022 at about 3 pm, when they were in the house, the appellant assaulted Yumati Bai by means of axe with intention to kill her and caused injury on her neck and blood was oozing. He again tried to assault her but, the handle of the axe was caught by complainant Rai Singh Armo. Victim Yumati Bai was taken to District Hospital, Gourela-Pendra- Marwahi, from there she was shifted to CIMS, Bilaspur. Based on the above facts, FIR (Ex-P/3) was lodged by Rai Singh under Section 307 IPC in Police Station Pasan, Distt. Korba. During the course of investigation, police recorded statement of the witnesses under Section 161 CrPC, prepared spot map vide Ex-P/4, obtained MLC report of the victim vide Ex-P/7, seized blood stained sari and blouse of the victim. The police also seized blood stained clothes of the appellant vide Ex-P/17. On the basis of memorandum statement of the 3 appellant (Ex-P/16), iron axe was seized vide Ex-P/17, blood stained soil and plain soil from the place of occurrence was seized vide Ex-P/15, the appellant was arrested vide Ex-P/18, spot map (Ex-P/19) was got prepared from Patwari, seized articles were sent for chemical examination. Bed head ticket and other medical documents of the victim were obtained from CIMS Bilaspur. After usual investigation, charge sheet under Section 307 IPC was filed against the appellant before Judicial Magistrate First Class, Katghora, Distt. Korba, who in turn committed the case to the Sessions Judge, Korba. Thereafter the case was transferred to Second Upper Sessions Judge, Katghora, who tried the case. 9. Learned trial Court framed charge under Section 307 IPC read and explained to the appellant, who denied the charges. The learned trial Court after recording evidence and considering the same, vide impugned judgment has convicted and sentenced the appellant, as has been stated in the opening paragraph, therefore, the appellant/accused has filed instant appeal. 10. Learned counsel for the appellant submits that it is a case of single blow as only one injury over the neck was sustained to the victim, who is wife of the appellant. He further submits that the said incident occurred under the heat of anger and there is no intention of the appellant to assault the victim. But without any cogent evidence, the learned trial Court has convicted and sentenced the appellant for the offence under Section 307 IPC. He further submits that if the judgment is upheld, as the appellant is in jail since 09.9.2022, i.e. from the date of his arrest, as such, he has served the jail sentence for about 2 years and 04 months, jail sentence may be reduced to the period already undergone by him. 11. Per contra, learned counsel for the State supports the impugned judgment and submits that case of the prosecution is based on the eyewitness account, who is brother-in-law (jeeja) of the victim. She further submits that 4 medical report is also supportive to the case of the prosecution, as such, judgment is based on well appreciation of the evidence and material available on record, therefore, the appeal is liable to be dismissed. 12. I have heard learned counsel for the parties and perused the material available on record as well as the record of the trial Court. 13. Harinath (PW-5) is father-in-law of the appellant and complainant Rai Singh (PW-2). Yumati Bai (PW-1) and Brihaspati Bai (PW-6) are his daughters. Few days prior to the date of incident, aforesaid two sons-in law and daughters of Harinath came to his house to attend nava khai programme. As per deposition of Harinath, at the time of incident, his sons-in-law and daughters were present in the house. 14. Victim Yumati Bai (PW-1) has stated in her Court statement that on the date of incident, when she was sitting in her parental house, the appellant brought axe from inside the house and assaulted on her neck with it, due to which she fell unconscious and was taken to hospital at Bilaspur. Her aforesaid statement has not been rebutted in her cross-examination. On being suggestion taken by defence counsel, she has admitted that when the appellant assaulted her by means of axe, she sustained only one injury. She has also admitted that some time mind of her husband goes crazy, therefore, such things occur. 15. Raisingh (PW-2) is brother-in-law of the victim and he is also the eye witness of the incident. He supported the deposition of the victim that the appellant had assaulted her by means of axe. This witness has further stated that on hearing the sound of assault, he immediately rushed to the spot and saw that the appellant had assaulted the victim once and he again picked up the axe to assault her, then he prevented the attack by holding the axe and then thrown the same on the roof of the house. This witness has denied that some time the appellant gets crazy. His deposition in examination-in-chief is uncontroverted in 5 cross-examination. Harinath (PW-5), father of the victim and Brihaspati Bai (PW-6), sister of the victim, after hearing the noise, went to the place of occurrence and saw that the victim had injury on her neck and blood was oozing. 16. Thus, as per aforesaid statement of the victim and other witnesses, it is clear that the appellant had assaulted the victim on her neck by means of axe, hence, she sustained injury on her neck and this was seen by Raisingh (PW-2) and he also prevented second attempt of the appellant upon the victim. Since Harinath (PW-5), father of the victim and Brihaspati (PW-6), sister of the victim were also present nearby place of occurrence, therefore, on hearing the noise, they immediately rushed to the spot and saw the victim in injured condition. Nothing has been elicited in the cross examination of the aforesaid witnesses, particularly in the deposition of the victim (PW-1), eye witness Raisingh (PW-2) to discard their statement, rather suggestion taken by defence counsel to the victim also proved the fact that the appellant had assaulted her by means of axe, therefore, she sustained one injury on her neck. Such statement of Raisingh is not only unrebuttable in the cross examination. It is evident from statement of Raisingh that he had prevented the second assault of the appellant by holding the axe, this statement of Raisingh is also unrebuttable in cross- examination. Therefore, from the aforesaid evidence, it is established that the appellant had assaulted on the neck of the victim by means of axe and he lifted the axe again to make second assault, but the same was prevented by Raisingh (PW-2), else the victim would have sustained another injury. 17. On the date of incident, i.e. on 08.9.2022, the victim was examined at District Hospiltal, Gaurela-Pendra-Marvahi by Dr. Rashmi Priya Jaiswal (PW- 3). This witness has proved in her deposition that on being examination, laryngeal injury was found over the neck of the victim, to which she has told that it was caused by an assault of axe. This statement is also got support from MLC (Ex-P/7) prepared by her, which has been proved by her. Neither Dr. Rashmi 6 Priya Jaiswal has stated in her deposition, nor any other evidence has been adduced by the prosecution to prove the fact that what was the length, width and depth of the injury sustained to the victim on her neck, but it is proved from deposition of Dr. Rashmi that, because of the assault by axe, the victim had sustained laryngeal injury. Thus, from aforesaid medical evidence, deposition of the victim and her jija Raisingh is found trustworthy that the appellant had assaulted victim Yumati Bai with axe and caused injury on her neck. 18. Dr. Neelima (PW-4) has examined the appellant in respect of his mental illness, but she has deposed that after due examination, she did not find any mental disorder/mental infirmity on the person of the appellant. Therefore, contention of learned counsel for the appellant that some time mind of the appellant goes crazy and in that condition, on the date of incident, he assaulted the victim, is not found to be sustainable, because Dr. Neelima (PW-4) has specifically proved that the appellant is a person of fit state of mind. Therefore, said contention of learned counsel of the appellant that some time his mind goes crazy, is not found proved. 19. In the present case, the prosecution has not proved length, depth, width and nature of the injury and Dr. Rashmi Priya Jaiswal (PW-3) has only opined that nature of injury is grievous, but neither she explained as to how it is grievous, nor any of the content has been proved by the prosecution as provided under Section 320 of IPC that injury sustained to the victim was grievous in nature. But, it is settled preposition of law that to hold the accused guilty under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. 20. In the case of Hari Mohan Mandal Vs. State of Jharkhand reported in (2004) 12 SCC 220, Hon’ble Supreme Court has held that the nature or extent 7 of injury suffered, are irrelevant factors for the conviction under this section, so long as the injury is inflicted with animus. It has been held:- “10. ….To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. … What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 8 21. In the light of said law, if facts of the present case are considered, then it has been proved that the appellant assaulted the victim by means of axe on her neck, which is most sensitive part of the body, therefore, she has sustained laryngeal injury. Though, it has not been proved by the prosecution that what was the nature of injury and how much period the victim remained in hospital, but photo copy of discharge ticket of the victim issued by CIMS Hospital, Bilaspur shows that the victim was admitted in the hospital from 08.9.2022 to 29.9.2022 for treatment of aforesaid neck injury. It is also proved that the appellant had lifted the axe to assault the victim second time, which was prevented by the complainant (PW-2) else, injury sustained to the victim would have been more dangerous. Such overt act of the appellant, that too causing injury to the victim by means of axe, over the neck and also attempting second assault, show that intention of the appellant was to kill the victim, therefore, on due appreciation of the evidence of the prosecution, this court found that the learned trial Court has not committed any illegality or perversity in holding the appellant guilty for the offence under Section 307 IPC. 22. Though in the instant case, there is direct evidence against the appellant for said charges and in such situation, motive is not required to be proved. But in instate case, though, earlier victim has denied that the appellant doubted her character, but subsequently in court question, she has admitted that the appellant doubted her character. Thus, it is found that because of such doubt, he assaulted the victim. 23. So far as sentence part is concerned, since the appellant had caused only one injury to the victim in the said incident and they had performed love marriage, 5-6 months prior to the incident, the victim had herself admitted in the cross examination that earlier no quarrel or assault has been made by the appellant, therefore, the jail sentence of 10 years imposed by the trial Court 9 against the appellant is found to be disproportionate, as such, it requires to be interfered. 24. In view of the above discussion, judgment of conviction held by trial Court against the appellant for the offence under Section 307 IPC is upheld, but sentence awarded by the learned trial Court is reduced from 10 RI to 5 years RI. Other terms of the sentence and direction of the learned trial court shall remain intact. 25. The appellant is stated to be in jail, he shall serve out the remaining jail sentence as modified above by this Court. 26. Resultantly, instant Criminal Appeal is partly allowed to the extent indicated herein-above. 27. Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Naresh Kumar Chandravanshi) Judge Bini