Partly allowed

Awadhesh Sahu @ Lalu v. The State Of Chhattisgarh

Chhattisgarh HC21 Sept 2022CRR/72/2016

Case brief

AI extract

What is this about?

In a criminal revision, the High Court set aside the appellant's conviction under Section 326 IPC due to absence of X-ray evidence proving rib fracture, substituting it with a conviction under Section 324 IPC, while maintaining the conviction under Section 452 IPC.

What did the court decide?

Conviction under Section 326 IPC set aside; convicted under Section 324 IPC instead; conviction under Section 452 IPC maintained; sentence reduced to period undergone.

Awadhesh Sahu @ Lalu Vs The State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 72 of 2016

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Awadhesh Sahu @ Lalu S/o Ravindra Sahu, Aged About 36 Years, R/o Indira Colony, Lakhagarh, Police Station - Pithora, District - Mahasamund Chhattisgarh, Chhattisgarh

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---- Applicant

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Versus

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The State Of Chhattisgarh Through The Incharge, Police Station - Pithora, District - Mahasamund Chhattisgarh, Chhattisgarh

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----Non-applicant

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For Applicant – Mr. Himank Saluja, Advocate. For Non-applicant – Mr. Shakti Singh, Panel Lawyer.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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21-09-2022

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1 . This criminal revision is filed against the judgment passed by the Additional Sessions Judge (FTC), Mahasamund in Criminal Appeal No.212/2010 dated 22-12-2015 whereby the appeal preferred by the applicant has been dismissed and the judgment of conviction and order of sentence recorded by the JMFC in Criminal Case No.179/2010 dated 10-08-2010 wherein the applicant was convicted under Section 326 of the IPC and sentenced to undergo R.I. for 2 years and to pay fine of Rs.200/- and under Section 452 of the IPC and sentenced to undergo R.I. for 15 days and pay fine of Rs.100/-, in default of fine, further S.I. for two months and 15 days respectively, has been affirmed.

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2 . The case of the prosecution is that, on 13-03-2010, at about 7:30 p.m. complainant Aasinbai (PW-1) was talking to her son - Ramesh Yadav (PW-2), at the same time the present applicant came there, abused her, and assaulted her from the wooden side of the axe. Consequently, the complainant Aasinbai (PW-1) sustained injuries on backside and below chest. The FIR was lodged by Aasinbai (PW-1) and the police registered offence punishable under Section 294, 323, 506 II of the IPC.

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After investigation charge sheet was filed for offence punishable under Section 294, 506 II, 324, 325 and 452 of the IPC. Learned trial Court framed charges for offence punishable under Section 294, 326 and 452 of the IPC. The applicant abjured the charges and pleaded non-guilty. The prosecution examined as many as 7 witnesses and exhibited 5 documents. The learned trial Court after completion of the trial convicted the applicant as mentioned in the opening paragraph.

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The applicant preferred appeal before learned Sessions Court and the same was dismissed vide judgment dated 22-12-2015 affirming the conviction and sentence recorded by the trial Court.

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3 . Learned counsel for the applicant submits that the applicant has been implicated in a false case. The independent prosecution witnesses have not supported the prosecution case. The doctor has not been examined, no X-ray was conducted and radiologist has not been examined. The doctor who medically examined the injury, has stated that on visual examination she has given the medical report of fracture of ribs Nos. 3, 4, 5 and 6 and the evidence given by the doctor is not reliable. He further submits that the applicant has remained in jail for about four months and if this Court comes to a conclusion that the applicant has committed offence under Section 325/326 of the IPC, the sentence awarded to the applicant may be reduced to the period already undergone.

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4 . On the other hand the State counsel opposes and submits that there was injuries along with fracture. Though there is no X-ray report and no radiologist has been examined, but from visual examination, doctor Tara Agrawal (PW-7) has stated in her deposition that there was fracture of ribs, and thus, the learned Courts below have not committed any illegality in convicting and sentencing the applicant.

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5 . I have heard learned counsel for the parties and perused the record.

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6 . From the record, it is clear that FIR (Ex.-P/1) was lodged by Aasinbai (PW-1) herself and offence under Section 294, 323, 506 II of the IPC was registered on 13-03-2010. Vide Ex.-P/2 axe along with wooden support was seized from the possession of the present applicant. The injured was sent to the hospital and she was medically examined, where two injuries were found, one incised wound on back near rib C7 and T-1 over spine of 4.5 x 1 x 0.5 cm. and fracture of third, fourth, fifth and sixth rib of left side.

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7 . Aasinbai (PW-1) has stated that the FIR was lodged by her and at the time of incident her younger son was present at the spot. The applicant entered into the house and assaulted by means of wooden side of the axe on her back side and below the chest.

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8 . Ramesh Yadav (PW-2) has supported the case of prosecution. Manish Kumar (PW-3) has not supported the case and was declared hostile. Meena Gupta (PW-4) has also supported the case. Head Constable Balkaran Verma (PW-5) registered the FIR. Tikeshwar Hota (PW-6), Head Constable has completed the investigation and filed the charge sheet. Doctor Tara Agrawal (PW-7) has medically examined the victim/complainant and accordingly has deposed that she found two injuries, one over spine near rib C7 and T-1 on back side and second fracture of rib numbers 3, 4, 5 and 6. In crossexamination she has admitted that no X-ray was conducted and from visual examination, she has given report that there was fracture.

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9 . From the evidence of the doctor, it is crystal clear that she has given report Ex-P/6 on the basis of superficial/visual examination and no X-ray was conducted, whereas, to substantiate grievous injury as defined under Section 320 of the IPC the prosecution was required to establish the alleged fracture by leading evidence and presenting X-ray report, but no such steps were taken by the prosecution. Aasinbai (PW-1), Ramesh Yadav (PW-2), Meena Gupta (PW4) have supported the case of the prosecution, they have categorically stated

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that the present applicant entered into the house and assaulted by means of wooden side of the axe and in the medical evidence one injury was found on the back side and same has been proved by the doctor Tara Agrawal (PW-7). From the evidence of Aasinbai (PW-1), Ramesh Yadav (PW-2), Meena Gupta (PW-4) and doctor Tara Agrawal (PW-7) it is proved that the injured sustained incised injury on the back side and below the chest.

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10. The fracture of ribs nos. 3, 4, 5 and 6 has not been proved by the prosecution in absence of X-ray and evidence of radiologist, therefore, conviction of the applicant under Section 326 of the IPC cannot be sustained. Hence, the conviction of the applicant for offence punishable under Section 326 of the IPC is set aside, instead he is convicted under Section 324 of the IPC. Conviction of the present applicant under Section 452 of the IPC is maintained. According to the submission of the learned counsel for the applicant, the applicant has served the jail sentence of four months during trial and during the pendency of this criminal revision, therefore, the sentence awarded to the applicant is reduced to the period already undergone by him. Resultantly, the criminal revision is partly allowed to the extent indicated hereinabove.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Aadil

Awadhesh Sahu @ Lalu v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Awadhesh Sahu @ Lalu v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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