Partly allowed

Somaru Harijan v. State of Chhattisgarh

Chhattisgarh HC1 Aug 2023CRA/821/2003

Case brief

AI extract

What is this about?

The High Court held that the appellant's conviction under Section 307 IPC for attempt to murder was unsustainable and converted it to Section 308 IPC. The court reduced the sentence to the period already undergone but increased the fine to Rs. 5,000.

What did the court decide?

Conviction under Section 307 IPC converted to Section 308 IPC. Sentence reduced to period undergone; fine increased to Rs. 5,000.

Somaru Harijan Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

Judgment Reserved on : 12.07.2023

¶5

Judgment Delivered on : 01.08.2023

¶6

CRA No. 821 of 2003

¶7

Somaru Harijan, S/o Ghasku Ram Harijan, age 35 years, r/o village Nehru Nagar, P.S. Ramanujganj, District Surguja, C.G.

¶8

---- Appellant

¶9

Versus

¶10

The State of Chhattisgarh through S.H.O. P.S. Ramanujganj, District Surguja, C.G.

¶11

---- Respondent

¶12

For Appellant : Mr. A.K. Prasad, Advocate. For Respondent/State : Mr. Aman Kesharwani, Panel Lawyer.

¶13

Hon'ble Shri Sanjay Kumar Jaiswal, Judge CAV Judgment

¶14

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 18.07.2003 passed by the learned Additional Sessions Judge (F.T.C.) Ramanujganj, Surguja (C.G.), in Sessions Trial No. 93/2000 whereby, the learned Additional Sessions Judge, convicted the appellant and sentenced him as under : -

¶15

Conviction	:	Sentence
Under Section 307 of Indian Penal Code, 1860.	:	Rigorous imprisonment for 5 years and fine of Rs.2,000/- in default of payment of fine amount, additional imprisonment for 3 months.

¶16

¶17

The case of the prosecution, in brief, is that complainant Dilip, who is son of Hadbad, lodged a report on 08.12.1999 at about 2:10 P.M. stating that on 07.12.1999 at about 5:00 P.M., his father took Rs.1000/- from home and went out to buy wheat, but did not return till late night. At about 1:00 A.M., Jageshwar @ Padu Kharwar and Ranjit Bengali came to his house and told him that accused Somaru Harijan had assaulted his father with an axe. Complainant Dilip along with Jageshwar @ Padu Kharwar and Ranjit, reached to the spot and saw that his father was lying unconscious and was unable to speak. He has a cut on his head, forehead, above right eye and was bleeding continuously. There was also an injury over thigh of left leg. On inquiry, Jageshwar @ Padu Kharwar, Ranjit, Devlal and Metru informed complainant that appellant Somaru Harijan and his son assaulted his father by axe with intention to kill him and stated that they reached to the spot after hearing the noise. Complainant Dilip informed the police that he brought Hadbad on his back to the house and kept him there as it was night and on the very next day, i.e. 08.12.1999, with the help of the villagers, complainant along with him went to lodge the report. Thereafter, Dilip lodged a report regarding the incident at Police Station, Ramanujganj. After completion of the investigation, charge-sheet was filed.

¶18

In order to establish the guilt of appellant, prosecution has examined as may as 15 witnesses. The statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the charges levelled against him and pleaded his innocence and false implication in the

¶19

¶20

case. In defence, accused examined only one witness.

¶21

After hearing the parties, vide impugned judgment of conviction and order of sentence dated 18.07.2003, learned Additional Sessions Judge (F.T.C.) has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

¶22

Learned counsel for the appellant submits that the learned trial Court ought to have considered that statement of Hadbad (PW-11) suffers with many material discrepancies and trial Court has disbelieved his statement. He further submits that trial Court has wrongly held that injured Hadbad had recognized the appellant by his voice only, which is not acceptable in this case because one cannot claim to recognize a person in the night while he was being assaulted. It is contended that trial Court erred in assessing the reason for assault and on the basis of said reason, it cannot be said that appellant was guilty of aforesaid offence. It is further contended that most of the independent witnesses examined, but they have not supported the prosecution story and have turned hostile. It is lastly argued that impugned judgment of conviction is contrary to the facts, law and circumstances of this case and sentence awarded to the appellant is too harsh in the facts and circumstances of the case.

¶23

On the other hand, learned Penal Lawyer for the respondent/State would support the impugned judgment of conviction and order of sentence and submit that the prosecution have proved its case beyond reasonable doubt and trial Court after considering all

¶24

¶25

incriminating material and circumstances available against the appellant, has rightly convicted him for offences, he has charged. Hence, the instant appeal is bereft of merits and liable to be dismissed looking into the commission of offence done by the appellant.

¶26

I have heard learned counsel appearing for both the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

¶27

Injured Hadbad (PW-11) stated in his evidence that he had brought wheat from the locality at 05.00 P.M. The appellant, who was hiding under a Sakuva tree, shouted that who was ' Madarchod ' and assaulted on his head, left wrist, chest, thigh, leg, back and face by axe, upon which, severe bleeding was there and he had unconscious. His son Dilip took him to the hospital at Ramanujganj, and then, the hospital at Ambikapur. He was admitted there for about 20-22 days, where he was undergoing for treatment. This witness has shown the above-mentioned injuries in the Court during his statement.

¶28

Injured Hadbad (PW-11) has clearly stated in his evidence that he was stabbed to death by the appellant. During cross-examination, he has denied the suggestion that he had love affair with the appellant's wife Bimli Bai and he abandoned Bimli Bai after keeping her as his wife for four months. He also denied the suggestion that he could not recognize the assailant because of darkness. In this regard, he himself stated that it was a moonlight and he recognized the appellant

¶29

¶30

as also from his voice. He has denied the suggestion that he had gone to appellant's house, knocked the door, talking with Bimli Bai outside the house and when appellant came, he started running and suffered injury by falling in the night. Thus, Hadbad has remained consistent and unrebutted in his statement that appellant was assaulted him by an axe.

¶31

Considering the injury suffered by Hadbad, Dr. B.R. Sharma (PW-14) prepared report vide Ex.P/13 and stated that medical examination of Hadbad was done on 08.12.1999 and he found following injuries :-

¶32

“(i) Single sharped incised wound on the left parietal region of scalp of 5 x 2 x 1 cm.

¶33

(ii) Lacerated wound over right eyebrow of 3 x ½ x ½ cm.

¶34

(iii) Swelling over left arm along with clotted blood of 10 x 2 ½ cm. On the left hand side, hematoma accumulated blood of 5 x 2 ½ cm. There is small pestle about and below this, a hematoma of 6 x 3 cm was developed on outside the hand. Swelling on back side of left hand of 3 x 2 cm. Swelling onside the left hand of 8 x 2 cm and swelling on back side of left wrist of 5 x 3 cm.

¶35

(iv) Multiple rail-track like hematoma over back about four in number of 10 x 2 ½ cm, 25 x 2 ½ cm, 8 x 2 ½ cm and 6 x 2 ½ cm.

¶36

(v) Two rail-track like hematoma over left thigh of 10 x 2 ½ cm, 6 x 2 ½ cm, outer side of 8 x 2 ½ cm, 6 x 2 ½ cm and above side of 12 x 2 ½ cm.

¶37

¶38

(vi) Single abrasion over upper side of stomach of 2 x 2 ½ cm.

¶39

(vii) Clot over left nostril.

¶40

(viii) Hematoma with abrasion over left cheek of 3 x ½ cm.”

¶41

Dr. B. R. Sharma (PW-14) has categorically stated that examination of Hadbad was done by Dr. Rajeev Kumar. At the time of making statement, Dr. Rajeev Kumar had gone to Indore Medical College to pursue MS course, as such, he came in his place and gave statement. On the basis of report (Ex.P/13), Dr. Sharma has stated that injury No.1 was caused by a hard and sharp edged weapon, while rest of injuries were caused by a hard and blunt object. He referred for X-ray of injury No.3. At that time, injured was not able to speak and reacting slowly. His history of being unconscious since twelve hours was given, then, he referred to District Hospital, Ambikapur. He asked Dr. Rajeev Kumar to send treatment slip (Ex.P/ 23) for X-ray. X-ray of his head and hands were advised. In Ex.P/18,, it was noted that injured was not able to speak, therefore, it is not possible to take dying declaration. He has denied the suggestion that injury Nos.3, 4 & 5 could have occurred due to fall, but the suggestion has been accepted that injury Nos.2, 6, 7 & 8 can come due to falling.

¶42

Dr. J. K. Bhutani (PW-3) was posted at District Hospital, Ambikapur, who stated that on 08.12.1999, Hadbad was admitted in Orthopadic Ward and treated by Dr. Thawait. He had undergone E.N.T.N surgical check-up and his bed head ticket was marked as Ex.P/5. This

¶43

¶44

statement has remained unchallenged.

¶45

Dr. M. K. Jain (PW-9) given X-ray report (Ex.P/11) after seeing X-ray film 4621 and stated that according to X-ray of injured, there was fracture in lower part of ulna bone of left hand, whereas no fracture was found in the head. This witness has also not been challenged in cross-examination. Thus, it is established from the medical evidence that grievous hurt was caused to him. In medical evidence, an opinion was given that the injury caused by hard and blunt object, no fracture was found in head injury, which was caused by hard and sharp edged weapon and rest of the injuries have also been found to be of normal nature.

¶46

The condition of entire injuries and point of attempt to murder will be considered in detail after going through the rest of evidence that who and when caused the above-mentioned injuries to Hadbad.

¶47

Considering the matter in its entirety, it has come in defence of the appellant and during cross-examination of prosecution witnesses as also in the statement of appellant under Section 313 of Cr.P.C. Mathura Sao (DW-1) has been examined as a defense witness on behalf of the appellant. In the statement under Section 313 of Cr.P.C., appellant has stated that Hadbad was having illicit relationship with his wife Bimli Bai, for which, a Panchayat was convened in the village and on account of this, he used to have enmity with him and as such, he has falsely implicated in the crime in question.

¶48

As a defence witness, Mathura Sao (DW-1) stated that Hadbad had

¶49

¶50

established illegal relationship with Bimli Bai (wife of appellant), for which, a Panchayat was convened in the village. As per decision of Panchayat, Bimli Bai was handed over to Hadbad for the time being. Bimli Bai had returned back to the appellant after staying for a few months. For this reason, Hadbad kept enmity with the appellant. Appellant did not fight with him, but on 07.12.1999, appellant had gone with him to village Dumarkhola to take bullock and they stayed there in the night, from where, they returned on Wednesday evening after taking the bullock.

¶51

Thus, defence witness Mathura Sao (DW-1) has tried to state that appellant was not present in the village on alleged date of incident, but gone to village Dumarkhola to take bullock with him. In crossexamination, he accepted that when the time, he was talking for going to buy bullock, is the time of harvesting. He admitted that appellant is not in business of buying and selling cattle. He further admitted that even after Bimli Bai had returned to appellant, he used to make frequent visits to his house to meet her. At the time of incident, he was doing plowing work in his field for sowing wheat, although he himself has stated that he was doing plowing a day or two days before the incident. When he came back on morning of second day, he heard that appellant had assaulted Hadbad near the house.

¶52

In this situation, when a defense witness and appellant Somaru had not do any business of buying and selling cattle, then statement of defence witness that appellant had gone with him to buy cattle on the day of alleged incident appears to be a fiction. During the entire

¶53

¶54

prosecution evidence, there is no suggestion on behalf of the appellant that he had not stayed in the village on the night of incident and went with defence witness to buy bullocks. Thus, statement of defence witness Mathura Sao (DW-1) that appellant was not in the village on the night of incident, appears to be completely fabricated and it is not found reliable.

¶55

According to the case of prosecution, on the night of incident, appellant himself had shouted that thief had entered and assaulted the injured by an axe. After hearing the sound, neighbours Jagesar alias Pandu (PW-6) and Ranjit (PW-8) had reached. Thereafter, Dilip, son of injured Hadbad (PW-10), Shivkumar (PW-7), Umar Farukh (PW-15) also reached there. All of them were present on the spot, which is near the house of appellant and have stated that they seen Hadbad in injured and bleeding condition.

¶56

As per prosecution case, except Dilip (PW-10), Jagesar alias Pandu (PW-6), Shivkumar (PW-7) and Umar Faurkh (PW-15) have not corroborated the fact that they saw the appellant assaulting Habad or appellant was present on the spot, but Ranjit (PW-8) has stated that he had seen appellant Somaru at a distance. In this way, while Dilip (PW-10) had reached the spot and on the next day, he lodged a First Information Report (Ex.P/12) to the police station. Hence, statements of these witnesses corroborate the statement of Hadbad that he was assaulted by the appellant with an axe.

¶57

In the statements of Motilal (PW-1), Jagesar alias Pandu (PW-6),

¶58

¶59

Umar Farukh (PW-15) and Mathura Sao (DW-1), it has come that Hadbad had an illicit relationship with wife of appellant, for which, a Panchayat was convened and as per decision of Panchayat, Bimli Bai was kept with him for a few months, after which, again Bimli Bai came back to the appellant. The evidence also shows that appellant has been harboring enmity regarding their illicit relationship.

¶60

Enmity is like a double edged sword, which can be used on both sides. The fact that Hadbad, who had an illicit relationship with the appellant's wife Bimli Bai, sustained serious injuries and was admitted to the hospital for about 20-22 days in an unconscious state. It is clear that he was severely assaulted. Due to enmity, it is possible that appellant committed assault. It is not possible that without actually taking the name of a person who assaulted, out of enmity, Hadbad taken the name of the appellant. The injured person will not want to save the real accused and for this reason, said enmity is a reason for crime. Therefore, it has been reflected from the entire evidence, due to enmity, appellant hastily assaulted the injured.

¶61

Patwari- Dikeshwar Singh (PW-2) has prepared the spot map vide Ex.P/5. Assistant Sub Inspector- M.S. Rathiya (PW-12) has also prepared a spot map vide Ex.P/9. By preparing both these maps, it becomes clear that there is a Sakuwa tree in the field in front of appellant's house, near which, incident has been shown. Other witnesses have stated that they have seen Hadbad in bloody condition. The same is in front and near to the house of appellant, which goes to corroborate the case of prosecution. M.S. Rathiya (PW-

¶62

¶63

has seized plain and blood stained soil from the place of occurrence vide Ex.P/8, which was sent for its chemical examination to Forensic Science Laboratory, Sagar through Superintendent of Police. According to FSL report (Ex.P/20), blood was not found in plain soil, but it was found in blood stained soil. As such, it was confirmed that it is the place where incident occurred and injured’s blood was smeared on the soil. This fact is also corroborated from the statement of Hadbad.

¶64

Sub Inspector- A. K. Joshi (PW-13) is second investigator, who recorded memorandum statement of appellant vide Ex.P/1, according to which, appellant stated that he kept the axe and bamboo stick ( Dadna) in Varandah ( Parchhi ) and kept Lungi and shawl inside the house, which were produced by him. Thereafter, seizure of axe and bamboo stick was made vide Ex.P/2, seizure of Lungi and shawl was made vide Ex.P/3. These articles were sent for its chemical examination to FSL and according to FSL report (Ex.P/20), blood was found present in axe, Lungi and shawl seized from the appellant. However, it is not clear from serum test report that whose blood was present on the articles as also blood group could not be ascertained. No explanation was given on behalf of appellant as to how and from where, blood was found on his clothes and axe seized from him. Therefore, said seizure and test report corroborates the statement of Hadbad that he was assaulted by appellant with an axe.

¶65

Thus, this fact has been found proved beyond reasonable doubt that simple and serious injuries were caused to Hadbad due to being

¶66

¶67

assaulted with an axe by the appellant. It has been established from the statements of witnesses that injured had not only became unconscious after the incident, but was also not in a position to give statement immediately afterwards. The doctor has written the said fact when opinion of doctor was sought for by the police as to whether the injured was in a position to give dying declaration or not. Hospitalization of Hadbad for about 20-22 days also shows that injuries were serious in nature.

¶68

Appellant has been convicted under Section 307 of IPC for commission of offence of attempt to murder of Hadbad. Appellant’s defence is that injury found in the head was caused by sharp edged weapon and was simple in nature. The fracture found in ulna bone of left hand was caused by a hard and blunt object. In such a situation, the case is made out for offence punishable under Sections 324 and 325 of IPC. The appellant has remained in custody for about one year and four months. Therefore, considering the punishment undergone by him in custody, he should be released. In support of such contention, reliance has been placed in the matter of Manjappa v. State of Karnataka reported in (2007) 6 SCC 231 as well as in the matter of Kamta Prasad v. State of M.P. passed by this Court on 11.03.2015 in Criminal Appeal No.164 of 1998 . In the aforementioned case laws, Section 307 of IPC or serious crime has been converted into Section 326 of IPC or Section 323 of IPC, punishing the accused to the extent of the period of custody while increasing the amount of fine.

¶69

¶70

In the case at hand, it is clear that appellant has assaulted Hadbad with an axe. Axe is a weapon, whose one part is sharp and other part is blunt. Axe is made of with iron and bet is made of with wood. It is clear that injured was assaulted several times and as many as 8 injuries were caused in different parts from head to feet. It is also clear that only one injury was caused by sharp edge on the head, which was simple in nature and rest of injuries were caused by hard and blunt object. The fracture found in ulna bone is also caused by hard and blunt object. From the above, it is apparent that appellant had given several blows to the body of Hadbad, but he had struck only one injury with a sharp part and rest of the blows were caused with hard and blunt part. It is reflected that his intention was not even to cause his death, but he had caused several injuries and created panic in such a situation that Hadbad was not able to speak for a long time after the incident and to be treated in hospital for several days. Considering all these circumstances, I find that the case against the appellant is made out not for attempt to murder, but for attempt to commit culpable homicide.

¶71

Therefore, on the basis of above discussions, instead of Section 307 of IPC, conviction of the appellant is converted into Section 308 of IPC.

¶72

Insofar as sentence awarded to the appellant is concerned, it is clear that incident occurred in the year 1999, i.e. about 24 years ago. At that time, age of appellant was about 35 years and presently, he is aged about 60 years. The reason behind the incident has been

¶73

¶74

reflected that appellant's wife had an illegal relationship with Hadbad. A long time has been elapsed and appellant remained in custody for about one year and four months. In the light of judicial precedents presented in above situation, interest of justice will be fulfilled by imposing jail sentence to the extent period already undergone by him. There is no need to send the appellant in jail at the age of 60 years. Rather, it would be appropriate to increase the amount of fine.

¶75

In the result, the appeal is partly allowed. Conviction of the appellant under Section 307 of IPC is converted into Section 308 of IPC and he is sentenced to the period already undergone by him. The fine amount is increased from Rs.2,000/- (Rupees two thousand) to Rs.5,000/- (Rupees five thousand), which shall be deposited within a period of 60 days, in default of payment of fine amount within the stipulated period, he shall further undergo imprisonment for two months. If the amount of fine has been deposited, the same shall be adjusted. The period remained in custody by the appellant shall also be adjusted.

¶76

Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.

¶77

Sd/-

¶78

(Sanjay Kumar Jaiswal) Judge

¶79

Vaishali/Yogesh

Somaru Harijan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Somaru Harijan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Santosh Kumar Dhruv Vs State of Chhattisgarh

Mukesh Rathore Vs State of Chhattisgarh

Sant Lal @ Santoo and Another Vs State of Chhattisgarh

Gyani @ Gyan Singh Verma Vs State of Chhattisgarh

Santosh Yadav and Others Vs State of Chhattisgarh

Pintu Rajput Vs State of Chhattisgarh