Banty Sahu @ Manohar Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 22 of 2003

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Banty Sahu @ Manohar, s/o Shankar Lal, aged about 21 years, R/o Pacharipara, Durg, Tah & Distt-Durg (CG)

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---- Appellant (In jail) Versus ---- Respondent CRA No. 77 of 2003 Pappu Khan, @ Asfak, s/o Salim Khan, aged about 21 years, R/o Pacharipara, ---- Appellant (In jail) Versus

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State Of Chhattisgarh

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Pappu Khan, @ Asfak, s/o Salim Khan, aged about 21 years, R/o Pacharipara, Durg, Tah & Distt-Durg (CG)

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State Of Chhattisgarh, through Office-in-Charge, PS Durg, Tah & Distt-Durg, CG

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-------------------------------------	---- Respondent (Cause title is taken from the CIS) -----------------------------------------------------------------------------
For Respective Appellants	: Shri Praveen Dhurandhar and Shri HAPS Bhatia, Advocates
For Respondent/State ------------------------------------	: Shri Vinay Pandey, Dy AG ------------------------------------------------------------------------------

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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Judgment on Board

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2 nd April, 2024

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These appeals arise out of the judgment of conviction, and order of sentence dated 20.12.2002 passed by the 1^st Additional Sessions Judge, Durg, in Session Trial-230 of 2001, whereby the appellants have been convicted for the offence punishable under Section 307 r/w 34 of the IPC and sentenced RI for seven years and to pay fine of Rs.500/-, in default of payment of fine, additional RI for two months to each of the appellant.

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Brief facts of the case are that, on 15.01.2001, the victim-Yugal Kishore Yadav (PW1) had gone to Betel shop at Housing Board Complex, along with his brother-in-law (sister’s husband) Safar Yadav (PW3), after having their meal in the night. When they were returning back from there at about 9 pm, they purchased snacks from a thela standing nearby the Betel shop. At that time, the appellants have called Safar Yadav, PW3, who is brother-in-law of PW1, and started quarreling with him. When the victim tried to intervene, the appellants have started altercation with him and assaulted him by hands and fists. In between that, one of the accused persons took out a knife and gave a knife blow on the abdomen of the victim. Safar Yadav (PW3) has rescued him and taken him to his house and thereafter, with the help of his family members, he has taken the victim to the hospital. Safar Yadav (PW3) has lodged a written report at Police Station vide Ex.P6. The victim was medically examined and treated at the Government Hospital, Durg, from where, he was shifted to the Sector 9 Hospital, Bhilai, where he remained hospitalized and had taken treatment. During the investigation, the appellants were taken into custody and their memorandum statements were recorded; on the basis of memorandum statement of accused/appellant-Pappu Khan, Ex.P4, knife was seized from him, from Luchki Talab, vide Ex.P5. The memorandum statement of the accused Banty was also recorded vide Ex.P9, in which he stated that the knife was given to Pappu Khan. Full-shirt of the victim was seized vide Ex.P7. The knife and clothes were sent for their query report to the District

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Hospital, Durg. The bed-head ticket of the victim was also seized vide Ex.P11. Seized articles were sent for their FSL examination to the Regional Forensic Science Laboratory, Raipur, from where FSL report Ex.P15 was received. Test Identification parade was also conducted by the Executive Magistrate, PW5, in which the complainant-Safar Yadav has duly identified the accused Akhilesh Kumar and the TI Memo Ex.P8 was prepared. Statement of the witnesses under Section 161 CrPC were recorded, and after completion of usual investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Durg, for the offence punishable under Section 307 /34 of the IPC against the present appellants and another co-accused, Akhilesh Kumar @ Munna.

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The case was committed to the Court of Sessions Judge, Durg, from where it was transferred to the learned trial Court for its trial.

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Learned trial Court has framed charge against the appellants for the offence punishable under Section 307/34 of the IPC. Appellants abjured their guilt and claimed trial.

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In order to establish the charge against the appellants, prosecution has examined as many as 14 witnesses. Statement of the appellants under Section 313 of the CrPC have also been recorded, in which the appellants denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. Two defence witnesses have also been examined by the appellants, in their support.

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After appreciation of oral as well as documentary evidence produced by the parties, learned trial court has convicted the appellants and sentenced them as mentioned in the earlier paragraphs of this judgment. Hence these appeals by the appellants.

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Learned counsel for the appellants would submit that prosecution has failed to prove its case beyond any reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. Although learned counsel for the appellants have not vehemently argued that the appellants are not involved in commission of offence but they submit that the offence of Section 307 of the IPC would not made out against the appellants, as there is no any query report or any opinion of the doctor, that the injuries received on the body of victim are fatal or dangerous to life, and death may be caused if the injuries were not treated in time. It is further submitted that in view of the circumstances of the present case, genesis of the occurrence and the manner in which the assault is said to have been caused upon the victim, there is no intention to cause death but it is in a heat of passion, that too, during the scuffle between the victim, his brother-in-law and the accused persons. Therefore, the conviction of the appellants is liable to be altered to Section 324 of the IPC and the appellants may be sentenced for the period already undergone by them. It is further submitted that appellantBanty @ Manohar remained in jail for about six months and 20 days and Pappu Khan @ Asfak remained in jail for about two months and 07 days.

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Their undergone period of sentence may be considered as sufficient sentence, by enhancing fine amount suitably.

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On the other hand, learned counsel for the State opposes the argument advanced by the learned counsel for the appellants and submitted that the prosecution has proved its case beyond any reasonable doubt. The involvement of the appellants in the offence in question has duly been proved by the victim himself, and also the eyewitness PW3 Safar Yadav. He would further submit that although the doctor could not opined the nature of injuries, but for the offence under Section 307 of the IPC, the nature of injuries are not material, and the intention coupled with some overt act is to be considered while considering the offence of Section 307 of the IPC.

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In the present case, knife blow was given on the abdomen of the victim, which itself reflects the intention of the assailant and therefore, learned trial Court has rightly convicted the appellants and sentenced them appropriately. Therefore, these appeals are liable to be dismissed.

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

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PW1, Yugal Kishore Yadav, who is the victim has stated in his deposition that on the date of incident, when he had gone to the Betel shop, at that time, altercation took place with the accused persons, they started scuffling with them, and thereafter, Pappu Khan @ Asfak has

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given a knife blow on his abdomen. His brother-in-law Safar Yadav has rescued him, took him to his house, when he noticed that he received injuries on his abdomen, and intestines are coming out from the injury, and blood was coming out from his mouth, he has been immediately taken to the hospital, and he lost his consciousness. He remained hospitalized for about 12 days.

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Despite having detailed cross-examination from this witness, nothing could be extracted that the appellants are not involved in the offence and they have not made any knife blow and they have not assaulted the victim. Knife blow given by appellant-Pappu Khan @ Asfak has also been established by this witness in his cross-examination also. There is no material in his cross-examination to make the evidence of this witness unreliable so as to disbelieve him.

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PW3, Safar Yadav, who accompanied the victim at the time of incident and rescued him, has stated in his deposition that on the date of incident, he along with his brother-in-law ( sala) Yugal Kishore Yadav, PW1, had gone to the Betel shop at New Bus stand Complex. At that time, altercation took place with the accused persons, they raised dispute and started scuffle, in between that period, accused persons started assaulting his brother-in-law Yugal Kishore Yadav, by hands and fists. He tried to intervene, in between that, accused Pappu Khan @ Asfak has assaulted his brother-in-law by knife and thereafter, the accused persons

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fled away from the spot. He has taken his brother-in-law in injured condition to his house, from where he was taken to the hospital.

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In detailed cross-examination from this witness also, he remained firm in saying that the accused persons were assaulted the victim by hands and fists and Pappu Khan assaulted him by knife by which he received incised wound on his abdomen, and taken to the hospital. But for minor omissions, and contradictions, nothing could be elicited from this witness too, so that the evidence of this witness can be disbelieved.

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From the evidence of these witnesses, PW1 Yugal Kishore Yadav, and PW3 Safar Yadav, the involvement of the appellants in the offence in question has been duly proved by the prosecution, that by the assault made by the accused persons the victim has received injuries on his abdomen for which he was medically examined by the doctor, and treated at Sector 9 Hospital, Bhilai,

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Now, the 2^nd question would be that what is the offence committed by the appellants when there is no report of the doctor about the nature of injuries.

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PW13 Dr AK Mishra has stated in his deposition that on 15.01.2001, he was posted as Medical Officer at the District Hospital, Durg. The victim Yugal Kishore Yadav was brought before him in injured condition. He has admitted him at male surgical ward and informed that he has received injuries at 9.35 pm in the night by a knife. On being examined

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and treating him, he noticed one incised wound on his left side of abdomen obliquely placed, 3x2” cm deep up to inside, blood is coming out from the injuries. His MLC report is Ex.12A. A knife was also produced before him for query report and he has given query report Ex.P13A.

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PW13, Dr AK Mishra, has nowhere stated about the nature of the incident or his opinion that if the injuries were not treated, the victim may have died, or the injuries are fatal to life. Absolutely, there is no opinion of the doctor about nature of injuries.

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PW14, Dr Adarsh Trivedi, who was the treating doctor of the victim posted at Sector 9 Hospital, Bhilai, sated in his deposition that he treated the victim Yugal Kishore Yadav, who received injuries on his left side of the abdomen, caused by a sharp object. He was having wound on right side of the abdomen, on being examination, blood collection was found in the peritoneal cavity and after he has treated him along with one senior surgeon of the hospital, and thereafter, on 24.01.2001, he recovered from his injuries and discharged from the hospital. In his evidence also, this witness has not stated anything about the nature of injuries or its complications. From the medical evidence, the prosecution has not brought on record the nature of injuries and any complication, if it would not have been treated in time.

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Although the nature of injuries are not relevant for the offence under Section 307 of the IPC, and if it could have been found on the vital

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parts of the body, the intention is to be seen for consideration of the offence under Section 307 of the IPC. The relevant part is, intention coupled with overt act. The intention is to be gathered from the weapon used, the circumstances under which the incident took place, the role played by the accused persons, the manner of assault, and also the number of blows given by the accused persons.

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In the present case, admittedly, when the victim along with his brother-in-law went to Betel shop, some altercation took place between the victim, his brother-in-law and the other accused persons, the accused persons started assaulting the victim and his brother-in-law by hand and fists, and in between that period, one of the accused has given a single knife blow on the abdomen, and thereafter, they fled away.

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In the facts and circumstances of the present case, it cannot be said that the accused persons were intended to cause death of the victim. The victim and the accused persons were not known to each other earlier, they have no previous enmity and the incident started spontaneously.

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Although the victim had received incised would on his abdomen, but in absence of any opinion of the doctor about the nature of injuries, and also, in view of the definition of the ‘grievous hurt’ defined under Section 320 of the IPC, injury of the victim does not come under the definition of ‘grievous hurt’, but it is only ‘a hurt’, which is defined under Section 319 of

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the IPC, for which, the punishment is provided for the offence under Section 324 of the IPC.

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For the foregoing reasons, and under the facts of the present case, the appellants are liable to be convicted for the offence punishable under Section 324/34 instead of 307/34 of the IPC. Thus, the conviction and sentence of the appellants under Section 307 /34 of the IPC are set aside, instead thereof, the appellants are convicted for the offence punishable under Section 324 /34 of the IPC.

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With regard to the sentence part, while dealing with the said question in the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, it has been observed by the Hon’ble Supreme Court as under:

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“9. Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our

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criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'

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Appellant-Banty @ Manohar remained in jail for about six months and 20 days, whereas appellant- Pappu Khan @ Asfak remained in jail for about two months and 07 days. Section 324 of the IPC does not provide for any minimum sentence. The appellants are facing lis since 2001, and now, they are aged about 44 years and having un-numerable responsibilities and settled in their family life, there is no allegation against the appellants that after releasing them on bail, they again repeated and indulged in any other criminal offence.

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In view of above, the appellants are sentenced for the offence under Section 324/34 of the IPC for the period already under gone by them with fine amount of Rs.10,000- to each of the appellant. In default of payment of fine amount, they shall undergo further RI for one month. Out of the total fine amount of Rs.20,000/-, Rs.18,000/- shall be paid to the victim as compensation as provided under Section 357 of the CrPC. The fine amount deposited earlier, if any, shall be adjusted to the fine amount awarded by this Court today.

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With this modification of the conviction and sentence of the appellants, both these appeals are partly allowed.

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The appellants are reported to be on bail. Their bail bonds shall continue for further period of six months as provided under Section 437-A of the CrPC.

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Record of the trial court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- (Ravindra Kumar Agrawal) JUDGE

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padma

Banty Sahu @ Manohar v. State of Chhattisgarh

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Banty Sahu @ Manohar v. State of Chhattisgarh

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