Ballu @ Naresh Sarathi Vs State of Chhattisgarh

This appeal is directed against the impugned judgment dated 08/10/2004 passed by learned 4^th Additional Sessions Judge Bilaspur (C.G.) in Session Case No. 169/2003 by which, the Appellants have been convicted as

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under:-

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Appellants’	Conviction	Sentence & Fine
Name
Sukdev &	U/s 148 of IPC	RI for 3-3 months
Kulpati	U/s 25 of Arms Act	RI for 3-3 months and
		fine of Rs.500/-500/-
		in default, further
		imprisonment for 2-2 months
	U/s 307 R/w	RI for 4-4 years and
	Section 149 of IPC	fine of Rs.2500/-
		2500/- in default,
		further imprisonment for 6-6 months
Ballu @	U/s 147 of IPC	RI for 3-3 months
Naresh Sarthi	U/s 307 R/w	RI for 4-4 years and
& Ramkumar	Section 149 of IPC	fine of Rs.2500/-

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	2500/-	in default,
	further	imprisonment
	for 6-6 m	onths
All the sentences are directed	to run co	ncurrently

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Co-accused Ramesh was declared absconding during the trial period, hence the impugned judgment has not been passed against him.

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Case of the prosecution, in brief, is that On 23-10-2002, 18-year-old Balla Khan (PW-3) lodged a report at Civil Line Police Station along with the injured Nikhil (PW-2), stating that on the day of the incident, when he, Golu Yadav, and Nikhil were sitting near Balram Talkies, Pramod @ Natwar (PW-1) came and asked Nikhil to go to Kasturbanagar with him. Both left on a Luna (scooter). About half an hour later, Nikhil returned alone on the Luna, collapsed in front of them, and fell along with the vehicle. Injuries were observed on Nikhil’s left hand, including his thumb and fingers, which appeared partially severed. There were also deep cuts on his fingers and additional injuries on his shoulder and head. When asked about the incident, Nikhil mentioned that due to friendship with Bhurwa Jangde who had previous enmity with Ramkumar, he and Pramod @ Natwar were assaulted due to rivalry. During the investigation, the injured were sent for medical examination, which was conducted by Dr. Jawaharlal

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Shrivastava (PW-11), Dr. L.C. Madharia (PW-14) and Dr. S. Chatterjee (PW-18) and their clothes worn at the time of the incident were seized vide Exhibit P-8 & Exhibit P-9 respectively. The accused, Sukdev and Kulapati alias Sonu, were arrested and their memorandum statements (Exhibit P-13 and P-14) were recorded according to which the weapons used during the incident a bhujali (sharp weapon) and a knife were seized from them vide Exhibit P-15 & and Exhibit P-16, respectively. The clothes worn by the accused Sukdev and Kulapati at the time of the incident were also seized vide Exhibit P-18 and Exhibit P-19. After completing the necessary formalities and investigation, a charge sheet was filed against the accused persons.

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During the course of trial, in order to bring home the of f ence, the prosecution has examined as many as 18 witnesses and exhibited 25 documents. Statements of the Appellants were also recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication. However, in their defence six defence witnesses were examined by them.

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After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, these appeals.

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Learned counsels for Appellants Sukdev and Kulpati @ Sonu submit that no offence under Section 307 of the IPC and Section 25 of the Arms Act can be made out against the Appellants as no injuries were found on vital parts of the body of the injured persons. The injuries sustained by the injured persons were not dangerous for their life. Though the Appellants have committed the crime but, at the most their case falls under Section 324 of IPC only. So far as Section 25 of the Arms Act is concerned, the seizure has been made much later to the incident and no independent/seizure witnesses have supported the case of prosecution. They lastly submit that if the Court finds the Appellants guilty under Section 324 of the IPC, it is prayed by them that Appellants Sukdev & Kulpati @ Sonu have already undergone about 2 years in jail, there were no criminal antecedent against them and the incident is of the year 2002 i.e. 22 years old, therefore, it is prayed that the jail sentence which may be awarded to them may be reduced to the period already undergone by them.

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Likewise, learned counsel appearing for Appellants Ballu alias Naresh Sarathi & Ramkumar submit that Ballu @ Naresh Sarthi was not involved in the alleged incident. In the FIR, his name is not mentioned. No offence under Section 307 of the IPC can be made out against the

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Appellants and at the most their case falls under Section 324 of IPC only. They further submit that if the Court finds the Appellants guilty under Section 324 of the IPC, it is prayed by them that appellant Ballu @ Naresh has already undergone about 7 months and appellant Ramkumar has already undergone about 6 months in jail, there were no criminal antecedent against them and the incident is of the year 2002 i.e. 22 years old, therefore, it is prayed that the jail sentence which may be awarded to them may be reduced to the period already undergone by them.

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On the other hand, the learned counsel for the State submitted that the conclusion given by the trial court regarding conviction and sentence of the Appellants is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the Appellants is not acceptable, hence, the appeal may be dismissed.

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Heard learned counsel for the parties and perused the record with utmost circumspection.

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First of all, if I consider the question of involvement of the Appellants, then it is noteworthy in this regard that injured Pramod Yadav alias Natwar (PW-1) and injured Nikhil Kumar Shukla (PW-2) have stated the involvement of all the Appellants in the incident, which is supported by

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the statements of Balla Khan (PW-3) and Durgesh Kumar (PW-4). Their statements are also supported by the First Information Report (FIR) Exhibit P-1 written on the date of the incident i.e. 23/10/2002, which was lodged by Balla Khan (PW-3). In this situation, if the name of the appellant Ballu alias Naresh Sarathi is not mentioned in the First Information Report (FIR), then the statements of the injured and the witnesses present on the spot cannot be denied on that basis because in the First Information Report Exhibit P-1, there is a clear mention of involvement of appellant Sukdev, Ramkumar's son Kulpati alias Sonu and 3-4 other persons. In such a situation, the argument of learned counsel for the appellant Ballu alias Naresh Sarathi that he was not involved in the alleged incident is not found to be acceptable.

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As far as the conviction of the Appellants under Sections 147 and 148 of the Indian Penal Code is concerned, in this regard, it is also clear from the statements of the above-mentioned witnesses of the incident that the Appellants, along with other accused, assaulted the complainants Pramod Yadav alias Natwar Yadav (PW-1) and Nikhil Kumar Shukla (PW-2) and at that time they were armed with knives, swords, axes, etc. and it has been proved from the statements of the witnesses that their number was at least 05. In such a situation, when

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the injuries found on the injured Pramod Yadav alias Natwar Yadav (PW-1) and Nikhil Kumar Shukla (PW-2) have been described as caused by sharp and hard weapons, then there remains no doubt that in the unlawful assembly in which the Appellants were present and were armed with dangerous or deadly weapons. In such a situation, there is no illegality or error in the conviction of the Appellants under Sections 147 or 148 of the Indian Penal Code.

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As far as the conviction of the Appellants under Section 307/149 of the Indian Penal Code is concerned, in this regard, the statements of Dr Jawaharlal Shrivastava (PW-11), who provided first aid to the injured, Dr L.C. Madharia (PW-14), who conducted a medical examination of the injured and submitted a report, and Dr S. Chatterjee (PW-18), who conducted an X-ray examination of the injured and submitted a report, are important and are being considered.

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Dr Jawahar Lal Shrivastava (PW-11) who was posted in the District Hospital and was on duty at that time has stated that the injured Nikhil Kumar Shukla had more than one cut injury and he had advised for X-ray. He has given the bed head ticket (Exhibit P-8) of Nikhil Kumar Shukla.

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Dr. L.C. Madhariya (PW-14) has conducted medical examination of injured Nikhil Kumar Shukla (PW-2) and

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certified the report Exhibit P-10 and has mentioned 05 injuries as follows-

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An incised wound on the left side of the scalp, measuring 2×1/2×1/4 inches, with blood oozing out.

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An incised wound on the left wrist, measuring 1×1/2×1/2x1/4 inches, with blood oozing out.

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An incised wound on the right knee, measuring 2×1/2×1/2x1/2 inches.

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The upper portion of the left thumb was severed, and the upper portion of the left index finger was cut and torn.

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Advised X-rays of the left hand, right arm, and head, and admitted the patient to the main surgical ward.

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The doctor has given his opinion that he was admitted in the surgical ward. His injuries were caused by a hard and sharp object and he advised for an X-ray.

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Similarly, Dr. L.C. Madhariya (PW-14) has stated that after medically examining the injured Pramod Yadav alias Natwar Yadav, he has given report Exhibit P-11 according to which he had 08 injuries as follows:-

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A lacerated wound was found near the thumb

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of the right hand, measuring 3×1×1/2 inches.

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An incised wound was found near the little

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finger of the right hand, measuring 2×1/2×1 inches.

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An incised wound was found near the wrist of

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the right hand, measuring 3×1×1/2 inches.

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An incised wound was found near the right elbow, measuring 2×1×1/2 inches.

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An incised wound was found on the right side of the scalp, measuring 1×1/2×1/2 inches.

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An incised wound was found on the left side, near the face, below the left eye, measuring 2×1×1/4 inches.

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An incised wound was found on the left hand, measuring 5×1/2×1/4 inches.

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A punctured wound was found on the right knee, measuring 1×1/2×1/2 inches. Another punctured wound was found on the right knee, below the first wound, measuring 2×1/4×1 inches. A fracture was found on the lower part of the left leg.

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The doctor has expressed his opinion that the injury

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caused to Pramod Yadav was of a serious nature which was caused by a sharp pointed weapon. Doctor Madharia has further expressed that when the police queried the injured, he gave his opinion that if the injured Pramod Yadav alias Natwar and Nikhil Kumar Shukla were not treated immediately, they may died, but why and on what basis their death was likely is not clearly stated in the doctor's statement and it is not clear that if the injuries found on them were so fatal that their death was likely, then why did Doctor Madharia not express this opinion when he examined them and submitted his report for the first time,

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there is also no clear mention of this.

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Doctor S. Chatterjee (PW-18) has certified the report Exhibit P-20 after conducting the X-ray examination of Nikhil Kumar Shukla and has stated that there was a fracture on the tip of the little finger of his left palm which was partially cut and along with this, there was a fracture on the tip of his index finger and thumb. Thus, it is clear that the injured persons have grievously hurt by a sharp instrument. In such a situation, the case has clearly been proved under Section-326 of the Indian Penal Code.

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It is also clear from the entire evidence presented by the prosecution that the injured were beaten with sharp and pointed weapons. It is also clear that the members of the unlawful assembly of which the Appellants were members were equipped with lethal weapons. But in this case, at the time of first aid or at the time of hospitalization of the injured, no clear medical opinion has come on the basis of which it can be said that the injuries caused to them were fatal for their lives. The bone fractures or grievous injuries found on them are not said to be at the sensitive spot.

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In the above situation, it is found that they have suffered grievous injuries by causing bone fractures but it has not been proved that the injuries found on the injured were fatal for their lives and an attempt was made to

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murder them because considering the type of weapon with which the Appellants are said to be equipped, if the intention of the Appellants was to cause the death of the injured, then certainly that deadly weapon would have been used on such a sensitive part of the injured which could have caused their death. But no such fatal blow or injury has been found on any sensitive part of the injured which could cause the possibility of their death or which can be said to have been caused in an attempt to murder. In this situation, the case against the Appellants appears to be of Section-326 Indian Penal Code instead of Section307, hence the conviction of the Appellants is converted to Section-326/149 Indian Penal Code instead of Section307/149 Indian Penal Code.

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As far as the question of conviction under Section 25 of the Arms Act against appellant Sukdev (seizure of a Bhujali) and Kulpati alias Sonu (seizure of a buttoned knife) is concerned? In this regard, it is noteworthy that Inspector B.K. Mishra (PW-15), who was the investigating officer, has stated that he made seizure of iron Bhujali from Sukdev Exhibit P-15 and seizure of buttoned knife from appellant Kulpati alias Sonu Exhibit P-16. The witnesses of the above seizure are Devanand (PW-16) and Sanju Tripathi (PW-17). But both these witnesses have turned hostile who have not confirmed the memorandum

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statement of appellant Sukdev and Kulpati alias Sonu and the seizure action described by them, hence the seizure mentioned by the investigating officer from the said Appellants is not supported by independent witnesses.

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Although it has been proved that at the time of the incident, the Appellants who were members of the unlawful assembly were armed with lethal weapons and the injured persons were also sustained injuries by sharp edged weapons. But the question arises that the incident is of 23/10/2002 and the seizure has been made much later, therefore it is not necessary that the weapons used at the time of the incident are the same weapons seized from the Appellants Sukdev and Kulpati alias Sonu, since the seizure from them has not been proved by independent witnesses. It also does not appear from the case of the prosecution that the weapons said to have been seized, have been tested by a doctor, no chemical test report of those weapons has also been produced. Those weapons have not been produced before the Court at the time of trial and have also not been article marked. The prosecution cannot explain that this is in violation of the notification issued under Section-4 of the Arms Act as Bhujali. It could not be ascertained whether the knife said to have been seized had a button or not as it was not produced before the Trial Court and was not supported by independent

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witnesses. In the above situation, the conviction of the appellant Sukdev and Kulpati alias Sonu under Section 25 of the Arms Act is not found to be justified in the absence of sufficient evidence, hence the said conviction is not upheld.

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Therefore, the conviction and sentence of the Appellants Sukdev and Kulpati alias Sonu under Section 25 of the Arms Act is quashed and they are acquitted of the said offence.

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As far as the conviction of the Appellants Ballu alias Naresh and Rajkumar under Section 147 and the Appellants Sukdev and Kulpati alias Sonu under Section 148 of the Indian Penal Code is concerned, that conviction is found to be justified on the basis of the above evidence. Therefore, the conviction and sentence of the Appellants are affirmed accordingly.

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The conviction of all the accused under Section 307/149 of the Indian Penal Code has been converted into Section 326/149 of the Indian Penal Code. According to the argument of the appellant side, it is noteworthy that the incident is of the year 2002, which is about 22 years ago. Appellant Sukdev and Kulpati alias Sonu have been in custody for about 2 years. Similarly, appellant Ballu alias Naresh has been in custody for about 07 months, appellant Ramkumar has been in custody for about 06 months. After

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such a long period, it is not found appropriate to send them to jail again. In such a situation, the jail sentence of the Appellants under Section 326/149 of the Indian Penal Code is reduced to the period already undergone by them. The fine amount of Rs 2,500/- in respect of appellant Sukdev and Kulpati alias Sonu is affirmed. The fine amount of appellant Ballu alias Naresh and Ramkumar is increased from Rs. 2,500/- to Rs. 10,000/- which they shall deposit within 60 days from the date of receipt of this judgment failing which they shall be liable to undergo rigorous imprisonment for 4 months. The fine amount already paid by them shall be adjusted.

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Consequently, the appeals are allowed in part to the extent indicated above.

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The Appellants are reported to be on bail. Their bail bonds shall continue for a further period of 6 months under Section 437A of the Code of Criminal Procedure. Thereafter, the said bonds shall stand discharged.

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Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary compliance, if any.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Shubham

Ballu @ Naresh Sarathi v. State of Chhattisgarh

Case brief

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Ballu @ Naresh Sarathi v. State of Chhattisgarh

Case brief

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