Bhagatram Verma Vs State Of Chhattisgarh

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2024:CGHC:45202

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 97 of 2018

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Bhagatram Verma S/o Maniram Verma Aged About 48 Years R/o Village Nathunwagaon, Thana Dongargaon, Distt. Rajnandgaon Chhattigarh, District : Rajnandgaon, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through Police Station Dongargarh Distt. Rajanandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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... Respondent

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For Appellant : Mr. Malay Shrivastava with Ms. Kajal Chandra, Advocate For Respondent : Ms. Laxmin Kashyap, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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20/11/2024

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1. This appeal is directed against the judgment of conviction and order of sentence dated 06.01.2018 passed by Learned First Additional Sessions Judge Rajnandgaon in Sessions Case No. 41 of 2014 by which the appellant has been convicted under Sections 450 and 307 of the IPC and sentenced to undergo RI for 5 years and to pay fine of Rs. 2,000/- in default of payment of fine to RI for

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Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SHARMA SHARMA Date:2024.11.30 11:10:12 +0530

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6 months under Section 450 of the IPC, RI for 10 years and to pay fine of Rs. 5,000/- in default of payment of fine to further undergo RI for 1 year two times with a direction to run the sentences concurrently.

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2. Fact of the case is brief is that on 28.05.2014 at about 21.00 O’clock complainant Usha Verma residing with her family lodged the report in Police Station Dongargaon alleging that on 28.05.2014 in the noon her grandmother was taking rest in the room. At about 3.30 O’clock she heard screaming sound then she went there and found that her grandmother-in-law was full of blood and she was saying to save her grandfather. Thereafter, she called her uncle and other family members who also came there thereafter grandmother-in-law stated that appellant Bhagat assaulted him with axe and fled from there subsequently they went to saw grandfather-in-law who was also found with full of blood, thereafter the injured were admitted in the hospital for treatment on 29^th May 2014. On the basis of complaint, Crime No. 175 of 2014 under Sections 450, 307 of the IPC were registered against the appellant. It was also case of the prosecution that there was property dispute between them. The appellant was arrested on 06.05.2014.

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3. After usual investigation, charge sheet was filed before Judicial Magistrate First Class, Rajnandgaon who in turn committed the case to the Court of Additional Sessions Judge, Rajnandgaon which was registered as Sessions Case No. 41 of 2014.

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4. The prosecution in order to prove the guilt of the appellant examined 16 witnesses, Syed Iliyas Khan (PW-1), Smt. Usha Verma (PW-2), Maniram Verma (PW-3), Chandrika Bai Verma (PW-4), Baisakhin Bai (PW-5), Assistant Sub Inspector Thagiya Chandravanshi (PW-6),Dr. Ekata Deniyal (PW-7), Dehraram Verma (PW-8),Narbad Ram Verma (PW-9), Yuvakram Verma (PW-10), Sohan Lal Verma (PW-11), Shankar Lal Verma (PW-12), Khemlal Verma (PW-13), Inspector Anju Chelak (PW-14) and T.R. Maheshwari (PW-15, Dr. Sunil Khemka (PW-16) and exhibited the documents FIR (Ex.P-1), Dehati nalishi (Ex.P-2), Hospital Memo (Ex.P-3), MLC (Ex.P-4), Query (Ex.P-5), query report (Ex.P-6), Bedhead ticket (Ex.P-7), X-ray report (Ex.P-8),Memorandum (Ex.P9), Sezure (Ex.P-10), Draft FSL (Ex.P-11), receipt of FSL (Ex.P-12), Map (Ex.P-13), Approval of Tahsildar for Map (Ex.P-14), Patwari map (Ex.p-15), arrest memo (Ex.P-16), information of arrest (Ex.P17) for recording statement of Dr. (Ex.P-18), Dying declaration written before Tahsildar (Ex.P-19), Dying declaration (Ex.P-20), statements of the witnesses (Ex.P-21) and remand form (Ex.P-22).

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5. Record of the case would show that the appellant remained in jail from 5.6.2014 to 24.07.2014 and thereafter from the date of conviction i.e. 06.01.2018 till bail was granted by this Court on 21.07.2023, thus he remained in jail 5 years and 8 months and 3 days.

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Counsel for the appellant would submit that the injuries caused to the victims was not so fatal which may cause death, therefore,

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offence under Section 307 of the IPC is not made out and in the worst view of the matter offence under Section 326 of the IPC can be made out against the appellant. He would further submit that normally axe is available in the village therefore, it cannot be said that the appellant has come with an intention to assault him with axe. Since he is not pressing the appeal on merit, but only making his submission for reduction of jail sentence to the period already undergone by the appellant as the appellant has remained in jail about 5 years and 8 months, the same may kindly be considered.

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On the other hand, supporting the impugned judgment counsel for the State would submit that conviction of accused/appellant is strictly in accordance with law and there is no illegality or infirmity in the impugned judgment. She would further submit that the sentences awarded by the trial Court are just and proper and do not call for any interference.

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

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9. After hearing learned counsel for the parties and going through the record and to ascertain that the injuries are so grievous, or not which may cause death to attract the offence Section 307 of the IPC is to be considered by this Court.

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10. So far as the finding with regard to assault made by the appellant it cannot be said that the finding recorded by the trial Court is perverse or contrary to the evidence as the prosecution beyond reasonable doubt has proved guilt of the appellant that he has

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assaulted the victims Baisakhin Bai PW-5 and Maniram (PW-3). Thus the finding recorded by the trial court with regard to assault made by the appellant is afÏrmed.

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So far as grievousness of the injury is concerned, this court has to ascertain whether the medical evidence adduced by the victim supports the case of the prosecution. To prove the case, the prosecution has examined Dr. Sunl Khemkha, Orthopedist who has examined as PW-16 wherein he has stated that Maniram sustained injury on the collar and scapula bone which were fractured which is grievous in nature. He noticed incised wound in the size of 2x5 cm over the left arm below shoulder. Lacerated wound in the size of 2x5 cm below the face and lacerated wound in the size of 3x6 cm below the face were also found which is evident from Ex.P-3. Similarly collar bone of Baisakhin Bai was also broken and there were some injuries. PW-16 has noticed incised wound on the neck region, abrasion in the size of 2x5 cm over the chest of the injured.

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The record of the case would show that no query was sought whether the injuries can cause death to the injured. The query report was sent to police on 07.06.2014 but no report with regard to the fact that which injuries may cause to death to the victim. The victims in their evidences have also stated that they remained in hospital about 3 days, injuries sustained at collar and scapula bones cannot be said that the injuries was so grievous which may cause death.

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From the evidence and material collected by the prosecution it is quite vivid that prosecution has failed to prove intention to commit culpable homicide as all injuries sustained by the injured are not so grievous in nature and no material was also placed on record that the appellant has come with an intention to kill the victims which is essential to attract provisions of Section 307 of the IPC. In absence of intention or knowledge and circumstance under which the overt act was done by the appellant. It cannot be said that conviction of the appellant under Section 307 IPC can be attracted In the present case, however ingredient of section 300 IPC is missing. Section 326 of the IPC provides punishment for voluntarily causing grievous hurt by dangerous weapons by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Further considering the fact that conversion of section 307 IPC into section 325 IPC has come up for consideration before the Hon’ble Supreme Court in the case of State of Pashora Singh vs State of Punjab & Anr 1993 Suppl(2) SCC 37, wherein the Hon’ble Supreme court has held in paragraph 8 as under:-

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In our view, in the facts and circumstances of the case, no offence under Section 307of the Indian Penal Code is held established against the appellant Pashora Singh. According to the statement of Pal Singh injured himself, Pashora Singh had first given a Gandasa blow on right knee of Amar Singh. Lahora Singh then gave

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Gandasa blow on the right hand of Amar Singh from the reverse side. Pal Singh thereafter states that he raised an alarm and tried to intervene, when Lahora Singh gave two Gandasa blows to him. Pashora Singh also gave a Gandasa blow on his head. According to the above statement of Pal Singh, two injuries on his head were inflicted by Lahora Singh and the third one by Pashora Singh. It is an admitted case of the prosecution that the accused persons had a grievance against Amar Singh and his uncle Malkiat Singh for having launched some security proceedings against the accused persons and they had come with an intention of taking revenge from Amar Singh and Malkiat Singh. According to the statement of Pal Singh, Pashora Singh had given a Gandasa blow on the right knee of Amar Singh and Lahora Singh also gave a Gandasa blow on the right hand of Amar Singh from the reverse side. Admittedly, the injuries on Amar Singh are found to be simple in nature and this clearly goes to establish that the accused persons had no intention of causing death of any person nor any injuries found on Pal Singh were stated to be sufÏcient in the ordinary course of nature to cause death. According to Pal Singh, when he raised an alarm and tried to intervene, Lahora Singh inflicted two Gandasa blows and Pashora Singh gave third blow on his head and thereafter the accused persons ran away. In the circumstances mentioned above, we are clearly of the view that the High Court was not right in holding that the accused had an intention to cause the death of Pal Singh or the knowledge of possible death of Pal Singh. Only injury No. 1 on the head of Pal Singh has been described as dangerous to life and the High Court has itself recorded a finding that the previous litigation between the parties had nothing to do with Pal Singh and it was not established as to which of the two accused had inflicted injury No. 1 on the head of Pal Singh. Thus, in the above facts it cannot be held that Pashora Singh had committed any offence under Section 307 read with Section 307 of the Indian Penal Code. The appellant Pashora Singh in the facts and circumstances of the case can only be held guilty for an offence under Section 307 326 read with Section 34 of the Indian Penal Code.

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In the light of the above stated provision, considering the evidence

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particularly the opinion of the treating doctor that no definite opinion with regard to death of the victims can be given because

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of the injury, I am of the view that it is a fit case where the conviction of the appellant under Section 307 IPC can be altered as Section 326 of the IPC. So far as finding recorded by the trial Court that the appellant has committed offence under Section 450 IPC cannot be said to be illegal as he has entered into the house and has committed the offence of house trespass in order to commit offence punishable with imprisonment for life, therefore, conviction under Section 450 IPC is maintained.

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Since this Court has altered the conviction under Section 307 IPC into under Section 326 of the IPC and the appellant has already remained in jail about 5 years and 8 months and 3 days and for offence under Section 326 of the IPC, no minimum sentence is prescribed but it may extend up to 10 years with fine.

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Now considering the quantum of sentence. As the appellant is facing criminal trial since 2014 and thereafter more than 10 years has been elapsed, considering the age of the appellant at present 58 years and further considering that the appellant has already undergone five years and 8 months of jail sentence during the trial as well as after pronouncement of the judgment, there would be no useful purpose to again send the appellant in jail as he has already suffered agony of criminal trial for so many years as such to meet the ends of justice, this Court finds it appropriate to reduce the sentence as already undergone by the appellant.

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In the result, I allow this appeal in part, set aside the conviction and sentence of the appellant under section 307 IPC and instead

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of he is convicted under section 326 IPC and award a sentence to the period already undergone by him. The appellant is reported to be on bail and his bail bond shall remain in force for six months as per provisions of Section 437-A of the CRPC.

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Sd/-

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(Narendra Kumar Vyas )

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Judge

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Santosh

Bhagatram Verma v. State Of Chhattisgarh

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Bhagatram Verma v. State Of Chhattisgarh

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