Sukhdev and Another Vs State of Chhattisgarh

The present appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, assails the judgment of conviction and order of sentence dated 26.10.2007 passed by the learned Sessions Judge, Janjgir-Champa (C.G.) in Sessions Trial No. 60/2006, whereby the appellants were convicted for the offences punishable under Sections 324/34 and 323/34 of the Indian Penal Code. Each of them was sentenced to undergo rigorous imprisonment for 2 years and rigorous imprisonment for 6 months, respectively.

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As per the PUD received from the learned Sessions Judge, Janjgir-Champa (C.G.), appellant No.1 – Sukhdev has expired, and in support thereof, his death certificate has been placed on record showing his date of death as 06.10.2018. Consequently, the appeal stands abated so far as it relates to appellant No.1 – Sukhdev. Accordingly, the present appeal is now being pursued only on behalf of appellant No.2 – Umedram.

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According to the prosecution, on 08.06.2006, the Tehsildar, Pamgarh handed over possession of the disputed land to the complainant. Thereafter, the accused persons allegedly arrived armed with sticks, assaulted the complainants causing serious

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injuries, demolished their houses, and forcibly took possession thereof. An FIR was lodged on the same day and was registered as Ex.P/7, pursuant to which the victims were sent for medical examination and their injuries were confirmed vide Ex.P/9, Ex.P/10 and Ex.P/11.

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During investigation, the Investigating Officer forwarded an application to the Executive Magistrate and the doctor for recording the dying declaration of Dinesh Kumar Suryavanshi. As the Executive Magistrate was unavailable, Dr. Anvita Dhruv (P.W.7) recorded his statement. The Investigating Officer inspected the spot, prepared the site map vide Ex.P/16, and seized a bamboo stick from accused Umed on 09.06.2006 vide seizure memo (Ex.P/2). Blood-stained and plain soil, along with a pair of ladies’ and gents’ slippers, were seized from the spot and prepared seizure memo vide Ex.P/3. The clothes worn by Dinesh at the time of the incident, as well as a tangi and a shirt belonging to Sukhdev, were also seized. The weapons were sent for medical examination and the expert’s opinion was obtained vide Ex.P/13. Subsequently, the accused were arrested, statements of witnesses were recorded, and upon completion of investigation, the charge-sheet was filed before the Court of Judicial Magistrate First Class, Pamgarh. The case was then committed to the Sessions Court, and after reorganization of the Sessions Division, it was received on transfer. The learned trial Court framed charge under Section 307/34 of IPC against the appellants, to which appellants abjured their guilt and claimed to be tried.

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To establish its case, the prosecution examined 7 witnesses. The statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied all the incriminating circumstances appearing against them and claimed innocence as well as false implication. In defence, the accused examined two witnesses namely Dr. Vinay Khetrapal (D.W.-1) and Garib Nath (D.W.-2).

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The learned trial Court, upon appreciating the oral and documentary evidence available on record, acquitted the accused persons of the charge under Section 307/34 of the IPC. However, it convicted both of them for the offences punishable under Sections 324/34 and 323/34 of the IPC and imposed sentences as detailed in paragraph 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment, including the conviction and sentences, is bad in law and on facts, being contrary to the settled principles governing appreciation of evidence. The learned trial Court erred in placing reliance upon untrustworthy and unreliable prosecution witnesses whose testimonies contained major material contradictions and were inconsistent with their statements recorded under Section 161 of the Cr.P.C. during investigation. The trial Court further failed to appreciate that the prosecution case was not proved beyond reasonable doubt and that no offence, as alleged, stood established against the appellants from the evidence on record. It is also urged that the medical evidence did not support the prosecution version. The learned trial Court overlooked the

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admitted fact that the appellants were in settled possession of the disputed land and, therefore, had a valid right of private defence of property. The medical evidence on record also fails to support the prosecution case; however, the learned trial Court did not properly appreciate these material aspects and proceeded to convict the appellants for the alleged offences. Hence, the impugned judgment is unsustainable in law and is liable to be set aside.

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Alternatively, learned counsel for the appellant submits that the appellant is not assailing the conviction recorded by the trial Court and is confining his challenge only to the sentence imposed. It is submitted that the incident pertains to the year 2006 and the present appeal has been pending since 2007. At the time of the incident, the appellant was approximately 54 years old and is now more than 70 years of age. The appellant has already undergone incarceration for about 50 days. Therefore, considering the age of the appellant, the long pendency of the appeal, and the period already undergone, it is prayed that the sentence imposed may be reduced to the period already undergone.

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Per contra, learned State counsel submits that the finding arrived at by the learned trial Court is based on proper appreciation of oral and documentary evidence and, therefore, is not liable to be interfered with.

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Heard learned counsel for the parties and perused the material placed on record.

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From the record of the learned trial Court, it is evident that charges were framed against the appellants under Section 307/34 of the IPC. However, upon appreciation of the oral and documentary evidence adduced by the parties, the learned trial Court ultimately convicted the accused persons for the offences punishable under Sections 324/34 and 323/34 of the IPC.

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The complainant Hetram (P.W.-3) along with Sushila Bai (P.W.4) and Dinesh Kumar (P.W.-2) stated in their respective depositions that on the date of the incident, both appellants had assaulted them with an axe and a club, resulting in the injuries sustained by them.

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11.The independent witness Mohanlal (P.W.-5) also corroborated the occurrence by deposing that a quarrel had taken place between the complainant party and the accused persons.

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Dr. Anvita Dhruv (P.W.-7) stated that she had medically examined the injured Dinesh Kumar (P.W.-2) and found the following injuries:-

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She deposed that there was an incised wound measuring 6 cm × 5 cm on the right side of the frontal region of the head, which was bleeding and had regular margins.

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She further stated that a lacerated wound measuring 4 cm × 3 cm was present on the occipital region of the skull, having irregular margins and active bleeding. According to her, the duration of both injuries was within two to two and a half hours. She opined that Injury No. 1 was caused by a hard and sharp object, whereas

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Injury No. 2 was caused by a hard and blunt object. She gave her medical report vide Ex. P/9 in this regard.

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She further stated that she had also examined the injured Hetram (P.W.-3) and found the following injury:According to her, there was a lacerated wound measuring 3 cm × 3 cm on the right parietal region of the skull, having irregular margins and bleeding. She opined that the duration of the injury was within two to two and a half hours and that it had been caused by a hard and blunt object. In this regard, she prepared her medical report, which was proved as Ex.P/10.

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She further stated that she had examined the injured Sushila Bai (P.W.-4) and found the following injuries:-

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She deposed that there was an abrasion on the left parietal region of the skull with slight bleeding. She also noted a contusion measuring 3 cm × 3 cm on the lateral aspect of the right arm, which was tender on examination. According to her, the duration of both injuries was within two to two and a half hours and they had been caused by a hard and blunt object. She opined that the injuries sustained by the injured were simple in nature. In this regard, she gave her report vide Ex.P/11.

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Dr. Anvita Dhruv (P.W.-7) further opined as per the query report (Ex.P/4), that the injuries sustained by the injured persons were not sufficient in the ordinary course of nature to cause their death.

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Having considered the submissions advanced by learned counsel for the parties and upon re-appreciation of the evidence on record, this Court finds that the learned trial Court has correctly appreciated the oral and documentary evidence while recording the conviction of the appellant for the offences punishable under Sections 324/34 and 323/34 of the IPC. The findings of conviction are supported by the consistent testimonies of the injured witnesses, the corroboration provided by the medical evidence, and the seizure of the weapons. Hence, the conviction recorded by the learned trial Court warrants no interference and is accordingly affirmed.

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However, considering the alternative submission advanced by learned counsel for the appellant regarding the quantum of sentence, it is noted that the incident pertains to the year 2006 and the appellant, who was about 54 years of age at the time of the incident, is now more than 70 years old. The appeal has remained pending since 2007 and the appellant has already undergone incarceration for about 50 days. Keeping in view the age of the appellant, the long pendency of the matter, and the period of custody already undergone, this Court is of the opinion that the ends of justice would be met by reducing the substantive sentence to the period already undergone.

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Consequently, the appeal is partly allowed to the extent of modification of sentence. While the conviction of the appellant under Sections 324/34 and 323/34 of the IPC is maintained, the

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substantive sentence imposed by the learned trial Court is reduced to the period already undergone by him.

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The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of CrPC.

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

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Sd/-

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(Rajani Dubey) JUDGE

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Ruchi

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RUCHI YADAV Digitally signed byRUCHI YADAV

Sukhdev and Another v. State of Chhattisgarh

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Sukhdev and Another v. State of Chhattisgarh

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