Pavitro Kumar Dehari Vs the State of Chhattisgarh

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2025:CGHC:2904

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1177 of 2023

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1 - Pavitro Kumar Dehari, S/o Late Suresh Kumar Dehari, Aged About 32 Years, Caste- Gosai, R/o - 44 Number Dafai Ward No. 5 Podi, P.S. - Podi, District : Koriya (Baikunthpur), Chhattisgarh

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... Appellant

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versus

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1 - The State of Chhattisgarh Through, P.S. - Podi, District : Koriya (Baikunthpur), Chhattisgarh

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... Respondent

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For Appellant :	Mr. Aditya Chopra, Advocate
For Respondent/State:	Mr. Devesh G. Kela, Panel Lawyer

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Hon'ble Smt. Justice Rajani Dubey Judgment on Board

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16.01.2025

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The matter was listed for order on I.A. No. 01/2023, application for suspension of sentence and grant of bail. However, with the consent of the parties, the matter is heard finally.

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The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction

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and order of sentence dated 04.05.2023 passed by the Additional Sessions Judge, Baikunthpur, District- Koriya (C.G.) in Sessions Trial No. 26/2021 whereby the appellant stands convicted for the offence under Section 307 of IPC and sentenced to undergo RI for 7 years and fine of Rs.100/- and in default of payment of fine, further to undergo R.I. for 15 days.

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Case of the prosecution, in brief, is that the accused/appellant had kept the injured Sankaliya as his wife for 4-5 years before the incident. He doubted her character and used to quarrel with her. The accused had also beaten up his former wife and driven her away. On 27.06.2020, the accused quarrelled with the injured, thereafter in the evening she went to her parental home along with her co-wife's son. On 7:00 p.m., he came with his brother Pradeep and argued with the injured. At night, after having dinner, when the injured was sleeping with her grandmother and aunt, at that time, the accused assaulted the injured by hitting her on her head and leg with an axe. After hearing the noise, the people of the house woke up and then the accused fled from there. The blood was oozing out from the body of the injured and thereafter, she was taken to the hospital from where she was referred to the District Hospital Baikuthpur.

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On the basis of the information given by the mother of the injured, police registered a Dehati Nalisi and on the basis of said Dehati Nalisi, FIR bearing Crime No. 77/2020 was registered for the offence under section 307 of the Indian Penal Code against the appellant. The injured was medically examined. Documents relating to the treatment of the injured, were obtained. The statements of the injured, his parents and other witnesses were recorded. On the basis of the memorandum statement of the accused, the axe used in the incident was seized. The accused was arrested and arrest memo was prepared vide Ex.P./14. The seizures were made and sent to the

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Regional Forensic Science Laboratory Ambikapur for chemical examination. After completion of usual investigation, charge-sheet was filed against the appellant for the offence punishable under Section 307 of IPC before the Judicial Magistrate First Class, Baikunthpur and from there, on 20.01.2021, the matter was committed to the Court of Sessions Judge Koriya, Baikunthpur and from there, the matter was transferred to this Court on transfer for trial. The learned trial Court framed charge under Section 307 of IPC against the accused to which, he abjured his guilt and prayed for trial.

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In order to prove its case, the prosecution examined as many as 11 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, the accused/appellant did not adduce any evidence

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Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is illegal and bad in Law. The learned trial Court failed to consider that there are hardly any reliable evidence to warrant the conviction of the appellant beyond all reasonable doubts. The learned trial Court did not consider this fact that all the important, reliable and independent witnesses have turned hostile. The learned Sessions Judge further failed to consider that, no human blood was found on seized axe which makes the seizure of weapon alleged in incident questionable and doubtful. Seizure witnesses also did not support the prosecution case. From the evidence collected by the prosecution, it is clearly established that the prosecution has

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failed to prove its case beyond reasonable doubt and conviction cannot be sustained of the basis of evidence adduced by the prosecution. The sentence awarded to the appellant is too harsh looking to the facts and circumstances of the case. Therefore, the impugned judgment is liable to be set aside and the appellant deserves to be acquitted of the charges.

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Alternatively, he submits that if this Court comes to the conclusion that the conviction of the appellant under Section 307 of IPC as imposed by the trial Court is just and proper, considering the fact that the incident took place in the year 2020 and this appeal is pending since 2023. Appellant remained in jail for about 2 years and 7 months, therefore, he prays that his sentence may be reduced to the period already undergone by him.

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On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 10. It is evident from the record of the learned trial Court that the learned trial Court framed the charge against the appellant under Section 307 of IPC and after appreciating oral and documentary evidence, convicted him under Section 307 of IPC and sentenced him as mentioned above.

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Mother of the injured, Kunti Bai (P.W.-2) stated that the accused/appellant is her son-in-law and husband of her daughter- Sankaliya. She stated that the accused/appellant used to doubt on character of her daughter (injured) and quarrel with her and due to which, her daughter came

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to her house. She further stated that on the date of the incident, the accused/appellant along with his elder brother, came to her house and quarelled with her daughter. Thereafter, at about 2:00 a.m., accused/appellant entered her house and assaulted the injured with axe.

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Complainant- Sankaliya (P.W.-2) stated that on the date of the incident, when she was sleeping, at that time, accused entered her house and assaulted her with axe and as a result of which, she sustained injuries on her head and leg and thereafter she was taken to the hospital where she was admitted for 28 days.

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Somarsay (P.W.-3) stated that after hearing the noise, he woke up and saw the accused running with axe and when he looked into the house then he saw that the blood is oozing out from the head of Sankaliya (injured).

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Shiv Dayal Singh (P.W.-4) and Sushant Choudhari (P.W.-5) did not support the prosecution case.

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Dr. Kartikeya Singh (P.W.-6) examined Sankaliya (injured) on 28.06.2020 and found two injuries; one is over the head and another on her right ankle. He advised the victim to get X-ray of the chest and ankle and a CT scan of the head done. He gave the report vide Ex. P/8 in this regard and in the said report, he admitted his signature from A to A part.

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He also answered the query report of the prosecution and opined that the t he injury on the body of the injured could have been caused by the seized axe. If the victim was not treated in time, she could have died. The query report of the seized axe is Ex.P/9 wherein he admitted his signature from A to A part. He remained affirm in his crossexamination.

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Dr. Subhashish Karan (P.W.-7) stated that Sankaliya was referred from the Community Health Center, Podi to the District Hospital Baikunthpur and her bed head ticket was attested by him.

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Retired Inspector- K.S. Thakur (P.W.-10) admitted this fact that no information with regard to the incident was given by the injured and her mother. He further stated that he was informed about the incident by councilor- Santosh Singh over mobile phone. He also admitted that the injured was getting treatment in the hospital without informing the police station. He admitted that the injured was being treated before reaching him in the hospital. It is further admitted by him that the injured was being treated and later on he formally wrote an application vide Ex. P/8A.

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It is evident from the record of the learned trial Court that the prosecution did not file any X- ray report or CT scan report of the complainant (injured) and only attested photocopy of the bed head ticket was filed by the prosecution. It is also clear from the statement of Dr. Kartikeya Singh (P.W.-6) that during examination of the injured, he found that the victim had already got stitches on her head and ankle and thereafter, he advised the victim to get X-ray and CT scan done. However, no medical officer was examined by the prosecution to prove X-ray report or medical report of injured- Sankaliya. 19. The Hon’ble Apex Court held in the matter of Sivamani and anr. v. State Represented by Inspector of Police, Vellore reported in CRA 3619 of 2023 in the judgment dated 28.11.2023 held in para 9 which reads as under:-

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9.In State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary

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that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ‘...The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.’ The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or lifethreatening injury was not necessary to maintain a conviction under Section 307, IPC, ‘ The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.

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In the light of above, it is clear that complainant- Sankaliya stated that she was admitted in the hospital for 28 days. However, prosecution did not file original bed head ticket in this regard. Statement of injuredSankaliya was not rebutted in cross-examination, hence, it is proved that she was admitted in the hospital for 28 days.

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21. Section 320 of IPC provides as under:-

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320. Grievous hurt - The following kinds of hurt only are designated as “grievous”:

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First-	Emasculation.
Secondly-	Permanent privation of the sight of either eye.
Thirdly-	Permanent privation of the hearing of either ear.
Fourthly-	Privation of any member or joint.
Fifthly-	Destruction or permanent impairing of the powers of any member or joint.
Sixthly-	Permanent disfiguration of the head or face.
Seventhly-	Fracture or dislocation of a bone or tooth.
Eighthly-	Any hurt which endangers life or which causes the
sufferer to be pain, or unable	during the space of twenty days in severe bodily to follow his ordinary pursuits.

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The prosecution did not file any X-ray report or CT scan report but as per

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the prosecution, she remained admitted in hospital for 28 days. It is clear from statement of Dr. Kartikeya Singh (P.W.-6) and Dr. Subhashish Karan (P.W.-7) that the injured sustained head injury and got admitted in District Hospital Bilaspur for treatment. Hence, the prosecution has only proved this fact that on the date of the incident, complainant- Sankaliya sustained injuries and she was admitted in the hospital for 28 days. But the learned trial Court did not appreciate this fact and convicted the appellant for the offence under Section 307 of IPC. However, considering the nature of injuries and evidence of the witnesses, it is clear that the prosecution has utterly failed to prove that the accused/appellant was having any prior intention to inflict the injuries which ultimately could have been fatal to life of the injured and thus, considering the act of the accused/appellant, he is liable to be convicted under Section 326 of IPC instead of Section 307 of IPC.

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As regards sentence, it is clear that the incident took place in the year

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2020 and this appeal is pending since 2023. Appellant is in jail for about 2 years and 7 months. In these circumstances, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him.

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In the result, the criminal appeal is allowed in part. While acquitting the appellant of the charge under Section 307 of the IPC, he is convicted under Section 326 of the IPC and sentenced to the period already undergone by him as the appellant has remained in jail from 29.06.2020 to 18.05.2021, from 13.04.2023 to 05.05.2023 and since 05.05.2023 till today, thereby he remained in jail for about 2 years and 7 months. The fine amount has already been deposited by the appellant with the trial Court. He be set at liberty, if no longer required in any other criminal case.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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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 by RUCHI YADAV

Pavitro Kumar Dehari v. the State of Chhattisgarh

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Pavitro Kumar Dehari v. the State of Chhattisgarh

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