Vijay Nand Sharma And Anr. Vs State Of Chhattisgarh

The present appeal is directed against the judgment of conviction and order of sentence dated 09.01.2015 passed by the learned Additional Session Judge, Sarangarh, District Raigarh (C.G.) in ST No.02/2014, whereby the appellants have

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been convicted under Sections 323/34 & 324/34 of IPC and sentenced to the period already undergone by them and fine of Rs.200/- and Rs.500/-, respectively, with default stipulations.

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The prosecution case, in brief, is that on 12.09.2013, the complainant Sharad Mehar lodged a written report alleging that his friends Ishwar Yadav, Raju Sahu, Sunil Mehar had gone for a walk and were sitting near the house of Dayanand and Chandrabhushan and on trivial issue started committing maarpeet with them, at that time the present applicants Vijay Shamra and Jayanand Sharma also came there and the applicant Vijay Sharma with an intention to commit murder stabbed knife on the chest of Ishwar Yadav and the another applicant Jayanand and Chandrabhushan and Dayanand also assaulted them, as such Sharad Mehar also sustained injuries. Thereafter a case was registered against the accused and they were arrested. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellants, as mentioned in para 1 of the judgment.

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Learned counsel for the appellants submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. There is no eye witness in the present case and entire case is

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based on conjectures and surmises and chain of circumstantial evidence is also not complete. The seizure witnesses have not supported the case of the prosecution and have turned hostile, but the learned Trial Court did not consider the above said aspect of the matter and has wrongly convicted and sentenced the appellants. Therefore, the appeal deserves to be allowed.

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In alternate, learned counsel for the appellants submits that the both the appellants have been sentenced to the period already undergone by them and only fine amount has been imposed upon them and if this Court finds the accused guilty, then looking to the present age of the appellants and the fact that they never misused the liberty granted by the learned Trial Court, they may be sentenced to the period already undergone by them.

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Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed.

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

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The learned Trial Court framed charges under Section 323 read with Section 34 and Section 307 read with Section 34 of IPC against the appellants and after appreciation of oral and documentary evidence available on record, the learned Trial Court convicted and sentenced the appellants, as mentioned in

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para 1 of the judgment.

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PW-1 Sharad Mehar, complainant stated that on the date of incident the applicant Vijaynand with an intention to commit murder stabbed knife on the chest of Ishwar Yadav and to save themselves, he and Ishwar Yadav ran away.

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PW-3 Ishwar Yadav stated that on the date of incident, the applicant Vijaynand assaulted him by knife on his chest and during intervention, Sharad Mehar also sustained injuries.

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Dr. S. K. Manhar (PW-15) examined the injuries of Sharad Mehar and gave his report (Ex-P/13). He found that there was swelling on the right cheek of Sharad Mehar measuring 1x1 cm, which was simple in nature and could have caused by hard and blunt object. He also examined Ishwar Yadav and gave his report (ExP/14). He found wounded cut measuring 2x1x1/2 on the chest of Ishwar Yadav and blood was oozing. The injuries sustained by him were simple in nature which have come by edged weapon. Thus, the learned Trial Court has rightly appreciated the oral and documentary evidence and has rightly found that the injuries of Ishwar Yadav were not fatal and dangerous to life.

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It is clear from the statement of Ishwar (PW-3) that he only stated against the Vijaynad that he assaulted him by knife and he has not stated against the another accused Jayanand that he also assaulted him by knife or any other weapon.

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PW-1 Sharad Mehar admitted in para 23 that where the present

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applicants were going he does not know. He self stated that they came to us. The applicant Vijaynand came on bicycle and he did not see on which the applicant Jayanand came. PW-3 Ishwar stated in para 10 that as soon as Vijaynand arrived, he stabbed knife on him but both the witnesses did not specifically state against the applicant Jayanand and as per memorandum and seizure knife was also seized from the accused Vijaynand, as such the learned Trial Court has rightly convicted the appellant Jayanand for the aforesaid offence, but the learned Trial Court did not appreciate statement of all the witnesses in respect of appellant Jayanand and has wrongly convicted him for the aforesaid offence, as such the finding recorded by the learned Trial Court against the appellant Jayanand is not sustainable.

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Consequently, the appeal in respect of appellant Jayanand is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. He is acquitted of the charges under Sections 323 & 324 read with Section 34 of IPC.

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As regards sentence of appellant Vijaynand, it is clear that the incident is of the year 2013, this appeal is pending since 2015 and he has already undergone more than 2 months jail sentence and presently he is aged about 57 years and has not misused the liberty granted by the learned Trial Court, therefore, ends of justice would be served if he is sentenced to the period already undergone by him. It is ordered accordingly.

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In the result, the appeal of appellant Vijaynand is partly allowed.

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His conviction under Sections 323 & 324 read with Section 34 of IPC is affirmed, whereas he is sentenced to the period already undergone by him.

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The appellant Vijaynand is reported to be on bail.

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Keeping in view the provisions of section 481 of BNSS 2023, the appellant Vijaynand is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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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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Nirala

Vijay Nand Sharma And Anr. v. State Of Chhattisgarh

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Vijay Nand Sharma And Anr. v. State Of Chhattisgarh

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