Mukesh Sahu Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 18.03.2008 passed by Additional Sessions Judge, District- Dhamtari (C.G.) in Sessions Trial No. 43/2007, wherein the said Court convicted the appellant and sentenced him as under:-

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Conviction	Sentence
Under Section 307 of IPC	R.I. for 03 years, with fine amount
	of Rs. 500/-, in default of payment
	of fine, to undergo additional R.I.
	for 50 days.

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As per case of the prosecution, on 03.03.2007, the Holika Dahan festival was celebrated. At around 6:30 in the evening at villageKoliyari, in the market cross-road ( chowk ) near the community hall, accused Mukesh Sahu, witnesses Yashwant, Hemant Sen, and Hemant Sahu were sitting and playing carrom. They had lit a fireplace because the lights were off and at that time, the complainant- Gulab Sahu came and Yashwant told him to play in his place, in the meanwhile, he will be back from home. Then, the Complainant- Gulab sat in his place and started playing. When Yashwant returned, complainant- Gulab got up, but the accused Mukesh insisted him to play the game, which he refused. On this, the accused started abusing him by using filthy language and slapped him by holding his collar, to which Yashwant, Hemant and others rescued him, then the accused could not held his nerve and with an intention of killing the complainant caught hold of his shirt’s collar from behind and pressed his throat hard due to which Gulab was out of his breath and thereby he fell unconscious and started struggling. Therefore, he was taken to the village’s doctor, where the doctor advised him to be admitted to hospital. Then, the complainant- Gulab was taken to Kurud Government hospital, where the doctor examined him, administered him an injection and referred to Bathena hospital at Dhamtari as his condition was serious. Then, Gulab was taken to Bathena hospital and admitted, where he was treated and regained consciousness. As per information given by the complainant’s father, dehati nalishi was registered by the police vide Ex. P/10. During the investigation, the statements of the witnesses were recorded, spot map was prepared by Patwari, shirt of the complainant was seized and

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his medical examination was conducted, query was done from the doctor and the appellant was arrested. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate , who, in turn, committed the case for trial. On the basis of the material contained in the chargesheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 294 & 307 of IPC. The accused having abjured guilt was subjected to trial.

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In order to bring home the guilt, the prosecution has examined as many as 19 witnesses to prove its case against the appellant. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he denied all the incriminating circumstances appearing against him in the prosecution case and pleaded his innocence and false implication in this case. However, no witness adduced by the appellant in his defence.

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The learned trial Court, after hearing the counsel for the respective parties and after appreciating the oral and documentary evidence has convicted and sentenced the accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal.

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Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned Trial Court failed to consider that the prosecution has failed to prove its case beyond reasonable doubt and learned trial Court has grossly erred in holding the appellant guilty under Section 307 of IPC. Learned trial Court has not appreciated the prosecution evidence in accordance with the established principles of law relating to appreciation of

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evidence, the judgment of conviction and sentence of the trial Court is based on surmises and conjectures, learned trial Court has not appreciated the statement of doctor. Learned trial Court has failed to appreciate that the ingredients of Section 307 of IPC are not proved, therefore, the judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside.

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Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellant is proper, then, considering the fact that the incident took place in the year 2007, this appeal is pending since 2008, the appellant is now aged more than 45 years; the appellant remained in jail for more than 01 year and he did not misuse the liberty while being on bail, he is facing the lis since 2008 i.e. for about more than 16 years and therefore, the jail sentence awarded to the appellant may be reduced to the period already undergone by him.

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Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed.

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

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It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Section Sections 294 and 307

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of IPC and after appreciating the oral and documentary evidence, learned trial Court acquitted the appellant of offence under Section 294 of IPC, but convicted him for offence under Section 307 of IPC.

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Complainant- Gulab Ram Sahu (PW-02) has stated that on the date of incident, Mukesh, Yashwant, Hemsen and Hemant Sahu were playing carrom game, at that time he said to Yashwant that his chili fritters ( mirchi bhajiya) has been finished, then Yashwant stood from his place and requested him to play in his place, then he sat for playing the carrom game, after some time Yashwant returned and said now he will play, but the accused Mukesh insisted him to play, on this, altercation took place between them and the accused abused him by using filthy language and also assaulted by holding his collar from behind and grabbed his neck and pressed hard due to which he was out of his breath and fell unconscious.

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PW-1 Sukhdev Sahu, father of the complainant has stated that Bhoj apprised him that his son/Gulab was lying unconscious and therefore, they took his son to doctor and then to Kurud Government Hospital for treatment, where doctor advised him to refer Dhamtari hospital as his condition was serious, then he took and admitted his son at Dhamtari Hospital. He lodged a dehati nalishi vide Ex.P/1, wherein he admitted his signature on A to A part.

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PW-3 Bhanwarlal Sahu has stated that on the date of incident when he was present near Shiv Pan shop and he saw altercation took place between the accused Mukesh and complainant- Gulab from 50-60 ft distance.

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PW-4 Tularam Sahu, PW-5 Nirmal Nirmalkar, PW-6 Rekhram Sahu,

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PW-7 Hemant Sen, PW-8 Yashwant Kumar Dhimar, PW-9 Sukhdev Sahu, PW-10 Pramod Yadav have not supported the prosecution case, but they have stated that they heard about altercation that had taken place between the accused and the complainant.

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PW- 11 Dr. Vinod Kumar had examined the complainant- Gulab (PW-2) on 03.03.2007 and he did not find any injuries upon his body, but father of the complainant told him that the complainant’s had been strangled. Therefore, he admitted the complainant for primary treatment and he was put on oxygen. He further stated that the complainant remained admitted in the hospital for two days and his bed head ticket is Ex. P/6 and medical examination report is Ex. P/7. In the query report, he opined that had immediate medical attention not been provided, the injured Gulab Sahu might have died, he gave his report vide Ex.P/9.

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PW-18 Dr. Umashankar Navratan had also examined the complainant - Gulab Sahu on 03.03.2007 and found that he had difficulty in breathing, therefore, administered an injection and due to his critical state, he was referred to Dhamtari Hospital for essential treatment.

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Learned trial Court after minutely appreciating the oral and documentary evidence of all the witnesses, including medical evidence, thereby rightly convicted the appellant for offence under Section 307 of IPC by acquitting him of offence under Section 294 of IPC. Thus, this Court is of the view that the learned Trial Court did not commit any illegality or irregularity in the findings as recorded by learned Trial Court as regards conviction of the appellant. So, the conviction of the appellant is hereby affirmed.

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

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2007 and this appeal is pending since 2008. The appellant is now aged more than 45 years; and he remained in jail for more than 01 year, he did not misuse the liberty while being on bail, he is facing the lis since 2008 i.e. for about more than 16 years and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him is reduced to the period already undergone by him.

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Ex consequenti , the appeal is partly allowed . Conviction of the appellant under the aforementioned section is affirmed and he is sentenced to the period already undergone by him. The impugned judgment stands modified to the above extent.

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The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned 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 thereon 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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AMIT PATEL

Mukesh Sahu v. State of Chhattisgarh

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Mukesh Sahu v. State of Chhattisgarh

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