Santosh Yadav Vs State of Chhattisgarh

The appeal under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 15.02.2023 passed by the learned Sessions Judge, Kanker District North Bastar Kanker (C.G.) in Sessions Trial No. 24/2021 whereby the appellant has been convicted and sentenced as under:-

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Conviction	Sentence
U/S 294 of I.P.C.	R.I. for 15 days with fine of
	Rs. 50/-, in default of payment of fine to undergo additional R.I. for 05 days.
U/S 323 of I.P.C	R.I. for 01 month with fine of
(four times)	Rs. 100/-, in default of payment of fine to undergo additional R.I. for 10 days.
U/S 307 of IPC	R.I. for 05 years with fine of
	Rs. 1000/-, in default of payment of fine to undergo additional R.I. for 01 month.
U/S 459 of IPC	R.I. for 05 years with fine of Rs. 1000/-, in default of payment of fine to undergo R.I. for 01 month.
U/S 506 (II) of	R.I. for 03 years with fine of
IPC	Rs. 1000/-, in default of payment of fine to undergo
	R.I. for 01 month.

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(All the sentences are directed to run concurrently.)

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Briefly stated facts of the case are that the complainant Bhumika Sahu daughter of the injured went to the police station Kanker and lodged an oral report to the effect that on 01.04.2021 at about 07:30 pm, her neighbour the accused person Santosh Yadav was breaking the fence of her house and tried to enclose the land under her possession with bamboo poles, being the witness of the same, complainant’s mother Smt. Bhagwati Sahu approached towards the accused and stopped him, upon which the accused/appellant Santosh Yadav started using

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filthy language towards her and altercation took place between them. The complainant’s mother was returning back to her home upon listening to the filthy language, at that time the accused/appellant Santosh Yadav came with a Tangia and was saying that he will kill them today and, thereby he started beating complainant’s mother with Tangia. Upon hearing to the noise of fight, her sister Gunjan Saju and aunt Jhunia Bai came in the courtyard of the house. On seeing them together, the accused/appellant started abusing them using filthy language and he beaten them with his hands and fists. Taking the name of her father, he entered the Pooja room inside their house, using filthy language he said that here you are hiding and thereby he held her father’s collar, brought him to the courtyard and inflicted blows by using Tangia, upon which the complainant’s father got injured on his head, left hand and forehead and the complainant’s mother got injured on her head, hands, back and blood was gushing forth from their wounds. On the basis of the said complaint, the complainant Bhumika Sahu lodged an F.I.R against the accused person/appellant in Police Station Kanker under Sections 452 294, 323, 506 of IPC vide Ex. P/01 bearing Crime No. 95/2021 was registered against him and investigation was started.

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During investigation, at first the injured persons were examined by the doctor and the doctor’s report is Ex. P/04, Ex. P/05, Ex. P/13 and the photocopy of the medical document regarding the treatment of injured Siyaram Sahu while being admitted in Government Komaldev District Hospital Kanker was obtained and the same was attached to the case. The spot map of the incident Ex. P/02 was prepared and the map of the incident was prepared by the Patwari and the Patwari map and Panchnama were obtained and attached to the case. According to the

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seizure sheet Ex. P/03, the clothes of the injured Siyaram Sahu and Smt. Bhagwati Sahu, worn at the time of the incident, were seized. According to Ex. P/09, iron hinge having wooden base bat, according to Ex. P/10, blood stained soil and plain soil were seized from the spot. Seized iron hinge of wooden base bat, clothes, bed head ticket of the injured persons Siyaram Sahu and Smt. Bhagwati Sahu and their medical reports were queried from the doctor and query reports were received respectively vide Ex. P/06, Ex. P/07 and Ex. P/08. The accused was taken into custody and the statement of the accused person/appellant and other relevant witnesses were recorded under Section 161 of Cr.P.C. After completion of due and necessary investigation, charge-sheet was filed before Chief Judicial Magistrate, North Bastar, Kanker and the case was committed to the Sessions Judge, Kanker (C.G.) District North Bastar for offence under Sections 294, 307, 323(four times), 459 and 506 (II) of IPC.

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The prosecution in order to bring home the offence, examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence.

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Learned trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence dated 15.02.2023 awarded by the

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learned trial Court is bad-in-law, perverse, thus liable to be set aside. As per victim there are 04 eye witnesses, but they all have not supported the case of the prosecution before the learned trial Court and there is huge omission and contradiction in the statement of the victim. The learned trial Court has not properly discussed about the statement of other eye witness who supported the version of the accused. The medical report does not support the case of the prosecution, the treating Doctor also not opined that whether the injuries caused to the victim is sufficient to cause death or not. The learned trial Court has failed to see that the victim himself was aggressive party as supported by the prosecution witness itself. The learned trial Court did not appreciate the oral and documentary evidence properly. As such, the impugned judgment of conviction and order of sentence is liable to be set aside.

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Alternatively, he submits that as per the report of the Doctor, offence under Section 324 or 325 of IPC is made out and considering the fact that the incident took place in the year 2021, this appeal is pending since 2023, The appellant is now aged more than 40 years; he has remained in jail for more than 02 years, so in the interest of justice the appellant may be sentenced to the period already undergone by him. The appellant is reported to be in jail, he be released forthwith if not required to be detained in any other case.

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Reliance has been placed on the decision of Hon’ble Apex Court’s judgment dated 28.11.2023 in the matter of Sivamani Vs. State Represented by Inspector of Police , reported in CRA No. 3619 of 2023.

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Ex adverso , learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present accused/appellant, so this appeal is being devoid of any merit and is liable to be dismissed.

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Heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection.

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It is clear from record of the learned trial Court that the learned trial Court framed charges against the appellant under Sections 294, 323 (four times), 307, 459 and 506 (II) of IPC and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Sections 294, 323 (four times), 307, 459 and 506(II) of IPC and sentenced as mentioned in the opening paragraph of this judgment.

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Before the learned trial Court, the prosecution has examined as many as 15 witnesses. Bhumika Sahu (PW-01), Siyaram Sahu (PW-04), Smt. Bhagwati Sahu (PW-05), Kumari Gunjan Sahu (PW-06) and Smt. Junia Bai (PW-07) have categorically stated against the appellant and submitted that he assaulted Siyaram Sahu (PW-04) and his wife with

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Tangia and also assaulted Gunjan, Bhumika and Junia Bai.

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Dr. A.K. Verma (PW-02) examined the injured Siyaram and Bhagwati, Dr. K. K. Dhruw (PW-09) examined the injured Gunjan Sahu and Dr. Samarth Kumar (PW-13) examined the CT Scan of Siyaram. All the Doctors have opined that injured Siyaram sustained grievous injuries and other injured persons have sustained simple injuries. Dr. A. K. Verma (PW-02) examined Siyaram and found one injury on his forehead and advised him to undergo for X-Ray and CT Scan. Dr. Saurabh Kumar Sahu (PW-13) after examining the CT Scan of Siyaram found multiple fractures on the left side of face of Siyaram and gave his report Ex. P/23. However, it is clear that both the doctors did not opine that injuries are dangerous to life of Siyaram.

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Hon’ble Apex Court in the matter of Sivamani Vs. State Represented by Inspector of Police held in para 09 which reads as under:-

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“ 0 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 that a bodily injury capable of resulting in death should have been inflicted. As such, nonconviction 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 life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, “The intention of the accused can be

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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 judgment, in the present case also the prosecution did not file any medical report or medical evidence in this regard that injuries sustained by Siyaram are dangerous for his life, Dr. A.K. Verma (PW-02) answered in his query report that injury of Siyaram is grievous in nature and when it was asked to him that whether those injuries are capable to cause the death of Siyaram, then he answered in negative. So, it is clear from the guideline of Hon’ble Apex Court and from the opinion of the medical expert that the injuries sustained by Siyaram were grievous in nature, but as per Doctor’s query report (Ex. P/08) this injury is not dangerous to life of Siyaram, but the learned trial Court did not appreciate the medical report of the doctor and convicted the appellant under Section 307 of IPC.

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Looking to the statements of both the medical officers and medical report of Siyaram and query report, the prosecution has only proved this fact that the appellant assaulted Siyaram and the injured Siyaram sustained grievous injuries by deadly weapon. As such, the ingredients of offence under Section 307 is not proved against the appellant and it is altered/converted into Section 326 of IPC as the offence under Section 307 of IPC is not made out against the appellant. However, the conviction of the appellant

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under rest of the Sections are hereby maintained.

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As regards sentence, it is clear that the incident took place in the year 2021 and this appeal is pending since 2023. The appellant is now aged more than 40 years; and he has remained in jail since 15.02.2023 i.e., for more than 02 years, thus considering the fact that the incident took place in the year 2021 and the total detention period of the accused/appellant, this Court is of the opinion that in the peculiar facts and circumstances of the case, ends of justice would be served if the appellant is sentenced to the period already undergone by him under Sections 326, 294, 323 (four times) 459 and 506 (II) of IPC.

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Ex consequenti , the appeal is allowed in part. While maintaining conviction of the appellant under Sections 326, 294, 323 (four times) 459 and 506 (II) of IPC and altering his conviction from Section 307 to Section 326 of IPC, he is sentenced to the period already undergone by him in the Sections. The impugned judgment stands modified to the above extent.

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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/- in the like amount 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

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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/(Rajani Dubey)

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Judge

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U. K. Raju

Santosh Yadav v. State of Chhattisgarh

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Santosh Yadav v. State of Chhattisgarh

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