Munshiram Vs State of Chhattisgarh

Additional Sessions Judge (F.T.C.) Raipur (C.G.) in Sessions Trial No. 26/2007 whereby the appellant has been convicted for the offence punishable under Section 307 of the IPC on two counts and sentenced to undergo RI for 5 years and fine of Rs.200/- on each count with usual default clauses.

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The prosecution case is that Vinod Kumar Kurre made a statement on 29.09.2006 at about 1:50 PM. He stated that on 29.09.2006 at about 12:30 PM, he along with Dharam was returning from the other side of a canal culvert after taking tea. When they reached in front of Dharam’s house, accused Munshiram along with his two daughters, Nandani and Devki were abusing Dharam’s wife Suman in filthy language. Thereafter, when Sumanbai reached near Munshiram’s house, Nandani and Devki assaulted her with sticks. Upon the arrival of Vinod Kumar Kurre and Dharam, accused Munshiram went inside his house, came out armed with a sharp weapon and with intent to kill, assaulted Dharam, causing head injuries. He further inflicted a blow on Dharam’s left hand, resulting in amputation of his thumb, whereupon Dharam collapsed on the ground.

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When Vinod Kumar Kurre intervened, accused Munshiram assaulted him from behind and accused Nandani and Devki also assaulted him with sticks, causing injuries. The injured Vinod Kumar Kurre, Dharam Tandon and Sumanbai were taken to the Community Health Centre, Amanpur, where they were medically

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examined and injury reports Ex.P-10, Ex.P-12, and Ex.P-14 were issued.

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On receiving information regarding serious injuries, Dharam and Vinod were referred to the Medical College, where X-ray examination revealed a fracture of the first metacarpal bone of Dharam’s left hand (Ex.P-5). Consequently, Crime No. 268/06 was registered at Police Station Abhanpur under Sections 307 and 323 of IPC.

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During investigation, seizures were made vide Exs.P/2 and P/7. Spot map was prepared vide Ex.P/6. On the memorandum statement (Ex.P/8) of accused Munshiram recorded under Section 27 of the Evidence Act, a weapon was seized from his possession vide Ex.P/9. The seized articles were sent to the Forensic Science Laboratory, Raipur, and the report was received vide Ex.P-16. Statements of material witnesses were recorded. After completion of investigation, the accused were arrested and a charge-sheet was filed before the Judicial Magistrate First Class, who committed the case to the Sessions Court and it was thereafter transferred to this Court for trial. Accused Munshiram was charged under Section 307 IPC (2 times) and accused Nandani and Devki were charged under Sections 323 (2 times) and 307 read with Section 34 IPC . The accused pleaded not guilty and claimed to be tried.

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In order to substantiate its case, the prosecution examined 14 witnesses. The statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied all incriminating circumstances put to them and pleaded false implication and innocence. No defence evidence was adduced.

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Upon appreciation of the oral and documentary evidence on record, the learned Trial Court acquitted the co-accused Nandani and Devki of the charges under Sections 307 read with 34 IPC and Section 323 IPC (two counts), but convicted and sentenced the appellant as mentioned in paragraph 1 of the impugned judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the prosecution story is inherently improbable and unreliable and that the appellant has been falsely implicated. It is further submitted that the learned Sessions Judge failed to properly appreciate the evidence on record and ignored material contradictions, resulting in perverse findings. The conviction is based on erroneous appreciation of facts and law and no incriminating circumstance has been proved against the appellant beyond reasonable doubt. Hence, the impugned judgment is contrary to settled principles of criminal jurisprudence as laid down by the Hon’ble Supreme Court and is unsustainable in law, liable to be set aside.

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Alternatively, she contends that a careful reading of the Medical Officer’s testimony, coupled with the medical report, clearly demonstrates that the offence under Section 307 of the IPC is not made out against the appellant and that at the highest, the offences under Sections 326 and 324 of the IPC are attracted. She further submits that without assailing the finding of conviction, the appellant has restricted the present appeal solely to the question of quantum of sentence. It is urged that the incident is of the year 2006, the appeal has remained pending since 2007, the appellant was about 48 years of age at the time of the incident and has now attained the status of a senior citizen and he has already undergone more than three months of incarceration. In view of these mitigating circumstances, it is prayed that the sentence already undergone be treated as sufficient punishment.

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Reliance is placed on the judgment dated 28.11.2023 passed by the Hon’ble Supreme Court in Sivamani and another v. State, represented by the Inspector of Police, Vellore , reported in Criminal Appeal No. 3619 of 2023.

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Per contra, learned counsel for the respondent/State, while supporting the impugned judgment, submits that the learned Trial Court, after meticulous appreciation of the oral and documentary evidence, has rightly convicted and sentenced the appellant for the alleged offence. It is therefore contended that the present appeal, being devoid of merit, deserves to be dismissed.

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

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It is evident from the record that the learned Trial Court framed two charges under Section 307 IPC against the appellant and charges under Section 307 read with Section 34 IPC and Section 323 IPC (two counts) against the co-accused Nandani and Devki Bai. Upon appreciation of the oral and documentary evidence on record, the learned Trial Court acquitted the co-accused Nandani and Devki Bai of all the charges levelled against them, but convicted the appellant for the offences under Section 307 IPC (two counts).

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Vinod Kurre (P.W.-1) deposed that on the date of the incident, the accused Munshiram assaulted Dharam with a tangiya, while the co-accused Nandani and Devki assaulted him with clubs. He further stated that when he attempted to intervene, he was also assaulted, as a result of which he sustained injuries on his ear and hand. Thereafter, the police registered a zero number Dehati Nalishi vide Ex. P/1 and the injured persons were taken to the Primary Health Centre, Abhanpur, for medical treatment.

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Dharam Dev Tandon (P.W.-2) deposed that on the date of the incident, a quarrel had taken place between his wife and the accused persons. When he enquired about the reason for the quarrel, the accused Munshiram assaulted him with a tangiya on his head. He further stated that while attempting to save his head with his hand, he sustained injuries on his thumb, resulting in a

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fracture. Thereafter, Munshiram assaulted him on his back as well, causing injury to the bone of his back.

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Smt. Suman Bai (P.W.-5) corroborated and supported the statements of both the injured witnesses.

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Dr. Smt. S.D. Kanwar (P.W.-11) examined the injured Vinod on 29.09.2006 and found three injuries on his body, issuing her medical report in this regard vide Ex. P/10. She also examined the injured Dharam Tandon on the same date and found three injuries on his left hand, head and back. She advised Dharam Tandon to undergo X-ray examination and issued her report vide Ex. P/12.

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Dr. Sumit (P.W.-3) deposed that upon examining the X-ray report of injured Vinod, he did not find any bone injury and accordingly issued his report vide Ex. P/4. He further stated that on examination of the X-ray report of the injured Dharam Tandon, he found a fracture of the left thumb and issued his report in this regard vide Ex. P/5.

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While considering the issue of framing of charge, in Sajjan Kumar V. C.B.I.1, Hon'ble the Apex Court held that "at the time of framing of charges, the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be

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1 (2010) 9 SCC 368

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proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be” .

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Upon a cumulative appreciation of the ocular as well as medical evidence on record, it is evident that Vinod Kurre sustained only simple injuries, whereas Dharam Tandon suffered a grievous injury in the nature of a fracture of the left thumb. The medical evidence as proved by Dr. Smt. S.D. Kanwar (P.W.-11) and Dr. Sumit (P.W.-3) does not disclose any injury which was either sufficient in the ordinary course of nature to cause death or was imminently dangerous to life. There is also no material on record to establish the requisite intention or knowledge on the part of the appellant to cause death so as to attract the offence under Section 307 of the IPC.

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In view of the aforesaid evidence, this Court is of the considered opinion that the learned Trial Court did not properly appreciate the medical evidence while convicting the appellant under Section 307 of the IPC. The prosecution has failed to prove beyond reasonable doubt that the injuries sustained by the injured persons were of such a nature as to constitute an attempt to murder. However, the evidence on record clearly establishes that

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the appellant caused grievous hurt to Dharam Tandon by a hard and sharp object and simple hurt to Vinod Kurre.

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Accordingly, the conviction of the appellant under Section 307 of the IPC (two counts) is set aside and is altered to conviction under Sections 326 and 324 of the IPC.

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So far as the question of sentence is concerned, it is not in dispute that the incident pertains to the year 2006 and the appeal has remained pending since 2007. The appellant was about 48 years of age at the time of the incident and has now become a senior citizen. It is also brought on record that he has already undergone more than three months of incarceration. Keeping in view the long lapse of time, the age of the appellant, the nature of injuries proved and the period of custody already undergone, this Court is of the opinion that the ends of justice would be met if the sentence is confined to the period already undergone.

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Consequently, the appeal is partly allowed. The conviction under Sections 326 and 324 IPC is upheld. The sentence of imprisonment is modified to the period already undergone. The appellant shall be liable to pay fine for the offence under Section 326 IPC. The fine amount, if already deposited under Section 307 IPC shall stand adjusted against the fine imposed under Section 326 IPC and any excess amount shall be refunded in accordance with law.

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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 as provided under Section 481 of BNSS, 2023.

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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

Munshiram v. State of Chhattisgarh

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Munshiram v. State of Chhattisgarh

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