Tulsi Gawde Vs State of Chhattisgarh

1. This criminal appeal under Section 415 (2) of the BNSS, 2023 has been preferred against the judgment dated 09.04.2025, passed by the Additional Sessions Judge, Bastar place at Jagdalpur (CG) in S.T. No.58/2022, by

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which, both the appellants have been convicted and sentenced as under:

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Conviction	Sentence
U/s 307/34	R.I. for 5 years and fine of Rs.500/-, in
of IPC	default of payment of fine, additional R.I. for 3 months.

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2. The case of prosecution, in brief, is that on 27.05.2022, at about 6:05 a.m., the appellants were cutting/removing the boundary of a field belonging to injured Buttu Thakur. When the injured objected, appellant No.1 Tulsi Gawde assaulted him with the sharp edge of an axe on his head intending to kill him while appellant No.2 Pandru Gawde was saying to kill the injured and bury him. Due to the assault, Buttu Thakur got injured and he was taken to CHC, Bade Kilepal for medical treatment. The matter was reported to the Police Station Burgum, District Bastar (CG) by complainant Mannuram Thakur (PW-2) who is the brother of the injured, pursuant to which FIR Ex.3 was registered against the appellants. After completion of investigation, appellants were charge-sheeted for the offence under Section 307/34 of I.P.C.

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3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses in support of its case. In defence, 2 witnesses have been examined by the appellants. Statements of the accused/appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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4. Learned trial Court after appreciating the oral and documentary evidence brought on record, convicted and sentenced both the appellants for the offence as mentioned

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in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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5. Learned counsel for the appellants submits that according to the testimony of Dr. D. P. Bhardwaj (PW-7) and the MLC report (Ex.P-9), the injured, Buttu Thakur (PW-1), sustained only two incised wounds to the frontal and mid-regions of the head. Although the doctor described the bony incised injury as severe nature, he explicitly stated that a definitive opinion could only be given after reviewing X-ray or CT scan reports. But, no such X-ray or CT scan was conducted to confirm the actual nature of injuries suffered by the injured. He submits that there was no intention on the part of the appellants to cause death. The injured himself has stated that the appellants assaulted him on account of a sudden dispute over cutting the boundary of his filed. The allegation of assault is only against appellant No.1 and there is no allegation of assault against appellant No.2. Considering all these facts, the case of the appellants would not fall under Section 307 of IPC as there was no attempt to murder the injured. He submits that if the entire case of the prosecution is taken as it is, at best, the offence under Section 324 of IPC would be made out and, therefore, the conviction of appellants under Section 307 of I.P.C. may be altered/converted to Section 324 of I.P.C. and the sentence imposed upon them be reduced to the period already undergone by them, as they have already remained in jail for about 1 year, 1 month & 19 days. He placed reliance on the judgment of this High Court in the case of Mohan Chandaniya Vs. State of Chhattisgarh passed in CRA No.452 of 2003 on 03.07.2024.

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6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellants and prayed for dismissal of the appeal.

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7. Heard learned counsel for the parties and perused the record including the impugned judgment.

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8. Injured Buttu Thakur (PW-1) has stated in his evidence that on the date of incident at about 6:00 a.m. he went to inspect his field. He found the appellants cutting/removing the boundary of his field. When he stopped them from doing so, appellant No.1 assaulted him with an axe. He has admitted in para-4 of his statement that appellant No.2 was standing nearby and shouting to kill him. This statement of injured Buttu Thakur (PW-1) is also corroborated by the statement of his brother Mannuram Thakur (PW-2) who had taken the injured to home and reported the matter to the Police.

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9. Dr. D. P. Bhardwaj (PW-7) who medically treated the injured found the following injuries on the body of the injured:

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i) Incised wound on mid region of head size 4 x 2 x 2 cm.

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ii) Incised wound, on front region of head size 3 x 2 x 2 cm.

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iii) Pain and swelling in shoulder and arm. Deep bony incised wound severe in nature and definite opinion can be given after further investigation report.

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10. It is noteworthy that though Dr. D. P. Bhardwaj (PW-7) described the incised wound as severe nature but he suggested for X-ray and C.T. Scan to give a definite opinion after further analysis of the report. However, the injured did

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not undergo an X-ray or City Scan. Therefore, it is not clear on what basis the doctor described the injury as severe in nature as the doctor in para-6 of his cross-examination has clearly stated that a person cannot die from the above injuries. The doctor has also stated that upon examining the injured person, he found him to be physically and mentally healthy and except facing difficulty in walking and sitting, the injured did not have any other physical problem. Thus, from the medical evidence it is clear that there was no grievous injury found on the head of the injured, Buttu Thakur.

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11. It would be appropriate at this juncture to notice paragraphs - 9, 10 and 11 of the judgment of Mohan Chandaniya (supra) relied upon by the appellants which reads as under:-

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“9. It is clear from record of learned trial Court that prosecution has examined as many as 11 witnesses. Complainant- Dayaram (PW-01) stated that all accused persons assaulted him and his friend Kaushal Verma (PW-08) due to which he sustained injuries on his head and hands and his friend also sustained injuries on his head, waist and ribs. Sheshnarayan @ Bade Jugnu (PW-02) supported the statement of complainant- Dayaram (PW-01) and stated that all accused persons assaulted the complainant and his friend Kaushal Verma (PW-08) due to which they sustained injuries on their heads and other parts of the bodies. Kaushal Verma (PW08) also stated that one accused Mohan assaulted him with sword and another coaccused persons assaulted with club (lathi). Nothing could be elicited from these witnesses by the defence to show that they have been falsely implicated to the appellants in crime in question. Dr. Prabhat Pandey (PW-05), who examined the complainant (PW-01) on 18.06.2000, found eight injuries on his body, where he opined that all injuries are simple in nature and gave his report as Ex. P/12. He further stated in his deposition that on the same day he examined Kaushal

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Verma (PW-08), found six injuries on his body and also opined that all injuries are simple in nature and gave his report as Ex. P/13. In crossexamination, he also admitted this fact that all injuries are simple in nature, but, since there were injuries over head, he advised for admission of the injured person in the hospital for safety purposes. Dr. V.K. Sao (PW-06), who examined Kaushal Verma (PW-08) on 18.06.2000, found injuries on his body, gave his report as Ex. P/18, where he opined that all injuries are simple in nature. In cross-examination, he admitted this fact that all injuries of PW-08 are simple in nature and he advised for X-Ray, but the X-Ray report was not produced before him.

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Looking to the statements of both the doctors i.e., PW-05 & PW-06 and their medical reports, it is clear that both injured persons sustained simple injuries on their bodies.

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It has been held by Hon’ble the Apex Court in the matter of Shivamani & Another Vs. State Represented By Inspector of Police reported in Criminal Appeal No. 3619 of 2023 in para 09 which reads as under:-

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“ 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, 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 of 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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12. In the light of the above judgment, after going through the evidence available on record, it is held that the injury suffered by injured Buttu Thakur (PW-1) was not grievous in nature. It is not found to be proved that his condition was of such serious nature that the injury suffered by him could have been dangerous for life. According to the statement of injured Buttu Thakur himself, the incident took place suddenly when he had an altercation with the appellants regarding the cutting/removal of the boundary of his field. In such a situation, it is also not proved that there was any intention on the part of the appellants to cause the death of injured Buttu Thakur. Hence, considering the nature of injury and the fact that the incident took place all of sudden cutting of a field embankment (the narrow earthen ridge or bund that separates individual, small, flooded plots (paddies) to hold water ), this Court finds that the case against the appellants for attempt to murder is not proved but at the most, the case of appellants is found to be proved under section 324 of IPC.

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13. As regards sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287 , Hon’ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in para-9 as follows:

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“9. Western jurisprudes and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 :

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"The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it’. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.”

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14. In the light of the decision of the Supreme Court in the case of Mohammad Giasuddin (supra) and taking into consideration the fact that the maximum sentence imposed upon the appellants is 5 years, out of which they have already served the jail sentence of about 1 year, 1 month and 19 days and also considering that the appellants are farmers, they have no previous criminal record, the incident

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occurred all of sudden over a dispute regarding the cutting of a field embankment, this Court is of the opinion that the ends of justice would serve if the appellants are sentenced to the period already undergone by them.

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15. Accordingly, the conviction of the appellants for offence punishable under Section 307/34 of IPC is altered/converted to Section 324/34 of IPC and they are sentenced to the period already undergone by them i.e. 1 year, 1 month & 19 days. However, the fine imposed upon the appellants by the Trial Court is enhanced from Rs.500 to Rs.5,000 each which shall be payable within a period of 30 days from the date of receipt of a copy of this judgment. In default of payment of fine amount, the appellants shall undergo RI for 6 months. The fine amount already deposited by the appellants shall be adjusted.

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16. Consequently, the appeal is allowed in part to the extent indicated herein-above.

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17. The appellants are reported to be in jail. They be released forthwith if not required to be detained in default of fine and not required in any other case.

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18. Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellants are suffering the jail sentence.

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Khatai

Tulsi Gawde v. State of Chhattisgarh

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Tulsi Gawde v. State of Chhattisgarh

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