Mohd.Javed Khan v. State Of Chhattisgarh
gga NAFR HIGH COURT OF CHHATTISGARH RH ASPUR CRA No. 806 Of 2006 Mohd.Javed Khan, S/o Mohd.
Hanif, aged about 24 years, R/o Chhota Bazar, Chirmiri, Distt. Koriya (Chhattisgarh) Appellant Vs State Of Chhattisgarh, through Station House Officer, PS.
Chirmiri, Distt.
Koriya (CG) Respondent And CRA No. 877 Of 2006 '
State Of Chhattisgarh, through Police Station Chirmiri, Dist. Korea ~--- Appellant Vs Mohd.Javed Khan, S/o Mohd, Hanif, aged about years, R/o Chhoti Bazar, Chirmiri, Disttt Korlya (Chhattisgarh) Respondent \, ForAppellant in Cr.A. No.806/O6:
Miss Sharmila Singhai & Mr. Sanjay Agrawal, Advocates.
Mr. V.A. Goverdhan, Panel Lawyer.
_ i For Respondent:
ForA'ppenant in Cr.A. No.877/06:
Mr.
V.A, Goverdhan, Panel Lawyer.
For Respondents:
Miss Sharmila Singhai, Mr. Sanjay Agrawal & Mr. Vivek Shrivastava, Advocates.
Hon'ble Shri Pritinker Diwaker Hon'ble Shri Justice R.C.S. Samar}:
Judgement Per P. Diwakerg i04l01/2017 1.
'Since the above two appeals arise out of the judgment dated 8.9.2006 L
.g passed by the Additional Sessions Judge, Manendragarh, District Koriya W ST.
NOAH/04, same are being disposed this common judgment.
Accused/appellant has been convicted under Section 307/34 ofthe indian Pena) Code (for short "the IPC") and sentenced to undergo RI. for 7 years & fine of Rs.1 ,OOO/e, in default to undergo additionai RI for 4 months. Facts case, brief, are 286.2004 at 11.00 am.
FIR (EXP-2) was lodged by injured l§ambalak (PW-2) to the effect that a year ago accused Rajesh Nishadraj along with one Devraj came to his mutton shop, demanded Rs.500/~ from him and on refusal, they abused him filthily and also damaged the shop of his brother-in-law situated adjacent mutton shop.
It alleged that on 27.6.2004 at about 8.00 pm.
when he was returning home motorcycle, accused persons armed with sword intercepted him on the way and caused sword injuries to him, On the basis ofthis FIR; investigation was done by the police and r the accused persons were prosecuted for the offence punishable Section 307/34 IPC.
injured Rambalak was medically examined by Dr. V_N_ Singh (PW-7) vide EXPHQ and noticed following injuries;- '
Cut wound of 1"x 11/2 and one superficial incised wound over right arm.
'
Few superficial incised wounds at right forearm. Cut wound of 11/2 x "/2" size over right thumb.
Few superficial incised wounds over left arm. ~ Superficial incised wound over left forearm with painful swelling. J I ~ Small cut wound on left middle finger.
i l ~ Superficial incised wound at left side of neck. '
Tenderness and bony irregularity in right clavicle ww\dg s Minor abrasion over-right front thigh.
¥¥~ ;at
M '"
'1 @ Fracture of right c1avicle bone.
So as to hold the accused persons guilty, the prosecution has examined 09 witness all.
Statements of accused persons were aiso recorded under Section 313 of the Code of Criminal Procedure, 1973 in which they denied the charge leveHed against them and pleaded their innocence and false implication in the case.
After hearing the parties, the trial Court has convicted and sentenced the accused persons as mentioned above.
During the pendency of appeal, co-accused Rajesh Nishadraj has expired on 20.3.2016 and therefore Criminat Appeat No.699/06 filed by him been dismissed as abetted vide order dated 4.1 .2017. Mr. Agrawal, counsel for appellant Mohd. Javed Khan submits that if the entire prosecution case is taken as it is, offence under Section 307 IPC not made out against the appellant.
He submits that as per medical report injured, injured suffered fracture clavicle bone which, according treating doctor, was grievous nature, but prosecution has not produced any X-ray report or plate to establish such injury and therefore at best the offence under Section 324 IPC would attracted in the present case, He further submits that the appellant has already been remained jail for months & days, therefore, sentence may reduced period already undergone him enhancing the fine amount.
On other hand, it been argued behalf of the State manner in which Rambalak (PW-21) was assaulted, the intention on the part of the accused persons to cause his death is writ large and therefore the conviction of accused/appellant under Section 307/34 IPC is just and proper and no interference therewith is warranted.
He however submits
@ that sentence awarded trial Court disproportionate act attributed to accused/appellant and the same deserves to be enhanced. 9'
We have heard counsel for parties and perused impugned judgment and record of the trial Court.
Iqbaluddin (PW~1) did not support the prosecution case and turned hostile. x 11.
Complainant Rambalak (PW-2) has stated in his evidence that a year prior date incident, accused Rajesh & Prakash came mutton t.
shop and demanded Rs.500/- and when he did no show inclination to give money, they abused him filthily and damaged the shop of his brother-inlaw situated adjacent to his mutton shop. They have lodged report in the police station this regard.
He further stated that on date incident when he was returning home, the way accused persons armed with sword tried stop him, however, he managed escape.
He further stated accused persons chased him and assaulted him by sword causing injuries to various parts of his body. 12.
Narendra Singh (PW-3), eyewitness incident, stated date of incident he along with others was standing near the shop of one Giri and talking to the injured.
The accused persons armed with weapon like sword reached there and started assaulted the victim.
They tried to intervene in the matter.
13.
Anand Kumar Verma (PW-4) has not supported the prosecution case and turned hostile.
14.
Sunil Gupta (PW-5) is the witness of memorandums (EXP-5 & P-7) and seizure memos (EXP-6 & P-8).
15.
Dr. V.N. Singh (PW-7), who had examined the complainant has stated that he had sustained number ofinjuries on various parts of his body.
In the
cross-examination this witness stated except Injury No.8 i.e.
fracture of right clavicle bone, other injuries were simple in nature. He has admitted that number of X-ray plate is mentioned in the report of injured but this case it not mentioned report EXP-9.
He has further admitted that only after seeing x-ray report the grievousness of Injury No.8 could be determined and as on that day such report was not available, no opinion therewith could be given'
Laxmikant Gaikwad (PW-9) th'e investigating officer and has supported the prosecution case.
17.
Sanjay Gupta (PW-9) is the another witness of memorandums (EXP-5 & P-7) and seizure memos (EXP-6 & P~8).
Minute examination of the material available on record goes to show that on 27.6.2004 when the complainant/injured was returning to his home, the accused/appellant along with deceased accused chased him and inflicted injuries him sword.
Evidence of the injured/complainant (PW-2), who vividly narrated incident, been duly supported eyewitness Narendra Singh (PW-3), who has categorically stated that the injured was assaulted: by accused/appellant with sword.
Version of the victim (PW-2) gets further corroboration from evidence Dr.
V.N.
Singh (PW-7) who had examined the victim and found the aforementioned injuries on his body.
The defence has not been able to bring anything on record to show false implication of accused/ appellant by the injured on account animosity, enmity etc.
Thus, basis aforesaid evidence, complicity of accused/appellant commission of the offence stands proved beyond reasonable doubt.
Now next question which arises for consideration this Court whether act of accused/appellant makes him liable convicted
under Section 307 [PC or any Iesser offence?
20.
On perusal of the evidence on record, it is apparent that on the basis of Xray report of the victim, the doctor (PW-7) has opined that Injury No.8 was fracture and it was grievous nature, however, the x-ray report to prove fracture of clavicle bone was not produced by the prosecution. Even the doctor who issued the report EXP-9, has stated that in the absence of Xray report, he cannot state regarding grievousness injury No.8 i.et fracture on ciavicle bone.
Thus, there is no iegaiiy admissible evidence to establish that the injuries suffered by the victim (PW-2) were grievous nature as described Section IPC and being so, conviction appellant under Section 307 IPC is not sustainable and liable to be set aside.
However, taking into consideration cumulative effect of the evidence and the statement of the doctor, the accused/appellant cannot escape his conviction under Section 324 IPC, 21.
As regards sentence imposed on the appellant, considering the fact that prosecution failed prove any injury grievous;
occurrence has taken place almost 13 years back and there is nothing on record to show that the appellant had any criminal antecedents, we think it appropriate that sentence of rigorous imprisonment of six months under Section 324 IPC would be adequate.
22.
In the result;
Criminal Appeal No.806/06 allowed part.
While acquitting appellant of the charge under Section 307/34 IPC, he held guilty under Section 324/34 IPC and sentenced to undergo Rl for 6 months. In addition this, appellant shall pay a sum Rs.
10,000/~'
(Rupees Ten Thousand only) towards compensation as envisaged under Section (3) of the Code victim.
The said amount
shaH deposited before trial Judge concerned who shall disburse the same in favour of the victim on proper identification. The accused/appeilant is reported to be on bail, therefore, bail bonds stand cancelied and he is directed to be taken into custody forthwith to serve out remaining part of the sentence.
Criminai Appeal No.877/2006 is dismissed in view of criminal appeal of accused/appellant having been partly allowed. '
l \ SdL a l l SdL (Pritinker Diwaker) (RVCSgaifnant) Judge Judge roshan