Shambhulal Banjare v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1056 of 2016 Shambhulal Banjare, S/o. Mangalram Banjare, Aged About 50 Years, R/o. Behind Marwadi Muktidham, Sakti, Distt. Janjgir - Champa, Chhattisgarh ---- Appellant

Versus

State Of Chhattisgarh, Through Station House Officer, Police Station - Sakti, Distt. Janjgir - Champa, Chhattisgarh. ---- Respondent --------------------------------------------------------------------------------------------------- For Appellant :

Mr. Rajkumar Pali, Advocate For State/Respondent :

Mr. Ramakant Pandey, Panel Lawyer --------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Goutam Bhaduri Order On Board 05.09.2017 1.

This appeal is against the judgment of conviction dated 27.02.2016 passed by the learned First Additional Sessions Judge, Sakti, District Janjgir-Champa in S.T. No. 243/2014 whereby the appellant has been convicted under Sections 294, 323 & 307/34 of I.P.C. The appellant has been imposed a fine of Rs.1000/- under Section 294 of IPC and in default of payment of fine amount, R.I. for two months. Further, the appellant has been sentenced R.I. for 3 months with fine of Rs.1000/- under Section 323 of I.P.C. and in default of payment of fine amount, additional R.I. for 2 months. Again the appellant has been sentenced R.I. for 7 years with fine of Rs.5000/- under Section 307/34 of I.P.C. and in default of payment of fine amount, additional R.I. for six months.

2.

The brief facts of the prosecution case is that the injured Raju Yadav (PW-5) and Kamal Batra (PW-3) on 13.08.2014 at 11 O'clock had gone to new Bus Stand Baradwar road at Sakti wherein the present appellant Shambhulal and one Santosh Sahis were living in the

waiting room of first floor of the Bus Stand by occupying the same. The injured had gone there to consume liquor, at that time, Shambhulal Banjare and others came there and abused in filthy language in name of family and objected to such consumption that they used to sleep there and they were consuming liquor and hooliganism was objected. When one of the injured Kamal Batra stop them to abuse, at that time, the other accused Santosh Sahis who was holding Axe and the present appellant Shambhulal who was holding Club started beating Kamal Batra (PW-3). At the moment, Raju Yadav (PW-5) tried to intervene but he was also beaten by the Club on the leg and other parts of the body. Kamal Batra became unconscious and Raju Yadav made a report on which the FIR (Ex.P11) was registered under Section 294, 506, 323, 307 read with Section 34 of I.P.C.

3.

The prosecution, after entire investigation, filed the charge sheet before the Court. One of the accused namely Santosh Sahis absconded, therefore, the present appellant was tried before the Court. During the course of trial, the appellant/accused abjured the guilt and claimed to be tried and the prosecution on their behalf primarily relied on statement of the injured Kamal Batra as PW-3, Raju Yadav as PW-5, Dr. N.K.Sahu who has examined the injured as PW-2 and Dr. Sarita Keshariya, Radiologist, as PW-7; whereas, the I.O. and others have also been examined. The Court below, after evaluating the entire evidence on record, convicted the accused as aforesaid; therefore, the instant appeal.

4.

Learned counsel for the appellant would submit that out of sudden quarrel, the dispute started and it cannot be stated that there was an intention to cause any death. It is further submitted that in order to attract Section 307 of IPC wherein the substantive conviction and

sentence has been made, the intention should have been coupled with the act. It is contended that here in this case, there was no premeditation of the mind and since the appellant and other accused objected to consume liquor wherein the appellants were staying, the dispute occurred. Consequently, the case would not fall under Section 307 of IPC and the appellant is in jail since 13.08.2014, therefore, he may be acquitted of the charges.

5.

Learned State counsel opposes the argument and would submit that the order of conviction is well merited, which do not call for any interference.

6.

I have heard learned counsel for the parties at length, perused the documents and statements on record.

7.

Perused the record of the trial Court. The FIR is marked as Ex.P-11, which was lodged by one of the injured Raju Yadav wherein two of the accused have been named one as Shambhulal Banjare and another as Santosh Sahis. The injured Kamal Batra (PW-3) has stated that he alongwith Raju Yadav had went to Bus Stand near Mukti Dham, Sakti to consume liquor, at that time, the present appellant Shambhu and other accused came there and objected to such consumption of liquor and abused and thereafter the dispute aggravated. At such point of time, he was taken to the first floor of the Bus Stand wherein the present appellant assaulted him by way of Club and Santosh assaulted by way of Axe. When Raju Yadav tried to intervene, he was also assaulted.

It is further contended that when he tried to save himself, he sustained injury on the hand also and suffered fracture and after operation, a metal plate was inserted. He further submits that he also sustained injury and fracture on his finger and after that his finger is not working properly.

spot since they had consumed liquor and while running away in the Scooty, they fell down as such they sustained injury. Such suggestion was flatly refused by the injured and except this nothing has been illuminated in the cross examination.

8.

The injured Raju Yadav, who is examined as PW-5, has stated that on 13.08.2014 he along-with Kamal Batra, the other injured, went to Bus Stand wherein they were consuming liquor, at that time, the appellant along-with others came there and objected to such consuming of liquor and thereafter dispute aggravated. Thereafter, they were taken to the first floor of the Bus Stand and were assaulted. He further stated that he was tied down with a rope, however, he could make himself free and ran away and in such course he met one Naresh Agrawal and thereafter the report was made.

9.

Naresh Kumar Agrawal, who is examined as PW-6, also supports the incident and had stated that Raju had disclosed that he along-with Kamal were assaulted by the appellant and others near Bus Stand, thereafter, he went to police and Kamal was taken to the Hospital as he was unconscious. The suggestion given to this witness that after consuming of liquor, the injured were fell down has been denied. 10.

Dr. N.K.Sahu, who has initially examined the injured was examined as PW-2. He stated that he had examined both the injured. The injury report of the injured Raju Yadav is Ex.P-4 and the report of the injured Kamal Batra is Ex.P-5. On primary examination, it was found that the injured Raju Yadav sustained a contusion on his back in the right & left side which was of 3 x 2 cm. Likewise in respect of Kamal Batra, the following injuries were found :

(i) On the right side of the head in frontal region, incise wound was found of 6 x 1 x 1 cm.

(ii) Incise wound on the right parietal region 4 x 1 x 1 cm

(iii) Right cheek was swollen (iv) Left cheek was having incise wound 2 x 1 x 1 cm. (v) On the left leg, two punctured wound was present. (vi) On the right supraclevical part abrasion was present 2 x 1 x 1 cm. (vii) Abrasion on the right elbow 3 x 1 cm (viii) On the right forearm swelling was present near wrist and he was having pain.

According to the Doctor, all the injuries were sustained within six hours of the examination and thereafter for injury No.3 & 8 the injured was referred for X-ray.

11.

The Doctor further stated that on 13.10.2014, a Club was placed before him with a query that by such Club, whether the injury could have been inflicted or not ? After inspection of the Club, which was 108 cm, Doctor has stated that the injury No.3 & 8 could have been caused by such Club. On a specific suggestion given to the Doctor that the injury could have been caused by a fall from motorcycle, it was denied by the Doctor. Thereby, the injury which was inflicted by the Club can be assumed and the submission of the appellant that the injuries were caused due to fall from the motorcycle cannot be accepted.

12.

Dr. Sarita Kesharia, who is the Radiologist, was examined as PW-7. According to the Doctor, she had examined Kamal Batra the other injured PW-3. According to her, on C.T. Scan, the Occipital Bone of head was fractured. The report was given by Ex.P-14. The left hand was also fractured on the Alna Bone. The report was given by Ex.P16. One of the finger of the right hand was also fractured and the report was given by Ex.P-17. Therefore, if the entire facts are seen together, it would suggest that the injured Kamal Batra (PW-3) and Raju Yadav (PW-5) who had categorically stated that they have beaten by way of Club & Axe by the present appellant and other co-

accused cannot be ignored. The said fact is further corroborated by the statement of the Doctor (PW-2), who initially examined the injured and with respect to the fracture, the same is proved by the Doctor (PW-7) who was Radiologist. Both the injured have categorically stated that before the incident happened, they were abused filthily in name of mother & family members and were beaten brutally. The beating was to the extent that fracture of bone was caused, therefore, the conviction under Section 294 & 323 of IPC as has been made by the trial Court cannot be interfered with, as it appears to be just and legal on the basis of the evidence.

13.

With respect to conviction under Section 307 of IPC, the facts would suggest that when both the injured went to consume liquor in the night, which was objected by the appellant and the other co-accused, out of sudden trivial issue, the incident happened. The circumstances and the statement of the witnesses goes to show that neither there was predetermination of mind nor any intention of the appellant to cause such offence, which may cause death of the injured. When consuming of liquor was objected by the accused/ appellant alongwith others, the quarrel started and at that moment the weapon i.e. Club which was available on the spot was used by the present appellant and there is no evidence on record that initially the appellant came armed with any weapon.

Therefore, under the circumstances of this case, the case would not fall under Section 307 of IPC, as the necessary ingredients of intention and knowledge relating to commission of murder and doing the act towards it is missing. Necessarily there has been fracture of bone was found, thereby, it will fall under Section 320 of IPC and voluntarily causing grievous hurt by the weapon or means will take the offence under Section 326 of IPC.

14.

In view of foregoing finding, the conviction and sentence under Section 294 & 323 of IPC are upheld, whereas the conviction under Section 307 of IPC is converted into Section 326 of IPC. The appellant appears to be in custody since 14.08.2014, as he was in custody during course of trial and during course of appeal also. Taking into fact that the appellant has suffered the jail sentence for about more than three years, considering the nature of injury and gravity of offence, the jail sentence is reduced to 3 1⁄2 years and the fine of Rs.7000/- is maintained as has been ordered by the Court below and the appellant shall be required to undergo further imprisonment of six months in absence of payment of fine. On payment of fine, an amount of Rs.6000/- may be disbursed to the injured Kamal Batra (PW-3) and amount of Rs.1000/- to Raju Yadav (PW-5) as has been directed by the learned Court below.

15.

With such observation, the appeal stands disposed off. Sd/- (Goutam Bhaduri) JUDGE ashok