Ram Dulari and Others vs State of Chhattisgarh

Dhirendra Mishra, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 28th February 2007 passed in S.T.No. 140/2006 whereby the learned Additional Sessions Judge, Janjgir has convicted each of the appellants u/s 307/34 of IPC for attempting murder of PW-3 Bhuvneshwar, u/s 323/34 for causing injuries to injured Tujela and u/s 323/34 for causing injuries to injured Jitendra and sentenced them to undergo RI for 7 years, pay a fine of Rs.1000/- each, RI for 1 year, RI for 1 year, respectively and in default, to undergo RI for 3 months each. All the sentences have been directed to run concurrently.

Case of the prosecution in nutshell is that on 17.01.2006 at about 9.00 in the night injured Tujela was standing before his house in the lane, at that time appellants Dileshwar and Ramdulari were passing from the lane using abusive language. They were stopped by Tujela saying that why they are using filthy language as womenfolk also reside there, on this, the appellants Dileshwar and Ramdulari went to their house, brought iron rods and started assaulting Tujela over his head and eyes. When Jitendra and Bhuvneshwar came there to intervene, Dileshwar and Ramdulari also assaulted them and threatened them that they shall kill them. In the meanwhile, appellant Balram also reached there and assaulted Jitendra on his head.

Report of the incident was lodged by Tujela (PW-1) on the sane day at about 23.15 hours naming all the appellants. Injured persons were sent for medical examination to Civil Dispensary, Shivarinarayan where Dr. Anvita Dhruv (PW-9) examined them and gave injury report of Jitendra (Ex.P/14), injury report of Bhuvneshwar (Ex.P/15) and injury report of Tujela (Ex. P/ 16). Further query was sent to the doctor vide Ex.P/17 whether injuries present over persons of the injured, were sufficient to cause their death in the ordinary course of nature and in reply to the above query, Dr. Anvita Dhruv (PW-9) submitted his report of Ex. P/17. Bhuvneshwar was also sent for radiological examination and report of the radiologist is Ex. P/19.

After completing investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer by learned Additional Sessions Judge for trial.

During trial the prosecution examined 14 witnesses in all. Thereafter, statements of the accused/appellants were recorded u/s 313 of Cr. P.C. in which they denied the evidence appearing against, them in the prosccution case and pleaded innocence and false implication.

Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused/appellants as mentioned in paragraph one of this judgment.

Learned counsel for the applicants submits that so far as involvement of appellant Balram Jangde in crime in question is concerned, as per case of the prosecution itself it would be evident that he reached on the spot after injured Bhuvneshwar had received injuries in the incident and allegations against him in the First Information Report are that he assaulted injured Jitendra, however, on the basis of improvement made by the witnesses appellant Balram has also been convicted u/s 307/34 of the IPC. He further submits that there is no evidence available on record that the appellant intended to cause death of injured Bhuvneshwar. On the other hand, there is sufficient evidence available on record that the incident occurred between complainant Tujela and accused Ramdulari & Dileshwar and when Jitendra & Bhuvneshwar intervened, they were also beaten by appellants. The doctors, who have examined Bhuvneshwar, have not stated that the injuries present over his person were sufficient to cause death in the ordinary course of nature. Lastly, it was argued that taking into consideration the manner in which the offence was committed and also considering that there is evidence available on record that in the same incident the appellants also sustained injuries, even if the appellants are held guilty u/s 307/34 of IPC, the sentence of 7 years imposed on them, is too excessive and the same deserves to be modified suitably.

Reliance is placed on the judgment in the matter of Shanabhai Dhulabhai Parmar Vs. State of Gujarat, .

On the other hand, learned counsel for the State supported impugned judgment of the trial Court.

I have heard learned counsel for both the parties and have perused the records as also the impugned judgment.

Conviction of the appellants is based on the statements of injured eyewitnesses Tujela (PW-1), Bhuvneshwar (PW-3) and Jitendra (PW-7). The Court below considering the evidence of the above witnesses, which is also corroborated from the evidence of PW-2 Nathram, PW-6 Jeetram and PW-8 Firatram, has drawn an inference regarding involvement of the appellants in the crime in question. Further, replying upon the evidence of Dr. Anvita Dhruv (PW-9) and Dr. Anil K.P. Singh (PW-13), the Court below has held that the injuries present over the person of Bhuvneshwar were sufficient to cause his death in the ordinary course of nature.

PW-1 Tujela is the complainant who has lodged the report of Ex.P/ 1. His evidence is to the effect that the appellants Dileshwar & Ramdulari enraged by his advice not to use filthy language as womenfolk also reside in the locality, went inside their house, brought iron rod from their house and started assaulting him. When his father Bhuvneshwar and brother jitendra came and intervened, Dileshwar, Ramdulari and Balram also assaulted his father, as a result of which he became unconscious and fell on the ground. They also assaulted Jitendra. However, from perusal of the FIR Ex. P/1 it is noticed that this witness, who has lodged the FIR, has mentioned therein that Dileshwar and Ramdulari assaulted his father, who fell on the ground after becoming unconscious and thereafter, Balram came there armed with danda and assaulted Jitendra over his head and hand. There is no allegation in the FIR that the appellant Balram assaulted Bhuvneshwar.

PW-2 Nathram has also named Ramdulari and Dileshwar as the persons who participated in the assault and he has denied the presence of Balram on the place of incident. He has been declared hostile and cross-examined by the prosecution. However, in the cross-examination also no suggestion was given to this witness that Balram was present at the time of incident or he participated in beating injured Bhuvneshwar.

PW-3 Bhuvneshwar has alleged that Ramdulari and Dileshwar armed with rod and Balram armed with bamboo lathi were assaulting Tujela and when he intervened, they started assaulting him also, as a result of which he sustained injuries. He has been confronted with his diary statement of Ex. D/ 1, in which name of Balram has not been mentioned. However, he has not offered any explanation for omission of Balram''s name in his diary statement.

PW-7 Jitendra has also alleged that all the three appellants participated in assaulting all the three injured persons. However, in his diary statement of Ex.D/2 this fact is not mentioned that appellant Balram assaulted Bhuvneshwar. Thus, from the evidence of the above witnesses, the allegation against appellant Balram that he assaulted Bhuvneshwar, also, appears to be doubtful. However, considering the evidence of the above witnesses, I am of the opinion that Ramdulari and Dileshwar assaulted Bhuvneshwar and the two injured witnesses Tujela and Jitendra and caused them injury whereas appellant Balram assaulted only injured Jitendra, has been established.

Now coming to the question of nature of injuries sustained by Bhuvneshwar (PW-3), Dr. Anvita Dhruv (PW-9), who examined all the injured persons including Bhuvneshwar has stated in her deposition that on examination of Bhuvneshwar, she found (i) lacerated wound on left side of parietal portion of the skull with irregular margin of size 7 x 5cm, fresh blood was oozing from the wound; (ii) one contusion & tenderness over right hand elbow and joint, movement of joint was restricted; (iii) lacerated wound over left hand below elbow joint with irregular margin of size 2 x 4 cm, fresh blood was oozing from the injury, movement was restricted; and (iv) there was also injury present over lateral angle of the eye. She had advised X-ray. On further queries she has opined that the injuries present over the person of Bhuvneshwar could cause his death had he not been treated in time. So far as injuries present over the persons of Jitendra and Tujela, are concerned, the same have been described as simple in nature and not sufficient to cause their death.

PW-13 Dr. Anil K.P. Singh, who is the radiologist, has proved the radiological report of Ex.P/19 of Bhuvneshwar and stated that there was a fracture of left frontoparietal bone of Bhuvneshwar and fracture of left elbow olecranon bone. He has also advised C.T. scan of Bhuvneshwar. There is evidence available on record that Bhuvneshwar was admitted in the hospital for 25 days as indoor patient.

Thus, looking to the medical evidence available on record, I am of the considered opinion that the trial Court on the basis of evidence available on record, has rightly convicted Dileshwar and Ramdulari u/s 307/34 of IPC. Similarly, conviction of the appellants u/s 323/34 of IPC for causing simple injuries to injured Tejula and Jitendra is strictly in accordance with law based on the evidence available on record. However, conviction of appellant Balram u/s 307/34 of IPC for attempting to commit murder of Bhuvneshwar, cannot be sustained for the reasons stated above.

Taking into consideration the arguments advanced by learned counsel for the appellants based on the judgment in the matter of Shanabhai Dhulabhai Parmar (supra) that in the facts and circumstances of the present case, conviction u/s 307/34 of IPC is too excessive, while maintaining conviction and sentence of all the appellants u/s 323/ 34 of IPC and also maintaining conviction of the appellants Dileshwar and Ramdulari u/s 307/34 of IPC, they are sentenced to undergo RI for four years in place of seven years.