Vishram Yadav vs State Of Chhattisgarh

Rajani Dubey, J

The   present  appeal  is  directed  against  the  judgment  of conviction and order of sentence dated 26.02.2007 passed by the  learned  7th  Additional  Session  Judge,  Raipur  (C.G.)  in Session  Trial  No.40/2004,  whereby  the  appellant  has  been convicted under Section 307 (two times) of IPC and sentenced to undergo RI for 7 years.

The prosecution case, in brief, is that on 22.07.2003 in the night, when the victim Janki Bai and her husband Satpal was going on road, then the appellant Vishram while driving the truck got fell mud upon Janki Bai, to which she objected, as a result of which all the appellants assaulted Janki Bai and her husband by road, club etc. assaulted them, upon which they sustained severe injuries, thereafter the victim and her husband were hospitalized and a case was registered against the accused and they were arrested. After completion of investigation, the charge sheet was filed against the appellants before the Magistrate concerned.

Learned counsels for the appellants submit that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. The learned Trial Court did not appreciate the medical evidence properly. The complainants did not sustain any injuries on their vital part of the body, therefore, the learned Trial Court committed error of law in convicting the appellants under Section 307 of IPC. It is also clear from the record that both the complainants were referred for x-ray but the prosecution has utterly failed to prove this fact that they sustained any grievous injuries, as such the impugned judgment is liable to be set aside. Alternatively, They submit that looking to the medical evidence, only an offence under Section 324 of IPC can be made out against the appellants and as the incident took place in the year 2003, this appeal is pending since 2007, the appellants remained in jail for more than 1 year and have never misused the liberty granted by this Court and presently all the accused are aged more than 50 years, therefore, the appellants may be sentenced to the period already undergone by them.

Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed.

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

It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 307 (two times) of IPC against the appellants. After appreciation of oral and documentary evidence available on record, the learned Trial Court convicted the appellant, as mentioned in para 1 of the judgment.

The complainant Janki Bai (PW-1) stated that all 3 accused assaulted her by club on her leg and also assaulted her husband Sindhu Singh @ Satpal on his leg and hand. They also sustained injuries on their head.

Alakh Ram (PW-2), father of the victim, saw both the injured and sent them to the hospital. He stated that Janki Bai told him that all the accused assaulted her and her husband. Both the witnesses remained firm in their cross-examination so the learned Trial Court rightly found that all the accused assaulted the victim Janki Bai and her husband Sindhu Singh.

Dr. S. K. Rai (PW-4) examined the injured Sindhu Singh and found 6 injuries on his body and advised for x-ray as per his report (Ex-P/5). He also examined victim Janki Bai and found 4 injuries and advised for x-ray as per his report (Ex-P/6). As per query (Ex-P/7), he answered that injuries of Sindhu Singh could have been fatal had he not been provided treatment on time. In the cross-examination, he admitted that it is true that the injuries could have been fatal had the treatment not been given on time. He also admitted that he did not see the x-ray of both the victims. The prosecution did not examine any radiological expert or treating doctor of injured and only x-ray reports were filed by the prosecution but in these x-ray reports, no fracture was found by the doctor, as such the prosecution has failed to prove this fact that any grievous injury was sustained by the victim and her husband, but the learned Trial Court did not appreciate the statement of Dr. S. K. Rai (PW-4) and gave a wrong finding and convicted the appellants under Section 307 of IPC.

The Hon’ble Supreme Court in the matter of Sivamani and another vs State represented by Inspector of Police, reported in 2023 SCC Online SC 1581 held in para 9 as under:-

“9. 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 or 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 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.”

In the present case also, the prosecution has failed to prove case against the appellants under Section 307 of IPC, but looking to the statement of the complainant and other witnesses, the offence under Section 324 of IPC is proved against the appellants, therefore, the conviction of the appellants is altered into Section 324 of IPC from Section 307 of IPC. Accordingly, the appellants are convicted under Section 324 of IPC instead of Section 307 of IPC.

As regards sentence, it is clear that the incident took place in the year 2003, this appeal is pending since 2007, the appellants remained in jail for more than 1 year and have never misused the liberty granted by this Court and presently all the accused are aged more than 50 years, therefore, ends of justice would be served if the appellants are sentenced to the period already undergone by them. Accordingly, the appellants are sentenced to the period already undergone by them.

The appeal is partly allowed.

The appellants are in jail. They be released forthwith if they are not required to be detained in any other offence.

Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. The copy of this judgment be also sent to the concerned Jail Superintendent for information and necessary action.