State of Chhattisgarh vs Ram Bharos Rajwade

Radhe Shyam Sharma, J.—Being aggrieved with the judgment of acquittal dated 15-7-2008 passed by Session Judge, Surguja in Session Trial No. 232/2007, the State has filed this appeal with the leave of the Court. Case of the prosecution, in brief, is as under:

On 10-4-2007, a pooja (worship) was performed at the house of Nanduram Rajwade (PW-2 - injured) at Village Binkara, in which, his son Shrilal Rajwade (PW-1), his brother-in-law Dashrath Rajwade (PW-7), his neighboured Ravindranath (PW-3), Ghuranram, Santhuram, Vijay and his nieces Urmila and Rameshwari were also present. In order to immerse worshipped material, at about 10:30 P.M., they went towards Chulhat Nala situated at Nawapara Korja. They were carrying torch and Lalten (Lantern). Land of the respondent is situated near the Chulhat Nala. Armed with a Tangi (Axe), the respondent came there and assaulted Nanduram (PW-2) with the Tangi and gave him 2-3 Tangi blows. Nanduram (PW-2) sustained injuries over his neck and right hand and he fell down. Thereafter, the respondent fled from there. Nanduram (PW-2) was taken to Holy Cross Hospital, Ambikapur and was admitted there. Dr. Smt. Rachna Arthar (PW-6) admitted Nanduram (PW-2) in the hospital and examined history of the injured in M.L.C. Bed Head Ticket (Ex. P-7), in which, she found incised wound over right side of neck, 10 cms x 2 cms skin deep with profuse bleeding in margin shape and further found that the injury was grievous in nature. Shrilal (PW-1) lodged First Information Report (Ex. P-1) in Police Station Lakhanpur.

During the investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex. P-5. Memorandum Statement of the respondent was recorded u/s 27 of the Evidence Act vide Ex. P-3 and at his instance, the Tangi was seized from him vide Ex. P-4. Spot-Map (Ex. P-6) was prepared by Patwari Ashish Guha (PW-5) and another spot-map (Ex. P-2) was prepared by Investigating Officer Inspector Sapan Choudhary (PW-8). Against queries made regarding the injuries sustained by Nanduram (PW-2) and the seized Tangi, Dr. Smt. Rachna Arthar (PW-6) gave v. her report vide Ex. P-8 and P-9, respectively. The seized articles were sent to Forensic Science Laboratory, Raipur vide Ex. P-12. Report (Ex. P-10) was received therefrom.

After completion of the investigation, charge sheet was filed against the respondent in the Court of Chief Judicial Magistrate, Ambikapur, who, in turn, committed the case to the Court of Session Judge, Surguja, who conducted the trial and acquitted the respondent as mentioned above.

Shri Akhil Mishra, learned Deputy Government Advocate for the State/appellant, argued that the trial Court did not properly appreciate the evidence of the prosecution witnesses. Mere non-mention of the name of the respondent in the Bed-Head Ticket (Ex. P-7) as such is not sufficient ipso facto to discard the prosecution case. The trial Court acquitted the respondent on the grounds of delay in lodging the FIR (Ex. P-1) and belated recording of the case-diary statement of Nanduram (PW-2). He further argued that Shrilal (PW-1) and Dashrath (PW-7) supported the evidence of Nanduram (PW-2). Their evidence is also supported by medical evidence. Therefore, the impugned judgment of acquittal is not sustainable in the eyes of law. The appeal deserves to be allowed.

Shri Jitendra Shrivastava, learned counsel for the respondent, supporting the impugned judgment, submitted that the judgment of acquittal passed by the learned Session Judge is impeccable and does not warrant any interference by this Court. The judgment of the trial Court is well reasoned. He further argued that if two views are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Therefore, the appeal deserves to be dismissed.

We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 232/2007.

Now, we shall examine whether the judgment of acquittal passed by the learned Session Judge is perverse and deserves to be set aside?

The learned Session Judge held in para 21 of the impugned judgment that the FIR (Ex. P-1) was lodged after 71 hours of the incident and the case diary statement of Nanduram (PW-2) was recorded on 21-5-2007, i.e., after 1 month 10 days and on the basis thereof, acquitted the respondent.

APPEAL AGAINST ACQUITTAL

In Budh Singh and Others Vs. State of U.P., , the Hon''ble Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court.

In V.N. Ratheesh Vs. State of Kerala, the Hon''ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon''ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Hon''ble Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Hon''ble Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and Others Vs. State of Madhya Pradesh, . It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and P relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

In Ramesh Babulal Doshi Vs. State of Gujarat, , the Hon''ble Supreme Court said that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reason be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions".

In Kilakkatha Parambath Sasi and Others Vs. State of Kerala, , the Hon''ble Supreme Court observed as follows:

10 It is true that in Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, and a string of earlier and later judgments, it has been held that the High Court should not interfere in an appeal against acquittal save in exceptional cases, and that interference in such an appeal was called for only if the findings of the Trial Court were not borne out by the evidence and were perverse. It is however equally well established that the High Court can re-appraise the evidence so as to find out as to whether the view taken by the Trial Court was justified or not and if it finds that the Trial Court''s findings were not possible on the evidence, interference must be made failing which there would be a travesty of justice.....

In Haricharan and Another Vs. State of Madhya Pradesh and Others, , the Hon''ble Supreme Court observed thus:

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of His innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

ACCUSED NOT NAMED IN THE BED-HEAD TICKET

Shrilal (PW-1), Nanduram (PW-2) and Dashrath Rajwade (PW-7) deposed that on 10-4-2007, a pooja (worship) was performed at the house of Nanduram Rajwade (PW-2) (injured) at Village Binkara, in which, his son Shrilal Rajwade (PW-1), his brother-in-law Dashrath Rajwade (PW-7), his neighbourers Ravindranath (PW-3), Ghuranram, Santhuram, Vijay and his nieces Urmila and Rameshwari were also present. In order to immerse worshipped material, at about 10:30 P.M., they went towards Chulhat Nala situated at Nawapara Korja. They were carrying torch and Lalten (Lantern). The land of the respondent is situated near the Chulhat Nala. Armed with the Tangi (Axe), the respondent came there and assaulted Nanduram (PW-2) with the Tangi and gave him Tangi blows. Nanduram (PW-2) sustained injuries over his neck and he fell down. Thereafter, the respondent fled from there. Nanduram (PW-2) was taken to Holy Cross Hospital, Ambikapur and was admitted there.

Shrilal (PW-1) deposed that he had informed in the police station telephonically about the incident and thereafter had taken his father Nanduram (PW-2) to Mission Hospital, Ambikapur. Dr. Smt. Rachna Arthar (PW-6) deposed that Nanduram (PW-2) was brought to Holy Cross Hospital, Ambikapur. She admitted him in the hospital and started his treatment with assistance of Dr. R.P. Tirky. She further deposed that son of the injured had informed that the injured was assaulted on the neck with a sharp edged weapon like Tangi in the night about 10 O'' clock. She further deposed that she admitted Nanduram (PW-2) in the hospital and examined him and recorded history of the injured in M.L.C. Bed Head Ticket (Ex. P-7), in which, she found incised wound over right side of neck, 10 cms x 2 cms skin deep with profuse bleeding in margin shape and further found that the injury was grievous in nature.

Inspector Sapan Choudhary (PW-8) deposed that Shrilal (PW-1) lodged First Information Report (Ex. P-1) in Police Station Lakhanpur and told him that the injured was taken to Ambikapur Hospital. The date and time of incident was 10-4-2007 at about" 10:30 P.M. and the FIR (Ex. P-1) was registered on 13-4-2007 at about 7 P.M., i.e., after delay of near about 3 days.

Nanduram (PW-2) deposed that the respondent had assaulted him with the Tangi on the neck, due to which, he had fallen down and had become unconscious. He became conscious in the hospital after three days. Shrilal (PW-1) deposed in similar fashion. Dr. Rachna Arthar (PW-6) deposed that the condition of the patient was poor and blood pressure was 80/60, i.e., poor. She further deposed that the patient was in shock at the time of admission and could expire due to bleeding.

Ex. P-7 is M.L.C. Bed-Head Ticket of Nanduram (PW-2), in which, it is mentioned that the condition of Nanduram (PW-2) was poor and he was admitted in Holy Cross Hospital, Ambikapur. When he became conscious, his son Shrilal (PW-1) lodged the FIR (Ex. P-1) in Police Station Lakhanpur.

It is evident that in Ex. P-7, the name of respondent is not mentioned but he was named at the earliest opportunity when Shrilal (PW-1) lodged the FIR (Ex. P-1). The case diary statement of Shrilal (PW-1) was recorded on 14-4-2007. In the FIR (Ex. P-1) and case diary statement of Shrilal (PW-1), the name of the respondent is mentioned as assailant. Therefore, it cannot tilt the balance in favour of the accused not naming the name of assailant in Ex. P-7 and it is not fatal to the case of the prosecution. Therefore, non-mentioning of the name of the respondent in M.L.C. Bed-Head Ticket (Ex. P-7) of Nanduram (PW-2) does not justify acquittal of the respondent/accused. The delay in lodging the FIR (Ex. P-1) is also properly explained by the prosecution.

We have carefully perused the evidence of Nanduram (PW-2), Shrilal (PW-1) and Dashrath Rajwade (PW-7). They specifically deposed that the respondent assaulted Nanduram (PW-2) with the Tangi Their evidence is corroborated by the medical evidence too.

Now, we shall examine whether the offence of the respondent is punishable u/s 307 IPC?

Shri Akhil Mishra, learned Deputy Government Advocate for the State/appellant argued that the injury sustained by Nanduram (PW-2) Was grievous in nature, therefore, in the facts and circumstances of the case, the offence committed by the respondent is punishable u/s 307 IPC.

Shri Jitendra Shrivastava, learned counsel for the respondent argued that the respondent gave single blow to Nanduram (PW-2). The injury sustained by Nanduram (PW-2) was not grievous in nature. The doctor opined that the injury sustained by Nanduram (PW-2) was only skin deep. Therefore, the offence is not punishable u/s 307 IPC, but is punishable u/s 324 IPC.

To constitute an offence u/s 307 IPC, two ingredients of the offence must be present-

(a) an intention of or knowledge relating to commission of murder; and

(b) the doing of an act towards it.

For the purpose of Section 307 IPC, what is material is the intention, or the knowledge and not the consequence of the actual act done for- the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge, which is the necessary ingredient of Section 307 IPC, there can be no offence of attempt to murder.

Nanduram (PW-2), Shrilal (PW-1) and Dashrath Rajwade (PW-7) deposed that the respondent gave Tangi blow on the neck of Nanduram (PW-2). Dr. Rachna Arthar (PW-6) deposed that it is true that no major vessels of injured Nanduram (PW-2) were cut. Only minor vessels were cut. It is true that no other injury was found on the person of Nanduram (PW-2) except the injury on the neck, which was only skin deep. The injured was hospitalized from 11-4-2007 to 21-4-2007. Grievous hurt is defined in Section 320 IPC, which reads as under:

Grievous hurt.-- The following kinds of hurt only are designated as "grievous":--

First.-- Emasculation.

Secondly.--Permanent privation of the sight of either eye.

Thirdly.-- Permanent privation of the hearing of either ear.

Fourthly-- Privation of any member or joint.

Fifthly.-- Destruction or permanent impairing of the powers of any member or joint.

Sixthly.-- Permanent disfiguration of the head or face.

Seventhly.--Fracture or dislocation of a bone or tooth.

Eighthly.-- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

In the case on hand, looking to the facts and circumstances of the case and the nature of injury sustained by Nanduram (PW-2) and the period of hospitalization of the injured, it cannot be held that either the respondent attempted the life of the injured or he even caused grievous hurt to the injured. On the evidence available on record, the prosecution has been able to prove that the respondent/accused gave single Tangi blow on the neck of Nanduram (PW-2). The injury sustained by Nanduram (PW-2) was simple in nature. Therefore, the offence comes in the purview of Section 324 IPC and not in Section 307 or 326 IPC. Therefore, the respondent/accused is guilty for the offence u/s 324 IPC.

Shri Jitendra Shrivastava, learned counsel for the respondent submitted that the respondent remained in jail for about 1 year 2 months and 11 days. The ends of justice would be served if the respondent is sentenced for the period already undergone by him.

It is stated that the respondent was in custody from 16-4-2007 to 18-7-2007 and thereafter 7-8-2007 to 15-7-2008, i.e., 1 year 2 months and 10 days. Considering the facts and circumstances of the instant case, we do not feel it appropriate to send the respondent back to jail. We are of the view that ends of justice Would be met iv, while setting aside the judgment of acquittal passed by the Session Judge and convicting the respondent u/s 324 IPC, the respondent is sentenced for the period already undergone by him besides imposing fine of Rs. 6,000/- on him. For the foregoing reasons, the impugned judgment of acquittal passed by the learned Session Judge is set aside. The appeal filed by the State against the acquittal of the respondent/accused is allowed. The respondent/accused is convicted u/s 324 IPC and is sentenced for the period already undergone by him. The respondent is directed to pay fine of Rs. 5,000/-. He is granted 6 months time to deposit the above amount of fine, failing which, he shall be liable to undergo rigorous imprisonment for 3 months.