1 2025:CGHC:38830 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1023 of 2003 Tularam Bhatara S/o Budhram, aged about 34 years, resident of Kapa Lodhipara, Thana – Pandari, Distt. Raipur (C.G.) ... Appellant versus State of Chhattisgarh, through : P.S. Dharsiwa, Distt. Raipur (C.G.) ... Respondent For Applicant : Mr. Suresh Tandon, Advocate. For Non-Applicant : Ms. Smriti Shrivastava, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Order On Board 05.08.2025 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure (Cr.P.C.) is directed against the judgment dated 30.08.2003 passed by the learned IXth Additional Sessions Judge, (F.T.C) Raipur, District Raipur (C.G.) in Sessions Trial No. 112/2003, whereby the learned trial Court convicted the appellant for the offence punishable under Section 326 of the Indian Penal Code (hereinafter called as ‘IPC’) and sentenced him to undergo rigorous imprisonment for 03 years with fine of Rs. 500/-, and in default of payment of fine to further undergo RI for 06 months. 2. The case of the prosecution, in brief, is that the complainant, Prakash Chelak, an Advocate by profession and resident of Padmanabhpur, District Durg, lodged an oral complaint on 30.12.2002 at about 5:15 AM. ABHISHEK SHRIVAS Digitally signed by ABHISHEK SHRIVAS Date: 2025.08.20 12:55:20 +0530 2 He stated that on 24.12.2002, he had visited his in-laws’ village, Amasivani, along with his family. On 29.12.2002, a Chhattisgarhi cultural programme was organized in the village on the occasion of Guru Ghasidas Jayanti, which commenced at about 10:00 PM, and the complainant was engaged in managing the arrangements. At about 3:00 AM, a jawan (soldier) from a battalion, wearing a jacket over his uniform, started whistling during the dance performance. The complainant, along with villagers Ajooram and Shyamlal, advised him not to do so and also informed the police. The jawan then left the spot. However, after about half an hour, he returned and pointed a gun towards Khorbahara, the husband of the Sarpanch. On witnessing this, the complainant also approached the place. At that time, people raised an alarm shouting “run, run,” whereupon the uniformed person warned “don’t come closer,” and fired a shot while retreating before fleeing on the road. The bullet fired from his gun struck the complainant on his left heel, causing injury. The complainant, who did not know the name of the said battalion jawan, stated that he would be able to identify him on seeing him. 3. On the basis of the said report, an offence was registered and investigation was set into motion. As per Exhibit P-2, an identification parade of the accused was conducted. The complainant was referred for medical examination. A site map of the crime scene was prepared. Three empty cartridges were recovered from near the place of occurrence, and one rifle along with two empty cartridges was seized from the possession of the accused. Other incriminating articles were also seized. The accused was subjected to medical examination, his arrest was effected, and due intimation was given to his departmental officer. 4. After completion of the investigation, and upon finding sufficient evidence of the crime, a charge-sheet was filed in the Court of Mrs. Gondase, 3 ACJM, from where the case was committed to the learned Sessions Court under Section 209 Cr.P.C. The learned Sessions Court, after completing the prescribed procedure, transferred the case to the Court of learned IXth Additional Sessions Judge, (F.T.C) Raipur, District Raipur (C.G.) 5. In order to bring home the above-stated offence, the prosecution examined as many as 13 witnesses. Statements of the accused was recorded under Section 313 of the Cr.P.C., in which he denied his guilt and has taken the stand that he has been falsely implicated in this case. However, the accused examined none in his defence. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30.08.2003, convicted the appellant herein for offence under Section 326 of the IPC and sentenced him as aforementioned. 7. Mr. Suresh Tandon, learned counsel for the appellant, would submit that the appellant is innocent and has been falsely implicated in the crime in question. He submits that the learned trial Court erred in convicting the appellant for the offence punishable under Section 326 of the IPC. According to him, the trial Court ought to have acquitted the appellant in view of the facts and circumstances of the case. The findings recorded by the trial Court are contrary to law and against the weight of evidence. The evaluation of evidence by the trial Court does not establish the guilt of the appellant. The testimony of the prosecution witnesses suffers from serious infirmities, material contradictions, and improvements, and therefore ought not to have been relied upon. It is further submitted that the prosecution failed to establish the essential ingredients of the alleged offence under Section 326 of the IPC, yet the trial Court, without sufficient basis, held the appellant guilty, which finding deserves to be set aside. 4 8. Mr. Tandon further submits that the evidence of the complainant, Prakash Chelak, was neither corroborated by other prosecution witnesses nor supported by medical evidence. The judgment of conviction, therefore, is contrary to the settled principles of law and prudence and deserves to be interfered with. The trial Court failed to properly appreciate the medical evidence, particularly the testimonies of Dr. Abdul Wasim (P.W.4), Dr. Nimish Sharma (P.W.12), and Dr. Chandradev Sahu (P.W.13). Dr. Abdul Wasim (P.W.4), who examined the complainant, did not furnish any concrete opinion regarding the nature of the injury near the heel and merely referred the complainant to the Orthopaedic Department, the report of which was not produced before the Court. Similarly, Dr. Chandradev Sahu (P.W.12) deposed that he had conducted the X-ray examination of one Prakash, son of Mohiti, on 29.11.2001, which evidently pertains to a different individual and relates to a period almost a year prior to the incident in question. In view of these discrepancies and infirmities, it is submitted that the conviction and sentence imposed upon the appellant under Section 326 of the IPC are unsustainable and deserve to be set aside. 9. Per contra, Ms. Smriti Shrivastava, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and would submit that the prosecution has proved its case beyond all reasonable doubt, and the trial Court has rightly convicted and sentenced the appellant for the offence punishable under Section 326 of the IPC. Accordingly, the criminal appeal deserves to be dismissed. 10. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 5 11. The foremost question for consideration in the present case is whether, on the intervening night of 29–30th December 2002, the complainant Prakash Chelak sustained an injury from a gunshot fired by the accused. In this regard, Dr. A. Wasim (PW–4) stated that on 30.12.2002 at 3:50 AM, Prakash Chelak was brought to Mekahara Hospital, Raipur, by his neighbour Vijay. As the injury sustained by the patient was reported to be serious, he informed the police outpost in accordance with Ex.P–6. Thereafter, at around 7:30 AM, the police sent the medical examination form (Ex. P–10) for examination and report. On that basis, he examined Prakash Chelak and found a lacerated wound measuring 6 × 5 cm near the left ankle, which appeared to have been caused by a hard and heavy object. He gave his report vide Ex. P–7 and referred the patient to the Orthopaedics Department. 12. Supporting Dr. Wasim’s statement, the Investigating Officer, Meena Choudhary (PW–8), stated that on 30.12.2002 at 5:15 AM, she recorded the report of complainant Prakash and registered the Dehati Nalishi vide Ex. P–1. She also filled out the medical examination form (Ex. P–10) and sent him to Dr. Bhimrao Ambedkar Hospital. 13. Dr. Rajchandradev Sahu (PW–13) stated in his testimony that on the instructions of the CMO, he conducted an X-ray examination of Prakash Chelak, which revealed multiple fractures in the lower portion of the fibula bone of his left leg. He issued report vide Ex. P–22. With regard to the said report, the defence objected that Dr. Sahu stated in his deposition that the X-ray was taken on 29.12.2001, whereas Ex. P–22 records the date of the X-ray as 29.11.2002. Thus, according to the defence, the discrepancy cast doubt on the prosecution’s case. 14. However, it is noteworthy that Dr. Wasim (PW–4) clearly stated that on the morning of 30.12.2002, when the injured Prakash was brought to 6 him, he informed the police outpost. This fact is corroborated by Investigating Officer Meena Choudhary (PW–8), who confirmed sending the medical examination form (Ex. P–10). The X-ray examination was conducted only after the referral made by Dr. Wasim. The injury revealed in the X-ray corresponded to the same location where the wound had been found. The incorrect recording of the date clearly appears to be a clerical error, which does not undermine the prosecution case. 15. From the cross-examination of Dr. Wasim, Dr. Rajchandradev Sahu, and Meena Choudhary, it stands established that the injured Prakash underwent medical examination and that the X-ray revealed multiple fractures in the left leg. It is further evident that apart from the error in the date entry, there was no other material discrepancy. Therefore, it stands proved that the fibula bone in Prakash Chelak’s left leg was fractured into several pieces. 16. The next question that arises is whether the said injury to the complainant’s left leg was caused by the accused by firing a gun. In this regard, the testimonies of complainant Prakash Chelak (PW–1) and Khorbahra (PW–3) are of prime importance. They stated that they knew the accused and, in the concluding part of their chief examination, also stated that in the identification proceedings conducted by the Executive Magistrate, they correctly identified the accused among other persons. The identification memo is Ex. P–2, bearing their signatures. According to the complainant, on the night of 29 December, at around 2:30 AM (i.e., the intervening night of 29–30th December), he had come to his in-laws’ house in village Amasivani. A programme was being held on the occasion of Guru Ghasidas Jayanti, in which he was also present. During the programme, the accused repeatedly whistled, which he, along with Ajooram and Shyamlal, objected to and also informed the police. Upon 7 being cautioned, the accused left the place. About half an hour later, the accused returned to the programme venue, where the Sarpanch’s husband, Khorbahra, and other persons were present. On arrival, the accused took out a gun from inside his clothing, threatened the people present, and began moving backwards towards the road. As he fled, four or five persons, including the complainant, followed him. Upon reaching the roadside, the accused fired a shot, which struck the complainant near his left ankle, causing him to fall. On hearing his cries, Shyamlal, Shashi, and others arrived at the spot. At that moment, a truck came by, which was stopped, and he was taken to Ambedkar Hospital, Raipur, where he lodged the report vide Ex. P–1. 17. Supporting the complainant’s statement, Khorbahra (PW–3) also deposed that he knew the accused, who was related to the complainant. On the day of the incident, during the programme, the accused was repeatedly whistling and creating a commotion. When restrained, he left, but around 3:00 AM, he returned with a gun. Upon being cautioned, he stated that he belonged to the battalion and that no one could harm him. He then fired a gunshot, which struck Prakash in the leg, causing injury, after which he fled. 18. Investigating Officer Meena Choudhary (PW–8) confirmed the registration of the Dehati Nalishi (Ex. P–1) and the consequent FIR, thereby proving that the matter was immediately reported to the police. The statements of Dr. Wasim and the X-ray report (Ex. P–22) further establish that the complainant Prakash Chelak sustained a serious injury to his left leg. She further deposed that she seized three empty cartridges from the scene of the incident, i.e., the public road, and prepared the seizure memo (Ex. P–11). She also prepared the site map (Ex. P–5) on the basis of witnesses’ identification. She sent the accused for medical 8 examination with a memorandum (Ex. P–15). This fact is corroborated by Dr. Sarita Dubey (PW–9), who stated that on 30.12.2002, she examined the accused and found no injury on his body. 19. The Investigating Officer further stated that she sent the intimation of the accused’s arrest to the competent authority as per Ex. P–16. The seized articles were forwarded through the Superintendent of Police for chemical examination, for which the forwarding memo is Ex. P–18 and the forwarding letter is Ex. P–19. The Forensic Science Laboratory thereafter sent a communication directing that the seized articles be sent to the Central Forensic Science Laboratory, Chandigarh. Accordingly, the seized articles were forwarded to CFSL, Chandigarh, and the acknowledgment thereof is Ex. P–19A. The testimony of the Investigating Officer in this regard remained undisputed in cross-examination. 20. The Investigating Officer (PW–8) further deposed that she took the accused into custody and interrogated him. The accused disclosed that he had concealed two empty cartridge cases inside his bedding and had also hidden Rifle Butt No. 671. Based on the said information, she prepared a memorandum (Ex. P–13) and, upon the accused leading them to the 3rd Battalion, Chhattisgarh Armed Police Camp, Saddu– Mowa, a rifle and two empty cartridges were seized in his presence, for which the seizure memo (Ex. P–20) was prepared. 21. Gangaram (PW–18), a seizure witness, stated that no interrogation of the accused was conducted in his presence, but his signature appears on portions A to A of the memorandum (Ex. P–13). He further stated that the rifle was seized in his presence, and the seizure memo thereof is Ex. P- 20, on which his signature appears at portions B to B. In cross- examination, he witness admitted that the police had read out the memorandum and seizure documents to him. Thus, his testimony 9 confirms the preparation of the memorandum (Ex. P–13) and the seizure of the rifle as per Ex. P–20 on the accused’s production. 22. From the above discussion, it is evident that the trial Court convicted the appellant under Section 326 of the IPC. However, the evidence clearly establishes that the accused, by firing a shot from a gun, which is a dangerous weapon, caused injury to the complainant. The medical evidence further shows that the said injury resulted in a fracture of the fibula bone of the complainant’s left leg. It is also evident that the injury was not inflicted with the intention to cause death. Considering the nature of the injury, its location on a non-vital part of the body, and the circumstances in which it was caused, and in the absence of proof of intention to cause grievous hurt by means of a dangerous weapon, the offence would fall within the ambit of Section 325 of the IPC (voluntarily causing grievous hurt) rather than Section 326 of the IPC. 23. Although a specific charge under Section 325 of the IPC was not framed, since it is a lesser offence included within the charge under Section 326 of the IPC, the accused can validly be convicted for the said lesser offence in terms of Section 222 Cr.P.C., without causing any prejudice to his defence. 24. Accordingly, the conviction and sentence under Section 326 of the IPC is hereby set aside. Instead, the appellant is convicted under Section 325 of the IPC and sentenced to the period already undergone by him, i.e., seven months, while the fine imposed by the trial Court shall remain intact, the same having already been deposited. 25. In the result, the criminal appeal is allowed in part. While setting aside the conviction of the appellant under Section 326 of the IPC, he is convicted under Section 325 of the IPC and sentenced to the period already 10 undergone in custody. The record shows that the appellant was in jail from 30.12.2002 till 02.07.2003, thereby remaining in custody for about seven months. He be set at liberty forthwith, if not required in connection with any other case. 26. The appellant is directed to furnish a personal bond and two sureties in the like amount to the satisfaction of the trial Court concerned, in compliance with Section 437-A of the Code of Criminal Procedure, 1973 (now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023). 27. Let a copy of this judgment along with the original record be transmitted to the trial Court forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Abhishek