1 2025:CGHC:10424 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 247 of 2016 1 - Karmuram S/o Jhhetkuram Nagesiya Aged About 57 Years R/o Village Kunkuni, P.S. - Kharsiya, Raigarh, District - Raigarh, Civil And Revenue District Raigarh Chhattisgarh , Chhattisgarh 2 - Firat Ram S/o Suklal Aged About 19 Years R/o Village Kunkuni, P.S. Kharsiya, Raigarh, District - Raigarh, Civil And Revenue District Raigarh Chhattisgarh , District : Raigarh, Chhattisgarh 3 - Itwarin Bai W/o Karmuram Nagesiya Aged About 45 Years R/o. Village Kunkuni, P.S. Kharsiya, Raigarh, District - Raigarh, Civil And Revenue District Raigarh Chhattisgarh , District : Raigarh, Chhattisgarh ... appellants versus 1 - State Of Chhattisgarh Through - P.S. Kharsiya, District Raigarh, Civil And Revenue District Raigarh Chhattisgarh , Chhattisgarh ... Respondent(s) For appellants : Ms. Surya Kawalkar Dangi, Advocate For Respondent(s) : Mr. Jitendra Shrivastava, Govt. Advocate Hon'ble Justice Mr. Ravindra Kumar Agrawal, J. Order on Board 20.02.2025 1. The present criminal appeal has been filed by the appellants under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 22/06/2015 passed by learned Second Additional Sessions Judge, Raigarh, in Sessions Case No. 22/2015 2 whereby the appellants have been convicted for the offence under Sections 307/34 of IPC and sentenced for R.I. for 10 years with fine of Rs. 2000/- for each accused, in default of payment of fine, six months additional R.I for each accused. 2. Brief facts of the case are that on 23/10/2014, the complainant Shabildas (PW/5) has lodged a report to the Police that at about 12 in the noon, when he heard a noise of quarrel near the house of one Hemlal, he saw that Hemlal was being assaulted by the present appellants by axe. The appellant Karamu Ram giving axe blow on the head of the injured Hemlal. Nanki intervened into the incident and injured was immediately taken to Kharsia Hospital. The FIR (Ex-P/5) has been registered against the appellants for the offence under Section 307/34 of IPC. The injured Hemlal (PW/4) was medically examined at Community Health Centre, Kharsia by (PW/2) Dr. Ranjana Tirkey and after his examination, she noticed lacerated wound present on parietal reason on head 3 X 2 cm. The doctor has advised for C.T. Scan of head and referred to higher centre at K.G. Hospital, Raigarh. The doctor has opined that injuries present was severe but exact opinion is awaited till C.T. Scan report of head report and the MLC report is (EX-P/3). The injured Hemlal was sent to K.G. Hospital, Raigarh where he remained hospitalized from 23.10.2014 to 25.10.2014 and he was being treated by (PW/1) Dr. Anil Kumar and on 25.10.2014 on his request, the injured Hemlal was discharged from the hospital. His bed head ticket is (EX-P/1) and discharge ticket is (Ex-P/2). During the investigation, Spot map (Ex-P/6) was prepared by the Police. The blood stain and plain soil has been seized from the spot. The appellants Karamuram and Firatram were arrested on 24.10.2014 and their memorandum statements are (Ex- P/10 and P/9) respectively. Based on their memorandum statement, one axe has been seized from the appellant Karamuram vide seizure memo (Ex-P/8) and one Bamboo Club has been seized from the appellant Firatram vide seizure 3 memo (Ex-P/7). The axe was sent for its query report to the doctor at Civil Hospital, Kharsia from where query report (Ex-P/4) was received and it was opined that by the object, both injuries can caused and by the object patient can severe injury and also can die. Statement under Section 161 of Cr.P.C. of the witnesses have been recorded and after completion of the investigation, charge-sheet was filed against the appellants Karmuram and Firatram for the offence under Section 307/34 of IPC before the learned Judicial Magistrate, First Class, Kharsia. At the time of filing of the charge- sheet, the appellant Itwarin Bai was absconding and charge-sheet was filed in her absence. At the time of committal, the permanent warrant of arrest was issued against the appellant Itwarin Bai and the case was committed against the appellants Karmuram and Firatram to the Court of learned Sessions Judge, Dist- Raigarh, from where the same was transferred to the learned trial Court for its trial. 3. The learned trial Court has framed charge against the appellants Karmuram and Firatram for the offence under Section 307/34 of IPC. The appellants denied the charge and claimed trial. During the trial of the case, the appellant Itwarin Bai surrendered before the learned trial Court on 23.04.2015 and she was being taken into custody in compliance of the permanent arrest warrant issued against her. On 14.05.2015, the charge for the offence under Section 307/34 of IPC is also framed against her and learned trial Court proceeded for trial of the case jointly against the accused persons. The appellant Itwarin Bai was also denied the charge and claimed trial. 4. In order to prove the charge, the prosecution has examined as many as 10 witnesses. Statement of the appellants under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and submitted that they have been falsely implicated in the offence. 4 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellants and sentenced them as mentioned in Para-1 of this judgment. Hence this appeal. 6. Learned counsel for the appellants would submit that the appellants are innocent and they are falsely been implicated in the offence. There are material omission and contradictions in the evidence of prosecution witnesses and the prosecution has failed to prove its case beyond reasonable doubt. There was scuffling going on between the parties on the issue of previous dispute and the injured fell down on the hard surface having stone there and received head injury and due to the previous dispute, he alleged that the appellants have assaulted him by axe. The injuries found on the body of the injured was simple in nature and he was discharged from the hospital within two days. Had he been received grievous injuries, he would have remained hospitalized for a long period. From the report of the doctor, no fracture was being found on his body and the injured himself denied for the C.T. Scan of his head and he was being discharged from the hospital on his own will against the medical advice. In such a situation, it cannot be said that he received grievous injuries on his vital part of the body though, lacerated wound found on the parietal reason of the injured but the said injury could not be fatal to his life. She would further submit that the offence of the appellants, if any, does not travel beyond the scope of Section 324 of IPC and by converting the offence, the appellants under Section 324 of IPC, their undergone period may be considered to be sufficient sentence by enhancing the find amount suitably. 7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellants and has submitted that from the evidence of the injured, the involvement of the appellants in the offence in question has duly been proved that they caused injuries to the injured. He 5 received injury on his head which is vital part of the body and as per the MLC report (Ex-P/3) when he was taken to hospital, his general condition was poor and he was referred to higher centre, Raigarh and the doctor who initially examined him had opined that injuries were severe and thus, the grievousness of the injury on the vital part of the body has been proved by the prosecution. Even otherwise for the offence under Section 307 of IPC, the nature of injuries are irrelevant and it is only the intention coupled with some overect is to be seen. From the evidence of the injured, other witnesses as well as the medical report, the guilt of the appellants for the offence under Section 307 of IPC have duly been proved by the prosecution and there is no scope for any interference in the same. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. For consideration of the involvement of the appellants in the offence in question, I have examined the evidence of injured Hemlal (PW/4). He stated in his evidence that on the date of incident, when he came back to his house in the morning, after taking bath, the appellants were waiting for him and as and when they saw him, they started hurling abuse and threatened. The appellant Itwarin Bai exhorted the other appellants and they threatened him. Thereafter, the appellant Karmuram came with an axe and appellant Firatram came with a danda. He was being assaulted by axe on his head by which he fell down and then Hemantdas intervened. In cross-examination he admitted that the previous dispute was occurred about two days back. He admitted that his house is just in front of the house of the appellants and adjoining to the house of the appellants, there is a community hall of the village. He is the worshiper by profession. From his entire cross-examination, there is nothing to disbelieve his evidence that the appellants have not caused injuries to him and he received injuries by some other means. He remained firm in saying 6 that the appellants have caused injuries to him by axe and lathi and he was immediately taken to hospital. 10.PW/5 Shabildas is the person, who residing in the same vicinity. At the time of incident his grand daughter Tikeshwari shouted for help and when he reached on the spot, he saw that Karmuram has already assaulted the injured by axe and Firatram has already assaulted by Lathi. They threatened him with dire consequence and thereafter, he was being taken to Kharsia hospital, from were he was referred to Raigarh hospital. He lodged report to the Police which is Ex-P/5 and Police has seized the axe and lathi from the appellants. In cross-examination, he stated that at the time when he reached on the spot, the appellants were assaulting the injured and by the assault, the injured was lost his consciousness and after assaulting him, the appellants fled away from the place. He denied that he has not witnessed the incident. From his cross-examination also, the defence could not extracted any material to disbelieve his evidence. 11.PW/6 Khommandas is another eye witness who too have supported the prosecution’s case that the appellants Karmuram and Firatram have assaulted the injured by axe and lathi. On the point of memorandum and seizure, though he has turned hostile but with respect to the assault made by them upon the injured, he remained firm. 12.PW/7 Anusuiya who is the wife of the injured who intervened the incident has stated in the evidence that on the date of incident at about 11-12 am, when she heard the noise of quarrel, she saw that the appellants Karmuram and Firatram assaulted her husband by axe and lathi. The appellant Itwarin Bai caught him hold. After seeing the assault, she led upon her husband to save him by the assault by the appellants, her husband received injuries on his head and he was being taken to Kharsia hospital and from where he was referred to Raigarh hospital. In cross-examination, she also stuck in saying 7 that the appellants have assaulted her husband by axe and lathi. She denied the suggestion given by the defence that in the process of scuffling, her husband fell down on the ground and by which he receive injuries on his head. 13.PW/8 Dev Kumari who is the daughter of the injured who too have remained firm in saying that on the date of incident, the appellants caused injuries to her father by axe and danda. From all these evidences, the involvement of the appellants had duly been proved by the witnesses that they caused injuries to the injured Hemlal by axe and lathi. 14.Now the next question for consideration would be what offence the appellants have committed. 15.The injured Hemlal was immediately taken to Kharsia hospital where he was being medically examined by PW/2 Dr. Ranjana Tirkey who found lacerated wound on parietal reason of his head and since the general condition of the injured Hemlal was poor, he was referred to KG Hospital, Raigarh. 16.PW/1 Dr. Anil Kumar, who was the medical officer has stated in his evidence that on 23.10.2014, the injured Hemlal was being taken to emergency ward and he was admitted at male surgical ward. He treated him along with Dr. K. M. Gupta. He found an stitched wound on his parietal reason and he advised for C.T. Scan of the head, but he refused for the same. On 25.10.2014, he was discharged against medical advice and his bed head ticket is (Ex-P/1) and discharge ticket is (Ex-P/2). Except these two medical reports, no other medical report have been filed by the prosecution and even it is not a case of the injured (PW/4) that he received any fracture on his head or any internal bleeding on his head or even he suffered any other injuries on his body or complication. Even he has not submitted any document with respect to his further treatment and when after about two days, he was discharged from the hospital on her own request, and there is no further treatment. It can be said 8 that the injuries found on the head of the injured would not be grievous or fatal to life. Although, PW/2 Dr. Ranjana Tirkey have opined that by the object patient caused severe injury and also can die but in view of the injury found on his head as well as medical report (Ex-P/1, PW/2 and PW/3), it cannot be said that the said injury found on the head of the victim constitute the offence of Section 307 of IPC and it can be said that the act of the appellants satisfy the ingredients of Section 324 of IPC which is for voluntarily causing hurt by dangerous weapon. Voluntarily causing hurt is defined under Section 321 of IPC and the punishment is provided under Section 324 of IPC which reads as under:- Section 321. Voluntarily causing hurt: - Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". 324. Voluntarily causing hurt by dangerous weapons or means.— Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 17.From the evidence of the injured, other witnesses as well as medical reports, this Court is of the opinion that there is lack of sufficient evidence to hold conviction of the appellants for the offence under Section 307/34 of IPC, but their offence comes under the definition of Section 324/34 of IPC and therefore, their conviction is liable to be modified from Section 307/34 of IPC to Section 324/34 of IPC. 18.The next question for consideration would be what sentence is to be awarded to the appellants. 9 19.Learned counsel for the appellants would submit that the incident is of the year 2014. The appellant No. 1 Karmuram is presently aged about 67 years, the appellant Firatram is presently aged about 29 years and the appellant Itwarin Bai is presently aged about 55 years and they are having unnumerable responsibilities of their families. The incident is occurred in a heat of passion. The offence of Section 324 of IPC does not provide any minimum sentence. The appellant Karmuram was remained in jail for about 01 year and 06 months, the appellant Firatram was remained in jail for about 11 months and the appellant Itwarin Bai remained in jail for about 01 year and therefore, their sentence may be considered to be sufficient sentence of enhancing the find amount suitably. 20. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon'ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly. critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the 10 words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences." 21.Considering the submissions made by learned counsel for the appellants and also in view of the law laid down by the Hon’ble Supreme Court in the matter of Giasuddin (Supra), considering the facts and circumstances of the case as also the sentence provided for the offence under Section 324 of IPC, the conviction of the appellants for the offence under Section 307/34 of IPC is hereby set aside, instead thereof, the appellants have been convicted for the offence under Section 324/34 of IPC and they have been sentenced for R.I. for 9 months with fine of Rs. 4000/- to each of the appellants. The fine amount shall be paid by the appellants within 4 months from today, failing which the appellants shall undergo further R.I for one month and out of total fine amount of Rs. 12,000/-, the amount of Rs. 10,000/- shall be paid to the injured Hemlal (PW/4) as compensation as provided under Section 395 of B.N.S.S. 2023. 22.With the aforesaid modification/ alteration, the appeal is partly allowed. The appellants are reported to be on bail. Their bail bond shall continue for the further period of six months as provided under Section 481 of B.N.S.S 2023. 23.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.05.02 18:39:26 +0530