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Tulasi Yadav vs State Of Chhattisgarh 111 … on 10 December, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 579 of 2009
Tulasi Yadav, S/o Samaru Yadav aged about 28 years, R/o Ward
No.1 BhainsBajay Champa Police Station Champa, District
Janjgir Champa CG
(Present Address)
Village Kudharikhar, Police Station Tamnar, Tahsil Gharghoda,
District Raigarh
—- Appellant
Versus
State Of Chhattisgarh Through Police Station Tamnar, Tahsil
Gharghoda District Raigarh (CG)
—- Respondent

For Appellant : Shri Amiyakant Tiwari, Advocate

For State/ Respondent : Shri Vinod Tekam, Panel Lawyer

HON’BLE SHRI JUSTICE RAM PRASANNA SHARMA
JUDGMENT ON BOARD
10/12/2018

1. Ms. Purnima Singh, Advocate has been engaged by the

appellant, but despite repeated calls, none appeared on all

dates of the week, therefore, Shri Amiyakant Tiwari, Advocate

present in the Court is appointed as amicus curiae to argue the

matter on behalf of the appellant.

2. This appeal is preferred under Section 374 (2) of the Code

of Criminal Procedure, 1973 against the judgment dated

10.6.2009, passed in S.T.No.23/2009 by the 4 th Additional

Sessions Judge (FTC), Raigarh, District Raigarh(CG) for
commission of the offence under Section 307 of the Indian

Penal Code and sentenced to undergo R.I. for 7 years and fine

of Rs.500/- with default stipulation.

3. In the present case, name of the victim is Deepawali Bai.

As per case of the prosecution, Deepawali Bai is a married lady

and despite marriage, she resides with her parents at village

Kudhrikhar. The present appellant is also resident of same

village. He proposed to marry the prosecutrix but she denied.

On the date of incident, when she was bathing near the canal of

Dhobhighat of Kelo river with some other women, the appellant

assaulted her with sword. The matter was reported and

investigated and the appellant was charge sheeted. After

completion of trial, the appellant was convicted and sentenced

as above.

4. I have heard learned counsel for the parties and perused

the record.

5. Learned counsel for the appellant submits that there are

material contradiction and omissions in the statement of eye-

witnesses and their version is developed one which cannot be

relied upon and there is absence of motive on the part of the

appellant, therefore, charges levelled against him is not

established. Eye-witnesses are not reliable, therefore, finding of

the trial Curt is liable to be set aside.

6. On the other hand, learned counsel for the State

supporting the judgment submits that the finding arrived at by

the trial Court is based on cogent and reliable evidence and the

same is not liable to be interfered with.

7. Deepawali Bai (PW5) deposed that she was married with

one Raju Yaday who was resident of village Himgir, but she is

not living with him and living with her parents at village

Kudhrikhar. The appellant is also married and he proposed this

witness to marry with him to which she denied. After denial he

threatened him many a times and on the date of incident when

she was bathing at Kelo river, he came with a sword and

assaulted her on head. She sustained multiple injuries. Version

of this witness is supported by version of Ku. Savita (PW4) who

is eye-witness account to the incident. Again, it is supported by

the version of Suklambar Yadav (PW1), Labhoram (PW2),

Pitambar (PW3) and Natthuram (PW6). All the witnesses have

been subjected to searching cross-examination but nothing

could be elicited in favour of the defence. Version of direct

witnesses is supported by the version of Dr. Dharam Sai

Painkara (PW9) who examined the prosecutrix on 15.11.2008 at

C.H.C, Tamnar. After examination, he noticed following injuries

on the body of the victim :

(I) Cut over head on parietal region of 10 x 1 ½ x 1 ½ cm

Cut over head on parietal region of 10 x 1 ½ x 1 ½ cm

(II) Cut over lower part of arm on right side of 14 x 7 cm
(III) Cut over below neck of 13 x 2 x 1 cm

As per version of this witness, he found fracture in skull of the

victim. Again he deposed that one sword was brought before

him for examination and after examination, he found that the

injuries to the victim could be caused by this weapon. He further

opined that if proper treatment would not have been provided to

the victim, she could have succumbed to the injuries. Version of

this witness is again supported by Dr. Anil Kumar Kushwaha

(PW8). Balmukund (PW10) and Vishnu (PW11) are the

witnesses of seizure who proved seizure of sword from the

appellant. There are no material contradictions in the statements

of the witnesses. Minor contradictions which do not go to the

root of the case are insignificant and they have no adverse

affect to the prosecution case.

8. Hon’ble the Supreme Court in the matter of Sachin Jana

and another, reported in (2008) 3 SCC 390 has observed as

under:

“To justify a conviction under this section, it is not
essential that bodily injury capable of causing death
should have been inflicted. Although the nature of injury
actually caused may often give considerable assistance
in coming to a finding as to the intention of the accused,
such intention may also be deduced from other
circumstances, and may even, in some cases, be
ascertained without any reference at all to actual
wounds. The section makes a distinction between an act
of the accused and its result, if any. Such an act may not
be attended by any result so far as the person assaulted
is concerned, but still there may be cases in which the
culprit would be liable under this section. It is not
necessary that the injury actually caused to the victim of
the assault should be sufficient under ordinary
circumstances to cause the death of the person
assaulted. What the court has to see is whether the act,
irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in the
section. An attempt in order to be criminal need not be
the penultimate act. It is sufficient in law, if there is
present an intent coupled with some overt act in
execution thereof”.

9. When the evidence on record is analysed it is clear that

Section 307 IPC has clear application and looking to the

evidence in its entirety, finding arrived at by the trial Court is not

liable to be interfered with. Accordingly, conviction of the

appellant under Section 307 IPC is hereby affirmed.

10. Heard on the point of sentence:

The trial court awarded jail sentence of R.I. for 7 years and fine

of Rs. 500/- for commission of offence under Section 307 of

IPC. Looking to the gravity of the offence, it cannot be termed as

harsh, disproportionate or unreasonable and the same is not

liable to be interfered with. The sentence part is also not liable to

be interfered with. Accordingly, the appeal is liable to be and is

hereby dismissed.

11. It is reported by the jail authorities that the appellant has

suffered full term of his jail sentence and has been released

after getting remission, therefore, no order for his arrest etc. is

required. Sd/

(Ram Prasanna Sharma)
JUDGE

sunita

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