Chattisgarh High Court
Jitendra Kumar vs State Of Chhattisgarh on 28 November, 2017
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.111 of 2004
Order Reserved on : 27.10.2017
Order Passed on : 28.11.2017
Jitendra Kumar, son of Ramsharan Suryavanshi, aged about 29 years,
resident of Village Nawapara, Medimuda, Ratanpur, Police Station Ratanpur,
District Bilaspur, Chhattisgarh
---- Applicant
versus
State of Chhattisgarh through Police Station Ratanpur, District Bilaspur,
Chhattisgarh
--- Respondent
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For Applicant : Shri Rajendra Kumar Patel, Advocate For State/Respondent : Shri O.P. Sahu, Government Advocate
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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. The Applicant has preferred the instant revision under Section 397 read with Section 401 of the Code of Criminal Procedure against the judgment dated 17.2.2004 passed in Criminal Appeal No.278 of 2002 by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth 'the Act of 1989'), Bilaspur by which the Learned Special Judge has affirmed the judgment dated 16.9.2002 passed in Criminal Case No.411 of 2001 by the Judicial Magistrate First Class, Bilaspur convicting and sentencing the accused/Applicant as under:
Conviction Sentence Under Section 326 of the Rigorous imprisonment for 2 Indian Penal Code years and fine of Rs.1,000/-
with default stipulation 2
2. Brief facts of the case are that on 23.2.2001, Complainant Dharmendra (PW5) along with Dinesh (PW2), Vyas Narayan (PW4) and Ramkishun (PW3) went to Ratanpur for watching a movie. Since the movie had not started in the talkies, Complainant Dharmendra went to the salon of Suresh (PW1) situated in front of the talkies for getting his beard shaved. Raju (PW8) was making shave of Dharmendra. Suresh and his friends Pappu and Vinod (PW7) were also present in the salon. In the meanwhile, the Applicant came there, snatched the ustara from the hands of Raju Shriwas and assaulted on the left cheek of Dharmendra with the said ustara. Thereafter, the Applicant threw the ustara there and ran away. First Information Report (Ex.P1) was lodged by Suresh (PW1). Dharmendra was medically examined by Dr. Anil Shrivastava (PW9), who gave his report (Ex.P5). He found one deep incised wound over left cheek, vertical in sign, from left ear to left chin, measuring 5½ cms. x ¼ cm. x ¼ cm., deep, muscles and arteries were cut, bleeding profusely. He opined that the injury could be caused by a sharp cutting dangerous weapon and the injury could be grievous in case of disfiguration of face. Vide answer to query (Ex.P6), it was further opined that if immediate treatment had not been provided, the injury could have been dangerous to life. Vide Ex.P3, a ustara was seized from the Applicant and vide Ex.P7, the doctor further opined that the injury sustained by Dharmendra could be caused by the said ustara. On completion of the investigation, a charge-sheet was filed against the Applicant for the offence punishable under Section 326 of the Indian Penal Code. Charge was framed against him under Section 326 of the Indian Penal Code.
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3. In support of its case, the prosecution examined as many as 14 witnesses. Statement of the accused/Applicant was also recorded under Section 313 Cr.P.C. in which he denied the guilt. No defence witness has been examined.
4. After trial, the Trial Court convicted and sentenced the Applicant and the Appellate Court affirmed the judgment of the Trial Court as mentioned in the first paragraph of this order. Hence, this revision.
5. Learned Counsel appearing for the Applicant argued that earlier the Complainant had committed rape with the wife of the Applicant and a case was registered against him therefor. Hence, the Complainant has falsely implicated the Applicant in this case. There are material contradictions in the statements of the prosecution witnesses, but the Trial Court did not consider it. It was further argued that no case is made out against the Applicant under Section 326 of the Indian Penal Code because no grievous injury was caused to the Complainant as defined under Section 320 of the Indian Penal Code. Therefore, the alleged offence falls only under Section 324 of the Indian Penal Code.
6. Per contra, Learned Counsel appearing for the State supporting the impugned judgment submitted that disfiguration of the face of the Complainant took place, therefore, the offence under Section 326 of the Indian Penal Code is made out against the Applicant. Hence, no interference is called for with the impugned judgment.
7. I have heard Learned Counsel appearing for the parties and perused the material available on record with utmost circumspection.
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8. Complainant Dharmendra (PW5) has categorically stated that on 23.2.2001 he was getting his beard shaved in a salon. At that time, the Applicant came there and assaulted him with a knife on the left cheek.
9. Raju (PW8) has supported the above statement of Dharmendra (PW5) and stated that he was making shave of Dharmendra. At that time, the Applicant came there, snatched the ustara from his hands and assaulted Dharmendra with the said ustara on the left cheek and ran away. Pappu and Suresh (PW1) witnessed the incident. Suresh (PW1), Vinod (PW7) and Dinesh (PW2) have also supported the case of the prosecution and deposed that they also saw the Applicant assaulting Dharmendra with the ustara. Keshav Prasad (PW6) and Ramkishun (PW3) have also supported the case of the prosecution and deposed that they also saw the Applicant assaulting Dharmendra and running away.
10. Head Constable Yogesh Gupta (PW12) has deposed that he had seized the ustara from the Applicant on 23.2.2001 itself. Suresh (PW1) and Vinod (PW7) have supported the above seizure. Dr. Anil Shrivastava (PW9) has examined Dharmendra on 23.2.2001. He has proved his report (Ex.P5) and query reports (Ex.P6 and P7). He has examined the ustara and opined that the injury sustained by Dharmendra could be caused by the said ustara.
11. All the above witnesses have remained firm in their cross-
examination. There is no reason to disbelieve their version. Therefore, the Trial Court and the Appellate Court have rightly believed their statements and, therefore, it is established that it is the Applicant who had assaulted the Complainant with the seized 5 ustara on the left cheek.
12. Now the only thing which remains to be decided is whether the offence committed by the Applicant falls under Section 326 of the Indian Penal Code or under Section 324 of the Indian Penal Code.
13. Section 326 of the Indian Penal Code runs thus:
"S. 326. Voluntarily causing grievous hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a 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 for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
14. Grievous hurt is defined under Section 320 of the Indian Penal Code as under:
"S. 320. 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
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during the space of twenty days in
severe bodily pain, or unable to
follow his ordinary pursuits."
15. Admittedly, in the case in hand, the evidence led in this case would reveal that the offence committed by the Applicant would not fall under the first, second, third, fourth, fifth, seventh and eighth kinds of hurt defined under Section 320 of the Indian Penal Code. The Trial Court and the Appellate Court have considered that the offence committed by the Applicant would fall under the sixth kind of hurt defined under Section 320 of the Indian Penal Code. On the date of recording of statement of Dharmendra (PW5), it was observed by the Trial Court that there was a long mark of cut on the left cheek of the Complainant. On the basis of the said observation, the Trial Court considered that the injury was a permanent disfiguration of the face of the Complainant. Therefore, the Trial Court convicted the Applicant under Section 326 of the Indian Penal Code and the same has been affirmed by the Appellate Court.
16. Apart from the above observation of the Trial Court, there is nothing on record which could show that the long mark of cut on the left cheek of the Complainant which was seen by the Trial Court during recording of the statement of the Complainant was permanent in nature. Therefore, this conclusion of the Trial Court is baseless and cannot be affirmed. Hence, certainly, the offence falls only under Section 324 of the Indian Penal Code. 7
17. In the premises of aforestated, the conviction and sentence imposed upon the Applicant under Section 326 of the Indian Penal Code is set aside. Instead, he is convicted under Section 324 of the Indian Penal Code.
18. So far as sentence part is concerned, the Applicant has already undergone 19 days. Considering the facts and circumstances of the case, particularly, that the Applicant is facing the lis since 2001, i.e., for about 16 years, I am of the view that interest of justice would be served if, while sentencing the Applicant with the period already undergone by him, a fine of Rs.10,000/- is imposed upon him payable within a period of two months from the date of receipt of a copy of this order. Ordered accordingly. In default of payment of fine, the Applicant shall be liable to undergo additional simple imprisonment for 2 months. If any amount has already been deposited towards fine, the same shall be adjusted against the amount of fine imposed today.
19. In the result, the revision is allowed in part to the extent indicated above.
20. Records of the Courts below be sent back along with a copy of this order forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal