DURGESH DONGARE Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dtd. 21/3/2013 passed by the 2nd Additional Sessions Judge, Rajnandgaon (CG) in ST No.13/2011, whereby and whereunder the learned trial Judge after holding the appellant guilty for attempting to take life of PW6, Ritesh Kumar Yadav and also inflicting PW5, Hemant Kumar, convicted him under Ss. 307, 323 of the Indian Penal Code (for short the 'IPC') and sentenced to undergo R.I. for 7 years and to pay fine of Rs.200.00, in default of payment of fine to undergo R.I. for 4 months; R.I. for 1 year with a direction to run both the sentences concurrently. Further directed that the period already remained in jail during trial till the judgment be set off under Sec. 428 Cr.P.C.

(2.) The conviction is impugned on the ground that without there being any iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) As per case of the prosecution on 17/10/2010 about 6.00 pm, PW5, Hemant Kumar and PW6, Ritesh Kumar Yadav, the accused/appellant and many other persons were returning after immersion of goddess Saraswati, on account of some earlier dispute, the accused/appellant assaulted Hemant Kumar and when Ritesh Kumar Yadav intervened, he assaulted with the help of a club over the head of Ritesh Kumar Yadav, due to which, he fell down and remained unconscious. PW5, Hemant Kumar lodged the report before outpost Chikhli, P.S. Rajnandgaon. Police had registered unnumbered FIR under Ss. 294, 506, 323, 307 IPC and sent PW5, Hemant Kumar and PW6, Ritesh Kumar Yadav for medical examination. PW9, Dr. Dinesh Gupta conducted CT scan and noticed blood clot over the head and haemorrhage over right side of the head, swelling over the head and fracture of 3 points over the head. He gave CT scan report Ex. P/13. PW2, Dr. K. Thakur examined the victim PW6, Ritesh Kumar Yadav on 18/10/2010 and conducted operation of the head. Bone of the head was fractured. The victim/injured was operated. After treatment he was discharged on 26/10/2016. The Doctor had prepared discharge summary Ex. P/4. Also prepared note in the history sheet Ex. P/5, P/6, P/7 and P/8. PW12, Y.K. Tiwari examined Hemant Kumar and noticed one abrasion near the left eye-brow and advised for x-ray and gave his report Ex.P/20. He also examined PW6, Ritesh Kumar Yadav and noticed one lacerated wound and one semi circular wound over the scalp and as per Doctor the patient's condition was serious. He gave his report Ex.P/21. Also taken x-ray of the head on 18/10/2010, noticed fracture over the left parietal bone and gave his report Ex. P/22. On query he gave his report Ex.P/17. Police recorded the statement of the witnesses under Sec. 161 Cr.P.C., prepared spot map, seized articles and arrested the present accused/appellant and co-accused Robin @ Robis. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Rajnandgaon (CG), who registered the case as Cr. Case No. 613/10 and committed the same vide committal order dtd. 7/2/2011. The learned Additional Sessions Judge, received the case on transfer and conducted trial. The accused/appellant and the co-accused were charged for the offence under Ss. 294, 506B, 323 and 307 IPC. Against the present accused/ appellant charges were also framed under Ss. 294, 506 Part II, 323/114, 307/114 IPC.