Order on Board

21-09-2022

1. This criminal revision is filed against the judgment passed by the Additional Sessions Judge (FTC), Mahasamund in Criminal Appeal No.212/2010 dated 22-12-2015 whereby the appeal preferred by the applicant has been dismissed and the judgment of conviction and order of sentence recorded by the JMFC in Criminal Case No.179/2010 dated 10-08-2010 wherein the applicant was convicted under Section 326 of the IPC and sentenced to undergo R.I. for 2 years and to pay fine of Rs.200/- and under Section 452 of the IPC and sentenced to undergo R.I. for 15 days and pay fine of Rs.100/-, in default of fine, further S.I. for two months and 15 days respectively, has been affirmed.

2. The case of the prosecution is that, on 13-03-2010, at about 7:30 p.m. complainant Aasinbai (PW-1) was talking to her son - Ramesh Yadav (PW-2), at the same time the present applicant came there, abused her, and assaulted her from the wooden side of the axe. Consequently, the complainant Aasinbai (PW-1) sustained injuries on backside and below chest. The FIR was lodged by Aasinbai (PW-1) and the police registered offence punishable under Section

294, 323, 506 II of the IPC.

After investigation charge sheet was filed for offence punishable under Section 294, 506 II, 324, 325 and 452 of the IPC. Learned trial Court framed charges for offence punishable under Section 294, 326 and 452 of the IPC. The applicant abjured the charges and pleaded non-guilty. The prosecution examined as many as 7 witnesses and exhibited 5 documents. The learned trial Court after completion of the trial convicted the applicant as mentioned in the opening paragraph.

The applicant preferred appeal before learned Sessions Court and the same was dismissed vide judgment dated 22-12-2015 affirming the conviction and sentence recorded by the trial Court.

3. Learned counsel for the applicant submits that the applicant has been implicated in a false case. The independent prosecution witnesses have not supported the prosecution case. The doctor has not been examined, no X-ray was conducted and radiologist has not been examined. The doctor who medically examined the injury, has stated that on visual examination she has given the medical report of fracture of ribs Nos. 3, 4, 5 and 6 and the evidence given by the doctor is not reliable. He further submits that the applicant has remained in jail for about four months and if this Court comes to a conclusion that the applicant has committed offence under Section 325/326 of the IPC, the sentence awarded to the applicant may be reduced to the period already undergone.

4. On the other hand the State counsel opposes and submits that there was injuries along with fracture. Though there is no X-ray report and no radiologist has been examined, but from visual examination, doctor Tara Agrawal (PW-7) has stated in her deposition that there was fracture of ribs, and thus, the learned Courts below have not committed any illegality in convicting and sentencing the applicant.

5. I have heard learned counsel for the parties and perused the record.

6. From the record, it is clear that FIR (Ex.-P/1) was lodged by Aasinbai (PW-1) herself and offence under Section 294, 323, 506 II of the IPC was registered on 13-03-2010. Vide Ex.-P/2 axe along with wooden support was seized from the possession of the present applicant. The injured was sent to the hospital and she was medically examined, where two injuries were found, one incised wound on back near rib C7 and T-1 over spine of 4.5 x 1 x 0.5 cm.

and fracture of third, fourth, fifth and sixth rib of left side.

7. Aasinbai (PW-1) has stated that the FIR was lodged by her and at the time of incident her younger son was present at the spot. The applicant entered into the house and assaulted by means of wooden side of the axe on her back side and below the chest.

8. Ramesh Yadav (PW-2) has supported the case of prosecution. Manish Kumar (PW-3) has not supported the case and was declared hostile. Meena Gupta (PW-4) h