1 2025:CGHC:46519 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.509 of 2008 Judgment reserved on : 11.07.2025 Judgment delivered on : 11.09.2025 1 - Mahesh Kumar Sao, S/o Janakram Sao, aged 22 years, R/o Sector 6, Street No.20, Qr No.5-E, PS Bhilai Nagar 2 – Indivar Khare, S/o Malkham Khare, aged 18 years 1/2 years, R/o Sector 6 Street No.2, Qr.1/L, P.S. Bhilai Nagar Appellants (s) versus 1 – The State Of Chhattisgarh through PS Bhilai Nagar, District Durg (C.G.) Respondent(s) CRA No.519 of 2008 1 - Vidhan Shrivastava, S/o Shri Inderpal Shrivastava alias Inderlal Shrivastava (as mentioned in challan), aged about 27 years, R/o Sector-6, Street No.34, Block-1/A, Bhilai, District Durg (C.G.) Appellant (s) Versus 1 - State Of Chhattisgarh through Station House Officer, Police Station Sector-6, Bhilai, District Durg (C.G.) Respondent(s) For Appellant (s) : Mr. Ashish Shrivastava, Senior Adv with Mr. Rohishek Verma, Mr. Ravi Singh and Mr. Digitally signed by R NIRALA 2 Ramayan Yadav, Advs in CRA No.519/2008 and Mr. Goutam Khetrapal, Advocate in CRA No.509/2008 For Respondent-State : Ms. Nand Kumari Kashyap, PL For Respondent-Objector Mr. B. P. Singh, Advocate Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. Since both the appeals arise out of the common judgment of conviction and order of sentence, therefore, both the appeals are heard together and are being decided by a common order. 2. The present appeals are directed against the judgment of conviction and order of sentence dated 14.05.2008 passed by the learned 9th Additional Session Judge (FTC), Durg (C.G.) in Session Case No.206/2004, whereby the appellants have been convicted under Sections 307/34 and 506-B of IPC and sentenced to undergo RI for 7 years with fine of Rs.2000/- and RI for 1 year with fine of Rs.500/-, respectively, with default stipulations. 3. The prosecution case, in brief, is that on 01.07.2004 at about 9:30 pm, the appellants and other co-accused person voluntarily caused hurt to the victim Abhishek Kumar Singh (PW-7) by dangerous weapons like khukhari, knife and gupti with intention to kill him. Thereafter a case was registered against the accused persons. After investigation, the charge sheet was filed before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned Trial 3 Court convicted the appellants, as mentioned in para 2 of the judgment. 4. Learned Senior counsel appearing for the appellant Vidhan Shrivastava in CRA No.519/2008 submits that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. In the FIR, the name of accused Vidhan was not mentioned and he was implicated falsely subsequently. In the statement of the injured witnesses and other witnesses, no substantive allegation has been levelled against the appellant Vidhan, as such the finding recorded by the learned Trial Court is not sustainable. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of State of Madhya Pradesh vs Kanha alias Omprakash, reported in (2019) 3 SCC 605, Shoyeb Raja vs State of Madhya Pradesh and others, reported in 2024 SCC Online SC 2624 and the judgment rendered by this Court in the matter of Devpratap vs State of Chhattisgarh, reported in 2025 SCC Online Chh 5367. 5. Learned counsel for the appellants in CRA No.509/2008 submits that most of the prosecution witnesses have not supported the case of the prosecution and turned hostile and there are omissions and contradictions in the statements of most of the prosecution witnesses. In alternate, he submits that during pendency of this appeal, the appellant Mahesh died, whereas the appellant Indivar has remained in jail for more than 8 months. 4 The incident took place in the year 2004 and this appeal is pending since 2008, therefore, the appellant Indivar may be sentenced to the period already undergone by him. Reliance has been placed on the judgment rendered by the Delhi High Court in the matter of Sumit Gupta vs State of NCT of Delhi and other connected matters, reported in 2024 SCC Online Del 2035. 6. Per contra, learned counsel for the objector as well as learned State counsel support the impugned judgment and jointly submit that the prosecution has proved its case beyond reasonable doubt against the appellants. The learned Trial Court has minutely appreciated the oral and documentary evidence and rightly convicted the present appellants. Therefore, the appeals are liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 307 and Section 506 Part-II of IPC against all the appellants and after appreciating the oral and documentary evidence the learned Trial Court convicted and sentenced the appellants, as mentioned in para 2 of the judgment. 9. PW-7 Abhishek Kumar stated that on the date of incident on 01.07.2004 he was standing in Bharat Kirana Store’s shed along with his friend Leelanath due to raining, at that time all 3 accused 5 and the juvenile came there and juvenile told that they want to talk to him and told that he has told to assault the accused Mahesh, which he denied. Thereafter his fried Leela told the complainant to sit on his motorcycle, upon which he sat on the motorcycle, at that time the accused Mahesh caught his collar and stopped him, thereafter juvenile took out gupti (sharp edged weapon) and the accused Mahesh took out khukhri (sharp edged weapon) and the accused Mahesh assaulted the complainant on his left hand and the juvenile also assaulted him on his armpit. Thereafter all the accused persons sorrounded him and beaten him, then the boys namely Amit and Abdul came there and informed the police upon which police came there and he was admitted in hospital. 10. Abdul Mujid (PW-1) stated that he saw the complainant Abhishek lying down and blood was oozing from his body and was unconscious, thereafter they took him to hospital. In the cross- examination, he stated that who beat the complainant he does not know. 11. Narendra Kumar (PW-5) stated that on the date of incident, when he was going to Ramnagar to his sister’s house along with his maternal uncle Braj Bihari and stopped at Bharat Kirana Store due to raining, four boys Mahesh, Gopi, Indivar and juvenile were beating Abhishek. All the 4 accused were calling each other’s by their name and the complainant was unconscious. In the cross- examination, he admitted that the Police did not organize TIP by 6 him instead it was done by Braj Bihari. 12. Sanjay Kumar (PW-10), Amit Kumar (PW-14) and Leelanath (PW-15) have not supported the prosecution case and turned hostile. 13. Dr. S. K. Bhoi (PW-16) examined the victim on 01.07.2004 and found one excise wound, two deep abrasions and one lacerated wound and scratches/abrasions on the body of the complainant and gave his report vide Ex-P/17. He stated that as per his examination, injuries are grievous in nature and for confirmation of the same, he referred it for surgeon. 14. Dr. A. Asthana (PW-9) stated that on 02.07.2014 Abhishek Singh was admitted in ICU, Sector 9 Hospital, Bhilai and he examined Abhishek Singh and gave his report vide Ex-P/11. At the time of examination, he was conscious and his BP and pulse was normal and in the left side of chest, breathing was low to normal. 15. Dr. Smt. P. Isar (PW-12) stated that she prepared x-ray report of Abhishek Singh and as per x-ray report, in the left side of chest hemothorax was there. In left para cardiac region, lung contusion was present. In the left side, drainage tube was near 6th rib and AR was found beneath right diaphragm. He gave his report vide Ex-P/13 and admitted her signatures on A to A part of the same. 16. In the case in hand, no surgical expert was examined by the prosecution. Dr. S. K. Bhoi (PW-16) only opined that injuries are grievous in nature and as per enquiry report (Ex-P/23), Dr. S. K. 7 Bhoi opined that in absence of proper treatment, the complainant could have died. 17. The Hon’ble Apex Court in the matter of Shoyeb Raja (supra) held in paras 10, 11.1, 11.2 & 11.3 as under:- “10. Section 307 IPC is the charge that the Courts below have concurrently, refused to frame. It reads as under:- “307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.— When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 11. Let us at this stage, consider the law as laid down by this Court in respect of this section, as also that of Section 34 IPC, given that there are a total of eight respondents (accused) before the court. 11.1 In State of Maharashtra v. Kashirao3, the Court identified the essential ingredients for the applicability of the section. The relevant extract is as below: “The essential ingredients required to be proved in the case of an offence under Section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused 8 having no excuse for incurring the risk of causing such death or injury.” 11.2 This Court in Om Prakash v. State of Punjab4, as far back as 1961, observed the constituents of the Section, having referred to various judgments of the Privy Council, as under: “a person commits an offence under Section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression “whoever attempts to commit an offence” in Section 511, can only mean “whoever : intends to do a certain act with the intent or knowledge necessary for the commission of that offence”. The same is meant by the expression “whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder” in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression “by that act” does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time.” (Emphasis supplied) 11.3 Hari Mohan Mandal v. State of Jharkhand5 holds that the nature or extent of injury suffered, are irrelevant factors for the conviction under this section, so long as the injury is inflicted with animus. It has been held: “10. …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. …What the court has to see is 9 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. 11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt. (Emphasis supplied)” 18. This Court in the matter of Devpratap (supra) held in paras 12 & 13 as under:- “12. The essential ingredients required to be proved in the case of an offence under Section 307 of the IPC are:- (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excused for incurring the risk of causing such death or injury. 10 13. 10 13. The Supreme Court in the matter of Hari Singh v. Sukhbir Singh and others1 has held that under Section 307 of the IPC 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 provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.” 19. In light of the above, it is clear from the statement of victim that on the date of incident, two accused i.e. Mahesh and juvenile assaulted him by sharp edged weapons and after sometime as per victim all the accused persons assaulted him. As per Dr. S. K. Bhoi (PW-16), 5 injuries were found in the body of the injured, out of which injury No.1 is incised wound, injury No.4 is lacerated wound and Injury Nos.2, 3 & 5 are only abrasions and as per query report, the doctor opined that had the proper treatment not been given in time to the injured, he could have died, but no treating doctor was examined by the prosecution and looking to the statement of Dr. Isar (PW-12), it is also clear that the injuries are grievous in nature, but the learned Trial Court has not appreciated all these aspects of the matter and convicted the appellants under Sections 307 & 506-B of IPC, whereas only 11 offence under Section 326 of IPC can be made out against the appellant Mahesh and juvenile. 20. As regards the appellants Vidhan and Indivar, it is clear that the complainant Abhishek only clearly stated against the juvenile and accused Mahesh and against the other accused Vidhan and Indivar he did not state any overt act. He clearly stated that Mahesh assaulted him by khukhri (sharp long knife) and Gopi assaulted by gupti (sharp edged weapon). The doctors have also found only 5 injuries in the body of the injured, out of which only two were found grievous in nature. 21. The Hon’ble Apex Court in the matter of Shoyeb Raja (supra) has further held in paras 11.4 & 11.5 as under:- “11.4 The principle governing the application of Section 34 has been captured thus in Chhota Ahirwar v. State of M.P.6: “24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri) 301] . There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused. 11.5 Sanjiv Khanna J., writing for the Court in Krishnamurthy v. State of Karnataka, encapsulated, 12 succinctly its field of operation as under: “26. Section 34IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co- perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co- assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co- perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator… (Emphasis supplied).” 22. In light of the above, it is clear from the FIR (Ex-P/15) and the statement of complainant that only juvenile and Mahesh assaulted the complainant by sharp objects and no overt act was stated by the complainant against the other accused Vidhan and Indivar. He alleged only general allegation that all 4 accused assaulted him but looking to the medical report and other documents, it is clear that only Mahesh and juvenile assaulted 13 the complainant. 23. During pendency of the appeal, the appellant Mahesh has died, as such the appeal has abated against him and against the appellants Indivar and Vidhan, the prosecution has failed to prove its case beyond reasonable doubt, as such no case is made out against both the appellants. 24. Consequently, the appeals in respect of the appellants Vidhan and Indivar are allowed. The impugned judgment of conviction and order of sentence in respect of both the appellants is hereby set aside. The appellants Vidhan and Indivar are acquitted of the charges under Sections 307/34 and 506-B of IPC. 25. The appellants Vidhan and Indivar are on bail. Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 26. 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/- Rajani Dubey Judge Nirala