1 2025:CGHC:32010 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 03.04.2025 Judgment delivered on:10.07.2025 CRA No. 358 of 2007 1 - (Deleted ) Lodhi @ Pariram (Died) As Per Hon’ble Court Order Dated 03-03-2025. 2 - (Deleted ) Santosh (Died) As Per Hon’ble Court Order Dated 03-03- 2025 3 - Surit Ram, S/o Rupau, Aged about 36 years, Labour by occupation, R/o Village: Aankdih, Police Station- Masturi, District- Bilaspur (C.G.). ... Appellants versus 1 - State of Chhattisgarh Through The Station House Officer, Police Station- Masturi District - Bilaspur (C.G.) ... Respondent(s) For Appellants : Mr. Dev Ashish Biswas, Advocate For Respondent(s)/State : Mr. Devesh G. Kela, P.L. 2 Hon'ble Smt. Justice Rajani Dubey C A V Judgment 1. This criminal appeal has been filed under Section 374(2) of the Cr.P.C. against the judgment dated 18.04.2007 passed by learned 8th Additional Sessions Judge (Fast Track Court), Bilaspur in Sessions Trial No. 403/2005, whereby the learned trial Court convicted the appellants and sentenced them as under:- Conviction Sentence Under Section 323/34 of the IPC R.I. for one month Under Section 307/34 of the IPC R.I. for three years and fine of Rs. 100/- each, in default of payment of fine amount, additional S.I. for one month (Both the sentences to run concurrently) 2. Vide this Court’s order dated 03.03.2025, the appeal stands abated in respect of appellant No. 1- Lodhi @ Pariram and appellant No.2 Santosh S/o Pariram. Hence, this appeal is being prosecuted on behalf of appellant No.3- Surit Ram. 3. According to the prosecution, complainant- Kaushal Kumar Yadav lodged FIR alleging that he lives at Village- Aankdih with his parents and does agriculture work. On 03.09.2005 at about 3:00 P.M., he was going towards his house, when he reached near the house of appellants, due to old enmity, the appellants abused him and threatened to kill him and assaulted him with a rod due to 3 which, he sustained various injuries over his body. At the same time, the appellants also assaulted Shobhnath. Ganesh, Ashok, Ramphal were witnesses to the incident. Upon filing of First Information Report by the complainant, the investigation was carried out. During investigation, spot map was prepared. Medical examination of the injured was done. Seizures were made as per seizure memo. Statements of witnesses were recorded. Accused was arrested and remanded. On completion of investigation, charge-sheet was filed before the trial Court against the appellant for the offence punishable under Sections 294, 506-B, 323/24 and 307/34 of IPC followed by framing of charges, to which he abjured his guilt and prayed for trial. 4. In order to bring home the offence, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied all the incriminating circumstances appearing against him & pleaded innocence and false implication in the case. In his defence, he examined two witnesses namely B.S. Banafar as D.W.-1 and Balmik Singh as D.W.-2. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record, acquitted the appellant of the charge under Sections 294 and 506B of IPC & convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. 4 6. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is arbitrary, illegal, bad in law and contrary to the evidence available on record, hence it is liable to be set aside. Learned trial Court grossly erred in holding the appellant guilty under Section 307 read with Section 34 of the I.P.C. Learned trial Court did not appreciate the prosecution evidence in accordance with the established principles of law. According to the statement of Kaushal when the appellants were assaulting him, Shobhnath came there for his rescue on account of which, Shobhnath suffered injuries. It is also available on record that Kaushal was under drunken condition at the time of incident. The learned trial Court did not appreciate all these facts and convicted the appellant without any sufficient evidence available on record. Looking to the statements of Ramphal (PW-7) & Ashok Kumar (PW-6), the trial Court ought to have given the benefit of doubt to the appellant. It is also admitted by the complainant that a counter report has been lodged by the appellants against him and due to enmity, the complainant has lodged the report against the appellant. The learned trial Court did not appreciate oral and documentary evidence properly and convicted the appellant which is not in accordance with law. Therefore, the impugned judgment is liable to be set aside and appellant deserves to be acquitted. Alternatively, he submits that the incident took place in the year 2005; this appeal is pending since 2007; at the time of incident, the appellant was aged about 36 years and as of now he 5 is aged about 56 years; he remained in jail for about 2 months therefore, he prays that his sentence may be reduced to the period already undergone by him. To buttress his submission, he has placed reliance on this Court’s judgment dated 05.03.2020 passed in CRA No. 1088 of 2001 in the matter of Lakhan Lal Vs. State of Chhattisgarh & judgment dated 07.10.2021 passed in CRA No. 513 of 2005 in the matter of Padman Patel and Ors. Vs. State of Chhattisgarh and judgment dated 03.02.2023 passed in CRA No. 366 of 2002 in the matter of Jai Dinesh Gupta Vs. The State of Chhattisgarh. 7. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated oral and documentary evidence and rightly convicted the appellant. Therefore, the impugned judgment passed by the trial Court is well merited and does not call for any interference by this Court. 8. Heard learned counsel for the parties and perused the material placed on record including the impugned judgment. 9. It is clear from record of learned trial Court that the learned trial Court framed the charges under Sections 294, 506-B, 323/24 and 307/34 of IPC against the appellant and other co-accused persons. During pendency of this appeal, appellant No. 1- Lodhi @ Pariram and appellant No.2 Santosh S/o Pariram died. 6 10. Shobhnath (P.W.-1) stated that the appellant- Santosh along with his sons committed marpeet with his grandson Kaushal Kumar Yadav and when he tried to intervene, he was also assaulted by the accused persons with stick. 11. Kaushal Kumar Yadav (P.W.-2) stated that on the date of incident, when he was returning to his home, on the way, the accused persons assaulted him with stick and as a result of which, he sustained multiple injuries over his body. Upon hearing his voice, his grandfather Shobhnath (P.W.-1) came there and tried to rescue him, he was also assaulted by the accused persons and due to said assault, he sustained injuries over head and waist. He further stated that after the incident, he went to the police station to lodge the FIR (Ex.P/2) against the accused persons and he admitted his signature on FIR (Ex.P/2) from A to A part. In his cross-examination, he admitted that the accused- Santosh also lodged the report against him. He denied this suggestion that on a festival day, he and his friend armed with lathi, went to the house of the accused in a drunken condition and committed marpeet with them. 12. Dr. Suman Arya (P.W.-12) examined Shobhnath and found four injuries on his body and all the said injuries appeared to have been caused by hard and blunt objects. she gave her report vide Ex.P/28 in this regard. After conducting examination of 7 Shobhnath, she advised him for X-ray. She also examined injured – Kaushal Yadav and found multiple injuries over his body. 13.Dr. D.K. Sav (P.W.-6) examined the injured Shobhnath (P.W.-1) and found multiple injuries over his body and gave report vide Ex. P/8 to P/19C in this regard. He stated that the injuries sustained by the injured- Shobhnath were grievous in nature and if he does not get the treatment in time then he would have died. In cross-examination, he admitted that on 03.08.2005 at about 8:15 p.m., the injured- Shobhnath was admitted in hospital. During examination, he found the injured in a normal condition and he did not find any complications in his body. The injured was aged about 65 years. The report regarding examination of injured – Shobhnath is Ex.P/15. As per the report (Ex.P/15), he found the him in a normal condition. 14.Dr. S. Chatterjee (P.W.-11) conducted X-ray of the injured- Shobhnath and found a rib fracture in his body and gave his report vide Ex. P/27 in this regard. In his cross-examination, he admitted that Kaushal did not suffer any fracture whereas Shobhnath had fractures in his ribs. 15. Thus, it is clear from statements of all treating doctors that Shobhnath sustained rib fracture and he was admitted in hospital for 15 days and treating doctor found him in a normal condition. 16. The Hon’ble Apex Court held in the matter of Sivamani and anr. v. State Represented by Inspector of Police, Vellore reported 8 in CRA 3619 of 2023 in the judgment dated 28.11.2023 held in para 9 which reads as under:- “9. In State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ‘...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.’ The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, ‘ The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the 9 severity of the blows inflicted can be considered to infer intent.” 17. In light of above, it is evident that the injured- Shobhnath sustained injury on his head. The evidence of Dr. D.K. Sav (P.W.- 6) clearly shows that the injury was treated in time therefore was not proved fatal to his life and, as such the same was not sufficient to cause his death. Prosecution has failed to prove intention to commit culpable homicide as injury according to the opinion of Dr. D.K. Sav (P.W.-6) was grievous in nature and not fatal to life. There was no repeated attack on the head of the injured which demonstrates the act of the appellant that he was not having any intention to kill him, and, therefore, his act does not fall within the ambit of Section 307 of IPC. Three considerations appear to be essential namely nature of act done, the intention or knowledge of the agent and circumstance under which the act is done. Without the ingredient of knowledge for intention there cannot be any offence of attempt to murder. A great amount of care is to be taken to differentiate between offence under Section 307 of IPC and other like under Sections 324, 325, 326 etc. If the intention or necessary knowledge to cause death as envisaged under Section 307 of IPC which defines murder is there then it is immaterial whether or no any hurt was caused to victim by the accused. 10 18.In the present case, it is apparent that there was assault made by the appellant on head but the accused did not make repeated assault on head. 19. It is clear from the statements of all witnesses and medical evidence that the injuries sustained by the complainant Shobhnath were not dangerous to his life and at the time of his admission in hospital, his condition was normal. It is also clear that the injuries were caused by hard and blunt object. Thus, considering the nature and extent of injuries, the act of the accused/appellant does not fall within the ambit of Section 307 of IPC but makes him liable to be convicted under Section 325 of IPC. 20.In the aforesaid view of the matter, the conviction under Section 307 IPC recorded against the accused/appellant cannot be sustained and therefore, it deserves to be quashed and set aside by holding that the accused/appellant has committed the offence under Section 325 of IPC only by causing grievous hurt. Thus, the conviction of the accused/appellant under Section 307 IPC is altered to Section 325 of IPC. 21. As regards the sentence, it is clear that the incident took place in the year 2005, at that time, appellant was 36 years of age and now he would be 56 years; appeal is pending since 2007; appellant remained in jail for about 2 months; he was on bail during trial and even during pendency of this appeal and nothing 11 has been brought to the notice of this Court that he ever misused the liberty granted to him. In these circumstances, this Court is of the opinion that no useful purpose would be served in sending him back to jail at this stage and the ends of justice would be served if he is sentenced to the period already undergone by him while keeping the fine sentence imposed by the trial Court intact. 22. Accordingly, while maintaining the conviction under Section 323/34 of IPC, the accused/appellant is convicted under Section 325 of IPC instead of Section 307 of IPC and his sentence is reduced to the period already undergone by him. The impugned judgment stands modified to the above extent. 23. The criminal appeal is thus allowed in part. 24. The appellant is reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned 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 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 25. The trial Court record along with a copy of this judgment be sent 12 back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV