1 2025:CGHC:9440 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 484 of 200 7 1. Ramesh Yadav S/o Chintaram Yadav aged about 30 years, R/o Village – Bidora, Thana – Bagbahara, District – Mahasamund, Chhattisgarh. 2. Chintaram Yadav S/o Makhan Yadav (Died and vide order of this Court dated 31.01.2025 appeal is abated against him). 3. Dhaneshram S/o Chintaram Yadav aged about 26 years, R/o Village – Bidora, Thana – Bagbahara, District – Mahasamund, Chhattisgarh. ... Appellants versus • State of Chhattisgarh, Through: P.S. Bagbahara, District – Mahasamund, Chhattisgarh. ... Respondent For Appellants : Mr. Sanjay Agrawal, Adv. For Respondent/State : Mr. H.A.P.S. Bhatia, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 24 / 02 /202 5 1 Pursuant to the order of this Court dated 31.01.2025, appellants No. 1 & 3 namely Ramesh Yadav & Dhaneshram Digitally signed by HEERA LAL SAHU Date: 2025.02.25 17:53:19 +0530 2 respectively are present in person before this Court. Their presence be marked. 2 The present appeal arises out of the impugned judgment of conviction and order of sentence dated 08.06.2007 passed by the learned Sessions Judge, Mahasamund (C.G.), in Sessions Trial No. 35/2006 whereby the learned Sessions Judge has convicted and sentenced the appellants as under : Conviction Sentence U/s 307/34 of IPC Rigorous imprisonment for 7 years with fine of Rs. 2000/-, in default of payment of fine amount additional R.I. for 6 months. 3 On 31.01.2025, the appeal against appellant No. 2 Chintaram Yadav was abated, due to his death. 4 The case of the prosecution, in brief, is that on 15.06.2006 at about 12:30 am, the complainant, village Kotwar Tikam Singh (PW-2) lodged a report stating therein that on 14.06.2006 at about 10:30 pm, the appellants assaulted Poorandas Vaishnav (PW-1) by means of a wooden stick, due to previous enmity of land dispute, due to which he suffered grievous injuries. On the basis of the complaint lodged by Tikam Singh (PW-2), FIR was lodged. After completion of the investigation, charge sheet was filed against the appellants. 5 So as to hold the appellant guilty, the prosecution has examined as many as 11 witnesses and exhibited 18 documents. The statement of the appellants was also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case. 3 6 After hearing the parties, vide impugned judgment of conviction and order of sentence dated 08.06.2007, learned Judge has convicted and sentenced the appellant for the offence as mentioned in para-1 of this judgment. Hence, the present appeal. 7 In respect of appellant No. 1 Ramesh Yadav, learned counsel for the appellants submits that he is not pressing the appeal so far as it relates to the conviction part of the judgment and would confine his argument to the sentence part thereof only. According to him, the incident is said to have taken place in the year 2006, and thereby more than 18 years have rolled by since then. At present, appellant No. 1 Ramesh Yadav is aged about 48 years and he has already remained in jail for about 2 years and 5 days, and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already undergone by him. 8 In respect of appellant No. 3 Dhaneshram, learned counsel for the appellants submits that considering the statement of Poorandas (PW-1), who has not stated that appellant No. 3 Dhaneshram assaulted him in any way and Rambhushan (PW-3) has also not stated about the assault by appellant Dhaneshram, as such, the conviction and sentence of appellant No.3 Dhaneshram are not sustainable, and he is liable to be acquitted. 9 Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the counsel for appellants. 10 Heard learned counsel for the parties and perused the material available on record including the impugned 4 judgment. 11 Injured Poorandas (PW-1) has stated in his Court statement that appellant Ramesh had assaulted him on his head with a bamboo stick, due to which he sustained a grievous injury, which is confirmed by the statements of witnesses Chamralal (PW-4) and Ram Bhushan (PW-3) who were present in the spot. The said stick has been seized from appellant Ramesh. 12 Dr. R.K. Kuruvanshi (PW-5) has stated that he had medically examined the injured Poorandas (PW-1) on 15.05.2006 and has given a report vide Ex.P-7. According to which, the following injuries were found on him:- (1) a contusion swelling sized 3x3 cm on the left forehead and temple, (2) a bruised sized 2 cm long and 1/5 inch wide in the middle of the first injury from where the bone appeared, (3) a bruised wound sized 1/2 x 1/5 cm on middle of left ear, and (4) a contusion swelling sized 3x2 cm on the right forehead. 13 Dr. R.K. Kuruvanshi (PW-5) has opined that the above injuries were caused by hard and blunt object and were serious in nature. He was also referred for X-ray examination. 14 Dr. Naresh Trishnani (PW-11) has stated that he had done a CT scan of the injured Poorandas (PW-1) who was not conscious at the time of examination but in a semi- conscious state, he was vomiting and bleeding was coming out of his ears and nose. Dr. Naresh Trishnani (PW-11) has stated that he had found from the CT scan that the skull of the injured Poorandas (PW-1) was fractured and there was 5 a blood clot inside his brain. He has proved the report Ex.P-18. 15 The above evidence could not be rebutted. Thus, on the basis of the above evidence, it is found that appellant No. 1 Ramesh Yadav had assaulted the injured (PW-1) with a stick on the head due to which he suffered a serious injury and his condition is said to be critical and he was also unconscious. In such a situation, the case of the attempt to murder the injured Poorandas (PW-1) against appellant No. 1 Ramesh Yadav has been found, and therefore, there is no illegality in the conviction of appellant Ramesh under Section 307 of the Indian Penal Code by the trial court. Therefore, there is no need to interfere in the said conviction. 16 So far as the involvement of co-appellant No. 3 Dhaneshram is concerned, the injured Poorandas (PW-1) himself has stated in his Court statement that appellant No. 3 Dhaneshram was also with appellant Ramesh Yadav. But the injured Poorandas has not stated that Dhaneshram had caused any injury to him. The other witness of the scene, Ram Bhushan (PW-3), has also not confirmed that Dhaneshram had assaulted the injured. The other witness of the scene, Chamralal (PW-4), has certainly said that when the appellant Ramesh assaulted Poorandas (PW-1), Chintaram and Dhaneshram also came and started assaulting him. However, the witness has not stated earlier with what object they were assaulted and later stated that Dhaneshram had assaulted the injured with hands and fists. Para-6 of his cross-examination shows that he was not present at the spot from the beginning but he saw the incident from a distance. In such a situation, when the injured Poorandas (PW-1) himself and the other eyewitness Ram Bhushan (PW-3) have not confirmed the fact that 6 Dhaneshram had also assaulted the injured Poorandas it is not found that appellant No. 3 Dhaneshram was also involved in the said offence. 17 In the matter of Vijendra Singh v. State of Uttar Pradesh1, Their Lordships of the Supreme Court have reiterated the principles of law for applicability and scope of Section 34 of the IPC and summarised the principles therein by holding as under:- “28. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of 1 (2017) 11 SCC 129 7 them, is a question that has to be determined on the facts. (See Kripal v. State of U.P.2.) In Bharwad Mepa Dana v. State of Bombay3, it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.” 18 Thus, in view of the above discussion and in the light of the above judgment, appellant Dhaneshram is not found to have overacted and it is not proved that he had any common intention with the appellant Ramesh Yadav in assaulting Poorandas. Therefore, the conviction of appellant Dhaneshram under Section 307/34 of the Indian Penal Code is not sustainable. 19 As regards the sentence of appellant No. 1 Ramesh Yadav, keeping in view the facts that the incident had taken place in the year 2006 about 18 years ago and further considering the facts and circumstances of the case that a quarrel took place between the appellant and injured on a petty issue due to which the appellant is said to have assaulted by means of bamboo stick and also considering that appellant No. 1 Ramesh Yadav has no criminal antecedent, and he has already remained in jail for about 2 years and 5 days, this court believes that the ends of 2 AIR 1954 SC 706 3 AIR 1960 SC 289 8 justice would be served if he is sentenced to the period already undergone by him. 20 In view of the above consideration, the conviction and sentence of appellant No. 3 Dhaneshram is hereby set aside and he is acquitted of the said charge. Fine, if any, deposited by appellant No. 3 Dhaneshram shall be refunded to him. Further, the conviction of appellant No. 1 Ramesh Yadav for the offence punishable under Section 307 of IPC is hereby affirmed. However, I do not feel it appropriate to send back appellant No. 1 Ramesh Yadav to jail. Hence, he is sentenced to the period already undergone by him instead of suffering rigorous imprisonment for 7 years for the offence punishable under Section 307 of IPC. However, the fine amount imposed by the learned trial Court shall remain intact. 21 Consequently, the appeal is allowed in part to the extent indicated hereinabove. 22 Appellants are on bail. Their bail bonds shall continue for a further period of 6 months as per requirement of Section 437-A of the Cr.P.C. 23 Record of the trial Court be sent along with a copy of this judgment forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) JUDGE H.L. Sahu