1 2025:CGHC:16036 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 342 of 2007 1. Ashok Yadav S/o S/o. Latel Ram Yadav, Aged About 33 Years R/o. Birkona, Police Station Koni, District - Bilaspur (C.G.) 2. Bhagwat S/o S/o. Ramsakela Yadav, Aged About 40 Years, R/o. Birkona, Police Station Koni, District - Bilaspur (C.G.) 3. Rajesh S/o. Ramsakela Yadav, Aged About 32 Years, R/o. Birkona, Police Station Koni, District - Bilaspur (C.G.) --- Appellants versus • State of Chhattisgarh, through the Station House Officer, Police Station- Koni, District- Bilaspur (C.G.) ---- Respondent _____________________________________________________________ For Appellants : Mr. Malay Shrivastava, Advocate. For State : Ms. Nandkumari Kashyap, PL. ____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey Judgement on Board 04.04.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 17.04.2007 passed by Additional Sessions Judge, Bilaspur, District- Bilaspur (C.G.) in Digitally signed by AMIT PATEL 2 Sessions Trial No. 397/2005, wherein the said Court convicted the appellants and sentenced them as under:- Conviction Sentence Under Section 307 read with Section 34 of IPC R.I. for 04 years, with fine amount of Rs. 500/-, each in default of payment of fine, to undergo additional R.I. for one month. 2. As per case of the prosecution, on 29.06.2005 at about 6:30 pm, the complainant- Devendra Singh (PW-01) with Shiv Kumar, Bablu, Dheemar, Bade Yadav and Sanju Soni were present at liquor shop at village- Birkona and were expecting to settle/compromise things amicably regarding the quarrel which took place in the morning amongst themselves. The complainant (PW-1) was talking with the manager of the liquor shop at about 7:15 pm, all of sudden, all the accused persons/appellants came there and assaulted the complainant with an intention to kill him by a sword, due to which the complainant sustained injury on the back side of his head and for self defence, the complainant caught hold of the sword and at the same time, accused persons namely Rajesh and Ashok caught hold the hand of the complainant from back side. When the people gathered on the spot in rescue of the complainant, the appellants fled from there. There was a old subsisting enmity between them regarding the matter of murder, which took place in the past. Thereafter, the FIR (Ex. P/1) was lodged by the complainant- Devendra Singh (PW-01) for offence punishable under Section 307/34 of IPC at Police Station- Koni on the same day against the appellants. 3 3. During the investigation, the complainant was medically examined by the doctor and as per Seizure Memo (Ex. P/2), blood stained cloths i.e., full shirt, scarf and full pant were seized of the complainant. Spot map was prepared by the Patwari vide Ex. P/3 and statements of the witnesses were recorded. Appellant No. 1 was arrested and appellant Nos. 2 and 3 had absconded during the investigation. Charge-sheet was led against the appellants before the Judicial Magistrate First Class, Bilaspur, where both the appellants i.e., appellant Nos. 2 & 3 had surrendered thereafter the matter was committed to Learned Additional Sessions Judge, Bilaspur and the appellants were put to trial for offence punishable under Section 307 read with Section 34 of IPC. 4. In order to bring home the guilt, the prosecution has examined as many as 09 witnesses to prove its case against the appellants. Statement of the accused/appellants were also recorded under Section 313 of Cr.P.C., in which they denied all the incriminating circumstances appearing against them in the prosecution case and pleaded their innocence and false implication in this case. However, in their defence the appellants did not adduce any witness. 5. The learned trial Court, after hearing the counsel for the respective parties and after appreciating the oral and documentary evidence has convicted and sentenced the accused/appellants as mentioned in inaugural para of this judgment. Hence, this present appeal. 6. Learned counsel for the appellants submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned Trial Court failed to consider that the prosecution has failed to prove its case beyond reasonable doubt and learned trial Court has grossly 4 erred in holding the appellants guilty under Section 307 read with Section 34 of IPC. Learned trial Court has not appreciated the prosecution evidence in accordance with the established principles of law relating to appreciation of evidence, the judgment of conviction and sentence of the trial Court is based on surmises and conjectures, learned trial Court has not appreciated the statement of doctor and thereby wrongly convicted the appellants under Section 307 read with Section 34 of IPC. It is lucid from evidence of complainant- Devendra Singh (PW-01) that he had gone to the shop with 10-11 persons, which shows that the complainants were the assailants, he further stated that he received only one injury from the sword, but the learned trial Court did not appreciate all these facts and also overlooked the omissions and contradictions of statements of the prosecution witnesses and gave perverse finding. The prosecution has utterly failed to prove its case beyond reasonable doubt, but the learned trial Court convicted the appellants and therefore, the judgment passed by the learned trial Court is liable to be set aside. Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellants under Section 307 read with Section 34 of IPC, as imposed by the trial Court is just and proper, the incident took place in the year 2005, this appeal is pending since 2007, the appellants are now middle aged persons, appellant No. 1 has remained in jail for near about 10 months, appellant No. 2 has remained in jail for more than 1 years and appellant No. 3 has remained in jail for more than 6 months and they did not misuse the liberty while being on bail and no useful purpose would be served in again sending them to jail, therefore, in 5 the interest of justice, it would be appropriate if the sentence imposed upon them may be reduced to the period already undergone by them. 7. 7. On the other hand, learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellants. Therefore, the judgment impugned does not suffer from any irregularity or infirmity warranting interference by this Court in the instant appeal. 8. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 9. It is evident from record of learned Trial Court that it framed charges against the appellants under Section 307 read with Section 34 of IPC and after appreciating the oral and documentary evidence, learned trial Court convicted the appellants for offence under Section 307 read with Section 34 of IPC. It is also evident from record of learned trial Court that the prosecution has examined as many as 09 witnesses to prove its case against the appellants. 10. Complainant- Devendra Singh Thakur (PW-01) stated that on 29.06.2005 at about 6:30 pm,with Shiv Kumar, Bablu, Dheemar, Bade Yadav and Sanju Soni were present at liquor shop at village- Birkona and were expecting to settle/compromise things amicably regarding the quarrel which took place in the morning amongst themselves. The complainant (PW-1) was talking with the manager of the liquor shop at about 7:15 pm, all of sudden, all the accused persons/appellants came 6 there and appellant No. 2 assaulted him with an intention to kill him by a sword, due to which the complainant sustained injury on the back side of his head and for self defence, the complainant caught hold of the sword and at the same time, accused persons namely Rajesh and Ashok caught hold the hand of the complainant from back side. Upon noticing the said incident, Shivkumar, Bablu Dhivar, Bade Yadav and Ashok Yadav gathered together and came to the spot for rescuing him, the appellants fled from there. 11. Shivkumar Singh (PW-2) & Kanhaiyalal @ Bablu (PW-8) have supported the statement of the complainant (PW-1) in their depositions and stated that they saw that the appellant No. 2/Bhagwat Yadav assaulting the complainant by sword on his back side of head. 12. Ramkushal Yadav (PW-3) has stated in his deposition that he saw injury, which was sustained by the complainant on his back side of head. 13. Dr. D. Kumar (PW-9), who examined the complainant- Devendra Singh Thakur (PW-1) on 29.06.2005 opined that he found one injury on his back side of head along with a lacerated wound i.e., 8 to 10 cm x1.5 cm x 1 cm from where his blood was oozing and advised him for X-Ray, gave his report vide Ex. P/8. 14. Dr. S. Chatterjee (PW-5), who was posted at District Hospital, Bilaspur as Radiologist also examined the complainant- Devendra Singh Thakur (PW-1) stated that he did not find any fracture in his X-Ray report, however, he advised for C.T. scan, he gave his report vide Ex. P/6, in which he admitted his signature on A to A part. Both doctors, who 7 examined the complainant- Devendra Singh Thakur (PW-1) did not opine that injury sustained by the complainant was fatal to his life. 15. Looking to the statements of both the doctors i.e., PW-05 & PW-09 and their medical reports, it is clear that injured person sustained simple injury. 16. It has been held by Hon’ble the Apex Court in the matter of Sivamani Vs. State Represented by Inspector of Police 1in para 09 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 of 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 severity of the blows inflicted can be considered to infer intent.’ 17. It is evident from complainant – Devendra Singh Thakur (PW-1) and statements of eye witnesses that accused/appellants assaulted by the 1 2023 SCC OnLine SC 1581 8 sword to the complainant, but it is not proved by medical evidence that injury sustained by the complainant was fatal to his life or not. As per guidelines of Hon’ble Apex Court and looking to the X-Ray report (Ex. P/6) of Dr. S. Chatterjee (PW-5), it is quite evident that injury sustained by the complainant was simple in nature. 18. In the light of above judgment and in this case also prosecution has failed to prove its case that injury of the complainant- Devendra Singh Thakur (PW-01) is fatal to his life and the same was caused in an attempt to commit murder of the injured/complainant. As such, the ingredients of offence under Section 307/34 is not proved against the appellant and it is altered/converted into Section 324/34 of IPC as the offence under Section 307/34 of IPC is not made out against the appellants. 19. As regards sentence, keeping in view the facts that incident is said to have taken place in the year 2005 and nearly 20 years are rolled by since then, the appellants No. 1, 2 & 3 are now middle aged persons, appellant No. 1 has remained in jail for near about 10 months, appellant No. 2 has remained in jail for more than 1 year and appellant No. 3 has remained in jail for more than 6 months and they did not misuse the liberty while being on bail, their sentence is liable to be reduced to the period already undergone by them. This Court is of the opinion that the ends of justice would be served, if the appellants are sentenced under Section 324/34 of IPC to the period already undergone by them. 20. In the result, the criminal appeal is partly allowed. Conviction of the appellants under Section 307 read with Section 34 of IPC is hereby altered to Section 324/34 of IPC and sentenced to the period already undergone by them. The impugned judgments stands modified to the 9 above extent. 21. The appellants are reported to be on bail, therefore, their bail bonds shall remain in operation for a period of six months from today in view of provision of Section 481 of BNSS, 2023. 22. 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 AMIT PATEL