1 2025:CGHC:3196 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 432 of 2020 Ranbaaj @ Shabgul Khan S/o Mahboob Khan Aged About 28 Years R/o Village Bharda, Police Station Guroor, District Balod, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through - The Station House Officer, Police Station Guroor, District Balod, Chhattisgarh. ... Respondents (Cause title, as taken from CIS) For Appellant : Mr. Shikhar Bakhtiyar, Advocate For Respondent : Mr. Keshav Gupta, Govt. Advocate. (Hon’ble Shri Justice Naresh Kumar Chandravanshi ) Order on Board 14/01/2025 1. This criminal appeal has been preferred by appellant under Section 374 (2) of the Cr.P.C., 1973 challenging the judgment of conviction and order of sentence dated 26.2.2020 passed by the First Additional Sessions Judge, Balod, District Balod (CG) in Sessions Case No.89/2018, whereby the appellant has been convicted and sentenced in following manner:- Sr. No. Conviction Sentence 01. Section 307 of IPC 10 years R.I. and fine of Rs.1000/-, in default of payment of fine, to undergo additional R.I. for 4 months. 2 2. Facts of the case, in nutshell, are that, victim -Iqbal (PW-2) had sold chicken to the appellant/accused. At the time of incident on 30.7.2018, he demanded money from appellant, then appellant abused, threatened and assaulted him by means of wooden stick ( लकड़ी का ब्ቈा) on his head with intention to kill him. Victim fainted to the injuries sustained by him. He was admitted in the hospital, where he remained from 30.7.2018 to 24.8.2018. FIR (Ex.P-1) was lodged by Gulaban Bee (PW-1), who is mother of the victim. During course of investigation, police as well as Patwari prepared spot map, wooden stick was seized vide seizure memo (Ex. P-11) on the basis of memorandum statement (Ex. P-10) of appellant, he was arrested, medical report and bed head ticket of victim -Iqbal was obtained, after investigation, chargesheet under Sections 294, 506 part-II and 307 of IPC was filed against the appellant before Chief Judicial Magistrate, Balod, who in turn, committed the case to the Sessions Judge, thereafter, it was transferred to First Additional Sessions Judge, Balod, who tried the case. 3. Learned trial Court framed charges under Sections 294, 506 part-II and 307 of IPC, which was read over to the appellant /accused, who denied the charges. 4. In order to bring home the charges, prosecution examined as many as 13 witnesses and exhibited 23 documents. Statement of accused/appellant under Section 313 of Cr.P.C. was recorded in respect of circumstances appearing against him in the prosecution evidence. Appellant denied all the circumstances appearing against him and claimed his innocency & false implication, but he did not examine any witness in his defence. 5. Learned trial Court after considering the evidence available on record, vide impugned judgment, acquitted the appellant of the offence under 3 Section 294 and 506 part-II of IPC, granting him benefit of doubt, but convicted him under Section 307 of IPC and sentenced him as has been stated in preceding paragraph. Being aggrieved from the same, appellant has preferred instant appeal. 6. Learned counsel appearing for the appellant would submit that appellant has been convicted only on the basis of statement of interested witnesses, as Gulaban Bee (PW-1) is mother of the victim, independent witnesses Pratapchand Sahu (PW-3) and Naushad Qureshi (PW-4) were akin to the victim party. He would further submit that victim and his mother themselves had admitted that transaction of selling and purchase of chicken happens between younger brothers of victim and appellant, therefore, there was no occasion to demand money by victim from the appellant. He further submitted that scuffle had taken place between victim and appellant/accused, in which, victim himself fell down on earth, as such, he had sustained injuries. Hence, appellant may be acquitted of charges. Alternatively, he further submitted that if conviction is upheld, then it be modified from offence under Section 307 of IPC to Section 326 of IPC as there was no intention of appellant to kill victim, rather, the incident occurred spontaneously. The appellant has already served jail sentence for about 6 years 4 months, therefore, he may be awarded sentence for the period already undergone by him. 7. In reply, learned State counsel would submit that the case of prosecution rests on the eye-witnesses’ account. Two of whom namely; Pratapchand Sahu and Naushad Qureshi are independent witnesses. Assault made by appellant upon the victim on his head is also supported with the medical evidence, therefore, appeal is liable to be dismissed at threshold. 4 8. I have heard learned counsel appearing for the parties and perused the material available on record along with record of the trial Court. 9. Iqbal (PW-2) is the victim. He has deposed in his deposition that on the date of incident, when he demanded money from appellant, which he was not giving since 2 years, then, in front of shop of Pratapchand Sahu (PW- 3), appellant assaulted him by means of wooden stick ( लकड़ी का ब्ቈा) on the both sides of his head. Because of such assault, he sustained fracture on his head and he became unconscious. He has further deposed that immediately he was taken to Community Health Centre, Guroor, then to Dhamtari. He has further stated that his treatment is still going on. 10. In cross-examination, victim -Iqbal (PW-2) has denied suggestion to learned defence counsel that there was scuffle between him and appellant, therefore, he fell down and sustained injuries on his head. 11. Gulaban Bee (PW-1) is mother of victim. She has also supported statement of victim that in front of shop of Pratapchand Sahu (PW-3), appellant had assaulted victim by means of wooden stick, as such, victim sustained grievous injuries on his head, as his head was fractured and he became unconscious. She has also stated that earlier victim was taken to Guroor Hospital, thereafter to Dhamtari and subsequently, on the same day, he was admitted in Rajdhani Super Speciality Hospital, Pachpedi Naka ( Raipur), where he was operated. 12. Dr. Anindo Roy (PW-13) was treating doctor of victim at Rajdhani Hospital, Raipur. He has also deposed in his deposition that on 30.7.2018, victim was admitted in unconscious condition in his hospital. He has further deposed that victim had sustained fracture injuries on his both ‘frontoparietal region’ and there were blood clots also. This witness has 5 proved discharge ticket of victim (Ex. D-1) issued by aforesaid hospital, which is in 58 pages. 13. As per C.T. Scan Report of head of victim dated 31.7.2018, following injuries have been found on his fronto - parietal region:- “1. Multiple contusional bleeds with perilesional oedema seen in the right temporal parietal and bilateral frontal and parietal lobes largest in the right parietal lobe measuring 2x1.6cm. 2. Possible diffuse axonal injury/parenchymal bleed in the left cerebral peduncle 9x4mm. 3. Extra axial - extra dural bleed seen over the bilateral frontal, temporal and parietal lobe convexities largest depth on left side 14mm, right side 6mm. 4. Pneumocephalus seen over the bilateral front parietal lobe convexity. 5. Sub arachnoid bleed seen over the bilateral frontal, parietal lobe sulci. 6. Diffuse cerebral oedema. 7. Commented fracture of bilateral parietal and right temporal bones seen with right hemo mastoid and hemo tympanum. 8. Diastasic of bilateral front parietal and left front temporal suture seen. 9. Fracture of the right side of the frontal bone seen involving the right frontal sinus and roof of the right orbit. 10. Fracture of the right zygomatic bone seen involving the arch, temporal process, frontal process and maxillary process suggestive of tripod fracture. 11. Fracture of the right lamina papyracea. 12. Fracture of the body of sphenoid bone seen involving the sphenoid sinus. 13. Fracture of the roof, medial wall, lateral wall, inferior 6 wall of the right orbit seen. 14. Fracture of the anterior and poster lateral wall of the right maxillary sinus seen.” Dr. Anindo Roy (PW-13) has further opined vide Query Report (Ex. P-21) that injuries sustained to the victim were on sensitive part i.e. head and can be caused by said wooden stick ( लकड़ी का ब्ቈा). He has denied the suggestion that in scuffle, if person fell on sharp stone, then said injury can be sustained. He has further clarified that, victim -Iqbal had sustained injuries on both sides of fronto-parietal region of his head, therefore, falling on a stone does not cause injury to both sides of the head. Thus, from medical evidence also, deposition of victim -Iqbal (PW-2) and his mother – Gulaban Bee (PW-1) get full support. 14. In instant case, there are two independent eye-witnesses namely; Pratapchand Sahu (PW-3) and Naushad Qureshi (PW-4). These witnesses have also supported the fact that in front of shop of Pratapchand Sahu, appellant had assaulted victim -Iqbal by means of wooden stick. Pratapchand Sahu has also deposed that appellant had assaulted on the face, hand, chest, leg, hip and other body parts of victim and at that time, he had intervened and pushed appellant to save victim. Although, these witnesses have shown their ignorance about the cause of dispute between appellant and victim, but nothing has been found illicit in their cross-examination to disbelieve their direct evidence. Though Pratapchand Sahu has admitted that he has good relation with the family of victim, but only on this count, he cannot be termed as interested witness. As such, it is found that assault made by appellant upon victim by means of wooden stick on both sides of his head, is well supported by medical evidence as well as evidence of independent witnesses. 7 15. Investigation Officer – Suraj Sahu (PW-11) has stated that he has seized wooden stick ( लकड़ी का ब्ቈा) vide seizure memo (Ex. P-11) on the basis of memorandum statement (Ex. P-10) of the appellant, but this fact has not been supported by independent witnesses namely; Pitambar Sahu (PW- 6) and Nakulram Nishad (PW-7). Further said wooden stick was seized on 10.9.2018 i.e. about 40 days after date of incident, blood Stain etc. has also not been reported to be found proved in that wooden stick, therefore, neither aforesaid seizure is found proved nor its non-proving will bear any negative effect to the case of prosecution, as said injuries sustained to the victim were caused by the appellant, has been proved by the prosecution beyond reasonable doubt by direct evidence as well as by medical evidence. Therefore, this Court found that, learned trial Court has not committed any illegality in holding appellant guilty of causing injuries to the victim by making assault on both sides of his head by means of wooden stick ( लकड़ी का ब्ቈा). Now, the issue to be considered is, whether prosecution has proved essential ingredients for the offence under Section 307 of IPC against the appellant or not and whether holding appellant guilty for the aforesaid offence by the trial Court is sustainable or not? 16. In the case of State of Maharashtra Vs. Kashirao reported in (2003) 10 SCC 434, the Hon’ble Supreme Court has identified the essential ingredients for the applicability of the offence under Section 307 of IPC. 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 8 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 excuse for incurring the risk of causing such death or injury.” 17. It is settled preposition of law that, whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstance that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury. 18. Hon’ble Supreme Court, way back in the year 1961, in the case of Om Prakash Vs. State of Punjab reported in AIR 1961 SC 1782 has observed that when offence of attempt to murder constitutes, 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 9 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) 19. In the case of Hari Mohan Mandal Vs. State of Jharkhand reported in (2004) 12 SCC 220, Hon’ble Supreme Court has held 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 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 10 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.” 20. In light of aforecited law laid down by Hon’ble Supreme Court, if facts of instant case are seen, then it is found that though dispute erupted on being demand of money made by victim from appellant, but appellant had assaulted victim by means of wooden stick ( लकड़ी का ब्ቈा), that too, on both sides of his head, which is most sensitive part of the body and due to such assault, victim had sustained multiple fractures (more than 6) on both sides of his head (fronto parietal region). Aforesaid facts clearly prove that causing such injury on sensitive part i.e. head of the body of victim, shows that the appellant has intention to commit his murder as intention of appellant is coupled with grave overt act causing multiple fractures to the victim on his head, as such, I do not find any infirmity or 11 illegality holding guilty to the appellant by learned trial Court for the offence under Section 307 of IPC. 21. So far as quantum of sentence is concerned, the appellant has been convicted for 10 years rigorous imprisonment along with fine. In commission of aforesaid offence, appellant has not used any lethal weapon or any other dangerous weapon like sword, other sharp edged weapon etc., rather, weapon of assault was wooden stick ( लकड़ी का ब्ቈा). Therefore, sentencing appellant for 10 years seems to be disproportionate and unjustified. As such, in the opinion of this Court, quantum of sentence is required to be interfered, therefore, instead of 10 years, appellant is sentenced for 7 years rigorous imprisonment for the offence under Section 307 of IPC and other part of sentence/order awarded by learned trial Court shall remain intact. Accordingly, the impugned judgment of conviction of appellant is upheld, but sentence part of the impugned judgment is modified to the above extent. 22. Resultantly, this appeal is partly allowed to the extent indicated hereinabove. 23. Record of the trial Court along with a copy of this judgment be sent back to the learned trial Court concerned for its compliance and necessary action, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Rukhsar RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.01.22 10:57:43 +0530