1 2025:CGHC:6023 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 685 of 2024 Raja @ Golu Nirmalkar S/o Late Prabhu Nirmalkar, aged about 26 years, R/o Mangal Bazar Gali No. 08, Behind Vivekanand Ashram, P.S. Azad Chowk, District Raipur, Chhattisgarh. ... Appellant Versus State of Chhattisgarh Through Station House Officer, Police Station Azad Chowk, District Raipur (C.G.) ... Respondent For Appellant : Mr. Pushpendra Kumar Patel, Advocate. For Respondent : Mr. Keshav P. Gupta, G.A. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 03.02.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 11.03.2024 passed by the learned Ninth Upper Sessions Judge, Raipur, (C.G.) in Sessions Trial No. 217/2002, wherein the said Court convicted the appellant and sentenced him as under:- 2 Conviction Sentence Under Section 307 of IPC R.I. for 7 years with a fine amount of Rs. 2000/-, in default of payment of fine to undergo additional R.I. for five months. 2. Brief facts of the case are that as per the information given to the Head Constable Rekhlal Meshram through telephone on 27.05.2022, that Sanjay Nirmalkar was assaulted by his brother Raja @ Golu Nirmalkar by knife, as a result the injured Sanjay Nirmalkar received simple injuries and as he was unconscious,he was admitted in Mekahara Hospital, Raipur by his sister Ambika Nirmalkar who is the complaint in the case. Upon asking her about the incident, she disclosed to the Head Constable that on 27.05.2022 at 9:20 pm, she went for purchasing ration, while she was returning to home, she saw that her brother Sanjay Nirmalkar was drenched in blood, as she enquired about the same, injured Sanjay Nirmalkar told her that his younger brother Raja @ Golu Nirmalkar and he were having altercations and the accused inflicted him with knife. On the basis of such information, the police has registered the F.I.R. as Crime No. 159/2022 under Section 307 of IPC vide Ex. P/12. 3. After completion of due and necessary investigation, the charge-sheet was submitted before the learned Judicial Magistrate First Class Raipur, District Raipur (C.G.) which has been registered as Criminal Case No. 11321/2022. The case was then committed for trial in learned 9th Upper Sessions Judge, Raipur (C.G.) under Section 307 of IPC against the appellant to which he abjured his guilt and prayed for trial. 4. In order to prove its case, the prosecution has examined as many as 10 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 in the prosecution case, pleaded innocence and false implication. In his defence he examined two 3 witnesses. 5. The learned trial Court after appreciating the oral and documentary evidence convicted the appellant under Section 307 of IPC and sentenced him to undergo RI for 07 years with fine of Rs. 2000/- with default stipulation. Hence, this appeal filed by the appellant. 6. Learned counsel for the appellant submits that the impugned order of conviction and sentence is contrary to the facts and evidence available on record, hence, the same is liable to be set aside. The learned trial Court erred in holding that the appellant committed the offence under Section 307 of IPC. The appellant has neither been assaulted upon his brother, nor committed any act. There was simple dispute between the appellant and his brother due to this, the complainant has made false complaint against the appellant. The learned trial Court also did not appreciate the statement of medical officer and wrongly convicted the appellant under Section 307 of IPC. Looking to the statement of Dr. Rashmi Agrawal (PW-06) and medical report, it is clear that the offence of 307 of IPC is not made out against the appellant on any corner of law. The prosecution has failed to prove its case beyond reasonable doubt. The learned trial Court relied upon only interested witnesses and thereby wrongly convicted the appellant. Therefore, impugned judgment is liable to be set-aside. Alternatively, he submits that as per the medical evidence, the offence under Section 307 of IPC is not made out against the appellant. Prosecution has failed to prove its case beyond reasonable doubt. He further submits that the learned trial Court did not consider the evidence on record in its proper perspective, which has resulted in great miscarriage of justice. Even, if the entire prosecution case is taken as it is, looking to the statement of the Doctor, at best the offence under Section 324 of IPC is made out against the accused/appellant. The appellant has remained in jail for more than 2 years and 09 months, therefore, the appellant may be sentenced to the period already 4 undergone by him. 7. Reliance has been placed in the judgment dated 28.11.2023 passed by the Hon’ble Apex Court in Criminal Appeal No. 3619 of 2023 in the case of Sivamani and anr. v. State represented by inspector of police, Vellore taluk police station, Vellore District. 8. On the other hand, learned counsel appearing for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant under Section 307 of IPC. This appeal is without any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record including the impugned judgment. 10. It is clear from the record of the learned trial Court that the learned trial Court framed charges under Section 307 of IPC and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Section 307 of IPC. 11. Injured Sanjay Nirmalkar (PW-02) has stated that on the date of incident at around 9:30 pm, he was standing near Vivekanand Ashram at Sharda Vidya Mandir, at that time his younger brother Raja @ Golu Nirmalkar assaulted him by knife and he became unconscious as he got many injuries on his left hand and stomach. (PW-04) Kumari Geeta Nirmalkar stated that on 27.05.2022 when she was cleaning her utensils, at that time someone informed her that your brother viz. Sanjay Nirmalkar is lying unconscious at Sulabh Shauchalay. Thereafter, upon reaching the spot she saw her brother drenched in blood and she got to know by her elder sister Ambika Nirmalkar that he got injured in the stomach, they took him to Mekahara Hospital, Raipur and the doctor told them that it is a police case, so after admitting her brother, the police came and started questioning her elder Sister Ambika Nirmalkar, but they did not ask her anything related to the incident. On 28.05.2022, the police intimated him about the arrest of the 5 accused/appellant vide Ex. P/04 and admitted her signature on A to A part. The prosecution declared her hostile and cross-examined her, but she denied all the suggestions of the prosecution and also denied the suggestion that the accused assaulted her brother. 12. (PW-01) Ambika Nirmalkar stated that she saw her brother Sanjay Nirmalkar drenched in blood and upon asking, she did not reply. However, prosecution declared her hostile and cross-examined her, but she denied all suggestions of the prosecution and denied this fact that the accused Raja @ Golu Nirmalkar assaulted Sanjay Nirmalkar. 13. (PW-03) Shyam Pal, (PW-05) Sunny Yadav are neighbours of the complainant and they have stated that upon request of the sister of the injured, they took the victim to the hospital and admitted him. However, the prosecution declared them hostile and cross-examined them, but they denied all suggestions of the prosecution. 14. (PW-06) Dr. Rashmi Agrawal stated that on 17.08.2022, she examined the injured Sanjay Nirmalkar and found four injuries in which three are of stomach and one is of his left hand, and referred him for surgery department and, thereby gave her report vide Ex. P/06. In para 3, she stated that after examining the knife and clothes, she answered query that injuries can be caused by the seized knife and gave her query report vide Ex. P/07. It is clear from the medical report vide Ex. P/06 and the doctor’s statement that nature of injury was not opined by the Doctor and she has also not stated that these injuries are dangerous to life. 15. Honn’ble Apex Court held in the matter of Sivamani and anr. v. State represented by inspector of police, Vellore Taluk Police Station, Vellore district reported in 2023 SCC Online SC 1581 order 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 6 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 severity of the blows inflicted can be considered to infer intent.’ 16. In the light of above judgment, the intention of accused can be ascertained from the actual injury, if any, as well as from the surrounding circumstances, the prosecution has failed to prove the ingredients of Section 307 of IPC. Therefore, it is clear that offence under Section 307 is not made out against the appellant, but offence under Section 324 of IPC is made out against the appellant. 17. So, in the background of above discussion, the appeal is partly allowed and the conviction of the appellant is altered into Section 307 of IPC to Section 324 of IPC. The appellant is convicted under Section 324 of IPC. 18. As regards sentence, keeping in view the facts that incident had taken place in the year 2022, as of now, the appellant would be of 28 years old and further that the appellant had already remained in jail for more than 02 years and 09 months, he be set at liberty forthwith, if no longer required in any other case. I am of the view that ends of justice would be served, if his sentence is reduced to the period already undergone by him. 7 19. In view of the above consideration, the appeal is partly allowed, his conviction under Section 307 of IPC is altered to Section 324 of IPC and he is sentenced thereunder to the period already undergone by him. The fine deposited by the appellant under Section 307 of IPC shall be adjusted accordingly. 20. 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 Uttej