2025:CGHC:2278 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.A. No. 910 of 2004 1. Somar Sai, S/o Bandhan Rajwar, aged about 25 Years, Occupation - Agriculture R/o Village Sakalpur P.S. Jainagar District - Surguja (C.G.) (C.G.) 2. Ramfal, S/o Bandhan Rajwar, aged about 35 Years, Occupation – Agriculture, R/o Village Sakalpur P.S. Jainagar District - Surguja 3. Likhan, S/o Bhadwa Rajwar, aged about 27 Years, Occupation – Agriculture, R/o Village Sakalpur P.S. Jainagar District - Surguja 4. Sukhan, S/o Bhadwa Rajwar, aged about 22 Years, Occupation – Agriculture, R/o Village Sakalpur P.S. Jainagar District - Surguja 5. Radhe, S/o Bhadwa Rajwar, aged about 22 Years, Occupation – Agriculture, R/o Village Sakalpur P.S. Jainagar District - Surguja 6. Sonai Ram (Died And Deleted) as Per Honble Court Order Dated 19-12-2024 And 13-01-2025 ------ Appellants Versus State of Chhattisgarh through P.S. Jainagar District - Surguja (C.G.) ---- Respondent For Appellants : Shri Pawan Sharma, Advocate appeared on behalf of Shri Nishi Kant Sinha, Advocate. For Respondent/State : Ms. M. Asha, P.L. . Hon'ble Shri Justice Sachin Singh Rajput Judgement on Board 17/02/2025 1. This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) have been filed by the appellants, being aggrieved by the order dated 08/10/2004 passed in Sessions Trial No. 334/2000 by the III Additional Sessions Judge(FTC), Surajpur, District - Surguja (C.G.). ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.03.27 10:43:04 +0530 -2- 2. By the judgment impugned the appellants have been convicted and sentenced in the following manner: Conviction Sentence Under Sections 147 of IPC R.I. for 01 year to each of the appellants. Under Sections 148 of IPC R.I. for 02 years to each of the appellants. Under Sections 341/149 of IPC 01 month imprisonment to each of the appellants. Under Sections 307 or 307/149 of IPC R.I. for 10 years and fine of Rs.500/- to each appellants in default of fine additional R.I. for 01 months. Under Sections 323/149 of IPC R.I. for 01 year to each of the appellants. All the sentences are run concurrently and sentence already undergone to be adjsuted 3. Case of the prosecution, in brief, is that, on 16/06/2000 at about 09:00 AM at Village - Sakalpur, Police Station – Jainagar, the appellants armed with dangerous weapons formed an unlawful assembly and in prosecution of the common object they restricted the movement of the complainant Bodhan Ram (PW-1), assaulted him with tabbal and rod and caused deadly injuries. They also assaulted Sodhi Ram (PW-2 ) and Laal Jeet (PW-3). A report of the incident was lodged by the complainant - Bodhan Ram (PW–1) on the same day at 13:10 hrs. in Police Station – Jainagar. On the basis of that report, F.I.R. No. 74/2000 was registered vide Ex.P/18 and investigation was set on motion. Injured Bodhan Ram (PW–1) was sent for medical examination. On 17/06/2000, the appellants were arrested for the above mentioned offences and their memorandum statement were recorded vide Ex.P/8, and the blood stained club was seized vide Ex.P/11. Statements of the witnesses were recorded. 4. After completion of investigation, charge-sheet was filed before the J.M.F.C., Surajpur who in turn committed the case to the Sessions Court, Ambikapur vide its order dated 22/09/2000. Vide order dated 26/07/2002, the case is made over to the learned trial Court. The appellants along-with other co-accused were -3- charged for an offence punishable under sections 147, 148, 341/149, 307, 307/149 and 323/149 of the I.P.C. who denied the charges and claimed to be tried. 5. To establish its case, prosecution has examined as many as 13 witnesses and exhibited 24 documents. The statement of the appellants under 313 of the Cr.P.C. was recorded in which they pleaded their innocence and false implication. They examined 02 defense witnesses in their support i.e Ex. DW/1 & DW/2. 6. On assessment of the evidence and material placed before the learned Trial Court, the appellants were convicted and sentenced as described in paragraph-1 of the judgment. 7. Learned Counsel for the appellant submits that the appellants and the injured had a civil dispute. There was a counter case lodged against the injured person in which they have been acquitted. He submits that except a fracture on the frontal region of Bodhan Ram (PW-1), all other injuries sustained by the another injured Sodhi Ram (PW-2 ) and Laal Jeet (PW-3) are simple in nature. He further submits that the memorandum and seizure witnesses Shivsagar (PW-5) and Munna Rajwade (PW-12) have not supported the case of the prosecution, therefore it cannot be said that the appellants have used any dangerous weapon for causing the injuries. He goes on to submit that there are material contradictions and omissions in the statement of Bodhan Ram (PW-1), Sodhi Ram (PW-2 ) and Laal Jeet (PW-3) and their statements do not inspire confidence. Alternatively, he submits that the allegation of assault appears to be against the appellant No.2 - Ramfal and appellant No. 4 Sukhan and there is no allegation of assault against rest of the appellants. He submits that there is nothing on record to suggest that the other appellants had a common object to cause injuries to the injured and therefore, their conviction with the aid of sections 149 IPC is bad in law which cannot sustain scrutiny of this Court. He -4- further submits that statement of PW-10 cannot be relied upon to hold that the injuries to Bodhan Ram (PW-1) are grievous as the X-ray was not taken by Dr. M.K. Jain (PW-10). Looking to the statement of Dr. S.L. Jaiswal (PW-4) in which he has stated that the injuries were simple in nature, the appellants cannot be convicted under section 307 IPC as there was a free fight amongst the appellants and the injured persons and there was no intention as such to cause death of Bodhan Ram (PW-1). Initially Dr. S.L. Jaiswal (PW-4) examined the witness and found simple injuries on the persons and advised to go for X-ray but neither Dr. S.L. Jaiswal (PW-4) nor Dr. M.K. Jain (PW-10) has stated that if injured Bodhan Ram (PW-1) was not treated in due course of time, the injuries sustained by injured could cause the death of Bodhan Ram (PW-1). He further submits that from the evidence it can safely be gathered that no repeated blow was made upon Bodhan Ram (PW-1) to gather the fact that he had any intention to cause his death. Therefore, at best without prejudice the prosecution case, the appellants can be convicted under section 325 of the IPC. He further submits that appellant No. 1 – Somar Sai, appellant No. 2 – Ramfal, appellant No. 3 – Likhan, appellant No. 4 – Sukhan, appellant No. 5 – Radhe and appellant No. 6 - Sonai Ram already remained in jail from 08/10/2004 to 12/04/2005 including judicial custody from 19/06/2000 to 28/07/2000, that the incident is of the year – 2000, that the appellants are now of ripe age and faced litigation for almost 25 years and they must have reformed in the society by now and that they never misused liberty, they being a first offender, in the event this Court is not convinced for acquittal, the conviction of the appellants under section 307 r/w Section 149 may be altered into section 325 / 149 of the IPC and they be sentenced to the period already undergone. He further submits that in light of the above mitigating circumstances this Court can also extend the benefit of Section 4 of the Probation of Offenders Act, and release them on good conduct and behavior. 8. Per contra, learned counsel for the State vehemently opposes the submission of -5- the counsel for the appellants. She submits that the statement of Bodhan Ram (PW-1), Sodhi Ram (PW-2 ) and Laal Jeet (PW-3) clearly implicates the involvement of the appellants in commission of the crime. She further submits that Bodhan Ram (PW-1) has sustained fracture on his vital part i.e. frontal bone, which has been duly proved by the statement of the Dr. M.K. Jain (PW- 10). She submits that as the appellants have assaulted Bodhan Ram (PW-1), Sodhi Ram (PW-2 ) and Laal Jeet (PW-3) which goes to show their intention to cause death, therefore conviction of the appellants under section 307 of the IPC is well merited and does not require any interference. Apart from this, she submits that in order to sustain the conviction with the aid of the Section 149 of the IPC, overt act of each member of unlawful assembly is not necessary. She submits that if the prosecution establishes from record that appellants were the member of the assembly despite the fact that some of the appellants may not have assaulted the injured persons, it would not make any difference and they could be convicted with the aid of Section 149 of the IPC. She goes on to submits that to sustain conviction under section 307 of the IPC the only thing which the Court has to look for is the intention on the part of the appellants to cause deaths. He submits that looking to the overt act and the manner which the assault are made, the appellants are not entitled for any leniency or alteration in the conviction nor for benefit of Section 4 of the Probation of Offenders Act,1958. She lastly submits that well merited finding recorded by the learned trial Court which does not require any interference in this appeal. 9. Heard learned counsel for the parties, considered their rival submissions and also perused the record with utmost circumspection. 10. The prosecution case as brought on record suggests that when injured Bodhan Ram (PW-1) was going on his motorcycle, on the way near the house of one Ishwar accused Sonai met him and asked him to stop. When he refused to stop there saying that he was to go to Bhatgaon, he persistently asked him to stop and on hearing that he did stop there. When he again started moving forward -6- and entered into a 3-4 ft. narrow lane, the appellants were already present there. He has stated that accused Sonai exhorted others to kill him. He has further stated that accused Radhe and Likhan were having axe and accused Sukhan was having a battle axe used for chopping goat, accused Somar Sai was having club and accused Ramfal was having an iron rod whereas accused Sonai was carrying nothing. According to him, first of all accused Sukhan open an assault on him with battle axe and caused injury near the right eye, accused Ramfal assaulted him with iron rod on head twice as a result of which he fell down on the ground. According to him, where the other accused persons caused injury, he could not see as he had fallen down with the face downwards and could not see that. Thereafter on hearing his cries, his brother Laljit, Sodhiram and Budhram etc. came running to him and then one Tejuram went to village Songara to arrange for a jeep. After getting jeep, he was taken to police station Jainagar. Before being shifted to the jeep, he was offered water, and on the way the Sarpanch namely Shivsagar met him and to whom also the incident was narrated. He is stated to have made the report in the police station. After lodging the report, he was taken to government hospital Vishrampur for treatment but as no doctor was there, he was shifted to government hospital, Surajpur where he took treatment for 25-27 days. He is stated to have regained consciousness after about a week and by then he was somehow able to move. He has then stated that after primary treatment at Surajpur, he was shifted to Ambikapur. He has stated that Appellant No.2 – Ramfal assaulted in his twice as a result he fell down and heard that other appellants were shouting to assault. He further deposed that the incident was reported by him vide Ex.P/1. This witnesses was subjected to cross-examination but barring some minor contradictions and omissions, he remained firm in his statement. Sodhi Ram (PW-2) has also corroborated the statement of PW-1 and stated that accused Ramfal was having axe, Sukhan was having a small axe and others were having club. He has stated that accused Sukhan had assaulted Bodhan with axe on his head. When he -7- asked accused Sukhan not to assault Bodhan, he and accused Ramfal chased him also to assault. Accused Ramfal assaulted this witness (PW-2) also near his right eye. Then he is stated not to be aware as to where the injury was invlicted. Then again he says that injury was inflicted on his leg. Laal Jeet (PW-3) has also deposed in the same line as Bodhan Ram (PW-1). He has stated that when he tried to intervene, the appellants were attacked them. He has stated that he could not see as to who first assaulted PW-1 and with what weapon. He too is stated to have been assaulted by accused Sukhan and Ramfal with axe on his head and leg. In lengthy cross examination also he remained firm to what he stated in the examination-in-chief. Dr. S.L. Jaiswal (PW-4) is the witness who examined the injured persons and found the following injuries :- Bodhan Ram (PW-1)(Ex.P/1A) (i) A horizontally placed incised wound on the forehead extending from left to right outside, blood stained, bleeding profusely with slight gentle swelling size 5”x 2”x 1”. Suspected fractured frontal bone, advise - X-ray skull. (ii) A vertically placed incise wound on the middle of the vault de scalp blood slide reddish color, hairs clotted with dried blood 3”x ¼” x ¼ ”; (iii) A vertically placed incised wound on the left side to the vault de scalp, blood stained, reddish in color, size 2 ½ ”x ¼ ”x 1”; (iv) A vertically placed reddish blood strained abrasion on the middle de the left fore arm with prostend swelling size 4” x ¼ ” advised – X-Ray (forearm); (v) An obliquely placed reddish bruise on the left side of the waist with shiftiness swelling. Doctor Opined that injuries are de within eight hours. The injury No.(i)(ii) & (iii) caused by hard & sharp object while injury No. (iv) & (v) caused by hard & blunt object and injuries No.1 & 4 advised X-ray. Sodhi Ram (PW-2) (Ex.P/3A) -8- (i) A small obliquely placed lacerated wound on the right side de the forehead ½’’ above a latgel to the right eye brow blood stained reddish in color size ¼ ”x ¼”x ¼”; (ii) An obliquely placed incised wound on the middle de the right lower limb outside blood stained, reddish in color size 1”x ¼”x ¼”; (iii) An obliquely placed reddish bruise on the calf region de the left lower limb with slight tend swelling size 2”x ½”; (iv) An obliquely placed reddish bruise on right lower oscular region with slightend swelling size 2”x ½”. Doctor Opined that injuries are de within eight hours. The injury No.(i)(iii) & (iv) caused by hard & blunt object while injury No. (ii) caused by hard & sharp object and injuries Simple in nature. Laal jeet (PW-3) (Ex.P/4A) (i) An obliquely placed incised wound on the upper occipital region of scalp, blood stained, reddish in color, hairs clotted with dried blood. Size 4”x ½” x bonedeep; (ii) A horizontal placed incised wound on the lower third do the left lower limb, blood stained, reddish in color. Size 2”x ½ x bonedeep’’ ; (iii) An obliquely placed reddish bruise on the top of the left shoulder with slight tend swelling size 2”x ½”. Doctor Opined that injuries are de within eight hours. The injury No.(iii) caused by hard & blunt object. The injuries may heel within a footlight as per the precautions. Injuries are simple in nature. 11. As regards injuries No. 1 to 3 suffered by Bodharn (PW-1), this witness has opined the same to have been caused by the axe whereas injuries No. 4 and 5 could have been caused with the club. Likewise, injury No. 2 of injured Sodhi (PW-2) has been opined to have been caused with axe whereas injuries No. 1, 3 and 4 could have been caused with the club. Similarly, as regards injury Nos. 1 and 2 of injured Laljeet (PW-3) could have been caused with axe whereas injury No. 3 could have been caused with the club. Dr. M.K. Jain (PW-10) has -9- deposed in his statement that he is posted as a radiologist in District Hospital – Ambikapur since 1985. He further deposed that on 21/06/2000 X-ray of injured Bodhan (PW-1) was taken and fracture of the frontal bone of head was found but no fracture was found on his left hand. His report is Ex. P-16. In cross- examination he has deposed that he did not take the X-ray of Bodhan nor does he know him personally. 12. Shivsagar (PW-5) and Munna Rajwade (PW-12) are the witnesses to the memorandum and seizure. Though they have not supported the case of the prosecution, they have admitted their signature in the memorandum and seizures. Jagnnath Verma (PW-11) is the Nayab Tehsildar who recorded the so called dying declaration of injured – Bodhan Ram. According to him, injured Bodhan disclosed to him that appellant No. 4 - Sukhan Ram, appellant No. 2 - Ramfal, appellant No. 1 - Somar Sai and appellant No. 5 Radhe assaulted him with Tabbal on account of land dispute. The so called dying declaration is Ex.P/17. P.K.S. Gautam (PW-13) is the Investigating Officer who has duly supported the case of the prosecution. 13. From the evidence of injured PW-1, PW-2 and PW-3, the presence of the appellants on the place of occurrence is established. It is also quite vivid that assault was made on the person of the PW-1, PW-2 and PW-3. The learned counsel for the appellants tried to persuade this Court to disbelieve the statements of these witnesses as there was a civil disputes between the parties and also that they are the interested witnesses. However, this Court is unable to accept this submission of the counsel for the appellants on the basis of statements of injured witnesses PW-1 to PW-3. There may be a civil dispute between the parties but that does not give a right to the appellants to assault the PW-1, PW-2 and PW-3 with the dangerous weapon. Learned counsel for the appellants further tried to persuade this Court that since the seizure witnesses have not supported the case of the prosecution, it cannot be said that the appellants have used the weapons in assaulting the injured persons. Of course, -10- the PW-5 and PW-12 the seizure and memorandum witnesses have not in their entirety supported the case of the prosecution, however they have admitted their signatures in the memorandum statement and seizure memo. Even otherwise, the statements of PW-1, PW-2 and PW-3 clearly establishes the involvement of the appellants in crime. Their version is also corroborated by the medical evidence given by Dr. M.K. Jain (PW-10) and Dr. S.L. Jaiswal (PW-4). Therefore the submission is also rejected. 14. The other submission of learned counsel for the appellants is that the main allegation of assault is against Ramfal (appellant No.2) and Sukhan (appellant No.4) and therefore, conviction of the other appellants with the aid of the Section 149 of the IPC cannot sustain. This issue has been dealt with by the Constitution Bench of the Supreme Court way back in the year 1964 in the matter of Masalti vs State of U.P. reported in AIR 1965 SC 202, where it has been held that in order to sustain conviction under section 149 of the IPC, overt act of all the persons is not necessary as one has to be merely a member of unlawful assembly and active participation of each member is not legally required. In such cases, the prosecution is required to establish that the accused persons have formed the unlawful assembly and each of them were member of that assembly and had a common object for committing the offence. In the case in hand, the presence of the appellant is clearly established. The overt act of the appellants and the role played by them in causing injuries to PW-1 to PW-3 is also established. Accordingly, this submission made by the counsel for the appellants is liable to be rejected. Now the last submission made by Shri Sharma is that the conviction of the appellants under section 307 IPC cannot be sustain as there was no intention on the part of the appellants to cause death. In this context, he placed reliance upon the judgment of Supreme Court in the case of Sivamani & Anr. Vs. State Represented by Inspector of Police in Criminal Appeal No. 3619/2023 dated 28th November, 2023. 15. It is well settled position of law that injuries are not sine qua non to attract section -11- 307 of the IPC. Only the intention to cause death has to be seen in order to invoke section 307 of the IPC. There are catena of decisions of the Supreme Court in this regard. In the case of Jage Ram & Ors. Vs. State of Haryana & Anr., 2015 (11) SCC 366 and The State of Madhya Pradesh Vs. Kanha @ Omprakash, 2019 (3) SCC 605 it has been observed by Supreme Court that grievous or life threatening injury is not necessary to maintain a conviction under section 307 of the IPC, and the intention of the accused can be ascertained from the actual injury if any, as well as from the surrounding circumstances. Among other things, nature of weapon used and similarity of the blow inflicted can be considered to infer an intent. In light of the above law laid down, the facts of this case require to be given thoughtful consideration. From the record it’s not in dispute that PW-2 and PW-3 sustained only simple injuries. The appellants were holding dangerous weapons on their hand like Danda (stick), Tangia (axe) etc. Bodhan (PW-1) sustained a fracture on the frontal region and according to him he was assaulted by the appellants twice. Initially Bodhan was being assaulted and six accused persons were assaulting him. Apart from this, it is also quite natural that in the case of a free fight there may be some injury on the vital part of the injured. It does not appear to this Court that the appellants took advantage of the situation and made any repeated blow to the Bodhan. Hence on analysis of the evidence available on record, this Court is of the opinion that instead of Section 307/149 of the IPC, the appellants can be convicted under sections 325/149 of the IPC. Order accordingly. Conviction and sentence under other sections is however maintained. 16. Taking into the consideration mitigating factors as submitted by learned counsel for the appellants and that the incident occurred in the year 2000, considering the fact that there is nothing to show that the appellants have ever misused the liberty, that by now they must have attained the ripe age, that the appellant No.1 has remained in jail for 07 months and 13 days, appellant No. 2 for 07 months 21 days, appellant No.3 for 07 months 13 days, appellant No.4 for 07 months 21 -12- days, appellant No.5 for 07 months 21 days and appellant No.6 for 02 months and 10 days, this Court is inclined to reduce the sentence to the period already undergone by them. Fine amount is maintained. Appeal, thus partly allowed. 17. Since the appellants are reported to be on bail, their bail bond shall remain in operation for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 18. The record be sent back to the trial Court along with a copy of this order for compliance and information. -Sd/- (Sachin Singh Rajput) Judge Ashish/J