1 2025:CGHC:23421 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.763 of 2009 1 - Anis Memon S/o Late Abdul Aziz Memon, aged about 36 years, R/o Purani Basti, Korba, District Korba (C.G.) ... Appellant versus 1 - State Of Chhattisgarh through District Magistrate, Korba, District Korba (C.G.) Respondent For Appellant : Ms. Indira Tripathi, Advocate For Respondent(s) : Mr. Devesh G. Kela, PL Hon’ble Smt. Justice Rajani Dubey Judgment on Board 12/06/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 31.10.2009 passed by the learned 2nd Additional Session Judge (FTC), Korba (C.G.) in Session Trial No.91/2006, whereby the appellant has been convicted under Section 307 of IPC and sentenced to undergo RI for 5 years with default stipulations. Digitally signed by RAMAKANT NIRALA 2 2. The prosecution case, in brief, is that on 15.08.2005, the complainant lodged a report alleging that on the same day, the present appellant and other co-accused persons assaulted him by sword, chopper, hand, fist etc, as such he received severe injuries. Thereafter a case was registered against the accused persons. After completion of investigation, the charge sheet was filed against the appellants before the Magistrate concerned. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. Most of the prosecution witnesses have turned hostile and have not supported the prosecution case, despite that the learned Trial Court has wrongly convicted the appellant, hence prosecution has failed to prove its case beyond all reasonable doubts against the appellant. Therefore, the impugned judgment is liable to be set aside. Alternatively, She submits that the incident took place in the year 2005, this appeal is pending since 2009, the appellant remained in jail for 27 days and has never misused the liberty granted by this Court and presently he is aged about 52 years of age, therefore, the appellant may be sentenced to the period already undergone by him. 3 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 307 of IPC and in alternate Sections 307 & 506 Part-II read with Section 34 of IPC and Section 25 (1-B) (b) of Arms Act against the appellant and co-accused persons. After appreciation of oral and documentary evidence available on record, the learned Trial Court acquitted the co-accused Anand Kharsan of the offence under Section 25 (1-B) (b) of Arms Act and convicted the appellant under Section 307 of IPC and co-accused Anand Kharsan was convicted under Section 326 of IPC and the appellants Dhaneshwar and Pappu Chourasiya were convicted under Section 323 of IPC. 7. The complainant (PW-7) Amin Khan stated that on the date of incident, the appellant assaulted him by sword and the co- accused Anand assaulted by chopper on his neck and other accused persons assaulted him hand and fist. The other witness PW-1 Samim @ Sama, PW-2 Mohd Salim, PW-3 Avinash 4 Mishra, PW-4 Prahlad Singh, PW-5 Raju, PW-6 Prashant Shrivastava have not supported the prosecution case, whereas PW-8 Hussain Khan supported the statement of the complainant Amin Khan. PW-10 Khooti Swami also stated that Amin Khan was brought in Kotwali and hospital in injured condition. PW-16 Dr. Wadhwani stated that he was posted as Assistant Surgeon, Primary Health Centre, Korba and he identified signature of Dr. K. P. Verma on A to A part of Ex-P/18 & Ex-P/19. The prosecution did not examine Dr. Verma or duty doctor of complainant. Thus, the prosecution has failed to prove this fact that on the date of incident, the complainant sustained grievous injuries or sustained such injuries which are grievous or dangerous to life but the complainant stated that on the date of incident, he sustained injuries on his neck and head and other witnesses saw the injuries of complainant. 8. The Hon’ble Supreme Court in the matter of Sivamani and another vs State represented by Inspector of Police, reported in 2023 SCC Online SC 1581 held in para 9 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 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 5 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.” 9. In the present case also, the prosecution has failed to prove case against the appellant under Sections 307 & 326 of IPC, but looking to the statement of the complainant and other witnesses, the offence under Section 324 of IPC is proved against the appellant, therefore, the conviction of the appellant is altered into Section 324 of IPC from Section 307 of IPC. Accordingly, the appellant is convicted under Section 324 of IPC instead of Section 307 of IPC. 10. As regards sentence, it is clear that the incident took place in the year 2005, this appeal is pending since 2009, the appellant remained in jail for 27 days and has never misused the liberty granted by this Court and presently he is aged about 52 years of age, therefore, ends of justice would be served if the appellant is sentenced to the period already undergone by him. Accordingly, the appellant is sentenced to the period already undergone by him. 11. The appeal is partly allowed. 12. The appellant is reported to be on bail. 6 13. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 14. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Rajani Dubey Judge Nirala