1 2025:CGHC:47469 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 752 of 2007 1 - Kalyan Singh, S/o Kalvin Masih, Aged About 48 Years, R/o Tikarkala, Jyotipur, Police Station – Gaurella, District- Bilaspur (C.G.). ... Appellant versus 1 - State of Chhattisgarh Through: Police Station Gaurella, District- Bilaspur (C.G.). ... Respondent(s) For Appellant : Mr. Komal Yadav on behalf of Mr. Siddharth Pandey, Advocate For Respondent(s)/ State : Mr. Afroz Khan, Panel Lawyer Hon’ble Smt. Justice Rajani Dubey Judgment on Board 16/09/2025 1. The appeal under Section 374(2) of Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 22.08.2007 passed by learned Additional Sessions Judge, Fast Track Court, Pendra Road, District- Bilaspur 2 (C.G.) in Sessions Trial No. 446/1999 whereby the appellant has been convicted under Section 307 of IPC and sentenced to undergo RI for 7 years and to pay fine of Rs. 1,000/- in default of payment of fine to undergo additional S.I. for 1 month. 2. The prosecution case, in brief, is that on 29.10.1999 Head Constable Bhagwat Prasad Dahariya, posted at Police Station Gaurela, along with Head Constable Dilip Dhirhi and Constable Mahesh Verma, was on duty when, at around 13:15 hours, Horilal Rathore, son of Ramsahay Rathore, approached the police station and informed that absconding accused Kalyan Singh, named in FIR No. 151/99 under Sections 341, 294, 323, and 506B of the IPC, was seen working at the rooftop of a house in old Gaurela. Pursuant to the said information, the Investigating Officer Head Constable Dilip Dhirhi, accompanied by Head Constable Bhagwat Dahariya and Constable Mahesh Verma, proceeded to the said location. On reaching the newly constructed house of Rakesh Sahu, they found accused Kalyan Singh working on the roof. Upon being informed about his arrest and advised to accompany them for Court proceedings, the accused allegedly became violent and attacked Head Constable Bhagwat Dahariya with an axe, causing serious injuries to his head, left leg, and thigh. While attempting to overpower the accused, Constable Mahesh Verma intervened, and the axe was eventually snatched from the accused. During the scuffle, accused Kalyan Singh also attempted to throttle Head Constable Dilip Dhirhi. Thereafter, both injured police personnel were provided immediate medical treatment. Based on the information given by Head Constable Bhagwat Dahariya, a zero FIR 3 was registered. During the investigation, the blood-stained clothes of the injured were seized, the weapon of offence (axe) was recovered and sent for forensic examination and statements of witnesses were recorded. The accused/appellant was arrested and his medical examination was got done. Upon completion of the investigation, charge sheet was filed against the accused under Sections 186, 332, 333 and 307 of the IPC before the Judicial Magistrate First Class, Pendra Road. Learned trial Court framed the charges under Sections 307 and 332 of IPC, to which appellant abjured his guilt and claimed to be tried. 3. In order to prove its case, the prosecution examined as many as 16 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. In his defence, accused examined one witness namely Brijlal Kushwaha as D.W.-1. 4. Learned trial Court after appreciating oral and documentary evidence available on record, convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the judgment, findings and sentence passed by the learned trial Court are against the facts and law. The learned trial Court failed to give importance to material contradictions and omissions in the statements of the witnesses. The prosecution has suppressed the true genesis of the incident and injury caused to the appellant thereby he became 90% disabled and cannot walk without crutches. The learned trial Court 4 committed error by convicting the appellant for offence punishable under Section 307 of IPC without any essential ingredients of offence. The learned trial Court did not appreciate this fact that all witnesses are police witnesses and interested witnesses. Independent witness did not support the prosecution case but the learned trial Court did not appreciate oral and documentary evidence properly and convicted the appellant which is not just and proper in the eye of law. Therefore, the impugned judgment and sentence are liable to be set aside. Alternatively, he submits that upon perusal of the copy of order dated 10.02.2006 passed by this Court in W.P. No. 106 of 2000, it is evident that on the date of incident, police tortured the accused and due to torturous attitude of police, he sustained grievous injuries and was hospitalized for a considerable period and therefore the accused was awarded compensation amount of Rs. 50,000/- by this Court. He further contended that the incident took place in 1999; this appeal is pending since 2007; appellant is facing lis since 1999; he remained in jail for 1 month and 24 days. Therefore, considering the above facts, his undergone period may be considered to be sufficient sentence for the alleged offence. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Sivamani and another Vs. State represented by Inspector of Police; 2023 SCC OnLine SC 1581. 6. Per contra, learned State counsel submits that the finding arrived at by the learned trial Court is based on proper appreciation of oral and documentary evidence and, therefore, is not liable to be interfered with. 5 7. Learned counsel for the parties and perused the material placed on record. 8. It is clear from records of learned trial Court that the learned trial Court framed charges under Sections 307 and 332 of IPC against the appellant and after appreciating oral and documentary evidence, the learned trial Court convicted the appellant under Section 307 and 332 of IPC and sentenced him accordingly. 9. Complainant- Bhagwat Prasad Dahariya (P.W.-1) stated that he was posted as Head Constable in Police Station- Gourela and he along with other police personnel went to execute the non-bailable warrant against the appellant and when they tried to arrest him, the appellant assaulted him with an axe and as a result of which, he sustained injuries in his left thigh. 10. Dilip Kumar Dhirhi (P.W.-2) supporting the statement of Bhagwat Prasad Dahariya (P.W.-1) stated that on the date of incident, during performing their public duty, the accused assaulted the complainant Bhagwat Prasad Dahariya (P.W.-1) with an axe due to which, he sustained grievous injuries on his body. 11.Constable Mahesh Verma (P.W.-3), Horilal Rathore (P.W.-4) and Komal Singh (P.W.-5) supported the statements of both the injured witnesses. 12. Bharatlal (P.W.-6) also supported this fact that the police personnel came to execute non-bailable warrant against the appellant and found the appellant on terrace and started assaulting the accused with stick. Thereafter, some altercation took place between them. In the ensuing scuffle, the Head constable Bhagwat Prasad Dahariya (P.W.-1) fell on rod fixed to the ceiling. 6 13. Dr. Raj Dulani (P.W.-9) examined the complainant and found 6 injuries over his body. He opined that some injuries were caused by a sharp-edged weapon and some were caused by a blunt and hard object and gave his report vide Ex. P/8 in this regard. He further examined Dilip Dhirhi (P.W.-2) and found 3 simple injuries over his body. He opined that the said injuries were caused by a blunt, hard and sharp-edged weapon and gave his report vide Ex.P/9 in this regard. In para 11 of his cross-examination, he admitted that, “ यह बात सह ” ह कि भागवत डहरिय जो सिस प चोट आई थी उसस मृत्य रित नह! हत। In para 12, he stated that, “ चोट क्रमृ$ जो भागवत डहरिय आई थी उसस भा मृत्य रित नह! हत। यह सह ह कि चोट क्रमृ$ 2 औ 5 छोड़ ” शेष आई चोट* जो भागवत डहरिय आई थी व किगन स आ स त ह। 14. Prosecution did not file any X-ray report of injured Bhagwat Prasad Dahariya (P.W.-1) and did not examine any doctor in this regard and, thus failed to prove that the injured Bhagwat Prasad Dahariya (P.W.-1) sustained grievous injuries in the said incident. 15. Hon’ble Apex Court in the matter of Sivamani (super) held in paras 8, 9, 10 and 11 as under:- “8. Section 307, IPC reads as under: ‘307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender 7 shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section. (d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section. 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 8 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. 10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, this Court is convinced that the Impugned Judgment of the High Court requires to be interfered with. Admittedly, there is no allegation of repeated or severe blows having been inflicted. Even the injuries on PW1 and PW2 have been found to be simple in nature, which is an additional point in the appellants favour. 11. We are further inclined to accept the submissions of the learned counsel for the appellants that from the 9 materials on record, only offences under Sections 323 and 324 of the IPC can be made out. As such, the conviction under Section 307, IPC is unsustainable.” 16. It is also clear from admission of complainant and Investigating Officer that for the said incident, this Court vide order dated 10.02.2006 passed in Writ Petition No. 106 of 2000 awarded compensation of Rs. 50,000/- in favour of the complainant (appellant) and this Court found that due to torturous attitude of police, complainant sustained grievous injuries and he got disabled. 17. Looking to the statements of all witnesses and report of treating doctor, it is quite vivid that on the date of incident, police personnel went to execute the non-bailable warrant against the appellant and during this duty, some altercation took place between the police personnel and the appellant and in the said scuffle, Head Constables- Bhagwat Prasad Dahariya (P.W.-1) and Dilip Dhirhi (P.W.-2) sustained injuries. However, in absence of any X-ray report of injured and evidence of doctor in this regard, prosecution has failed to prove this fact that the injuries sustained by the injured Bhagwat Prasad Dahariya (P.W.-1) were sufficient to cause death. Therefore, the conviction of the appellant for the offence under Section 307 of IPC is not made out against the appellant. 18. So far as the conviction under Section 332 of IPC is concerned, it is evident that the appellant caused hurt to public servants Bhagwat Prasad Dahariya (P.W.-1) and Dilip Dhirhi (P.W.-2) in order to prevent them from performing their duty, deter them from doing so, or in retaliation for their lawful actions. The learned trial Court minutely appreciated all oral and documentary evidence and 10 thereby convicted the appellant as mentioned above. Thus, the findings recorded by the learned trial Court are based on proper appreciation of evidence and witnesses, therefore, the conviction of the appellant under Section 332 of IPC is affirmed. 19. As regards sentence under Section 332 of IPC, keeping in view the facts that the incident took place in the year 1999 and appellant is facing lis since then; as of now he is a senior citizen aged about 64 years; appellant suffered torture from the police and remained in jail for 1 month and 24 days; the appellant is on bail since long and did not misuse the liberty so granted, hence taking into consideration the facts and circumstances of the case, this Court is of the opinion that the ends of justice would be served if the sentence awarded under Section 332 of IPC to the appellant by the trial Court is reduced to the period already undergone by him. 20. In the result, the appeal is allowed in part. Appellant is acquitted of the charge under Section Section 307 of IPC. While maintaining conviction of the appellant under Section 332 of IPC, the sentence imposed thereunder by the trial Court is hereby reduced to the period already undergone by him. 21. The appellant is reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned 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 11 aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 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 Ruchi