1 Reserved on: 02/05/2025 Delivered on: 02/09/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 192 of 2005 1 - Narayan Soni, S/o Late Shri Lalmani Soni, aged about 28 years 2 – Yadav Prasad, S/o Shri Brijram Dheeraj, aged about 28 years. 3 – Sarju Kumar, S/o Late Shri Chaitram, aged about 32 years. 4 – Rajendra S.o Shri Jagdishlal Kurre, aged about 29 years 5 – Bajrang Soni, S/o Late Shri Lalmani Soni, aged about 35 years. 6 – Gamanand S/o Shri Brahmanand Thakur, aged about 33 years 7 – Khemlal Soni, S/o Late Shri Lalmani Soni, aged about 33 years. (All the appellants 1 to 5 and 7 are residents of Manikpur Korba and 6 is R/o Pandripani, P.S. – Balconagar, Korba ... Appellants versus State Of Chhattisgarh Through : Station House Officer, Police Station – Korba, Chhattisgarh ... Respondent For Appellants : Ms. Shweta Mishra, Advocate on behalf of Shri Samrath Singh Marhas, Advocate For Respondent/State : Ms. M.Asha, Panel Lawyer (Hon’ble Shri Justice Sachin Singh Rajput) CAV Judgment Challenge in this appeal is to the judgment dated 24/02/2005 passed by the Additional Sessions Judge, Korba, CG in Sessions trial No.70/2004 by which the appellants have been convicted and sentenced in the following 2 manner:- Conviction Sentence Under Section 148 of I.P.C R.I. for 2 years and fine of Rs. 500/- each (in default, R.I. for 2 months) Under Section 307/149 of I.P.C R.I. for 5 years and fine of Rs.1000/- each (in default, R.I. for 6 months) Both the sentence to run concurrently 2. Appellant Narayan, Yadav Prasad, Suraj Kumar, Rajendra, Bajrang, Gajanand and Khemlal were charged under Sections 148, 307, 149 IPC, and accused Shivdayal Singh was charged under Sections 147, 148, 341, 294, 323, 307, 506-B and 216 IPC. The allegation against them is that they formed unlawful assembly on 22/07/1998 at about 10 PM near Pokhri Bridge, Manikpur, Korba. They were armed with deadly weapons like clubs and swords with intention to cause murder of Jagdish Pradhan, Sugna Barman, Vikas, Sanjay, D. Ravindra, Jagvindar Singh in prosecution of common object and assaulted them. 3. Prosecution story in brief is that on 22/07/1998 at about 7.30 p.m. friends of Jagdish namely Sanjay Singh, Joginder Singh and Sugna Burman went to the Coffee-House situated at T.P. Nagar, Korba. As Jagdish was a resident of Manikpur, all of them went to Manikpur to leave Jagdish home on their motor-cycles. Jagdish was pillion rider with Sanjay Singh, Sugna Burman and Vikas Singh were on one motorcycle and Joginder on another. As soon as they reached near Pokhri-bridge of Manikpur, the appellant Gamanand stopped and threatened them. At that time Bajrang Soni, Rajendra, Sanjay and Yadav Prasad came armed with clubs & swords and pushed Jagdish Pradhan on the ground. All of them started assaulting Jagdish. When Sugna Burman, Sanjay Singh, Vikas Singh and Joginder Singh attempted to intervene, Sugna Burman was assaulted by Bajrang 3 Soni and his brothers which caused injuries to him. Joginder, Vikas and Sanjay also received injuries. At that time Ravindra also reached on the place of incident who was also assaulted. Vikas, Joginder Singh and Sugna Burman went to lodge the report. On the report of Sugna Burman offence under Section 307/147, 148, 341, 294, 506 (B) of IPC were registered. 4. Investigation was carried out by the police and after completion of the investigation, charge sheet was filed. The case was committed to the Sessions Court and was made over to the trial Court for trial. The appellants were charged for offence under Section 148, 307/149 and against accused – Shivdayal Singh charge under Section 216 of IPC. The appellants denied the charges and claimed to be tried. 5. The prosecution, in order to bring home the guilt of the appellants, examined as many as 20 witnesses and exhibited 23 documents. By the impugned judgment, learned trial Court convicted 7 persons and acquitted one accused i.e. S.D. Singh. Hence this appeal. 6. Learned counsel for the appellant submits that learned trial Court has wrongly convicted the appellants without appreciating the statement of the complainant – Sugna Burman (PW2) and other witnesses. There is no evidence on record much less any discernible evidence to prove that the appellants were holding knives and other weapons which caused stab injuries to Jagdish Pradhan. There are material contradictions and omissions in the testimony of the injured witnesses as also medical evidence. Statement of the victim cannot be said to be credible and conviction of the appellants on the basis of these unreliable evidence cannot sustain. The prosecution was not able to bring home the guilt of the appellant under Section 307/149 of IPC as nothing has been brought on 4 record that there was any intention or object of the appellants to cause injuries which may result into their death. There is no fatal injury on the vital part of the body which is sufficient to cause death. D.Ravindra (PW4) turned hostile and not supported the case of the prosecution. He specifically stated that he was not present at the place of incident. Alternatively, learned counsel prays that conviction of the appellant under Section 307 of IPC may be converted into Section 326/325 of IPC and the period of sentence may be reduced to the period already undergone by them. 6. Per contra, learned State counsel submits that the finding is based upon proper appreciation of evidence. The injured witness has named the appellants as assailants. The doctor has opined fractures on the ribs and also six persons sustained injuries and in order to attract Section 307 of IPC, injuries are not sine quo non. She submits that intention and knowledge to cause death is to be seen which is gathered from the overt act of the appellants in assaulting 6 persons. She further submits that in order to attract Section 149 of IPC, each member of unlawful assembly is not required to play any role in the overt act alleged. If the assembly is found to be unlawful, every member of the unlawful assembly would be liable for punishment. In the case in hand, every member of the unlawful assembly have participated and looking to the overt act, submission of counsel for the appellants cannot be accepted. 7. Heard learned counsel for the parties and perused the records. 8. First of all this Court would like to determine whether the appellants have committed the offence or not. 9. In this context, statement of injured Sugna Burman (PW-2) is required to be looked into. In his deposition before the learned trial Court, he has 5 deposed that when he along with Vikas Singh, Jagvinder and Sanjay Singh was returning from Coffee house and reached a bridge, Gamanand obstructed him, set a gun on him, abused him and Jagdish Pradhan, who was sitting behind him was dragged and was assaulted by sword and stick. Jagdish Pradhan sustained injuries on his hands, leg and head. They took him to the SECL Hospital. After getting him admitted, they went to lodge report. He was subjected to cross-examination, however, he has resiled from the version given by him in the examination in chief. He has stated that he did not see the accused assaulting the victims as there was darkness at the relevant time. On being asked as to how he disclosed in the examination in chief regarding the assault made by the accused persons, he has stated that it was disclosed on being informed by someone. He has further stated that he has not even seen the sword. Jagdish Pradhan (PW-6) also stated that when he along with Vikas Singh, Sugna Burman, Jagvinder Singh, Sanjay Singh was coming from coffee house, on the bridge, the appellants obstructed them and he was assaulted by the appellants. His statement is corroborated by statement of Vikas Kumar (PW1), Jagvinder Singh (PW3), D.Ravindra (PW4), Sanjay Kumar Singh (PW5). Dr. B.P. Kanwar (PW7), who has examined Jagvinder Singh, Sanjay Singh, Vikas Singh and Sugna Burman has deposed that they also received various injuries on their person. Dr. Samras Bose (PW8), who examined Jagdish Pradhan (PW6) has deposed that some of the injuries were serious in nature and it would have caused death also if immediate medical care was not provided. Therefore, it is in the considered opinion of this Court that Jagdish Pradhan sustained grievous injuries. 10. Now the question comes before this Court is whether the offence under Section 307 or 325 or 326 of IPC is made out. 6 11. At this stage, it would be expedient to notice section 307 of the IPC which reads as follows: “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 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.] (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 defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section. 12. The Supreme Court in case of Parsuram Pandey Vs. State of Bihar reported in (2004) 13 SCC 189 has held that In order to constitute and offence under Section 307 of IPC following ingredients must be present (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. It has been observed in paragraph 15 as under: 7 “15. To constitute an offence under Section 307 two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place …...” 13. Similarly, the Supreme Court in case of Jage Ram and others v. State of Haryana reported in (2015) 11 SCC 366 has laid down the ingredients of offence under Section 307 of IPC and observed as under: “12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of 8 assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.” 14. The next question arises whether only Gamanand is responsible or other appellants are also responsible under the provisions of Section 149 of IPC. This issue has been dealt with by the Constitution Bench of the Supreme Court in the matter of Masalti v. State of U.P. reported in AIR 1965 SC 202 wherein it has been held that in order to sustain conviction, every member of unlawful assembly is not required to show any overt act. In the case in hand, from the statement of Jagdish Pradhan (PW6) involvement of other appellants is also made out who also actively participated in commission of the crime. 15. In light of the above principle of law laid down by the Supreme Court for offence punishable under Section 307 of IPC, the evidence of the instant case is examined. It is reflected from the evidence that the appellants have used club and sword to cause injuries to the injured complainant Jagdish Pradhan. Record also shows that when other injured persons came to the rescue of Jagdish Pradhan, they too were assaulted by the accused/appellants. From the statement of doctor (PW-7) the injuries found on the persons of the injured persons were opined to be of simple nature. However, according doctor (PW-8) out of seven, two injuries caused to injured Jagdish Pradhan were found to be simple and others were grievous in nature including fracture. However, there is nothing on record to show that the accused persons were nurturing an intention while causing the 9 injuries, to do away with the injured persons, as the incident appears to have taken place all of a sudden. From overall perusal of the record and marshaling the evidence, injuries sustained and overt act of the appellants, in the considered view of this Court offence under Section 307 of IPC is not made out. Essential ingredients of Section 307 of IPC as enumerated in the case of Parsuram Pandey (Supra) and Jage Ram and others (Supra) are missing. The appellants are liable to be convicted under section 326 read with 149 of IPC instead of Section 307/149 of IPC.” However, since there is sufficient evidence to show that the accused/appellants formed an unlawful assembly and in prosecution of the common object of such assembly and by each of them force or violence has been resorted to, their conviction under Section 148 IPC is hereby maintained. 16. This court will now deal with the quantum of punishment to be imposed upon the appellants. The factors which needs to be consider while awarding sentence are nature and gravity of offence, penalty provided for the offence, manner in which offence is committed, proportionality between offence committed, punishment, age of the offender, character of the offender, antecedents of offender, possibility of reform in the society, impact of offence on society and public interest. The Supreme Court in case of Deo Narain Mandal Vs. State of U.P. reported in (2004) 7 SCC 257 in paragraph 8 held as under: “8. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into 10 consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.” 17. The appellants were aged about 28 and 35 years respectively at the time of incident. From the impugned judgment it appears that it is their first crime. It is not disputed at the bar that the appellants have already served for about 05 months of sentence awarded to them. During pendency of these appeals, they have not misused the liberty granted to them. It is also not brought to the notice of this Court that appellants were involved in any other crime during the pendency of the appeals. It is also not brought to the notice to this Court that the appellants have not reformed during this period and their presence is detrimental to society. Thus looking to the above aspects, ends of justice would be served if the appellants are awarded sentence to period already served/undergone by them while enhancing the fine amount. Thus, the appeal is partly allowed and this Court passes the following order: (i) The impugned judgment and order of conviction and sentence for the offence punishable under Section 307 read with Section 149 of IPC is set aside and the appellants are convicted for the offence punishable under Section 326 read with section 149 of the IPC and sentenced to the period of sentence already undergone/served by them. (ii) The fine amount of Rs.1000/ (for each appellant) imposed by the learned trial court is enhanced to Rs.5,000/ for each appellant. 18. Appellants are directed to pay the fine within a period of three months 11 from today. In default of payment of fine, the appellants shall undergone rigorous imprisonment for three months. (iii) On depositing the fine, the injured persons shall be paid compensation in equal proportion in view of Section 395 of Bhartiya Nagarik Suraksha Sanhita, 2023 after due identification. The appellants are reported to be on bail, their bail bonds shall remain in force for a further period of six months, in view of Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023. 19. Appeal is thus partly allowed. Sd/- (Sachin Singh Rajput) JUDGE Deepti/J