1 2025:CGHC:22777 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 863 of 2004 1 - Babla @ Om Prakash Aged About 19 Years S/o Mosu Bhatara, R/ o Panara Para P. S. Jagdalpur, Distt- Bastar (CG) --- Appellant versus 1 - State Of Chhattisgarh --- Respondent(s) CRA No. 862 of 2005 1 - Yogesh @ Kadi S/o Ramakant Panigrahi, Aged About 24 Years R/o Dokrighat Para, Vijayward, Jagdalpur (CG) ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through- The District Magistrate Bastar, Jagdalpur (CG) --- Respondent(s) For Appellants : Ms. Savita Tiwari, Mr. Keshav Dewangan, Advocates For Respondent(s) : Mr. T. S. Sahu, P. L. (Hon’ble Shri Justice Sachin Singh Rajput) Judgment on Board 09/06/2025 1. Challenge in these appeals filed under Section 374 (2) of the Criminal Procedure Code, 1973 (for short “CrPC”) is to judgment dated 26.08.2004 & 16.11.2005 passed by 3rd Additional Sessions Judge, Bastar Place Jagdalpur (CG) in Sessions Trial No.250/2002 by which the appellants have been convicted under Section 307 R/w Section 34 of IPC and sentenced to undergo 7 years RI and a fine of Rs.1000/- in default 6 months RI. Three accused persons namely Yogesh @ Kadi appellant in CRA No.862 of 2005 and Chhotu @ Deepak and Babla @ Omprakash appellant in CRA No.863 of 2004 2 faced the trial for an offence punishable under Section 307 R/W Section 34 of Indian Penal Code, 1860 (for short “IPC”). After their convictions, these two appeals have been filed by the respective appellants and another appeal bearing CRA No.783 of 2004 was filed by accused convict Chhotu @ Deepak who died during the pendency of appeal and his appeal stood abated. 2. Case of prosecution in brief is that on 17.03.2002 at about 7.45 am the appellants and deceased convict Chhotu @ Deepak in furtherance of common intention to commit the murder of Purnima Tiwari (PW-1) came near Sirasar Chowk Taxi Stand Jagdalpur, the deceased convict Chhotu @ Deepak fired upon him by a Katta, accused Babla assaulted him by a sword and accused Kadi took out the Farsa for assault. As a result of fire, the bullet stuck into the shoulder of Purnima Tiwari and he received injuries on account of assault by sword and Farsa. Purnima Tiwari (PW-1) was faint and was taken to Hospital by his friends Jawahar, Sunil, Mahendra (PW-5) & Mohan (PW-3). In the hospital he was treated and First Information Report Ex. P-1 was registered. T-shirt worn by injured was seized by Ex. P-2 containing blood stains. There was a bullet hole in the left armpit of Purnima Tiwari. She was medically examined by Dr. PW-3 and gave MLC report Ex. P-3. At the strength of memorandum (Ex.P-5) of appellant Yogesh, Farsa was Seized. Vide Ex. P-6 the bullet was taken out from the body of injured/ PW-1 and given to police station for investigation. Statement of witnesses were recorded. The case was committed to the Sessions Court who in turn made over the case to trial Court for trial. The completion of investigation resulting in filing of charge-sheet followed by framing of charge under Section 307 IPC. The accused/appellants however, denied the charge framed against them and claimed for trial. 3. So as to establish its case, the prosecution has examined as many as 8 witnesses and exhibited 8 documents. The statement of the accused/appellants 3 under Section 313 CrPC was also recorded where they pleaded their innocence and false implication in the case. 4. By the judgment impugned learned Court below has held the accused/appellants guilty and imposed the sentence as described above which is challenged before this Court by the appellants. 5. Ms. Savita Tiwari, learned counsel for the appellant in CRA No.863 of 2004 submits that the prosecution was not able to bring home the guilt of the accused persons beyond reasonable doubt. She submits that the bullet shot was fired by deceased convict Chhotu @ Deepak and as such, the appellant did not act in furtherance of common intention to cause death of the injured Purnima Tiwari (PW-1) hence his conviction under Section 307/34 IPC is bad in law. She further submits that there was no seizure of sword, therefore, it cannot be said that the appellant has used any sword to cause any fatal injuries to the injured (PW-1). She further goes on to submit that even arguendo if the so called injury caused by use of sword is simple in nature as opined by doctor (PW-2) and therefore under any stretch of imagination, the case against the accused Babla would not go beyond Section 324 IPC. Alternatively she submits that the incident had occurred in the year 2002, the appellant Babla @ Omprakash faced the lis for almost 23 years and he was granted bail by this Court and he has never misused the liberty, the appellant was aged about 19 years at the time of commission of offence and at present he has attained the age of majority and well settled in life and he has already served about 1 year 7 months in jail and therefore, as such as per her information no criminal antecedent is against the appellant. In the event the appeal being dismissed, the sentence awarded to the appellant Babla @ Omprakash may be reduced to the period already undergone. 6. Adopting the arguments of Ms. Tiwari, Mr. Dewangan submits that there was 4 no enmity between the appellant Yogesh @ Kadi and the injured Purnima Tiwari. He submits that though the seizure of Farsa was made however the seizure witnesses have not supported the case of prosecution. He further submits that though the eye-witnesses Mohan (PW-3) and Mahendra (PW-5) in their examination-in-chief have spoken against the appellant but in the cross examination they have stated that when they reached to the spot, the appellants have already fled away therefore, their statement cannot be relied upon to sustain conviction. He reiterated that the bullet shot was fired by deceased convict Chhotu @ Deepak and as such the injuries allegedly caused by use of Farsa are simple in nature which is also corroborated by statement of Doctor (PW-2), and therefore, the case against the appellant Yogesh @ Kadi would also not go beyond Section 324 IPC. He reiterated that the appellant has already served about 10 months 12 days in jail and therefore, as such as per his information no criminal antecedent is against the appellant. In the event the appeal being dismissed the sentence awarded to the appellant Yogesh @ Kadi may be reduced to the period already undergone. 7. Per contra learned counsel for the State supports the judgment impugned and submits that the presence of appellants has been established by the statement of injured Purnima Tiwari (PW-1), Mohan (PW-3) and Mahendra (PW-5). He submits that the appellants have acted in furtherance of common intention to cause death/ murdered of the injured Purnima Tiwari (PW-1) and therefore, it cannot be said that their conviction under Section 307/ 34 of IPC is illegal. He further submits that in order to attract Section 34 of IPC, in all time overt act of the person is of the accused is not necessary, the prosecution was able to establish the overt act of the appellants as they used deadly weapon sword and farsa and caused injuries to the person of Purnima Tiwari (PW-1), therefore, the common intention to cause death/ murder of the Purnima Tiwari (PW-1) is 5 writ large. The injured Purnima Tiwari has sustained bullet injury which has also been proved by statement of Dr. V. K. Joshi (PW-6) who operated the injured clearly goes to establish the guilt of the appellants. He submits that long pendency of appeal ipso facto is not a ground to reduce the sentence of appellants, therefore, the appeals deserve to be dismissed. 8. Having heard learned counsel for the parties and perused the records with rapt attention. 9. The first question which comes for determination before this Court as to whether the appellants were involved in the offence. In this context it is necessary to go through the statement of witness Injured PW-1. Perusal of statement of this witness clearly establishes the presence of appellants at the scene of occurrence. He has categorically deposed that the incident is of 17.03.2002 at about 7.45 am. He had gone to Sirasar Chowk with his vehicle and he was standing along with Deepak Nair, Sunil Singh, Mahendra & Mohan. At that time deceased convict Chhotu @ Deepak came along with accused/ appellants Babla and Kadi. At the same time, accused Chhotu took out the Katta and fired upon him which resulted into injury on his below his left shoulder. A bullet entered into his left shoulder and thereafter appellant Babla assaulted with sword and appellant Kadi @ Omprakash assaulted with Fasra. The assault was hit on his head when the people standing nearby came, they ran away. Thereafter he lodged a First Information Report Ex. P-1. He further stated that he was also medically examined and underwent a surgery and x-ray was conducted and remained in hospitalization for 5-6 days. His t- shirt was seized vide Ex. P-2. This witness was subjected to lengthy cross- examination. Barring few contradictions and omissions, he remained firm in his statement. Apart from this, the eye-witness Mohan Yadav (PW-3) in his deposition before the Court states that they were consuming tea at Sirasar 6 Chowk and the injured Purnima Tiwari was reading the newspaper at that time three persons including Chhotu @ Deepak, Kadi and Babla came and they had a quarrel. He further deposed that Purnima Tiwari received injury on armpit and appellant Kadi assaulted with Farsa and appellant Babla assaulted with sword to Purnima Tiwari (PW-1) and thereafter they all ran away and after that the injured was taken to Hospital. In cross-examination of this witness the appellant tries to dislodge the statement by asking various questions. In the cross-examination he stated that when he reached the spot the appellants ran away. 10.The victim (PW-1) was initially examined by Dr. Sanjay Besakhe (PW-2) who found the following injuries on his person:- pksV dzekad&1 ,d HkksFkjh pksV flj ij] vkDlhihVy fjtu ij ekStwn Fkh ftldh yEckbZ 1 bap 1 @ 2 ekalisf’k;ksa rd xgjh Fkh]ftlesa ls [kwu cg jgh Fkh] eSusa flj dk ,Dljk vkSj शY; विशषज्ञ dks fn[kkus dk lykg fn;kA pksV dzekad & 2 ,d mHkjk gqvk pksV flj ij ,d bap ds xksykdkj dk ekStwn Fkk]Nwus ij nnZ eglwl gks jgk Fkk]bls Hkh ,Dljk vkSj शY; fpfdRld dks fn[kkus dk lykg fn;k FkkA PkksV dzekad &3 ,d pksV tks fd cka;h rjQ ckgj dh vksj cka;h ,Dtyjh fjtu ij ekStwn Fkh tks fd 1*1/2* ekalis’kh dh xgjkbZ rd FkhA pksV dh fdukjs dh Ropk ?khlh gqbZ FkhA izkFkhZ Onkjk dgk x;k fd xu शkV bUtqjh gSA ij ckgjh dksbZ nqljh lqjk[k ekStwn ugha FkhA eSusa bldk Hkh ,Dljk vkSj kY; fo’kskK dks fn[kkus dk lykg fn;kA pksV dzekad & 4 ,d [kjksap cak;h gFksyh ij ekStwn FkhA izkFkhZ dks fdlh izdkj dh csgkslh vFkok myVh] ukd]dku] xys laca/kh [kwu ugha cg jgk FkkA 11. He categorically opined that the injury No.1,2 and 4 could be caused by hard, blunt and sharp edged weapon and injury No.3 is possibly a gun shot for which he was advised to undergo an x-ray. The injured was also underwent a surgery by Dr. V. K. Joshi (PW-6) who has deposed that on 17.03.2002 injured Purnima Tiwari (PW-1) was brought to Maharani Hospital Jagdalpur at 8.10 am, he was examined and underwent a surgery by him. A bullet was removed behind left armpit and till 22.03.2002 he remained in hospital and 7 discharged on 23.03.2002. He happens to prove the bedhead ticket of injured. 12. Considering the statement of injured Purnima Tiwari (PW-1), Mohan Yadav (PW-3), Dr. Sanjay Besakhe (PW-2) and Dr. V. K. Joshi (PW-6), their presence and overt act are also established. The submission is made that the conviction of appellants cannot sustain with the aid of Section 34 IPC. It is quite settled law that in order to attract Section 34 of IPC, every time overt act is not necessary to be proved but in the case in hand, the overt act of appellants herein is quite clear by positive act by assault on the person of Purnima Tiwari by sword and Farsa. Simply because, the other argument is advanced that no sword was recovered and seizure witnesses of Farsa does not hold water in light of glaring statement of injured witness is coupled with the medical evidence. The submission was also made by learned counsel for the appellants that eye-witness (PW-3) is not credible as in cross-examination he has not supported the case of prosecution he is also liable to be repelled as initially the examination-in-chief and cross examination was conducted on 09.10.2022 and after that his further cross examination was conducted on 03.04.2003 hence, the possibility of winning over this witness cannot be ruled out in light of judgment of Hon’ble Supreme Court in the matter of Selvamani Vs. The State represented by Inspector of Police, 2024 INSC 393. This Court has to evaluate the evidence in its entirety and marshal the evidence to take out the truth and to separate the grain from the chaff. A submission made that the injuries sustained by the Purnima Tiwari (PW-1) on account of assault made by present appellants are simple in nature and the case also would not travel beyond Section 324 of IPC is also liable to be rejected. As already discussed earlier that the appellants acted in furtherance of common intention to cause death/ murder of injured witness Purnima Tiwari (PW-1) and therefore simply because the injury caused are simple in nature could not ipso 8 facto be a resistible conclusion that their intention was to cause only simple injury to injured Purnima Tiwari. Taking into consideration the evidence brought on record, as stated above this Court is of the opinion that learned trial Court has not committed any illegality or irregularity in convicting the appellants. 13. This leads me to alternative submission made by learned counsel for respective appellants as to whether the appellants can be sentenced with the period already undergone. A report has been received from Jail authority according to which appellant Babla @ Omprakash has served 1 year 7 months & Yogesh @ Kadi has served about 10 months 12 days in jail. The incident has occurred on 17.03.2002 and it is not in dispute that the lis was pending for more than 23 years. By this time the appellants must have reformed in the society. It is not brought to the notice of this court that their freedom is detrimental to society. Appellants were young boys of 19 & 24 years at the time of incident and by now they are at mature age. In view of the above discussion, this court is inclined to reduce the sentence imposed upon the appellants to the sentence already undergone/served by them. The sentences imposed upon the appellants are reduced to period already served/ undergone by them. Fine amount and default sentence is undisturbed. 14. The appellants are reported to be on bail. Their bail bond shall remain in force for 6 months in view of Section 481 of BNSS, 2023. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Appeals thus partly allowed. Sd/- (Sachin Singh Rajput) JUDGE Parul PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.06.12 16:15:37 +0530