1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 123 of 2016 Judgment reserved on 11.08.2025 Judgment pronounced on 26.08.2025 Madhusudan Dubey S/o Late Dadu Ram Dubey Aged About 77 Years R/o Koylari, Bhaiyathan, Police Station Bhaiyathan, District Surajpur Chhattisgarh … Appellant versus 1 - State Of Chhattisgarh Through Police Station Jhilmili, District Surajpur Chhattisgarh, 2 - Mukesh Dubey S/o Ganga Ram Dubey Aged About 25 Years R/o Village - Kolyari, Police Station Jhilimili, District Surajpur Chhattisgarh, ... Respondents For Appellant : Mr. Maneesh Sharma with Mr. Anshu Ratre, Advocate. For Respondent 1 : Mr. Ruhul Ameen, Panel Lawyer For Respondent 2 : Ms. Sonia Kuldeep, Advocate. HON’BLE SHRI JUSTICE SANJAY AGRAWAL HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL, JJ C A V Judgment Per Radhakishan Agrawal, J. 1. This appeal, at the instance of the victim, is preferred against the judgment of conviction and order of sentence dated 29.07.2015 passed in Sessions Trial No.94/2013 whereby the learned Sessions Judge, Surajpur convicted the respondent No.2 under Sections 148, 323/149 and 323/149 of IPC and sentenced to SI for 5 months under each count, while acquitting him of the charge under Section 307 of IPC. 2. Case of the prosecution, in brief, is that complainant Awadhesh Kumar is the son of Madhusudan/appellant. On 18.03.2005 at about 05:30 pm, when his Digitally signed by ALLENA ANJANI KUMAR Date: 2025.08.26 17:28:24 +0530 2 father - Madhusudan had gone to collect Mahua leaves, at the same time, complainant’s uncle Ganga Dubey, his sons Vindhya @ Pappu, Trinetra and Upendra came there armed with axe and sticks and assaulted Madhusudan and on hearing the noise of his father, he also went to the spot and tried to intervene. On seeing this, all the four accused started assaulting him with sticks and axe, due to which, he also got head injury and was bleeding. The complainant – Mukesh Dubey reported the matter to the Police Station Jhilmili, based on which, FIR vide Ex.P.1, has been registered. Injured Madhusudan and Awadhesh were sent for medical examination, which was conducted by Dr.B.C.Painkra (P.W.4), who prepared MLC reports vide Ex.P.5 & Ex.P.6 respectively. Vide Ex.P.2, plain soil and bloodstained soil were seized. Vide Ex.3, axe was recovered from the accused Gangaram and vide Ex.P.4, piece of iron rod was also seized from the respondent No.2/accused. Spot map was prepared vide Ex.P.10. Seized articles were sent for chemical examination and vide F.S.L. report dated 14.02.2006, soil, axe and piece of iron rod, marked as “A, C & D, contained blood. Accused were arrested vide Ex.P.11 to Ex.P.13. 3. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the respondent No.2/accused was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which, respondent No.2/accused abjured his guilt and entered into defence by stating that he has not committed the offence. 4. The trial Court, after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the respondent No.2/accused, while acquitting him of the charge under Section 307 IPC, as mentioned in para-1 of this judgment. 3 5. Learned counsel for the appellant would argue that the judgment awarding lesser punishment and acquitting him of the charge under Section 307 IPC is contrary to law. He would further submit that there is ample evidence available on record to show the active participation of the respondent No.2/accused in committing attempt to murder on the complainant, which may even lead to death of the complainant and despite such ample evidence and material available on record, the learned trial Court has gravely erred in giving lesser punishment to the respondent No.2/accused and in acquitting him of the charge under Section 307 IPC. On these premises, he urged that the respondent No.2/accused may suitably be convicted and punished under Section 307/34 IPC while modifying the impugned judgment of conviction and order of sentence. 6. Learned Counsel for respondent No.1/State would support the submissions of the learned counsel for the appellant. 7. On the other hand, learned counsel for respondent No.2/accused would support the impugned judgment of conviction and order of sentence and would submit that in F.I.R. (Ex.P.1), the name of respondent No.2 was not mentioned showing him as one of the accused persons and even there was no evidence on record to show the complicity of the respondent No.2/accused in the crime in question and the trial Court, after appreciating the evidence available on record, acquitted him of the charge under Section 307 of IPC, which does not call for any interference. 8. We have heard learned counsel for the parties and perused the record carefully. 9. The evidence of complainant – Awadhesh Kumar (P.W.1) clearly spelled out the incident which took place about 8 – 10 years ago. He has further stated that the dispute arose when his father went to collect Mahua leaves, 4 accused persons Ganga Dubey and his sons, namely, Vindhya, Upendra and Trinetra stopped him, started abusing him and assaulted him with rods and axe, due to which, his father/victim fell down and when he reached the spot accused persons also assaulted him. However, in his statement, he did not mention the name of respondent No.2 nor did mention the name of respondent No.2 in the FIR. Further, eyewitness to the incident P.W.7 Mamta Dubey admitted in her evidence that accused persons, namely, Gangaram, Trinetra, Mukesh, Vindhya and Upendra committed assault on her father. She also admitted that accused Vindhya was holding axe, accused Trinetra was holding a hammer, respondent No.2 Mukesh was holding a rod in his hand and her uncle Gangaram was holding a stick, but on the contrary, the evidence of P.W.2 Madhusudan Dubey (victim) would show that at the time of incident, respondent No.2/accused was present at the spot along with other co-accused persons, however, he has not specifically stated that respondent No.2 also assaulted him. Moreover, P.W.8 V. Pradhan, Investigating Officer also admitted in his cross-examination that in F.I.R. (Ex.P.1), name of respondent No.2 is not mentioned as one of the accused persons. He also admitted that even in Exs.P.8 & P.9, applications for medical examination of Awadhesh Kumar and Madhusudan, name of respondent No.2 is not mentioned as accused. Besides above, the medical evidence of Dr. B.C. Paikra (P.W.4) would show that the injuries suffered by the appellant and his son Awadhesh Kumar are simple in nature. His evidence would clearly show that although both the injured persons got injuries over their bodies but those injuries are not danger to their life. Therefore, the charge under Section 307 of IPC is not made out against the respondent No.2/accused. Furthermore, seizure witnesses P.W.3 Jagdeesh Sharma and P.W.5 Ramkumar have also turned hostile witnesses as they did not support the prosecution story. 5 10. From perusal of the above evidence, it is quite vivid that on the date of incident, when the appellant - Madhusudan had gone to collect Mahua leaves, at that time, complainant’s uncle Ganga Dubey, his sons Vindhya @ Pappu, Trinetra, Upendra and Mukesh Dubey (respondent No.2) came there armed with axe, sticks rods and assaulted the appellant and his son P.W.1 Awadhesh Kumar. Although the prosecution case proved that respondent No.2 Mukesh Dubey, in connivance with other co-accused, voluntarily caused simple injuries to the appellant and his son, but at the same time, the prosecution miserably failed to prove that respondent No.2/accused acted with the intention or knowledge that his action could cause death. The trial Court, considering the evidence on record, has convicted and sentenced under Sections 148, 323/149 and 323/149 of IPC while acquitting him of the charge under Section 307 IPC as there was no cogent and clinching evidence on record for convicting the respondent No.2/accused under Section 307 of IPC. 11. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, we are of considered opinion that the judgment impugned is just and proper and does not call for any interference. Accordingly, this appeal by the complainant against the acquittal of the accused/respondent herein of the charge under Section 307 IPC is hereby dismissed. Sd/- Sd/- (SANJAY AGRAWAL) (RADHAKISHAN AGRAWAL) JUDGE JUDGE Anjani/Akhilesh