1 2025:CGHC:13346 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1508 of 2023 {Arising out of judgment dated 30.06.2023 passed in Sessions Trial No.02/2021 by the learned Second Additional Sessions Judge, Janjgir, District Janjgir- Champa} 1 - Saheblal Suryavanshi, S/o. Darashram, Aged About 50 Years, R/o. Village Jawalpur, P.S. Baloda, District Janjgir Champa, Chhattisgarh. 2 - Rajkumar Suryavanshi, S/o. Darashram, Aged About 40 Years, R/o. Village Jawalpur, P.S. Baloda, District Janjgir Champa, Chhattisgarh. 3 - Jitendra Kumar Suryavanshi, S/o. Saheblal Suryavanshi, Aged About 30 Years, R/o. Village Jawalpur, P.S. Baloda, District Janjgir Champa, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through Thana In Incharge, Police Station Baloda, District Janjgir Champa, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellants : Dr. N.K.Shukla, Senior Advocate with Mr. Dinesh Kumar Gole, Advocate ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.03.21 16:31:01 +0530 2 For Respondent : Mr. Pankaj Singh with Mr. Sharad Mishra, Panel Lawyers (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board (20.03.2025) Sanjay K. Agrawal, J. 1. Three appellants Saheblal Suryavanshi (A-1), Rajkumar Suryavanshi (A-2) and Jitendra Kumar Suryavanshi (A-3) have preferred this Criminal Appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of conviction dated 30.06.2023, passed by the learned Second Additional Sessions Judge, Janjgir, District Janjgir-Champa in Sessions Trial No.02/2021, by which the appellants herein have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 307/34 of I.P.C. (three times) : Rigorous imprisonment for 10 years and fine of Rs.5000/- to each, in default of payment of fine, 6 months’ additional rigorous imprisonment. U/s. 460 of I.P.C. : Rigorous imprisonment for 7 years and fine of Rs.3000/- to 3 each, in default of payment of fine, 3 months’ additional rigorous imprisonment. Both the sentence to run concurrently. 2. Case of the prosecution, in brief, is that on the intervening night of 5 & 6th September 2020 at 11:30 P.M. to 12:30 A.M., at village Jawalpur, Police Station Baloda, District Janjgir- Champa, the appellants herein, in furtherance of their common intention, entered into the house of Ramcharan Patle (PW-2), his wife Smt. Ramabai Patle (PW-18) and their son Sanjay Patle (PW-6) armed with Axe and assaulted them, by which, they have suffered grievous injuries, which were sufficient in ordinary course of nature to cause death and thereby, the offence has been committed. Laxman Patle (PW-1) reported the matter to the police, pursuant to which, Dehati Nalsi was registered vide Ex.P-1, FIR was registered vide Ex.P-22 and Crime Details Form was prepared vide Ex. P-23. MLC of Ramcharan Patle (PW-2) was conducted vide Ex.P-17, MLC of Sanjay Patle (PW-6) was conducted vide Ex. P-18 and MLC of Smt. Ramabai Patel (PW-18) was conducted vide Ex.P-19 by Dr. S.S.Tomar (PW-12). Victim Ramcharan (PW-2) was admitted in the hospital from 06.09.2020 to 4 12.09.2020 i.e. for 6 days, victim Sanjay (PW-6) was admitted in the hospital from 06.09.2020 to 08.09.2020 i.e. for 3 days and victim Ramabai (PW-18) was admitted in the hospital from 06.09.2020 to 01.10.2020 i.e. for 26 days. Pursuant to memorandum statement of the appellants vide Ex.P-5, Ex.P-6 & Ex.P-7, Axes were recovered vide Ex.P-8, Ex.P-9 & Ex.P-10 respectively, which were sent for chemical examination to FSL and as per the FSL Report (Ex.P-31), blood was found on the seized Axes. After due investigation, the appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 19 witnesses and exhibited 31 documents and the appellants-accused in support of their defence have neither examined any witness nor exhibited any document. 4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for 5 the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Dr. N.K.Shukla, learned senior counsel assisted by Mr. Dinesh Kumar Gole, learned counsel would submit that the trial Court is absolutely unjustified in convicting the appellants for the offence under Sections 307 & 460 of I.P.C., as considering the nature of injuries and the period of hospitalization of the victims, the offences under Sections 307 & 460 of I.P.C. are not made out and the appellants are liable to be acquitted. In alternative, he would further submit that, if the case of the prosecution is taken as it is, the appellants be sentenced to the period already undergone for the offence under Sections 307 of I.P.C. & 460 of I.P.C., as they are in custody since 06.09.2020 i.e. for more than 4 years and 6 months. 6. Mr. Pankaj Singh with Mr. Sharad Mishra, learned State counsels, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellants for the aforesaid offence. They would further submit that the manner in which the offence 6 has been committed, as all the three appellants, in furtherance of their common intention, entered into the house of the victims (PW-2, PW-6 & PW-18) and assaulted them by axe; therefore, they are not entitled for any leniency and further, it is not a fit case where the appellants be sentenced for the period already undergone by them and, as such, the appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The case of the prosecution is based on direct testimony of PW-2, PW-6 & PW-18, who are the victims and even they were hospitalized for quite some time in the hospital. The victim (PW-2) had suffered injuries on abdomen, left shoulder and arm, victim (PW-6) had suffered injuries in back portion of the neck, occipital region and below neck and victim (PW-18) had suffered injuries on left arm, neck, in front of chin and left shoulder and she remained in the hospital for 26 days. In the statement before the Court, the victims (PW-2, PW-6 & PW- 18) have clearly supported the case of the prosecution that, all of a sudden, the appellants have entered into the house of the 7 victims armed with axe and assaulted them and nothing has been extracted from their lengthy cross-examination that they have not seen the incident and they have falsely implicated the appellants. The FIR has been lodged on the same day and pursuant to memorandum statement of the appellants vide Ex.P-5, Ex.P-6 & Ex.P-7, Axes have been recovered vide Ex.P-8, Ex.P-9 & Ex.P-10 respectively on which blood was found as per the FSL Report (Ex.P-31). As such, on the basis of the aforesaid evidences available on record, the trial Court has proceeded to convict the appellants for the offences under Sections 307 & 460 of I.P.C. 9. Now, the question is, whether the trial court is justified in convicting the appellant for offence under Section 307 of the IPC ? 10. At this stage, it would be appropriate to notice Section 307 of the IPC which states 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 8 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.” 11. The essential ingredients required to be proved in the case of an offence under Section 307 of the IPC are:- (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excused for incurring the risk of causing such death or injury. 12. The Supreme Court in the matter of Hari Singh v. Sukhbir Singh and others1 has held that under Section 307 of the IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, 1 (1988) 4 SCC 551 9 there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 13. Similarly, in the matter of State of Maharashtra v. Kashirao and others2, their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in para 21 of the report as under: - “21. In offence under Section 307 all the ingredients of the offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons 2 (2003) 10 SCC 434 10 used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained, alteration of conviction notwithstanding no modification of sentence need be made. ...” 14. The Supreme Court in the matter of Parsuram Pandey and others v. State of Bihar3 has also held that to constitute an offence under Section 307 of the IPC, 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. It has been held in paragraph 15 of the report as under: - “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. The 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. …” 3 (2004) 13 SCC 189 11 15. Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana4 has laid down the ingredients of the offence under Section 307 of the IPC and held 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 the 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 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. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.” 16. Coming to the facts of the case in the light of the aforesaid principles of law laid down by their Lordships of the Supreme 4 (2015) 11 SCC 366 12 Court for offence under Section 307 of the I.P.C., it is quite vivid that victim (PW-2) had suffered injuries on abdomen, left shoulder and arm, victim (PW-6) had suffered injuries in back portion of the neck, occipital region and below neck and victim (PW-18) had suffered injuries on left arm, neck, in front of chin and left shoulder and she remained in the hospital for 26 days. Furthermore, pursuant to memorandum statement of the appellants vide Ex.P-5, Ex.P-6 & Ex.P-7, Axes have been recovered vide Ex.P-8, Ex.P-9 & Ex.P-10 respectively on which blood was found as per the FSL Report (Ex.P-31). As such, the conviction of the appellants for the offence under Sections 307 & 460 of I.P.C. is well merited. However, considering the facts of the case and further considering the age of the appellants, I am of the considered opinion that the ends of justice would be served, if the appellants are sentenced to the period already undergone for the offence under Section 307 of I.P.C. as they are in custody since 06.09.2020 i.e. for more than 4 years and 6 months and further, the sentence of 7 years rigorous imprisonment for the offence under Section 460 of I.P.C. is reduced to 3 years rigorous imprisonment, which the appellants have already suffered. The fine amount shall remain as it is. 13 17. In that view of the matter, the conviction of the appellants are maintained while reducing the sentence to the extent indicated herein-above. Consequently, the appellants be released forthwith from jail, unless their detention are not required in any other offence. 18. Accordingly, this criminal appeal is partly allowed to the extent indicated herein-above. 19. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence. Sd/- (Sanjay K. Agrawal) Judge Ashok