1 2025:CGHC:26449 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 210 of 2023 1. Vikki @ Vikram Ahuja S/o Ghanshyam Das Ahuja Aged About 35 Years R/o Ward No. 16, Sindhi Camp Tilda, Police Station Tilda - Nevra, District – Raipur, Chhattisgarh. 2. Dinesh Madhwani @ Deena S/o Rajkumar Wadhwani Aged About 29 Years R/o Ward No. 8, Todadi Dham, Tilda Police Station Tilda - Nevra, District – Raipur, Chhattisgarh. 3. Lakki Jethwani S/o Shri Ashok Kumar Jethwani Aged About 25 Years R/o Ward No. 13, Sindhi Camp Tilda, Police Station Tilda - Nevra, District – Raipur, Chhattisgarh. 4. Sunil Ahuja S/o Ghanshyam Das Ahuja Aged About 27 Years R/o Ward No. 16, Sindhi Camp Tilda, Police Station Tilda - Nevra, District – Raipur, Chhattisgarh. --Appellants Versus State Of Chhattisgarh Through Police Station Tilda Nevra, District – Raipur, Chhattisgarh. ---Respondent 2 For Appellants :- Mr. Raza Ali, Advocate For State :- Mr. Surendra Dewangan, P.L. SB - Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 20/06/2025 1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment and order dated 20/12/2022 passed by learned Special Judge (Atrocities), Raipur in Sessions Trial No. 30/2019 whereby all the four appellants have been convicted for offence punishable under Sections 148 and 307/149 of IPC and have been sentenced to undergo R.I. for 3 years with fine of Rs. 500/- each and in default of payment of fine, further R.I. for 6 months and to undergo R.I. for 10 years with fine of Rs. 1000/- each and in default of payment of fine, additional R.I. for 1 year, respectively. 2. Case of the prosecution, in brief, is that on 28/11/2018 at about 09:15 PM near Halo Mobile Shop at Sindhi Camp within the ambit of Tilda Police Station, the appellants herein, in furtherance of their 3 common object, assaulted Vikas Sukhwani (PW-3) with knife by which he suffered grievous injuries and they, thereby, committed the aforesaid offence. 3. Further case of the prosecution is that complainant Rakesh Nasani (PW-6) lodged a report at Police Station Tilda on 28/11/2018 at about 1:30 AM that he along with injured witness Vikas Sukhwani (PW-3) and Sagar Bhagnani (PW-7) were returning from the house of one Nanhu Bhojwani, when the appellants along with two co-accused persons namely Raj Rohra (who is being tried at the Juvenile Court) and Vicky Manglani (who died during trial), came therein and in furtherance of their common object to kill Vikas Sukhwani (PW-3), assaulted him with hands and fists. Co-accused Raj Rohra assaulted him with iron pipe and appellant No. 2 Dinesh Madhwani assaulted him with knife due to which he suffered grievous injuries. On the basis of the said information, first information report was registered vide Ex. P/12 and injured Vikas Sukhwani (PW-3) was taken to Khushi Hospital at Tilda wherein he was examined by Dr. Bhojram Mohnani (PW-5) vide Ex. P/4 who has stated that there were multiple stab injuries on the body of injured Vikas Sukhwani (PW-3) and a knife was also stabbed and stuck in his right hand which was taken 4 out by him and thereafter, he was referred to Sankalp Hospital, Raipur wherein he remained hospitalized for 21 days and was treated by Dr. Kamalkant Adile (PW- 15) who has clearly stated that injured Vikas Sukhwani (PW-3) was admitted on 29/11/2018 and he was discharged on 20/12/2018 and while examination, he found out that pulse was absent on his left leg. Seizure of plain soil and blood stained soil was made from the spot vide Ex. P/19. On the basis of memorandum statement of juvenile co-accused Raj Rohra, seizure of iron pipe was made vide Ex. P/24. The knife stuck at the hand of injured Vikas Sukhwani (PW-3) was removed by the Doctor at Khushi Hospital and it was seized and handed over to the Police vide Ex. P/20. Statements of the witnesses were recorded under Section 161 of CrPC. The seized articles were sent for forensic examination but FSL report has not been brought on record. After due investigation, the appellants herein along with co- accused persons Raj Rohra and Vicky Manglani were charge-sheeted for offence punishable under Sections 147, 148, 307/149 and 294 which was committed to the trial Court for trial in accordance with law. The appellants/accused persons abjured their guilt and entered into defence. 5 4. In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 49 documents. The statements of the accused persons were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and brought two documents on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding that prosecution has been able to bring home the offence beyond reasonable doubt, proceeded to convict the appellants herein for offence punishable under Sections 148 and 307/149 of IPC and sentenced them as aforesaid. 6. Mr. Raza Ali, learned counsel for the appellants, would submit that prosecution has not been able to bring home the offence against the appellants and the appellants deserve to be acquitted as the injured had not suffered serious injuries and he was only hospitalized for 21 days and there is a counter-case registered against the injured by the accused persons. In alternative, he would submit that even if their conviction is upheld, the appellants have been in jail 6 for approximately 3 years, as such, the appellants be sentenced to the period already undergone by them. 7. Per contra, Mr. Surendra Dewangan, learned State counsel, would submit that the trial Court is absolutely justified in convicting the appellants for the aforesaid offences as the injured Vikas Sukhwani (PW-3) had suffered serious injuries and it is not a case where the sentence awarded to the appellants can be reduced to the period already undergone by them, therefore, the instant appeal is liable to be set aside. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection. 9. 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 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 7 of imprisonment for life, he may, if hurt is caused, be punished with death.” 10. 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. 11. 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 1 (1988) 4 SCC 551 8 intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, 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. 12. 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 2 (2003) 10 SCC 434 9 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 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. ...” 13. 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 3 (2004) 13 SCC 189 10 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. ...” 14. 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.” 4 (2015) 11 SCC 366 11 15. In the matter of Hari Mohan Mandal v. State of Jharkhand5 it has been held by their Lordships of the Supreme Court that it is sufficient to justify a conviction under Section 307 of the IPC if there is present an intent coupled with some overt act in execution thereof. It has further been held that it is not essential that bodily injury capable of causing death should have been inflicted. It has also been held that if the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually cause death are really factors which are wholly irrelevant for adjuding the culpability under Section 307 of the IPC. Their Lordships of the Supreme Court observed in paragraph 11 as under :- “11. It is sufficient to justify a conviction under Section 307 of the IPC if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually cause death are really factors which are wholly irrelevant for adjuding the culpability under Section 307 of the IPC. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was 5 AIR 2004 SC 3687 12 done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 16. Turning to the facts of the case, a careful perusal of the statement of injured witness Vikas Sukhwani (PW- 3) would show that all the 6 accused persons i.e. the four appellants herein as well as Raj Rohra (juvenile) and Vicky Manglani (died during trial) came on the spot on one motorcycle and two activa scooters and on the initiation of accused Vicky Manglani, all the other 5 accused persons started assaulting him with hands and fists. Thereafter, Raj Rohra (juvenile accused) assaulted him with iron pipe and appellant No. 2 Dinesh Madhwani assaulted him with knife due to which he suffered stab injuries and thereafter, he was admitted to Khushi Hospital, Tilda and was further transferred to Sankalp Hospital, Raipur wherein he was hospitalized for 11/21 days. Dr. Bhojraj Mohnani (PW-5), who treated the injured at Khushi Hospital, Tilda has stated that injured Vikas Sukhwani (PW-3) suffered stab injuries, however, the nature of stab injuries have not been mentioned by him which he has admitted in cross-examination. 13 Further, the statement of injured Vikas Sukhwani (PW-3) has been corroborated by Rakesh Nasani (PW- 6) who is an eye-witness to the incident. Similarly, Dr. Kamalkant Adile (PW-15), who had treated the injured at Sankalp Hospital, Raipur, has also stated that injured Vikas Sukhwani (PW-3) was admitted in the Hospital on 29/11/2018 and upon examination, he had found that pulse was absent in his left leg. He has also stated that in absence of treatment in time, the injured could have suffered permanent disability. 17. In that view of the matter, considering the statements of injured witness namely Vikas Sukhwani (PW-3) and other eye-witness Rakesh Nasani (PW-6) as well as the statements of Dr. Bhojraj Mohnani (PW-5) and Dr. Kamalkant Adile (PW-15), and further considering the manner of causing injury, nature of weapon used and severity of injury inflicted, intention of the appellants can be clearly inferred and I am of the considered opinion that the appellants have rightly been convicted for offence punishable under Sections 148 and 307/149 of IPC. However, considering that as per the statement of injured witness Vikas Sukhwani (PW- 3), on account of his previous enmity with appellant No. 2 Dinesh Madhwani, a report had been lodged against him and charge-sheet was also submitted and 14 he has been released on bail in that case and further considering the facts and circumstances of the case, I deem it appropriate to sentence the appellants to undergo R.I. for 3 years for offence under Section 307/149 of the IPC in place of 10 years and for offence under Section 148 of the IPC I award them sentence to undergo R.I. for 1 year in place of 3 years, however, the fine sentence shall remain as it is. 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 to trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay K. Agrawal) Judge Judge Harneet