1 2025:CGHC:4551 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1837 of 2024 Buddhdev Yadav @ Budhi S/o Ramcharan Yadav Aged About 42 Years R/o Village Bhawanipur, Police Station Kusmi, District Balrampur-Ramanujganj, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Kusmi, District Balrampur-Ramanujganj, Chhattisgarh. ... Respondent For appellant : Mr. Jitendra Kumar Saxena, Adv. For Respondent : Ms. Sunita Manikpuri, Dy. Govt. Adv. (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment On Board 24/01/2025 1 With consent of the parties, the matter is heard finally. 2 This criminal appeal has been preferred against judgment of conviction and order of sentence dated 12-9-2024 passed by Sessions Judge, Balrampur at Ramanujganj (CG) in Session Trial No. 49/2021, whereby the learned trial Court, after holding the appellant guilty, convicted and sentenced him in the following manner:- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.01.27 15:18:49 +0530 2 Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 307 IPC RI for 08 years Rs. 600/- RI for 02 month 3 The case of the prosecution, in brief, is that, on 20-7-2020, victim Lalsai Bargah (P.W. 3) was performing Pooja in the Shiv Mandir of Bhavanipur, and offered flower of white colour, therefore, the appellant/accused got angry and assaulted him by means of axe by saying as to why he (victim) has offered white coloured flower to the God. Due to said assault, the victim sustained injuries on his head. Son of victim Mithilesh Kumar (P.W. 1) lodged FIR (Ex. P-2) at PS Kusmi, Distt. Balrampur. During the course of investigation, police recorded statement of witnesses under Section 161 of the Cr.P.C., prepared spot map (Ex. P-3), seized blood stained and plain soil from the place of occurrence vide seizure memo (Ex. P-9), axe was seized vide Ex. P-8 on the basis of memorandum statement (Ex. P-7) of appellant. Appellant was arrested vide arrest memo (Ex. P-10). Query report (Ex. P-15) with regard to the axe seized from the appellant and opinion of Dr. Satish Paikra (P.W. 6) with regard to the nature of injury was obtained. Medical document/Bed Head ticket of victim was seized from Government College, Ambikapur. After usual investigation, charge sheet for offence under Section 307 of the IPC was filed against the appellant before the Judicial Magistrate First Class, Balrampur at Ramanujganj, who committed the case to the Sessions Judge, Balrampur at Ramanujganj, who tried the case. 4 Learned trial Court framed charge under Section 307 of the IPC, which was denied by the appellant and he claimed trial. In order to bring home the guilt of the appellant/accused, the prosecution has examined as 3 many as 08 witnesses and exhibited 21 documents. After completion of prosecution evidence, statement of appellant/accused under Section 313 of the Cr.P.C. was recorded in respect of the circumstances appeared against the appellant, which he denied and pleaded not guilty and false implication. He has not examined any witness in his defence. 5 The trial Court upon appreciation of oral and documentary evidence available on record, by its impugned judgment, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/ accused as mentioned in the paragraph 2, against which, this appeal has been filed by him. 6 Learned counsel for the appellant submits that, there is no motive of appellant to attempt to murder of victim, rather, the incident occured in spur of moment. Injuries sustained by the victim are said to be on his head, but those injuries were not grievous, those injuries were only lacerated wounds and no internal effect over the head has been proved. He further submitted that, at the most, if judgment is upheld having considered the facts and circumstances of the case, then conviction of the appellant/accused may be reduced to the offence under Section 324 of the IPC and since he has served jail sentence of 1 year, 2 months and 16 days till today, therefore, he may be sentenced for the period already undergone by him. 7 Per contra, learned Dy. Govt. Advocate appearing for the State would support the impugned judgment and would submit that since assault was made by the appellant by the axe on head of victim, which is a deadly 4 weapon, therefore, conviction and sentence awarded by learned trial Court are just and proper. 8 I have heard learned counsel for the parties, considered their rival submissions made and also went through the record including the record of the trial Court with utmost circumspection. 9 Lalsai Bargah (P.W.3) is victim. He has stated in his deposition that, only because he offered white coloured flower to the God Shiva, therefore, appellant had assaulted him by means of axe, which was kept to break Coconut. He has further deposed that, from injuries sustained by him, he fell unconscious, blood was oozing from his head, therefore he was taken to Government Hospital, Kusmi, thereafter to Ambikapur and then he was referred to Medical College Hospital, Raipur. He has not stated in his deposition as to how many times, the appellant assaulted him. He has admitted in cross-examination that, at the time of incident, other persons were offering pooja at the temple but they have not been examined by the prosecution. But, Mithilesh Kumar (PW-1), who is son of the victim and present at the place of occurrence, has supported the aforesaid deposition of his father. Though, he is interested witness but nothing has been elicited in his cross-examination to discard his deposition, rather, he has negated the suggestion of defence counsel that, he has not seen the appellant assaulting the victim. 10 Leelavati (PW-2), wife of victim, who immediately rushed to the place of occurrence after receiving information about the incident from Baiga (Pujari), has stated that when she reached at the temple, at that time, her husband/victim was lying on the ground in fainted condition, therefore, they 5 had taken him to hospital at Kusmi and then to Ambikapur and thereafter, he was referred to Medical College Hospital, Raipur. 11 Dr. Satish Paikra (PW-6) had examined the victim on 20.7.2020. As per his deposition, on examination of victim, two lacerated wounds size 5x1x1 cm and 4x1x1 cm on his right fronto-parietal region of head were found. His said statement is well supported by MLC report (Ex.P-14) prepared by him. Though this witness has stated in his deposition that injuries sustained by the victim were grievous in nature but it has not been proved that those injuries were grievous in any count, as stated in Section 320 of IPC because neither there is X-ray report of the victim nor it has been proved that the injured was admitted for twenty days in the hospital, and in between, he was unable to follow his ordinary pursuit. Thus, from the medical evidence, it is found that the victim had sustained two injuries on his head but those injuries were not found to be grievous. Therefore, deposition of Lalsai Bargah (PW-3) and his son Mithilesh Kumar (PW-1) is also get support from medical evidence that appellant had assaulted the victim on his head by means of axe. 12 It is settled preposition of law that in the case of Section 307, nature of injury or grievousness/extent of injury are not fatal, rather intention of the accused is substantial to determine the issue that whether offence under Section 307 is made out or not. 13 In the case of Hari Mohan Mandal Vs. State of Jharkhand reported in (2004) 12 SCC 220, Hon’ble Supreme Court has held that the nature or extent of injury suffered, are irrelevant factors for the conviction 6 under this section, so long as the injury is inflicted with animus. It has been held:- “10. ….To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. … 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 Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 11. It is sufficient to justify a conviction under Section 307 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 causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 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 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 7 under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 14 In the instant case, it has not been proved by the prosecution that the injuries sustained by the victim were grievous in nature. It has also not been proved that those injuries were dangerous to life of victim, as there is no medical evidence in this regard. Though assault was made by means of axe on the head of the victim, but only on this count, it cannot be held that the appellant has committed offence punishable under Section 307 of IPC. Becuase, had it been the intention of the appellant to kill the victim, then he should have been applied more force to cause injury to the victim, which is not found in the instant case. 15 In view of above discussion, it is found on due scrutiny of evidence adduced by the prosecution that, learned trial Court misread the evidence of the prosecution and wrongly convicted the appellant under Section 307 of IPC, rather since the appellant caused injury on the head of victim by means of axe, therefore, instead of offence u/S 307 of IPC, he is convicted u/S 324 of IPC. 16 Accordingly, this appeal is partly allowed. Appellant is acquitted of the offence u/S 307 of IPC and his conviction and sentence awarded by the trial Court u/S 307 of IPC are set aside. Instead, the appellant is convicted for offence u/S 324 of IPC and sentenced to undergo R.I. for 1 year and 3 months with fine of Rs.600/- in default of payment of fine, to undergo additional R.I. for 2 months. Other conditions of the impugned judgment shall remain intact. 8 17 Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Naresh Kumar Chandravanshi) Judge pathak