1 2025:CGHC:18671 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1998 of 2024 Judgment Reserved on 05.02.2025 Judgment Delivered on 24.04.2025 1 - Kamta Manhare S/o Late Hiralal Manhare Aged About 35 Years, 2 - Arvind Manhare S/o Late Hiralal Manhare Aged About 48 Years, Both appellants are R/o Village Jaroud, P S- Arang, Raipur, District Raipur, C.G. ... Appellants versus State of Chhattisgarh Through The PS Arang, Raipur, District Raipur, C.G. ---- Respondent ___________________________________________________________ For Appellants : Mr. N. Naha Roy, Advocate For State/Respondent : Mr. Karan Baharani, Panel Lawyer ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma CAV Judgment 1. The instant appeal has been preferred by the appellants/accused VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.04.25 12:40:33 +0530 2 being aggrieved with the judgment of conviction and order of sentence dated 03.10.2024 passed by the Additional Sessions Judge/Special Judge of Special Court for trial of CBI cases, Raipur, District Raipur (C.G.) in Sessions Case No.123/2021, whereby the trial Court has convicted and sentenced the appellants as under : Conviction Sentence In Default Under Section 307/34 of the IPC RI for 05 years and fine amount of Rs.100/- In default of payment of fine amount additional RI for 03 months Under Section 323/34 of the IPC RI for 06 months ----- Both sentences are to be run concurrently 2. Case of the prosecution in brief is that on 20.11.2020, the applicant Mithun Sahu lodged a report in Arang Police Station stating that there was a land dispute going on between his family and the accused for a long time. The agricultural land of the applicant's family, in which paddy crop was planted, his family members had asked Nandkumar Sahu, a harvester operator of the village, to harvest it, on which the accused refused to harvest the paddy and started threatening Nandkumar Sahu. When Nandkumar Sahu told them the above, then he was going to the 3 house of the accused along with Vedprakash Sahu, injured Devsharan Sahu and Nandkumar Sahu to inquire. When they reached near Sant Ravidas Bhawan at around 08.00 pm, then they met the accused. Nandkumar asked the accused why they had come to his house; what did they have to do with the land. On this the accused abused and threatened to kill him, attacked Devsharan Sahu with a tangia and crowbar and injured him on his head, and also beat the applicant and dragged him. Due to the said beating Devsharan Sahu's head started bleeding and he fell unconscious, he was taken to CHC Hospital Arang for treatment by 112 vehicle. 3. On the above information of the applicant, FIR was lodged against the accused in Police Station Arang under Crime No. 553/2020 under Sections 294, 506-B, 307 read with Section 34 IPC and investigation was taken up. The injured were given medical treatment and medical documents related to their treatment were obtained. During the investigation, the spot map of the incident was prepared and blood-soaked soil and plain soil, cow dung and concrete soil, and the clothes worn by the injured Devsharan Sahu at the time of the incident were seized from the spot. 4. During the investigation, notices are sent to witnesses and their statements are recorded. The memorandum statement of the 4 accused was recorded as per their statement and an iron crowbar was seized from accused Arvind Manhare and a sharp iron tangiya was seized from accused Kamta Manhare and he was arrested and information about the arrest was given to his family members. By sending a letter to the Superintendent, Balaji Hospital, Raipur, the bed head ticket of the injured Devsharan Sahu was obtained. A letter was sent to the Tehsildar for preparing the Patwari map of the place of incident and the Patwari map was prepared. 5. Regarding chemical testing of seized articles in the case, a letter was sent to the State Forensic Science Laboratory, Raipur through the Senior Superintendent of Police and the chemical test report was obtained. 6. The statements of the witnesses were recorded as per their statements. After completing all the formalities related to the investigation, a charge sheet was filed against the accused in the Court of Judicial Magistrate First Class, Raipur, Chhattisgarh for the offence punishable under Sections 294, 506-B, 307 read with Section 34 of the IPC, where the case was registered as Criminal Case No. 6658/2020. 7. On the Sessions Court getting exclusive jurisdiction to try the above crime, Judicial Magistrate First Class, Raipur, Chhattisgarh, by order dated 09.02.2021, transferred the above case to the 5 Sessions Judge, Raipur under Section 209 of Cr.P.C. As per the order of Sessions Judge, Raipur, this session case was received by this Court on transfer for due disposal. 8. When charges were framed against the accused under Sections 294, 506 Part-II, 307 read with Section 34 of IPC and were read out to them, they denied the charges and claimed trial. 9. In order to prove the charges against the appellant/accused, prosecution examined as many as 12 witnesses. Statement of appellants was also recorded under Section 313 of CrPC in which they pleaded innocence and false implication. However, appellant No.1 has given his own evidence as DW-1 in his defence. 10. After completion of trial, trial Court convicted and sentenced the appellants in the manner as described above. Hence, this appeal. 11. Learned counsel appearing for the appellants submits that the learned trial Court utterly failed to appreciate the legal field that encompasses the ingredients of offence under Section 307 of the Indian Penal Code, 1860, which states that the prosecution has to establish (1) the intention to commit murder; and (ii) the act done by the accused. In the present case, the learned Court below has invariably missed one of the key ingredients, i.e. intention, for causing such offence and at no point the Court below addressed 6 the issue as to the intention of the accused persons to cause the offence under Section 307 of the Indian Penal Code, 1860, but only went on to focus on the act done by the accused persons. He further submits that as the appellants had caused simple injury on the injured, therefore, the offence would fall under Section 324 of IPC and not under Section 307 of IPC. The learned Court below ought to have appreciated the fact that, in the past, the accused persons and the complainant and victims' relatives had an ongoing land dispute, and on 02.10.2019 the latter sprayed some poisonous medicine over the paddy field of the former with an intent to destroy the paddy owing to which the accused persons had filed an FIR under Sections 435/149 of the Code of 1860. In that case, the complainant and victims' relatives were eager to effect a compromise but the accused persons had refused to do the same, and as a result, out of sheer enmity, the complainant and victims fictionalized the instant case and filed an FIR against the accused persons, to settle scores with the accused persons. He further submits that the learned Court below ought to have appreciated the fact that as per the prosecution's version, the accused persons threatened one Nandkumar Sahu, who is in the business of providing Harvester services for harvesting of crops, not to provide his services to the victims, to which Nandkumar Sahu did not protest at the relevant point of time, but went straight 7 to victims and told them about the threat and then the three of them, i.e. Nandkumar Sahu (Harvest services provider), Vedprakash and Devsharan Sahu (victims) went to the accused persons to confront them about the threat, and this is when the two parties met near Ravidas Bhawan at around 20:00 PM on 20.11.2020, wherein Nandkumar Sahu asked the accused persons as to why they came to his house and what business do they have with the land concerned, and that is when as per the prosecution, the accused person hurled abused at them and threatened to kill them, and subsequently stroked a blow at Devsharan Sahu with the axe and crowbar and also beat the complainant Mithun Sahu, who was not even there as per the prosecution's version of the chain of event. It is also submits by the counsel that the learned Court below ought to have appreciated the fact that the complainant Mithun Sahu (PW-1) was not even there as per the chain of events, but came at the site of incident out of thin air and got involved in the fight, which renders the entire prosecution story extremely doubtful. He lastly submits that the appellants were in jail from 21.11.2020 to 24.03.2021 and after judgment they are in jail. It is therefore, prayed that this Court may be allowed the instant appeal and set aside the impugned judgment and order dated 03.10.2024 passed in Sessions Case No.123/2021 (Annexure A/1). 8 12. On the other hand, learned State Counsel opposes the prayer of learned counsel for appellants, would submit that the trial Court has rightly convicted and sentenced the appellants and therefore, the impugned judgment does not call for any interference. 13. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment with utmost circumspection. 14. Complainant- Mithun Sahu (PW-1), has stated that during Diwali at around 07:00-7.30 PM, he had gone out for a ride on his bike, when due to a stampede at the Kharkhara Chowk of the village, his motorcycle was pushed and he fell. In this connection, he got injured in both his shoulders and he got himself treated at the Government Hospital of Arang. After getting treatment from the hospital, he came to the police station and registered the First Information Report (Ex.P.-2). 15. Witnesses Vedprakash Sahu (PW-2), Devsharan Sahu (PW-3), Naveen Kumar Sahu (PW-4), Rikhiram Sahu (PW-5), Sadhuram Sahu (PW-6) and Hariram Sahu (PW-7) have stated in their evidence contrary to the statement of the applicant Mithun Sahu (PW-1) that Mithun Sahu was injured due to assault by the accused/appellants and in this regard he had lodged the FIR. 9 16. Dr. Satyajit Sahu (PW-9) stated that on 21.11.2020 at 12.24 a.m., injured Devsharan Sahu was brought to Balaji Hospital, Tikrapara by his relatives for treatment. There was a lacerated cut wound measuring 5x3x2 cm in the left temporo parietal region of the injured and there was an injury on the left ear lobe which was bleeding and was caused by an attack. Both the injuries sustained by the injured were caused by sharp weapons. On 23.11.2020, both the injuries were stitched and as his condition improved, he was discharged from the hospital on 25.11.2020. The discharge summary is Ex.P-12. 17. Regarding the injury sustained by the injured Devsharan, Dr. N.L. Bhuarya (PW-10) stated that on examining the injured, he found that there was a cut wound of 5x3x2 cm size on the left occipital part behind the head of the injured, in which blood clot had accumulated and the margins on both sides of the wound were clear and distinct. The said injury was inflicted by a hard and blunt object within 24 hours. Regarding the nature of the injury, he referred him to CT Scan and neurosurgeon specialist, Medical College Raipur for advice. His medical report Ex.P-14. 18. Dr. A.N. Toppo (PW-11) has stated that on 21.11.2020, he examined the injured Mithun Sahu, he conducted primary examination of injured Mithun Sahu. On examination, it was found that injured Mithun Sahu had a contusion in the upper part of his left back, whose 10 size was approximately 4.5x1 cm. There was a contusion in the upper part of the right side of the back, whose size was approximately 4x1 cm. There was a contusion in the upper part of the left thigh at the back, whose size was approximately 6x1 cm. All the above injuries appeared to have been caused by hard and blunt objects, which were almost within 24 hours of his examination. All the injuries on the victim were of simple in nature, which could have healed in about 3-7 days. His report is Ex.P-16. 19. Section 307 of IPC reads as follows :- "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. 20. Reading of the aforesaid would show that the second limb of the section refers to causing of hurt whereas the first part does not refer to hurt as such. It means that an 'act' may amount to an attempt to murder even if the 'act' causes no hurt to any one and if hurt is caused, the assailant is liable to a heavier punishment as provided in the 11 section. If an accused without causing any bodily injury attempts to commit murder by administering poison as illustrated in (d) of Section 307 of IPC, the same would be a case coming under the first limb of the Section. 21. The scope of Section 307 of IPC and its applicability came up for consideration in Om Prakash Vs. State of Punjab, reported in (1961) 2 Cri LJ 848. After taking note of apparent divergent views expressed by the Bombay High Court in the matter, the Supreme Court in paragraph 9 of the judgment observed as follows: "...On a parity of reasoning, a person commits an offence under Section 307 of IPC when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 100. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever 12 attempts to commit an offence' in Section 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence'. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder' in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression 'by that act' does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time." 22. In that case the accused starved his wife and denied food to her for days together and did not allow her to leave his house. On account of the maltreatment and under-nourishment her health deteriorated to a great extent, she, however, managed to escape from the house to reach the hospital. The Supreme Court held that the course of conduct adopted by the accused in regularly starving his wife in order to accelerate her death case within the purview of Section 307 of IPC though it was not the last act which if effective would cause the death. 13 Om Prakash (supra) was a case in which the accused was found guilty under Section 207 of IPC although he did not cause any bodily hurt to the victim. 23. In Sarju Prasad Vs. State of Bihar reported in AIR 1965 SC 843, a Three-Judge Bench of the Supreme Court relying on the ratio of Om Prakash (supra) held that the mere fact that the injury inflicted by the assailant did not cut any vital organ of the injured is not by itself sufficient to take the act out of the purview of Section 307 IPC. Their Lordships hastened to observe that the burden is still upon the prosecution to establish that the intention or knowledge of the assailant in causing the particular injury to the injured was of any of the three kinds referred to in Section 300 of IPC. For, unless the prosecution discharges the burden, the offence under Section 307, IPC cannot possibly be brought home to the assailant. The State of assailant's mind has to be deduced from the surrounding circumstances and the existence of motive to cause the death may be a relevant circumstance. 24. In State of Maharashtra Vs. Balram Bama Patil (1983 Cri LJ 331), it has been held that the charge under Section 307 IPC does not fail merely because the injuries inflicted on the victim are in the nature of simple hurt. The High Court had acquitted the accused of the charge under Section 307 IPC solely because the injuries inflicted on the 14 victim were in the nature of simple hurt. In reversing the said finding, the Supreme Court in paragraph 9 of the judgment has observed as follows: "...To justify a conviction under this Section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often be 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. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under 15 circumstances mentioned in this 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." 25. Mithun Sahu (PW-1), the complainant, in his FIR has narrated the incident in detail. He has stated that his father Manu Sahu, Bacha Sadhuram Sahu, Rithi Ram Sahu, Hariram Sahu and the village's Kamta Manhare, Arvind Manhare, there has been a land dispute going on for a long time between them and others, that his father had the same agricultural land. They have planted paddy, and his father had asked Nand Kumar Sahu of the village to go with the harvester to harvest the paddy. Kamta Manhare, Arvind Manhare and Nand Kumar Sahu were stopped from harvesting paddy and were threatened that they would tell Nand Kumar Sahu and others about it, and then he, Ved Prakash Sahu, Devsharan Sahu and Nand Kumar Sahu were going to the house of Kamta Manhare and Arvind Manhare to inquire when Kamta Manhare and Arvind Manhare met them near Ravidas Bhawan in Mohalla at around 02.00 in the night. Nand Kumar Sahu asked them both that why did they come to his house, what do you mean by land, then Kamta Manhare and Arvind Manhare both together started abusing them by using filthy and obscene language. When they refused to abuse, Kamta Manhare and Arvind Manhare came from their house with a tangia and sabbal 16 (Axe) and with the intention of killing, Kamta Manhare hit Devsharan Sahu on the head with a tangia and Arvind Manhare hit him with a crowbar and inflicted a fatal blow. Both of them beat him and dragged him too. Devsharan Sahu had a deep injury on his head and was bleeding. He had become unconscious. Dial 112 vehicle has brought Devsharan Sahu to CHC Hospital Arang for treatment. 26. In view of the above, it cannot be held that the prosecution has been able to establish that the appellants had intended to kill Mithun Sahu (PW-1) & Devsharan Sahu (PW-3) can it be next said that the appellants committed the ‘act’ with knowledge that the said 'act' would have amounted to injury. The evidence in the case falls short of this proof also. In order to constitute an offence punishable under Section 307 IPC, prosecution has to establish that the accused did an 'act' with such guilty intention or knowledge and in such circumstances, that but for some intervening reason the 'act' would have amounted to injury. In other words, the intention or knowledge of the accused must be such as is necessary to constitute the murder. In a case dealing with causing of hurt, the intention or knowledge of the accused can be gathered from the nature of the weapon used, the intention expressed by them at the time of the act, the motive for commission of the offence, the nature and the size of injuries, the parts of the body of the victim where injuries were caused, the severity of the blow or blows and other important circumstances. A 17 case cannot be taken out of the purview of Section 307 IPC merely on the basis that the injuries on the victim are found to be simple in nature. Each case has to be decided on its own facts and circumstances. No two cases can be or are in all respects alike. What is the proper inference to be drawn from proved facts and circumstances is a totally different matter. In the present case as the prosecution has failed to establish the intention or knowledge of the appellants that by their 'act' an offence of murder of PW-1 & PW-3 could have been committed and having regard to the circumstances in which PW-1 & PW-3 were assaulted, the injury sustained by them and other circumstances, I extend the benefit of doubt in respect of the offence under Section 307 IPC and since the appellants had caused simple injury on the victim Mithun Sahu (PW-1) and Devsharan Sahu (PW-3), I hold the appellants’ guilty for the offence punishable under Section 324 IPC. 27. In such circumstances, offence punishable under Section 307 of IPC would not be applicable in this case. However, offence punishable under Section 324 would be applicable, therefore, the appellants are convicted for the offence punishable under Section 324 of IPC instead of Section 307 of IPC. Since the appellants have caused injuries to the injured persons, therefore, the learned trial Court has rightly convicted the appellants under Section 323 IPC. Accordingly, the appellants are convicted under Sections 323 & 324 IPC. 18 28. Now coming to the sentence part, since the appellants have undergone about 11 months in this case as submitted by counsel for the appellants, I am of the considered opinion that the ends of justice would be met if, the jail sentence awarded to the appellants is reduced to the period already undergone by them. 29. Accordingly, conviction and sentence of the appellants Section 307 of the IPC is altered to the offence under Section 324 of IPC and they are convicted under Section 323 IPC. However, jail sentence awarded to them is reduced to the period already undergone by them and the fine sentence shall remain intact. 30. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above. 31. The appellants are reported to be in jail. They be released forthwith, if not required in any other case. 32. Keeping in view the provisions of Section 437-A CrPC, the appellants are directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.5,000/- with one reliable surety (each appellant) in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the 19 aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 33. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 34. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant