1 2025:CGHC:8729 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1564 of 2024 1 - Nemichand Dhruv S/o Shivkumar Dhruv, Aged About 19 Years R/o Khairjiti, Police Station- Fingeshwar, District- Gariyaband (C.G.) 2 - Rajkumar Dhruv S/o Chhanulal Dhruv, Aged About 18 Years R/o Village- Khairjiti, Police Station-Fingeshwar, District- Gariyaband (C.G.) 3 - Chandrahas Dhruv S/o Amarsingh Dhruv, Aged About 22 Years R/o Kosamkhunta, Police Station- Fingeshwar, District Gariyaband (C.G.) ... Appellants(s) versus 1 - State Of Chhattisgarh Through- Sho, P.S.- Mahasamund, District- Mahasamund (C.G.) ... Respondent(s) For Petitioner(s) : Shri Awadh Tripathi, Advocate For Respondent(s) : Ms. Sunita Sahu, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 19/02/2025 This appeal arises out of judgment and order dated 13.08.2024 passed by the Second Additional Sessions Judge, Mahasamund, 2 District Mahasamund in S.T. H.No.91/2022 convicting the accused/appellants under Section 307/34 IPC and sentencing them to undergo RI for 7 years and to pay fine of Rs. 500/- with default stipulations. 2. Case of the prosecution in brief is that on 07.08.2022, at about 2.45 pm, near Jamuna Hotel Fingeshwar Road at Village Kankera, PS Mahasamund the appellants hurled abuses and threatened the complainant Neelkanth Sahu as also assaulted him with knife, rod, hands and fists as a result of which he sustained injuries. Thereafter they ran in their motorcycle. The complainant was then admitted in Aditya Hospital Mahasamund and after intimation given by the doctor the police recorded the FIR and registered the offence under Section 307/34 IPC. During the course of investigation, weapon of offence-knife was seized from appellant No.1 Nemichand and one iron rod was seized from appellant No.2- Rajkumar. After due investigation, charge has been filed for commission of the offence under Sections 294, 506 Part II and 307/34 IPC against the appellants before the Court of CHM, Mahasamund. Since the case was triable by the Sessions Court, it case was committed to the Court of Additional Sessions Judge, Mahasamund for trial. 3. In order to bring home the offence, prosecution has examined as many as 13 witnesses. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants as above against which the present appeal has been preferred. 3 5. Contention of the counsel for the appellants is that the injuries sustained by the complainant were simple in nature and therefore Section 307/34 IPC is not made out against the appellant. He submits that the incident occurred all of a sudden without any premeditation and the injuries whatsoever found on the persons of the complainant is not corroborated from the ocular evidence however, the learned trial court has convicted the appellants for the alleged commission of the offence. He submits that there re material omissions and contradictions in the judgments of the trial court therefore the judgment impugned is not sustained in the eye of law. He submits that even if the whole prosecution story is found to be true, then also on the available facts and evidence of the case, no offence is made out under Section 307/34 IPC against the appellant. It is further contended that neither there was intention nor there was any knowledge of the other accused to kill the complainant, as the other accused were not armed with weapons. It is further contended that the injury was not sufficient to cause death and there has been material contradiction and omission in the statement of the witnesses. It is further stated that except the victim, the other witnesses have not supported the case of the prosecution, therefore, the conviction cannot be sustained and conviction under Section 307 of I.P.C. deserves to be set aside. 6. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the appellants have acted in such a manner that they have shared common intention to commit the offence. Thus, the judgment of conviction and order of sentence is based on sound principle of law and hence the judgment impugned does not require any interference. 4 7. Heard counsel for the parties and perused the material available on record with utmost circumspection. 8. Heard counsel for the parties and perused the material available on record with utmost circumspection. In the present case there is no eyewitness to the incident and all the witnesses have stated that they came to know about the incident when the police came on the spot. Rohit Kumar Diwan (PW-1) is a hearsay witness. Chetan Kumar Chandrakar (PW-2) is the Patwari who prepared spot map. Human Sahu (PW-3). Dr. H.V. Kalikoti (PW-9) is the doctor of Aditya Hospital, Mahasamund who had medically examined Ramsai vide Ex.P-18 and opined that there was deep injury on the left side chest; deep injury in left side thigh and small cut in the right hand toe in second last finger and there was continuous bleeding. 12. Now it has to be considered as to whether there was any common intention on the part of the appellants and in furtherance thereof they caused the injuries to the complainant Neelkanth Sahu (PW-1) ? To establish the common intention of the several persons so as to attract provisions of Section 34 IPC, the following two fundamental facts have to be established: (I) common intention commit an offence and (ii) participation of the accused in commission of the offence. To attract Section 34 IPC, it is not necessary that each one of the accused persons must assault the deceased. It is enough if it is shown that they shared common intention to commit the offence in furtherance thereof and each one played his assigned role by doing separate acts, similar or diverse. Section 34 is applicable even if no injury has been caused 5 by the particular accused himself. For applying Section 34 IPC, it is not necessary to show some overt act on the part of the accused. 13. Now it is to be seen as to whether the offence of the appellants is punishable under Section 307 IPC? Learned counsel for the appellants submits that from the statement of the witnesses it appears that there is no eyewitness to the incident and as per the opinion of the doctor, the injuries look like grievous in nature. The prosecution has not been able to prove that the injuries sustained him were fatal to his life and therefore the offence of the appellants under Section 307 IPC is not made out against them. The appellants have remained in jail for about 9 days and therefore ends of justice would be met if the appellants are sentenced to the period already undergone by them. 14. To this, learned State counsel opposes the above arguments and submits that to justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Though the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused. What the court has to be see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section. It is sufficient to justify a conviction under Section 307 IPC if there is a presence of intent coupled with some overt act in execution thereof. 15. To constitute an offence under Section 307 IPC, the following ingredients of the offence must be present. a) an intention or knowledge relating to 6 commission of murder and b) doing of an act towards it.” For the purpose of Section 307 IPC, what is material is the intention or 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 the intention of causing death but which fails to bring about intended consequences on account of initiation on account of intervening circumstances. The intention or knowledge of the cause must be such as a necessity to constitute murder. 16. Learned trial court, relying mainly on the evidence of doctor and the eyewitness account given by Anita Bai (PW-2), held the appellants guilty of commission of offence. 17. Thus from the material available on record and the evidence of the witnesses and the statement of accused/appellants under Section 313 Cr.P.C., this Court is of the considered opinion that on the date of incident the accused/appellants hurled filthy abuses and thereafter assaulted the complainant Neelkanth Sahu who sustained injuries and was also admitted in the hospital. In the FIR it was mentioned that the appellants hurled abuses, threatened him and assaulted with knife, rod, hands and fists. Thereafter they ran in their motorcycle. Admittedly, there is no allegation of repeated or severe blows having been inflicted on the victim/injured. 18. In the instant case, on the date of incident at about 2.45 pm, near Jamuna Hotel Fingeshwar Road at Village Kankera, PS Mahasamund the appellants hurled abuses and threatened the complainant 7 Neelkanth Sahu and after assaulting him, ran away in their motorcycle. It was observed that if the intention to make the assault had been to commit murder, the appellants would not have committed the assault and flee from the spot. Further, as was evident from the medical report, only one injury was grievous which was caused on the person of the complainant. However, according to the medical expert, the injury was not dangerous to life. Had the intention of making the assault been to commit murder, the appellants would have caused more injuries. In such circumstances, the intention to cause murder, a necessary ingredient to prove the offence under Section 307, was absent. 19. Therefore, there was intention on the part of the assailants to commit murder of complainant Neelkanth Sahu is not established. From the evidence, it is also clear that after the fight, the assailants had left him and ran away in their motorcycle. Had the assailants any intention to kill Neelkanth, they would have assaulted him again during his unconscious condition. The assailants did not do so and ran away from the spot. Therefore, in my considered opinion, the act done by the appellants falls within the purview of Section 308 of the Indian Penal Code and not under Section 307 of the Indian Penal Code. Hence, the offence of the appellants is altered from Section 307 of the Indian Penal Code to Section 308 of the Indian Penal Code. The conviction imposed upon the appellants by the Trial Court under the other sections of the IPC is affirmed. 20. So far as the sentence part is concerned, the appellants are in jail since 10 months, there was no intention to commit the offence and in a sudden quarrel the incident took place and the appellants have assaulted the complainant. In these circumstances, it would be in the 8 interest of justice that both the Appellants, for their all the offences, are sentenced with the period already undergone by them. Ordered accordingly. However, the fine amount shall be maintained. The appellants are reported to be on bail. Their bail bonds shall continue for a period of six months in terms of Section 437-A Cr.P.C. 21. Consequently, the appeal is partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 13:19:00 +0530