1 2025:CGHC:13203 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2096 of 2024 1 - Aashif Khan S/o Alauddin Khan Aged About 24 Years R/o Ward No. 36, Dabripara, Thana- Basantpur, Distt- Rajnandgaon (Chhattisgarh), ... Appellant(s) versus 1 - State Of Chhattisgarh Through Sho, Thana- Basantpur, Distt- Rajnandgaon (Chhattisgarh) ... Respondent(s) For Petitioner(s) : Shri Samir Singh, Advocate For Respondent/State : Shri K.K.Bahrani, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 19/03/2025 This appeal is directed against the impugned judgment of conviction and order of sentence dated 25.10.2024 passed by the Third Additional Sessions Judge, Rajnandgaon in S.T. No. 66/2021 whereby the appellants in the aforesaid appeal have been held guilty of the commission of offences and sentenced as described below: Conviction Sentence U/s. 307/34 IPC To undergo RI for 5 years and fine of Rs. 2,000/-, in default of fine to further undergo RI 2 for 2 months U/s. 386/34 IPC To undergo RI for 2 years and fine of Rs. 1,000/-, in default of fine to further undergo RI for 1 month Both the sentences were ordered to run concurrently. 2. Facts of the case in brief are that complainant Pradip Yadav lodged a report alleging that on 06.01.2020, when he was returning from the liquor shop along with his friends, the accused appellant and his friend demanded money from him and when he refused to give, they assaulted him with knife on his neck and legs and caused injuries. He was admitted to District Hospital and on his report, crime was registered against the accused appellants. On the basis of the said report, offence was registered against the appellant under Sections 307, 386,34 IPC and 25 & 27 of the Arms Act. After completion of investigation, charges were framed by the Judicial Magistrate First Class Rajnandgaon and the case was committed to the Court of Third Additional Sessions Judge, Rajnandgaon for trial. 3. In order to prove its case, the prosecution has examined as many as 10 witnesses. Statement of the accused under Section 313 CrPC has also been recorded where he has simply taken a plea of innocence and false implication in the case. 4. Learned trial Court, on appreciation of the evidence of the witnesses, convicted and sentenced the accused/appellant as per the description given hereinbefore vide judgment dated 25.10.2024 which is under assail in this appeal. 5. Contention of the counsel for the appellant 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 3 that there are 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 the independent eyewitness has not supported the case of prosecution and has turned shotile therefore on the basis of weak type of evidence conviction cannot be sustained. The trial court has erred in holding that the prosecution has proved its case beyond all reasonable doubts because the conviction is based on the evidence of the complainant and the injury whatsoever found on the person fo the complainant was simple in nature and therefore at the most, offence under Section 323 IPC is made out against the appellant. 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 Sections 307/34 and 386/34 IPC against the appellant. 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 and 386 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. It is further submitted that the learned trial court has also mentioned in its judgment that the appellant is a habitual offender. 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. Pradeep Yadav (PW-1) injured has stated that on the date of incident at about 5.30-6.00 pm, when he wad gone to the liquor shop to purchase liquor and was returning on the way, the appellant demanded money and when he refused to give, they hurled abuses and chopped with knife on his neck and thereafter ran away from there. He was immediately taken to District Hospital, Basantpur, Rajnandgaon. In cross-examination, he has admitted at the time of incident, he was drunk. 9. Dinesh Yadav (PW-2) has stated that on the date of incident, he had accompanied the injured Pradeep Yadav and others to the liquor shop but they were standing across the road. The appellants were demanding money from Pradeep and when refused to give, they hurled abuses and had committed maarpeeth with him. He sustained injuries and was bleeding. He was immediately rushed to District Hospital, Rajnandgaon. In cross-examination he has admitted the fact that the appellants had caused injury with knife on the complainant/injured. 10. Ajay Yadav(PW-7) has stated that on the date of incident, he went to the liquor shop along with the complainant/injured where the appellants caught hold the complainant and committed maarpeeth by knife with him on account of which he sustained injury on his neck. He was rushed to the Hospital at Basantpur and thereafter lodged report at police station vide Ex.P-14. Dr.Arun Katare (PW-8) Medical Officer at community Health Centre, Patan, District Durg has stated that on 06.01.2020, he had medically examined the injured and gave his report Ex.P-16. He has found one incised wound over the neck, anterior 5 aspect, wound is transverse above the cricoid cartilage, of size 5cm x 2cm. X 2cm. Margins and bleeding present. He has opined that the injury was grievous in nature and may prove fatal if complication occurs. Dr. Ashwani Diwaker (PW-9) Senior Resident, District Hospital, Rajnandgaon has stated that he has made query of the dying declaration vide Ex.P-19 and 20. 11. In the present case, some of the eyewitneses ie. Manoj Yadav (PW-3), Pintu Lohar (PW-5) and Ravindra Kumar Nirmalkar (PW-6) have not supported the prosecution case. 12. Now it is to be seen as to whether the offence of the appellants is punishable under Sections 307 and 386 IPC? Learned counsel for the appellant submits that from the statement of the witnesses it appears that the eyewitnesses PW-3,5 and 6 have not supported the prosecution case 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 by him were fatal to his life and therefore the offence of the appellant under Sections 307/34 and 386/34 IPC is not made out against him. The appellant is in jail since 07.01.2020 and therefore ends of justice would be met if the appellant is sentenced to the period already undergone by him. 13. 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 6 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. 14. To constitute an offence under Section 307 IPC, the following ingredients of the offence must be present. a) an intention or knowledge relating to 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. 15. Learned trial court, relying mainly on the evidence of doctor and the eyewitness account given by Dinesh Yadav (PW-2) and Ajay Yadav (PW-7), held the appellant guilty of commission of offence. 16. Thus from the material available on record and the evidence of the witnesses and the statement of accused/appellant under Section 313 Cr.P.C., this Court is of the considered opinion that on the date of incident the accused/appellant hurled filthy abuses and thereafter assaulted the complainant Pradeep Yadav with knife on his neck as a result of which he sustained injury and was also admitted in the 7 hospital. In the FIR it was mentioned that the appellants hurled abuses and assaulted with knife and ran away. Admittedly, there is no allegation of repeated or severe blows having been inflicted on the victim/injured. 17. In the instant case, on the date of incident at about when the complainant had gone to purchase liquor along with his friends, the appellants demanded money and when he refused to give they hurled abuses and assaulted with knife on his neck. 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. 18. Thus, it has been established that on the date of incident, the appellants demanded money from the complainant and when he refused, they assaulted him with knife blow and caused injury after hurling abuses therefore offence of the appellant falls within the purview of Section 307 IPC Hence, the the conviction imposed upon the appellant by the Trial Court under Section 307/34 and 386/34 IPC is affirmed. 19. So far as the sentence part is concerned, the appellant is in jail since 07.01.2020, there was no intention to commit the offence and as 8 they consumed liquor and after being intoxicated, the incident took place and the appellants have caused knife blow on the complainant. In these circumstances, it would be in the interest of justice he is sentenced with the period already undergone by him. Ordered accordingly. However, the fine amount shall be maintained. 21. Consequently, the appeal is partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 17:14:29 +0530