1 2025:CGHC:49679 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1305 of 2022 1 - Sonu Alias Laxman Chelak S/o Mangla Chelak, Aged About 27 Years R/o Sakin Mahasati Ward Bhatapara, Thana- Bhatapara City, District : Balodabazar-Bhathapara, Chhattisgarh 2 - Shekhar Chelak Alias Dainy S/o Mangla Chelak Aged About 21 Years R/o Sakin Mahasati Ward Bhatapara, Thana- Bhatapara City, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellants versus 1 - State Of Chhattisgarh Through Police Station Bhatapara City, District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent For appellants : Mr. Pragalbha Sharma, Adv. For Respondent : Ms. Prabha Sharma, Panel Lawyer (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Judgment on Board 6 / 10 /2025 1 This criminal appeal has been preferred by appellants under Section Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.07 17:28:01 +0530 2 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 28- 7-2022 passed by learned Upper Sessions Judge, Bhatapara, Distt. Balodabajar-Bhatapara (CG) in Sessions Case No. H-12/2020, whereby each of the appellants / accused has been convicted and sentenced as under :- Conviction Sentence Under Section 307/34 of IPC Rigorous imprisonment for 7 years with fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment of one month 2 Facts of the case, in nutshell, are that the appellants/accused along with Pappu Chelak, Kailash Aadil, Chhotu Banjare etc. of locality were smoking Ganja near the house of Chigraj. When complainant Suresh Kumar Gendre (P.W. 1) objected to it, appellants Sonu, Shekhar and a juvenile unanimously started abusing him with obscene language. Appellant/accused Sonu Chelak assaulted him by means of a sword, threatening to kill. A juvenile in conflict with law assaulted him by means of a knife and appellant No. 2 Shekhar alias Daini assaulted him by means of hands and fists. The complainant sustained grievous injuries in the incident. He lodged an FIR ( Ex. P-1) on the same day at 7.50 in PS City Kotwali, Bhatapara under Sections 294, 506, 307, 34 of the IPC. The victim was medically examined by Dr. A.N. Nag (P.W. 10), CT scan was also conducted. On the basis of memorandum statement (Ex. P-4) of appellant No. 1 Sonu Chelak, a sword and his clothes, which he wore at the time of incident, were seized vide seizure memo Ex. P-6. From the juvenile, his clothes were seized vide Ex. P-10. Spot 3 map (Ex. P-14) was prepared by Khuleshwar Puraina (P.W. 6). Statements of witnesses were recorded. After usual investigation, a charge sheet for the offence under Sections 294, 506, 307 and 34 of the Indian Penal Code and Sections 25 and 27 of the Arms Act was filed against the appellants. A charge sheet was filed against the juvenile in conflict with law before the concerned Juvenile Justice Board. 3 Charges under Sections 294, 307/34, 506 Part II, IPC and Section 25 and 27 of the Arms Act were framed against appellant No. 1 Sonu alias Laxman Chelak and Charges under Sections 294, 307/34, 506 Part II, IPC were framed against appellant No. 2 Shekhar Chelak, who absurd their guilt and entered into trial. 4 In order to prove the guilt of appellants/accused persons, the prosecution examined as many as 10 witnesses and exhibited 26 documents, statements of the accused persons under Section 313 of the Cr.P.C. were recorded in which, they denied all the circumstances appearing against them, pleaded innocence and their false implication, but they have not examined any witness in their defence. 5 Learned trial Court after appreciating the evidence adduced by the prosecution, acquitted the appellants of all the offences, except for offence under Section 307/34 of the IPC and convicted & sentenced them as mentioned in opening paragraph of this judgment. Hence, this appeal. 6 At the outset, learned counsel for the appellants/accused submits that he does not want to press instant appeal so far as the conviction part of the judgment is concerned, rather he would confine his argument only to the sentence part. He would further submit that, appellant No. 1 4 Sonu alias Laxman Chelak is in jail since his arrest on 12-9-2020 till date i.e. 5 years and 24 days. Appellant No. 2 Shekhar Chelak has remained in jail during trial from 26-10-2020 to 19-11-2020 (24 days) and from 28-7-2022 till granting bail by the coordinate bench on 31-7- 2023 (1 year and 3 days), thus he has remained in jail for 1 year and 27 days. He further submits that, so far as appellant No. 2 Shekhar Chelak is concerned, Suraj Gendre (P.W. 2), who is brother of victim, has stated in his deposition that appellant No. 2 Shekhar Chelak has assaulted the victim only by hands. No seizure of any arm has been made from him. He has remained in jail for 1 year and 27 days, out of 7 years RI awarded to him by the trial Court. Looking to the role assigned to him in the incident, who assaulted the victim only by hands and fists, while maintaining the conviction and fine sentence under Section 307/34, IPC, he may be sentenced to the period already undergone by him. 7 So far as appellant No. 1 Sonu alias Laxman Chelak is concerned, learned counsel for the appellants submits that, he has remained in jail for 5 years and 24 days. As per allegation, he assaulted the victim by means of a sword, but as per medical report (Ex. P-19A), there was only one sword injury on the person of the victim, other incised wound and lacerated wounds were caused by the juvenile. Therefore, he may also be sentenced to the period already undergone by him, by maintaining his conviction and fine sentence. 8 Per contra, learned counsel appearing for the State, while supporting the impugned judgment, opposed the argument advanced by counsel for the appellants/accused and submitted that no interference is called for in the impugned order of sentence also against the appellants. 5 9 I have heard the arguments advanced by learned counsel for the parties and perused the material available on record of the trial Court. 10 Learned counsel for the appellants/accused has not argued on conviction part of the impugned judgment and also the fine sentence. Even otherwise, from the deposition of victim Suresh Kumar Gendre (P.W. 1), the injured witness, which also gets support from his brother Suraj Gendre (P.W. 2), it is found that, appellant Sonu alias Laxman Chelak had assaulted the victim by means of a sword, as a result of which, the victim had sustained injury on his back at L-3 and L-4 region. His statement has also been supported by Dr. A. N. Nag (P.W. 10), who examined the victim and submitted MLC report Ex. P-19-A. Victim Suresh Kumar Gendre (P.W. 1) has stated in his deposition that, appellant No. 2 Shekhar Chelak had assaulted him by means of a sword, but he had lodged FIR (Ex. P-1) immediately after the incident, in which, he alleged that, appellant Shekhar Chelak has assaulted him by hands and fists, which is contrary to his deposition in the Court. His brother Suraj Chelak (P.W. 2) has also stated in his deposition that, appellant Shekhar has assaulted the victim by hands. 11 The appellants have been convicted by learned trial Court for offence under Section 307/34 of the IPC. After perusal of the entire evidence, conviction awarded to the appellant/accused is found to be proper and no interference is required in the conviction part of the judgment. Hence, conviction of appellants under Section 307/34 of the IPC is affirmed. 12 So far as sentence imposed upon the appellant No. 1 is concerned, allegation against him is of assaulting the victim by a sword. He has remained in jail for 5 years and 24 days, out of the 7 years RI awarded 6 by learned trial Court. The incident is of the year 2020. Considering the totality of the case, no useful purpose would be served in upholding the jail sentence imposed by the trial Court against the appellant/accused Sonu alias Laxman Chelak. In the considered opinion of this Court, ends of justice would be served, if he is sentenced to the period already undergone by him. 13 As regards appellant No. 2, though he has also been convicted under Section 307/34 of the IPC, but he is not main accused, rather main assailant is appellant No. 1, who assaulted upon the victim by sword. The appellant No. 2 has not assaulted upon the victim by any article or weapon, rather he assaulted him by hands and fists. No article or weapon has been seized from him. As such, the role played by him in instant case is of a co-accused under Section 34 of the IPC. 14 Section 34 of the IPC establishes joint liability, not equal sentence. Therefore, a co-accused can be punished with a lessor punishment, then the main accused, even when Section 34 of the IPC is applied. While Section 34 of the IPC makes all individuals with a common intention equally liable for the criminal act as if done by one person, the final punishment is determined by specific crime and individual culpability, not just application of Section 34, IPC. Thus, the Court has discretion in determining the punishment based on the independent role, culpability and circumstances of each co-accused. 15 While considering the provisions of Section 34 of the IPC, Hon’ble Supreme Court in the case of Krishnamurthy v. State of Karnataka, [(2022) 7 SCC 521] has held in para 26 as under :- “26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle 7 of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34, IPC are satisfied. We must remember that Section 34, IPC comes into operation against the co-perpetrators because they have not 8 committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34, IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.” 16 In instant case, appellant No. 2 Shekhar Chelak has remained in jail for 1 year and 27 days out of 7 years RI awarded to him. He has played limited role in the incident. The incident was a result of a sudden quarrel without prior planning or premeditated intent to kill the victim, as the incident occurred when the victim objected to the accused persons to smoke Ganja. No criminal antecedent against him is found on record. Thus, in view of the discussion made hereinabove and the law laid down by Hon’ble Apex Court in aforecited case, in the considered opinion of this Court, no fruitful purpose would be served in sending him behind the bar again, looking to his limited role in the incident and as he has no criminal antecedent. Thus, considering the prayer of learned counsel for the appellants and balancing the aggravating and mitigating facts of the present case, I am of the opinion that interest of justice would be served if sentence of 7 years R.I imposed by the trial Court on the appellant Shekhar Chelak is modified and reduced to the period already undergone by him. 17 Accordingly, the conviction of the appellants/accused under Section 307/34 of the IPC is maintained, but jail sentence of 7 years’ RI 9 imposed upon them by the trial Court is reduced to the period already undergone by them, as has been mentioned in para 6 of this judgment. However, the fine imposed upon the appellants by the trial Court shall remain intact. 18 Consequently, the Criminal Appeal is allowed in part to the extent indicated herein-above. 19 The appellant No. 2/accused Shekhar Chelak is reported to be on bail. He need not surrender. The bail bonds furnished by him shall remain in operation for a further period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 20 The appellant No. 1/accused Sonu alias Laxman Chelak is in jail. He is directed to be released forthwith, if not warranted in any other case, subject to compliance of Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023 before concerned trial Court in its satisfaction. 21 Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. Sd/- (Naresh Kumar Chandravanshi) JUDGE pathak