1 2025:CGHC:18622 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 198 of 2008 1 - Atma Ram Mar (Malar), S/o Budhnu Ram, Aged about 40 years, R/o Village Adhora, P.S. Balrampur, District- Surguja (C.G.). ... Appellant versus 1 - State of Chhattisgarh Through- P.S. Balrampur, District- Surguja (C.G.) ... Respondent For Appellant : Mr. D.N. Prajapati, Advocate For Respondent(s)/State : Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 24.04.2025 1. The appellant in this appeal under Section 374(2) of CrPC have challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 18.01.2008 passed by learned Special Sessions Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Surguja at Ambikapur (C.G.) in Special Sessions Trial No. 36/2007 whereby the appellant stands convicted for the offence under Section 307 of IPC and sentenced to undergo RI for 5 years with fine of Rs.500/- and in default of payment of fine, to further undergo RI for 1 month. 2. Case of the prosecution, in brief, is that the complainant- Veeru Uraon is a member of Scheduled Tribes whereas the accused is not a member of Digitally signed by RUCHI YADAV 2 the Scheduled Caste/Tribe. On the date of incident, Karma festival was being celebrated in village Adhara where at about 12:30 p.m., the accused was quarreling with a person namely Ekram Kumar, at that time, the complainant came there and tried to intervene the fight, upon which, the accused abused him in filthy language and assaulted him with axe. Due to which, he sustained grievous injury on his head and doctor expressed the possibility of death due to the injury caused. The report was lodged at police station- Balrampur on the date of incident. Upon the information, the crime was registered and investigation was carried out. After completion of investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Ramanujganj and from there, the matter was committed to this Court. Thereafter, learned trial Court framed charges under Sections 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, 307 of IPC, 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 294 of IPC against the appellant to which, he abjured his guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 14 witnesses. Statement of the appellant was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined two witnesses namely Mahmood Ansari as D.W.-1 and Jamuna Prasad Gupta as D.W.-2. 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted the appellant and sentenced him as mentioned in para 1 of this judgment . Hence, this appeal. 3 5. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is illegal and bad in law. Learned trial Court erred in convicting the appellant particularly, when the prosecution has failed to prove the case beyond reasonable doubt against the appellant. Learned trial Court ought to have considered the counter case filed by the appellant against the complainant which is pending before the learned Judicial Magistrate First Class in Ramanujganj, Surguja (C.G.). No seizure was made from the appellant. The injury sustained by the complainant is simple in nature. Learned trial Court ought to have considered the statement of Dr. R.S. Markam (P.W.-14) who does not support the prosecution case, therefore the conviction is liable to be set-aside. Learned trial Court further committed error of law by ignoring the evidence of the defence witnesses Mahmood Ansari (D.W.-1) and Jamuna Prasad Gupta (D.W.-2) and also there are major contradictions and omissions in the statements of prosecution witnesses, therefore the impugned judgment is liable to be set aside and the appellant deserve to be acquitted. Alternatively, he submits that the incident took place in the year 2005; this appeal is pending since 2008; at the time of the incident, the appellant was aged about 40 years and as of now he is aged about 57 years; he remained in jail for more than 6 months therefore, he prays that his sentence may be reduced to the period already undergone by him. 6. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having appreciated overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 4 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from record of learned trial Court that the learned trial Court framed charges against the appellant for the offence under Sections 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, 307 of IPC, 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 294 of IPC. After appreciation of oral and documentary evidence, the learned trial Court acquitted the appellant of the charge under Sections 3(2)(v) and 3 (1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 & 294 of IPC and convicted him for the offence under Section 307 of IPC. 9. Complainant- Veeru (P.W.-5) stated that on the date of incident, when he tried to intervene the fight, he was assaulted by the appellant with an axe, due to which, he sustained grievous injury on his head. 10. Other witnesses- Ganga Lohar (P.W.-2), Dewanti Uraon (P.W.-3), Sarswati (P.W.-6) and Ramkumar (P.W.-7) supported the statement of complainant Veeru (P.W.-5) and stated that the accused/appellant assaulted the complainant with an axe. 11. Dr. R.S. Markam (P.W.-14) initially examined the injured Veeru (P.W.-5) on 15.09.2005 and found one injury on his head. He opined that the injuries sustained by the injured are simple in nature and he also advised the injured that if there is vomiting or unconsciousness, he should get himself examined and treated at the district hospital. He gave his report vide Ex. P/7A in this regard. Thereafter on 30.09.2005, when police sought a query report from him, then he stated that if the injured was not treated in time then the injuries sustained by the injured may cause danger to his life. He gave report vide Ex. P/6A in this regard. 5 12. Dr. M.K. Jain (P.W.-1) stated that he conducted CT scan of the victim and found one linear fracture in the temporal parietal bone of the head. In his cross-examination, he stated that if proper treatment is available for the said injuries then the person gets well. 13. The Hon’ble Apex Court held in the matter of Sivamani and anr. v. State Represented by Inspector of Police, Vellore reported in CRA 3619 of 2023 in the judgment dated 28.11.2023 held in para 9 which reads as under:- “9. In State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ‘...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.’ The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, ‘ The intention of the accused can 6 be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.” 14. In light of above, it is evident that the injured sustained injury on his head. The evidence of Dr. R.S. Markam (P.W.-14) clearly shows that the injury was treated in time therefore was not proved fatal to his life and, as such the same was not sufficient to cause his death. Prosecution has failed to prove intention to commit culpable homicide as injury according to the opinion of Dr. R.S. Markam (P.W.-14) was grievous in nature and not fatal to life. There was no repeated attack on the head of the injured which demonstrates the act of the appellant that he was not having any intention to kill him, and, therefore, his act does not fall within the ambit of Section 307 of IPC. Three considerations appear to be essential namely nature of act done, the intention or knowledge of the agent and circumstance under which the act is done. Without the ingredient of knowledge for intention there cannot be any offence of attempt to murder. A great amount of care is to be taken to differentiate between offence under Section 307 of IPC and other like under Sections 324, 325, 326 etc. If the intention or necessary knowledge to cause death as envisaged under Section 307 of IPC which defines murder is there then it is immaterial whether or no any hurt was caused to victim by the accused. 7 15. In the presence case, it is apparent that there was assault made by the appellant on head but the accused did not make repeated assault on head. Thus, considering the evidence of Dr. R.S. Markam (P.W.-14) and Dr. M.K. Jain (P.W.-1), nature and extent of injuries, the act of the accused/appellant does not fall within the ambit of Section 307 of IPC but makes him liable to be convicted under Section 326 of IPC. 16. In the aforesaid view of the matter, the conviction under Section 307 IPC recorded against the accused/appellant cannot be sustained and therefore, it deserves to be quashed and set aside by holding that the accused/appellant has committed the offence under Section 326 of IPC only by causing grievous hurt. Thus, the conviction of the accused/appellant under Section 307 IPC is altered to Section 326 of IPC. 17. As regards the sentence, it is clear that the incident took place in the year 2005, at that time, appellant was 40 years of age and now he would be 57 years; appeal is pending since 2008; appellant remained in jail for more than 6 months; he was on bail during trial and even during pendency of this appeal and nothing has been brought to the notice of this Court that he ever misused the liberty granted to him. In these circumstances, this Court is of the opinion that no useful purpose would be served in sending him back to jail at this stage and the ends of justice would be served if he is sentenced to the period already undergone by him while 8 keeping the fine sentence imposed by the trial Court intact. 18. Accordingly, the accused/appellant is convicted under Section 326 of IPC instead of Section 307 of IPC and his sentence is reduced to the period already undergone by him. The impugned judgment stands modified to the above extent. 19. The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months in view of provisions of Section 481 of BNSS, 2023. 20. The criminal appeal is thus allowed in part. 21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi