1 2026:CGHC:21521 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 19.03.2026 08.05.2026. -- 08.05.2026 CRA No. 3 of 2008 1 - (Deleted) Raju Nirmalkar as per Hon’ble Court Order Dated 23-10-2019 2 - Atmaram S/o Rajkumar Nirmalkar, aged about 24 years, R/o Village Rawanbhata Jamul, Police Station Jamul, District Durg Chhattisgarh, District : Durg, Chhattisgarh. 3 - Prahalad S/o Raj Kumar Nirmalkar, aged about 22 years, R/o Village Rawanbhata Jamul, Police Station Jamul, District Durg Chhattisgarh ... Appellants Versus State of Chhattisgarh, through the Police Station Jamul, District-Durg, Chhattisgarh ... Respondent (Cause title is taken from CIS) Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 For Appellants : Mr. Naveen Shukla, Advocate. For Respondent : Mr. Himanshu Yadu, P.L. Hon'ble Smt. Justice Rajani Dubey, J. C.A.V. Judgment 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 27.11.2007 passed by learned Sessions Judge, Durg, District Durg (C.G.) passed in S.T. No. 295/2006, whereby the said Court convicted the appellants and sentenced them as under:- Conviction Sentence U/S 450 of IPC R.I. for 5-5 years and fine of Rs. 500-500/-, in default of payment of fine to undergo additional S.I. for 3-3 months to each accused persons. U/s 307 of IPC R.I. for 5 years and fine of Rs. 500/-, in default of payment of fine to undergo additional S.I. for 3 months to accused/appellant No. 1 Raju Nirmalkar. U/s 307/34 of IPC R.I. for 5-5 years and fine of Rs. 500-500/-, in default of payment of fine to undergo additional S.I. for 3-3 months to accused/appellant No. 2 and 3 Atmaram and Prahalad. U/s 323 of IPC S.I. for 3-3 months to accused/appellant No. 2 and 3 Atmaram and Prahalad. (All the sentences are directed to run concurrently.) 2. The case of the prosecution, in brief, is that on 15.10.2006 at 3 approximately 8:00 p.m., at village Rawanbhata Jamul the appellant No. 1, Raju Nirmalkar, forcibly entered the house of the complainant, Rajesh Yadav, and called for Ravindra Yadav. Upon being informed by the complainant that Ravindra was not present in the house, the appellant, holding a bottle in his hand, allegedly broke it and, with the intention to commit murder, struck the complainant on the abdomen. The complainant cried for help, upon which witnesses and Ravindra Yadav arrived at the spot. Thereafter, the appellant No. 1, with an intention to murder Ravindra, assaulted him on the abdomen with the broken bottle. When witnesses Rani Bai, Savitri Bai, and Sohadra Bai intervened to rescue the complainant and Ravindra, the co-accused Atmaram and Prahlad allegedly assaulted Savitri Bai. The complainant, Rajesh Yadav, lodged a report regarding the incident at Police Station Jamul on the same night. Consequently, the First Information Report (Exhibit P-1) was recorded against the appellant No. 1, alleging offence punishable under Sections 450 and 307 of the Indian Penal Code. The injured persons were medically examined and on the basis of memorandum statement (Ex. P/07) of Raju Nirmalkar vide Ex. P/08, the pieces of broken bottle, blood stained soil and pieces of glass were also seized. Vide Ex. P/06 the cloths worn by the appellant No. 1 was seized. 3. During the course of investigation, spot map of the incident was prepared by the police as well as by the Patwari vide Ex. P/08 and Ex. P/04 respectively and on the basis of the memorandum statement of the accused/appellant No. 1 vide Ex. P/07 pieces of broken bottle, blood stained soil and pieces of glass were also seized and the cloth 4 worn by the accused/appellant No. 1 was seized vide Ex. P/06, vide Ex. P/03 the shirt worn by the complainant Rajesh Yadav was seized. The statements of the witnesses were recorded and the seized articles were sent to F.S.L, Raipur vide Ex. P/23 for its chemical analysis and vide Ex. P/24, the acknowledgment of the same was obtained. 4. After completion of due and necessary investigation, they were charge- sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellants for alleged commission of offence under Sections 450, 307, 307/34, 323 of IPC. 307 read with Section 34 of IPC against the accused persons. The appellants having abjured guilt were subjected to trial. 5. In order to establish the charges against the accused persons, the prosecution has examined as many as 14 witnesses. The statement under Section 313 of Cr.P.C. of the accused persons have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. However, one witness has been examined by them in their defence. 6. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record, convicted the present appellants for offence under Sections 450, 307, 307/34 and 323 of IPC and sentenced them as mentioned in opening para of this judgment. Hence, this present appeal. 5 7. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is contrary to material evidence available on record. The sole allegation was made against the appellant No. 1 as initially the F.I.R. was registered for offence under Sections 450 and 307 of IPC against the appellant No. 1. and the complainant did not disclose the name of appellants No. 2 & 3. Learned trial Court failed to appreciate the contradictions and omissions in the case as in the F.I.R. vide Ex. P/01, the appellant No. 1 caused injury by way of knife whereas in the final report, injuries were caused by broken bottle. Learned trial Court has erred grievously in relying upon the evidence adduced by the prosecution witnesses by overlooking the contradictory evidence in the 161 statement as well as in court statements of the complainant and prosecution witnesses. The prosecution has failed to prove the motive of the appellants for attempting to commit murder of the complainant and Ravindra Yadav. PW-4 Savitri Bai, the close relative of PW-1 did not support the prosecution case and she has turned hostile. The memorandum statement i.e., Ex. P/7 of the accused Raju Nirmalkar as well as seizure memo i.e., Ex. P/8 was not duly proved by the prosecution because the evidence of PW-14 L.S. Kashyap was not supported by the independent witnesses. The spot map of the incident prepared by the patwari was not proved. Learned trial Court failed to appreciate that the entire prosecution case is based upon the interested witnesses without having corroboration of independent witnesses. Learned trial Court did not appreciate the oral and documentary evidence properly, so, the impugned judgment is liable to be set aside. 8. Reliance has been placed on the decision of this Court in the matter of 6 Santosh Kumar @ Motu vs. State of Chhattisgarh reported in CRA No. 827 of 2005. 9. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellants. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 10. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 11. Upon comprehensive evaluation of the record of learned trial Court, it is clear that it framed charges for offence punishable under Sections 450 and 307 of IPC against the main accused Raju Nirmalkar and for appellants No. 2- Atmaram & 3- Prahalad, it framed charges under Sections 450, 307/34 and 323 of IPC and sentenced them as described in the opening para of this judgment. 12. As per the F.I.R. marked as Ex. P/01, the complainant, Rajesh Kumar Yadav, alleged that the main accused, Raju Nirmalkar, assaulted him with a knife. In his statement, the complainant (PW-01) stated that all three accused entered his house, and Raju Nirmalkar assaulted him with a glass bottle while the other accused, Atmaram and Prahalad, held his hands. During cross-examination, he admitted that in his F.I.R., he had named only Raju Nirmalkar and did not mention that all the accused had brought knives with them. 13. PW-02, Ravindra Yadav, deposed that on the date of the incident, he had gone to the pond at approximately 7:30 p.m. Upon returning home after about 40 minutes, he observed blood on the road outside his 7 house. He stated that the co-accused, Prahalad and Atmaram, restrained him and pushed one of his legs into a drain, while Raju Nirmalkar assaulted him on the left side with a broken bottle. He further stated that at the time of the assault, no one was present to take him to the hospital, and subsequently his wife and brother escorted him to the Government Hospital, Durg (C.G.). In para 03 of his cross-examination he admitted that he and Laila jointly participated in the assault on Raju Nirmalkar. 14. PW-03, Sohaga Bai, deposed that on the night of the incident, between 7:00 and 8:00 p.m., upon hearing Raju’s abusive language, she proceeded to Rajesh’s house. She stated that Raju was hurling abuses from the premises, and upon her arrival, she witnessed Raju assaulting Rajesh on the abdomen with a broken bottle in her presence. 15. PW-04, Savitri Bai, deposed that Raju Nirmalkar assaulted the complainant, Rajesh, with a glass bottle, while the other accused, Atmaram and Prahalad, restrained the complainant’s hands. PW-06, Smt. Rani Yadav, the complainant’s wife, has corroborated this account in her deposition. 16. PW-12 Dr. S.P. Kesharwani, examined the complainant, Rajesh Kumar Yadav, and found a stab wound on his abdomen. He admitted him to the surgical ward, advised an X-ray, and prepared his medical report, vide Ex. P/16. He further examined the other injured, Ravindra Yadav, admitted him to the surgical ward, and prepared his medical report, vide Ex. P/22. 17. PW-08 Dr. Smt. Pratibha Issar stated that, upon radiographic examination of Ravindra Yadav, no free air was observed beneath the diaphragm. The jejunal loops were found to be dilated. Further, signs 8 consistent with inflammation at the intestinal valve were noted. The findings were documented in her report vide Ex. P/10. 18. PW-11 Dr. K.H. Ramesh has stated that he conducted surgical treatment on injured Rajesh Kumar Yadav, who was admitted to the hospital on 16.10.2006 and discharged on 23.10.2006. The bed head ticket pertaining to Rajesh Kumar Yadav is marked as Ex. P/09. He further stated that Ravindra Yadav was also admitted to the hospital on 16.10.2006 and discharged on 23.10.2006, and the bed head ticket relating to him is marked as Ex. P/12. 19. It is evident from the First Information Report (Ex. P/01) that the complainant named only the main accused, Raju Nirmalkar, and did not mention the names of the other co-accused persons. During cross- examination, the complainant also admitted that the FIR contained the name of only Raju Nirmalkar. It is further noted that Raju Nirmalkar expired during the pendency of the present appeal. The record further reflects that the names of the other accused persons were not mentioned in the FIR. However, in his statement before the Court, complainant Rajesh Kumar Yadav has implicated the other accused/appellants as well, and he has also admitted that their names were not included in the FIR. He has also stated that Raju Nirmalkar assaulted him with a glass bottle. 20. This Court in the matter of Santosh Kumar @ Motu v. State of Chhattisgarh reported in CRA No. 827 of 2005 has held in para 10 which reads as under:- “10. In the matter of Sripathi and Others (Supra), it was observed that when one of the co-accused suddenly takes out knife from his pocket and stabs the deceased, the 9 application of the provisions of Section 34 of the IPC was not found justifiable. Relevant para-9 reads thus:- “9. “5. Section 34 has been enacted on the principle of joint liability in the [commission] of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab [(1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an 10 offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 6. The section does not say ‘the common intentions of all’ nor does it say ‘an intention common to all’. [Ed. : See Mahbub Shah v. Emperor, AIR 1945 PC 118 : 46 Cri LJ 689] Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the [commission] of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. [1993 Supp (3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.” [Ed. : As observed in State of M.P. v. Deshraj, (2004) 13 SCC 199 : 2005 SCC (Cri) 123, at SCC pp. 201-02, paras 5-6.]” 21. In view of the aforesaid legal principles, it is evident that in the present case the complainant has primarily alleged against the main accused, 11 Raju Nirmalkar, the FIR does not disclose the names of the other accused persons/appellants. No satisfactory explanation has been offered by the complainant for the omission of the names of the present appellants/accused in the FIR. It further appears that the learned Trial Court has not properly appreciated the oral and documentary evidence available on record and has proceeded to convict all the accused persons/appellants under Section 307 read with Section 34 of the Indian Penal Code. The evidence of the complainant against the co- accused persons does not inspire confidence and is not found to be reliable. 22. Ex consequenti, the conviction recorded against the appellants Atmaram and Prahalad cannot be sustained. The appeal is, therefore, allowed and the appellants are acquitted of all charges levelled against them. In this case it is clear from the report of concerned Jail Superintendent of Police that appellant no. 1 after completing the entire jail sentence has been set at liberty, therefore, no further order regarding his release, etc. is needed. 23. The appellants No. 2 & 3 are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellants are also directed to furnish a personal bond for a sum of Rs. 25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants No. 2 & 3 on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 12 24. 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 U.K. Raju