ASHOK v. State Of Chhattisgarh

Mr. Ashutosh Shukla, Panel Lawyer 2 (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board (24.04.2025) Sanjay K. Agrawal, J.

1. Kush Sahu (A-1) and Pawan Vaishnav (A-2) both have jointly preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated

05.11.2022, passed by the learned First Additional Sessions Judge, Bemetara, in Sessions Trial No.19/2022, by which they have been convicted and sentenced as under : CONVICTION SENTENCE U/s. 307/34 of IPC : Rigorous imprisonment for 10 U/s. 25(1)(a) of Arms Act years and fine of Rs.1000/-, in default of payment of fine, 1 month additional simple imprisonment to both the Appellants. : Rigorous imprisonment for 7 years and fine of Rs.1000/-, in default of payment of fine, 1 month additional simple imprisonment to Appellant No.1. 3 U/s. 27 of Arms Act : Rigorous imprisonment for 3 years and fine of Rs.1000/-, in default of payment of fine, 1 month additional simple imprisonment to Appellant No.1. All the sentences of Appellant No.1 to run concurrently.

2. Case of the prosecution, in brief, is that, on 10.02.2022, at afternoon at 1:00 P.M. at village Sarda, Police Station- Berla, District Bemetara, the two appellants, in furtherance of their common intention, assaulted Aarif Ali (PW-1) and Sadiq Ali (PW-2) by knife with button, by which both of them suffered grievous injuries, which were sufficient in the ordinary course of nature to cause death and thereby committed the offence. Further allegation against the appellant No.1 is that he was having the button knife which was prohibited under Section 25(1)(a) & 27 of the Arms Act. The matter was reported to the police by Aarif Ali (PW-1) naming the appellant No.1, pursuant to which, FIR was registered vide Ex.P-1. Aarif Ali (PW-1) and Sadiq Ali (PW-2) both were medically examined by Dr. Shiva Thakur (PW-5) & Dr. Ritu Dulyani (PW-13) vide Ex.P-19 & Ex.P-20. As per the MLC report (Ex.P-19), Aarif Ali (PW-1) was found to be suffered six injuries and he was 4 admitted in the AIMS Hospital Raipur from 11.02.2022 to

13.02.2022 i.e. for 2 days according to discharge summary (Ex.P-5) proved by Dr. Shiva Thakur (PW-5). As per the MLC report (Ex.P-20), Sadiq Ali (PW-2) was found to be suffered two injuries, but he was not hospitalized. Pursuant to memorandum statement of appellant No.1 vide Ex.P-8, knife and his shirt were seized vide Ex.P-10 and on the memorandum statement of the appellant No.2 vide Ex.P-9, his clothes were seized vide Ex.P-11, which were sent for chemical examination to FSL along-with other seized articles and as per the FSL report, only blood was found on the knife and clothes of the appellants and human blood was found on the clothes of PW-1 & PW-2; however, the FSL report was not exhibited. After due investigation, the appellants were charge- sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 15 witnesses and 5 exhibited 27 documents and the appellants-accused in support of their defence have neither examined any witness nor exhibited any document.

4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellants for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

5. Mr. Uttam Pandey, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offences beyond reasonable doubt, therefore, the two appellants are entitled for acquittal and the appeal deserves to be allowed. In alternative, he would submit that the appellant No.1 is remained in jail since 12.02.2022 and he has already completed more than 3 years and therefore, he may be sentenced for the period already undergone. He further submits that so far as the appellant No.2 is concerned, he was not named in the FIR and even in the statement under Section 161 of Cr.P.C. of Aarif Ali (PW-1) & Sadiq Ali (PW-2), he has not been named. Sadiq Ali (PW-2), who is an injured eye- witness, in the statement before the Court, has not named the 6 appellant No.2 and, as such, Aarif Ali (PW-1) has falsely implicated the appellant No.2 and, therefore, he is entitled for acquittal.

6. Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted both the appellants for the aforesaid offences and, therefore, the appeal deserves to be dismissed.

7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

8. In view of the nature of evidence available on record, it would be appropriate to consider the case of the appellant No.1 first and thereafter, the case of the appellant No.2 will consider separately. Appeal of Appellant No.1- Kush Sahu

9. First of all, the question is, whether the trial court is justified in convicting the appellant No.1 for offence under Section 307 of the IPC ? 7

10. At this stage, it would be appropriate to notice Section 307 of the IPC which states as under: - “307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life-convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”

11. The essential ingredients required to be proved in the case of an offence under Section 307 of the IPC are:- (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excused for incurring the risk of causing such death or injury.

12. The Supreme Court in the matter of Hari Singh v. Sukhbir Singh and others1 has held that under Section 307 of the IPC what the court has to see is, whether the act irrespective of its 1 (1988) 4 SCC 551 8 result, was done with the intention or knowledge and under circumstances mentioned in the provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

13. Similarly, in the matter of State of Maharashtra v. Kashirao and others2, their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in para 21 of the report as under: - 2 (2003) 10 SCC 434 9 “21. In offence under Section 307 all the ingredients of the offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained, alteration of conviction notwithstanding no modification of sentence need be made....”

14. The Supreme Court in the matter of Parsuram Pandey and others v. State of Bihar3 has also held that to constitute an offence under Section 307 of the IPC, two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. It has been held in paragraph 15 of the report as under: - “15. To constitute an offence under Section 307 two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the 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 intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct 3 (2004) 13 SCC 189 10 evidence, as a fact it can only be detected or inferred from other factors. …”

15. Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana4 has laid down the ingredients of the offence under Section 307 of the IPC and held as under: - “12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.

14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.”

16. Coming to the facts of the case in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court for offence under Section 307 of the I.P.C., it is quite 4 (2015) 11 SCC 366 11 vivid that, on the date of offence i.e. on 10.02.2022, Sadiq Ali (PW-2) was sitting on his motorcycle at the place of offence and the appellant No.1 came in his motorcycle while driving it rashly and negligently and dashed the motorcycle of Sadiq Ali (PW-2) on which he was sitting in front of his brother’s shop (PW-1), on account of which, quarrel took place between them and thereafter, appellant No.1 is said to have taken out the knife from his vehicle and assaulted Aarif Ali (PW-1) firstly and thereafter assaulted Sadiq Ali (PW-2), by which they have suffered grievous injuries, which have been proved by Dr. Shiva Thakur (PW-5) & Dr. Ritu Dulyani (PW-13). Furthermore, pursuant to memorandum statement of the appellant No.1, knife has been seized vide Ex.P-10, on which blood has been found as per the FSL report. As such, considering the statement of Aarif Ali (PW-1) and Sadiq Ali (PW-2) and further considering that pursuant to memorandum statement of the appellant No.1, knife has been seized on which blood has been found and also taking into the fact that, all of a sudden, the appellant No.1 came and dashed the motorcycle of Sadiq Ali (PW-2) and assaulted him and his brother PW-1 by button knife, I am of the considered opinion that the conviction of the appellant No.1 for offence under 12 Section 307 of I.P.C. is well merited. He was also convicted for the offence under Sections 25(1)(a) & 27 of the Arms Act, which are also well merited.

17. However, considering the age of the appellant No.1 i.e. 21 years on the date of offence and further considering the fact that there is no evidence on record that the appellant is hardened criminal or has committed jail offence during incarceration in jail, the sentence awarded to the appellant No.1 to undergo rigorous imprisonment for 10 years for offence under Section 307 of I.P.C. is reduced to 4 years. Further, the sentence awarded to the appellant No.1 to undergo rigorous imprisonment for 7 years for offence under Section 25(1)(a) of the Arms Act is also reduced to 3 years. The sentence awarded to him under Section 27 of the Arms Act and the fine amount shall remain as it is.

18. Accordingly, the appeal of the appellant No.1 is partly allowed to the extent indicated herein-above. Appeal of Appellant No.2– Pawan Vaishnav

19. It is the case of the prosecution that Sadiq Ali (PW-2) was sitting on his motorcycle in front of the shop of his brother 13 Aarif Ali (PW-1) and appellant No.1 came there on his motorcycle rashly and negligently and dashed the motorcycle of Sadiq Ali (PW-2), on account of which, quarrel took place between them and appellant No.1 caused stab injuries. Immediately, thereafter, Aarif Ali (PW-1) reported the matter to the police vide Ex.P-1 against Kush Sahu (A-1) in which Pawan Vaishnav (A-2) has not been named. Sadiq Ali (PW-2), who was sitting on his motorcycle and was injured eye- witness, even in the Court statement, did not name appellant No.2 that he caught hold of his brother Aarif Ali (PW-1) to facilitate the appellant No.1 to cause stab injury. Even the other witnesses Rahman Ali (PW-9), Ashfaq Ali (PW-10) & Ghanshyam Ali (PW-11) have falsely implicated the appellant No.2 that he also came to the spot and assaulted Aarif Ali (PW-1) & Sadiq Ali (PW-2). The injured eye-witness (PW-2) did not name the appellant No.2 and the other injured eye- witness (PW-1) also did not name the appellant No.2 in the FIR lodged by him.

20. The Supreme Court in the matter of Ram Kumar Pande v. The State of Madhya Pradesh 5 has held that, no doubt, an FIR is a previous statement which can, strictly speaking, be only used 5 AIR 1975 SC 1026 14 to corroborate or contradict the maker of it and is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. However, relying upon the same, in the matter of The State of Uttar Pradesh v. Raghuvir Singh 6 , the Supreme Court has held as under : “31. If he claims to be an eye-witness to the incident and is said to have witnessed three persons known to him assaulting his son i.e. the deceased then what was the good reason not to name the other two accused (juvenile Accused) in the FIR. This omission assumes significance and is a relevant fact under Section 11 of the Evidence Act.”

21. Since injured eye-witness Aarif Ali (PW-1), lodger of the FIR, did not name the appellant No.2 in the FIR (Ex.P-1), in view of the decisions rendered by the Supreme Court in Ram Kumar Pande (supra) and Raghuvir Singh (supra), the statement of PW-1 is of no use to the prosecution and it would be unsafe to maintain the conviction of appellant No.2 on the basis of statement of PW-1 and Furthermore, no seizure of weapon has been made from the appellant No.2 and, as such, the appellant No.2 is entitled for clean acquittal.

22. Accordingly, the impugned judgment of conviction and order of sentence dated 05.11.2022 in respect of the Pawan Vaishnav 6 Criminal Appeal No.1588 of 2015 15 (A-2) is set aside. The appellant No.2 stands acquitted from the charge framed against him for the offence punishable under Section 307 read with Section 34 of Indian Penal Code. The appellant No.2 is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C.

23. Accordingly, the appeal on behalf of appellant No.2 is allowed.

24. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant No.1 is suffering the jail sentence. Ashok Sd/- (Sanjay K. Agrawal) Judge