State of Chhattisgarh v. Ashutosh Gupta), whereby
Case Details
1 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.04.29 10:41:03 +0530 2025:CGHC:18432 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 863 of 2022 {Arising out of judgment dated 11.05.2022 passed in Sessions Case No.56/2017 by the learned Sessions Judge, Baikunthpur, Koriya, C.G,} 1 - Ashutosh Gupta S/o Kamleshchand Gupta Aged About 27 Years R/o Mahalpara Baikunthpur, Police Station Baikunthpur, District : Koriya (Baikunthpur), Chhattisgarh --- Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer Of Police Station Baikunthpur, District : Koriya (Baikunthpur), Chhattisgarh --- Respondent(s) (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------- For Appellant :- Ms. Sameeksha Gupta, Advocate For State :- Mr. Sharad Mishra, Panel Lawyer ------------------------------------------------------------------------------------- CRA No. 872 of 2022 1 - Faizan Dhebar S/o Faruque Dhebar Aged About 32 Years R/o Ward No. 6, Main Road Schoolpara, Baikunthpur, District Koriya (C.G.) ---Appellant(s) Versus 1 - State Of Chhattisgarh Through- Police Station Baikunthpur, District- Koriya (C.G.) --- Respondent(s) 2 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) (Cause-title taken from the Case Information System) -------------------------------------------------------------------------------
Legal Reasoning
For Appellant :- Ms. Isha Jajodia, Advocate For State :- Mr. Sharad Mishra, Panel Lawyer ------------------------------------------------------------------------------------- SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 23.04.2025 1. Since common question of fact and law are involved and both the appeals have been arisen out of the common impugned judgment of conviction and order of sentence dated 11.05.2022 passed in Sessions Case No.56/2017, these two criminal appeals are clubbed together, heard together and are decided by this common order. 2. The appellant – Ashutosh Gupta (A-1) has preferred CRA No.863 of 2022 and the appellant – Faizan Dhebar (A-2) has preferred CRA No.872 of 2022 under Section 374(2) of the CrPC, which are directed against the impugned judgment of conviction and order of sentence dated 11.05.2022 (Annexure A/1) passed by learned Sessions Judge, Baikunthpur, District Koriya, Chhattisgarh in Sessions Case No.56/2017 (State of Chhattisgarh v. Ashutosh Gupta), whereby the learned trial Court while acquitting another co-accused person namely, Aamir Khan, has convicted both the appellants herein for offence under Section 307 of the IPC read with Section 34 of the IPC and 3 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) sentenced them to undergo rigorous imprisonment for 07 years and to pay fine of 500/- and in default of payment ₹ of fine, sentenced to undergo additional simple imprisonment for 01 month. 3. The case of the prosecution, in short, is that on 09.06.2016 at about 11:15 PM, near Rakesh Paan Shop, which comes within the ambit of Police Station, Baikunthpur, District Koriya, Chhattisgarh, the two appellants-accused namely, Ashutosh Gupta (A-1) and Faizan Dhebar (A-2) in furtherance of their common intention, assaulted Rahul Kumar Yadav (PW-01) with brick on his head by which he suffered grievous injuries and also suffered fracture, which were sufficient in the ordinary course of nature to cause death and, thereby, said to have committed the aforesaid offence. 4. It is the further case of the prosecution that the injured/victim Rahul Kumar Yadav (PW-01) reported the matter to the police, pursuant to which, the police registered FIR vide Ex.P/1. Spot Map and Nazari Naksha were prepared vide Ex.P/4 & Ex.P/10 respectively. The injured (PW-01) was medically examined by Dr. Ashish Karan (PW-8) vide Ex.P/11 and, thereafter, he was further examined by neurosurgeon Dr. S.N. Mandhariya (PW-12) 4 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) vide Ex.P/17C and as per findings of the CT scan, there was segmented depressed fracture on the left side of the victim’s head along with swelling in his brain. Pursuant to memorandum statement (Ex.P/5) of the appellant – Ashutosh Gupta (A-1), recorded in the presence of witnesses namely, Manjay Tiwari (PW-04) and Anshul Sharma (PW-05), the brick and other articles were seized vide Ex.P/6 to P/8, however, as per FSL Report (Ex.P/22), no blood was found on the seized brick (Article G). Thereafter, statements of witnesses were recorded and, after due investigation, the appellants were charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants abjured their guilt and entered into defence. 5. The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 25 documents, whereas, the appellants in support of their defence have neither examined any witness nor exhibited any document. Statements of the appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication. 5 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which the present appeals have been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. 7. Ms. Sameeksha Gupta, learned counsel appearing for the appellant – Ashutosh Gupta (A-1) would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and as such, the trial Court has erred in convicting the appellant for offence under Section 307 of the IPC. She would further submit that on account of late night brawl, the alleged incident of assault took place and there was no intention on part of the appellant to cause death of the injured (PW-01) and, also, the injuries were not sufficient in ordinary course of nature to cause death, as such offence under Section 307 of the IPC could not be established. In alternative, she would submit that even if the case of the prosecution is taken as it is, the case for offence under Section 335 of the IPC would be made out and the appellant be sentenced for the period already undergone and the appeal be allowed in part. 6 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) 8. Ms. Isha Jajodia, learned counsel appearing for the appellant – Faizan Dhebar (A-2) would submit that the prosecution has failed to brought on record anything which shows that the assault took place with a predetermined motive and with an intention to cause death of the victim and, therefore, the learned trial Court has erred in convicting the appellant for offence under Section 307 of the IPC. In alternative, she would also submit that even if the case of the prosecution is taken as it is, the case for offence under Section 335 of the IPC would be made out and the appellant be sentenced for the period already undergone and the appeal be allowed in part. 9. On the other hand, Mr. Sharad Mishra, learned State counsel would support the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature and it is not a case where the offence of the appellants can be reduced to a lesser offence. As such, both the appeals deserves to be dismissed. 10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 7 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) 11. It is the case of the prosecution that on the date of offence in the late night, the injured – Rahul Kumar Yadav (PW-01) and one Rakesh Kumar Kewat aka Pinku (PW-02) were on a motorcycle and going towards Rakesh Pan Shop to get cigarette, when the two appellants – Ashutosh Gupta (A-1) and Faizan Dhebar (A-2) and the other acquitted co- accused namely, Amir Khan came from behind in their motorcycle and started blowing pressure horn, after which the injured (PW-01) slowed down his motorcycle and turned back to see the accused persons, on which the appellant – Ashutosh Gupta (A-1) hurled abusive words at him. Thereafter, when they reached near Paan Shop, the appellants-accused started to fight with the injured (PW- 01) and the appellant – Ashutosh Gupta (A1) and Faizan Dhebar (A-2) assaulted him with brick, by which he suffered grievous injuries. Similar statement has been made by Rakesh Kumar Kewat aka Pinku (PW-02), who was accompanying the injured (PW-01). Thereafter, the injured (PW-01) was medically examined by Dr. Ashish Karan (PW-08) vide Ex.P/11, and it was found that the victim has sustained lacerated head injury on the frontal side and another lacerated wound on the head and a contusion on the knee and he remained hospitalized in the District Hospital, Baikunthpur for 01 day. Thereafter, the 8 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) injured (PW-01) was admitted to the Ramkrishna Care Hospital, Raipur, where he was treated by Dr. S.N. Madhariya (PW-12) and as per the CT scan (Ex.P/17), it was found that there was a segmented depressed fracture on the left side of the victim’s head along with swelling in his brain and a skull bone was broken and has entered into the brain. Thereafter, the victim underwent surgery on 11.06.2016 and was placed in the ICU for some time and he remained hospitalized from 11.06.2016 to 14.06.2016, until his discharge. As such, from the statements of the injured (PW-01) and the eye-witness Rakesh Kumar Kewat (PW-02), following the statements of Dr. Ashish Karan (PW- 08) and Dr. S.N. Madhariya (PW-12), it is quite established that due to injury caused by the appellants herein, the victim (PW-01) has suffered segmented depressed fracture on his head, which is said to be grievous injury within the definition of sub-section 7 of Section 320 of the IPC for offence of grievous hurt. Furthermore, Dr. S.N. Madhariya (PW-12) has also opined that the injury sustained by the victim (PW-01) was grievous in nature. 12. Now, the question is, whether the trial court is justified in convicting the appellants for offence under Section 307 of the IPC ? 9 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) 13. 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.” 14. 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 10 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) 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. 15. 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 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 1 (1988) 4 SCC 551 11 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) some of the factors that may be taken into consideration to determine the intention. 16.Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana2 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 The burden is on the by the accused. 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 2 (2015) 11 SCC 366 12 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.” 17. Reverting to the facts of the present case, in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments for offence under Section 307 of the IPC, it is quite vivid that whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. 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. In the present case, no dangerous weapon was used and only the brick, hand and fist were used for assaulting the victim and although the abusive words were used but the motive of the offence is not established and injuries were given on the head for which the victim (PW-01) remained hospitalized for 04 days. Furthermore, the dispute had arisen between the parties only on account of pressure horn blown by the appellant, and as such, there was no intention on part of the appellant to cause death of the injured (PW-01). As such, 13 (CRA No. 863 of 2022 & CRA No. 872 of 2022 ) no case for offence under Section 307 of the IPC can be made out. Moreover, since there was a segmented depressed fracture on the victim’s head which is said to be grievous injury within the definition of sub-section 7 of Section 320 of the IPC, offence for grievous hurt under Section 335 of the IPC would be made out. As such, the appellants herein are convicted for the offence under Section 335 of the IPC and since both the appellants have remained in jail for more than 50 days, they are sentenced to the period already undergone. Appellants are on bail, their bail bond shall remain in operation for six months in view of provision contained in Section 437A of the CrPC. 18. As such, these criminal appeals are partly allowed to the extent indicated herein-above. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. @d!t! Sd/- (Sanjay K. Agrawal) Judge