Bemetara, Chhattisgarh v. State Of Chhattisgarh, Through Station House Officer, Police Stati
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.04.23 16:08:41 +0530 2025:CGHC:18184 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1237 of 2022 {Arising out of judgment dated 13.07.2022 passed in Sessions Trial No.13/2022 by the learned First Additional Sessions Judge, Bemetara} 1 - Raju Mirchande, S/o. Dharmu Mirchande, Aged About 29 Years, R/o. Village - Samesar, Police Station - Nawagarh , District – Bemetara, Chhattisgarh. 2 - Shatruhan Mirchande, S/o. Dharmu Mirchande, Aged About 38 Years, R/o. Village - Samesar, Police Station - Nawagarh , District – Bemetara, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through Station House Officer, Police Station - Nawagarh , District – Bemetara, Chhattisgarh. (Cause Title taken from Case Information System) ... Respondent For Appellants For Respondent : :
Legal Reasoning
Mr. Dharmesh Shrivastava, Advocate Mr. Afroz Khan, Panel Lawyer 2 (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board (22.04.2025) Sanjay K. Agrawal, J. 1. Raju Mirchande (A-1) and Shatruhan Mirchande (A-2) both have 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 13.07.2022, passed by the learned First Additional Sessions Judge, Bemetara, in Sessions Trial No.13/2022, by which they have been convicted for the offence under Section 307 read with Section 34 of Indian Penal Code and sentenced to undergo 10-10 years rigorous imprisonment and fine of Rs.1000-1000/- to each and in default of payment of fine amount, 2-2 months’ additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that on 24.01.2022, at morning 9:30 A.M., at village Samesar, Police Station- Nawagarh, District Bemetara, the appellant No.1 assaulted Salikram Banjare (PW-2) by Farsi, by which he suffered grievous injuries, which were sufficient in the ordinary course of nature to cause death and thereby committed the 3 offence. Konda Khande (PW-1) immediately reported the matter to the police, pursuant to which, FIR was registered in name of appellant No.1 vide Ex.P-10 and statements of Salikram (PW-2), Deepa Banjare (PW-3), Kavita Banjare (PW- 4) and Siya Bai Banjare (PW-5) were recorded on 24.01.2022 and thereafter, MLC of the injured was conducted by Dr. Yashika Thawre (PW-13) vide Ex.P-23 and injured was found to be suffered five injuries. Pursuant to memorandum statement of the appellant vide Ex.P-5, Farsa was seized vide Ex.P-6, which was sent for chemical examination to the FSL and as per the FSL report (Ex.P-18), human blood of ‘B’ blood group was found on the seized weapon of offence i.e. Farsi. The injured/victim (PW-2) was admitted for his treatment at Balaji Hospital from 24.01.2022 to 26.01.2022 and thereafter, from 26.01.2022 to 01.02.2022 at Yashoda Hospital, Raipur. Thereafter, the statement of victim Salikram (PW-2) was recorded on 14.02.2022, on the basis of which, the appellant No.2 was arrested on 13.04.2022 vide Ex.P-15, however, no seizure has been made from him. After due investigation, the appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law in which the 4 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 offence, prosecution has examined as many as 13 witnesses and exhibited 25 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 offence as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Dharmesh Shrivastava, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appeal deserves to be allowed and even otherwise, the appellant No.2 has been falsely implicated, as there is no evidence on record against him. In alternative, he would submit that the appellant No.1 is remained in jail since 24.01.2022 and he has already completed more than 3 years 5 and therefore, he may be sentenced for the period already undergone. He further submits that the appellant No.2 was not named in the FIR and when the statement of the injured eye-witness (PW-2) was recorded, he has been falsely implicated in the offence in question, as he was brother of the appellant No.1. As such, the appeal be allowed in whole or in part. 6. Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence 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. Now, it would be appropriate to consider the appeal of Raju Mirchande (A-1) and appeal of Shatruhan Mirchande (A-2) separately, one by one. 6 Appeal of Appellant No.1- Raju Mirchande 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 ? 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 7 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 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 1 (1988) 4 SCC 551 2 (2003) 10 SCC 434 8 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: - In offence under Section 307 all the ingredients “21. 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: 3 (2004) 13 SCC 189 9 (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 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 4 (2015) 11 SCC 366 10 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 vivid that Konda Khande (PW-1) has reported the matter to the police naming the appellant No.1 only that he has assaulted Salikram (PW-2) by Farsi, by which PW-2 has suffered grievous injuries and there is amputation of one little finger. The other eye-witnesses: PW-2– Salikram Banjare (injured), PW-3- Deepa Banjare (daughter of the injured), PW-4- Kavita Banjare (daughter of the injured) and PW-5- Siya Bai Banjare (wife of the injured) have supported the case of the prosecution that the appellants have assaulted the injured/victim on account of boundary dispute, as they were neighbour to each other. Injured Salikram (PW-2) was 11 subjected to medical examination by Dr. Yashika Thawre (PW-13) who has proved the injury report (Ex.P-23) and five injuries were found over the body of the victim : (i) amputa- tion of left little finger, (ii) laceration over fore-head lower side, (iii) laceration over forehead upper side (iv) laceration over head parietal side and (v) laceration over right shoulder and he was admitted for his treatment at Balaji Hospital from 24.01.2022 to 26.01.2022 and thereafter, from 26.01.2022 to 01.02.2022 at Yashoda Hospital, Raipur. Pursuant to memorandum statement of the appellant No.1, Farsi has been seized vide Ex.P-6, on which, as per the FSL report (Ex.P-18), human blood of ‘B’ blood group has been found. As such, I am of the considered opinion that the conviction of the appellant No.1 for offence under Section 307 of I.P.C. is well merited. However, considering the age of the appellant No.1 i.e. 29 years and further considering the fact that the injured eye-witness (PW-2) and appellant No.1 both are neighbour and also considering the other relevant facts situation available on record, the sentence awarded to the appellant No.1 to undergo rigorous imprisonment for 10 years is reduced to 4 years, but the fine amount shall remain intact. 12 17. Accordingly, the appeal of the appellant No.1 is partly allowed to the extent indicated herein-above. Appeal of Appellant No.2– Shatrughan Mirchande 18. The appellant No.2 has been convicted for the offence under Section 307 of I.P.C. with the aid of Section 34 of I.P.C. However, it is pertinent to mention here that the appellant No.2 is elder brother of the appellant No.1 and he used to live at Bilaspur and on the date of incident, he was there to meet his brother i.e. appellant No.1 and he was not named in the FIR (Ex.P-10) lodged by Konda Khande (PW-1) and only when the victim (PW-2) made a statement on 14.02.2022 that the appellant No.2 had also caught hold of him, he was arrested on 13.04.2022. There is no reason for not naming the appellant No.2 while lodging the FIR by Konda Khande (PW-1). Similar statement has been made by Deepa Banjare (PW-3), Kavita Banjare (PW-4) & Siya Bai Banjare (PW-5) who are closed relative of Salikram Banjare (PW-2). Konda Khande (PW-1) is also the eye-witness, but he did not name the appellant No.2 in the FIR (Ex.P-10). 19. 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 5 AIR 1975 SC 1026 13 previous statement which can, strictly speaking, be only used 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.” 20. Since eye-witness Konda Khande (PW-1), lodger of the FIR, did not name the appellant No.2 in the FIR (Ex.P-10) and also did not say in the police statement as stated in paragraph 6 & 7 of the statement before the Court, 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. Furthermore, the other eye-witnesses Deepa Banjare (PW-3), Kavita Banjare (PW-4) and Siya Bai 6 Criminal Appeal No.1588 of 2015 14 Banjare (PW-5) being the interested witnesses to the extent of implicating the appellant No.2 are also of no use to the prosecution. Moreover, no seizure has been made from the appellant No.2 and he was arrested after the statement was made by injured Salikram Banjare (PW-2) on 14.02.2022 implicating him being the brother of the appellant No.1. As such, the appellant No.2 is entitled for clean acquittal. 21. Accordingly, the impugned judgment of conviction and order of sentence dated 13.07.2022 in respect of the Shatruhan Mirchande (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. 22. Accordingly, the appeal on behalf of appellant No.2 is allowed. 23. 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 15 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