Korba, Chhattisgarh v. 1 - State Of Chhattisgarh Through Station House Officer, Police Station
Case Details
1 (CRA No. 2090 of 2023) ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.04.23 11:00:54 +0530 2025:CGHC:18015 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2090 of 2023 {Arising out of judgment dated 01.06.2023 passed in Sessions Case No.43/2021 by the learned First Additional Sessions Judge, Korba} 1 - Akash Mahant @ Nanhi S/o Anupdas Mahant, Aged About 21 Years R/o Village Parsabhatha, Near Shiv Mandir, Balco, Police Station Balco Nagar, District : Korba, Chhattisgarh --- Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Balco Nagar, District : Korba, Chhattisgarh --- Respondent(s) (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------- For Appellant :- Mr. Dharmesh Shrivastava, Advocate For State :- Mr. Rahul Tamaskar, Govt. Advocate and ------------------------------------------------------------------------------------- Mr. Amit Buxy, Panel Lawyer SB-
Legal Reasoning
Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 21.04.2025 1. This criminal appeal preferred under Section 374(2) of the CrPC by the appellant herein is directed against the impugned judgment of conviction and order of sentence dated 01.06.2023 (Annexure A/1) passed by learned I 2 (CRA No. 2090 of 2023) Additional Sessions Judge, Korba, District Korba, Chhattisgarh in Sessions Case No.43/2021, whereby the learned trial Court while acquitting the five other co- accused persons namely, Dwarika Chouhan @ Kancha, Tarun Chouhan, Sanjay Vaishnav, Yasin Ansari @ Boby Khan and Umesh Sahu, has convicted the appellant herein for offence under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for 07 years and to pay fine of 2,000/- and in default of payment of fine, ₹ sentenced to undergo additional rigorous imprisonment for 06 months. 2. The case of the prosecution, in short, is that on 13.04.2021 at about 08:20 PM, at Parsabhatha, in front of Durga Pandal, which comes within the ambit of Police Station Balco, District Korba, the appellant along with other co- accused persons in furtherance of their common intention, assaulted Sumit Kiran (PW-04) with iron rod by which he suffered grievous injuries and also suffered fractures, which were sufficient in the ordinary course of nature to cause death and, thereby, said to have committed the aforesaid offence. 3. It is the further case of the prosecution that Amit Kiran, brother of the injured, reported the matter to the police, 3 (CRA No. 2090 of 2023) pursuant to which, the police registered FIR vide Ex.P/22. Spot Map and Nazari Naksha were prepared vide Ex.P/12 & Ex.P/24 respectively. Pursuant to memorandum statement of the appellant (Ex.P/1), recorded in the presence of witnesses namely, Roshan Chouhan (PW-1) and Amit Kiran (brother of the victim), iron rod and other articles were seized vide Ex.P/5 to P/9. MLC was conducted by Dr. Vivek Sinha (PW-5) vide Ex.P/14 and right hand ulna bone and third metacarpal bone of right hand of the victim was found fractured vide X-Ray Plate Articles A1 to A4. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was 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 appellant abjured his guilt and entered into defence. 4. The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 32 documents and Articles 1 to 6, whereas, the appellant in support of his defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of the CrPC in which he denied the 4 (CRA No. 2090 of 2023) circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Mr. Dharmesh Shrivastava, learned counsel for the appellant 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 the aforesaid offence. He would further submit that considering the nature of injury that only right hand ulna bone and third metacarpal bone of right hand of the victim were found fractured vide Ex.P/14, as such, no case for offence under Section 307 can be made out. In alternative, he would submit that the appellant is in jail since 01.06.2023 i.e. around 01 year & 11 months and during the trial he remained in custody from 14.04.2021 to 18.08.2021 (04 months & 04 days); therefore, he may be 5 (CRA No. 2090 of 2023) sentenced for the period already undergone and the appeal be allowed in part. 7. On the other hand, Mr. Rahul Tamaskar, 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 sentence of the appellant can be reduced to the sentence already undergone by him. As such, the present appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. Now, the question is, whether the trial court is justified in convicting the appellant 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 6 (CRA No. 2090 of 2023) 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 7 (CRA No. 2090 of 2023) 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. Reverting to the facts of the present case, it is quite vivid that the victim - Sumit Kiran (PW-04) has clearly supported the case of the prosecution and has stated that 1 (1988) 4 SCC 551 8 (CRA No. 2090 of 2023) it is the appellant – Akash Mahant who had assaulted him with iron rod by which he suffered injuries on his head and also suffered fracture in his right hand. Pursuant to memorandum of statement (Ex.P/1) of the appellant, the iron rod along with other articles was seized and as per FSL Report (Ex.P/31) blood was found in the seized iron rod (Article D). Further considering the medical report (Ex.P/15) of the victim proved by Dr. Vivek Sinha (PW-05), three cut wounds were found on frontal lobe, right parietal lobe and chin of the victim. As per MLC Report (Ex.P/14) the right hand ulna bone and third metacarpal bone of right hand of the victim was found fractured vide X-Ray Plate Articles A1 to A4. 14. Considering the statement of the victim and the medical evidence available on record, the finding recorded by the learned trial Court that the appellant is guilty for offence under Section 307 of the IPC is a correct finding of fact based on the materials available on record. However, considering the nature of injury and considering the fact that the victim (PW-04) was hospitalized only for one day, as he was admitted to the hospital on 13.04.2021 at 10:43 PM and got discharged from the hospital against the medical advice on 14.04.2021 at 10:00 AM, as per Ex.P/28 9 (CRA No. 2090 of 2023) and further considering that the appellant is 21 years of age and other co-accused persons have been acquitted, it would be appropriate if the appellant is sentenced to the period already undergone, as he is in jail since 01.06.2023 i.e. around 01 year & 11 months and during the trial he remained in custody from 14.04.2021 to 18.08.2021 i.e. 04 months & 04 days, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other matter. 15. As such, this criminal appeal is partly allowed to the extent indicated herein-above 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any. @d!t! Sd/- (Sanjay K. Agrawal) Judge