Police Station City Kotwali, District Dhamtari, Chhattisgarh v. State Of Chhattisgarh, Through The Police Station
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.21 16:50:47 +0530 2025:CGHC:3356-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1549 of 2019 {Arising out of judgment dated 29.06.2019 passed in Special Criminal Case No.73/2018 by the learned Special Judge POCSO (F.T.C.) Dhamtari} Hemant Dhruv, S/o. Late Devi Lal Dhruv, Aged About 25 Years, R/o. Near Bal Mandir, Tikrapara, Dhamtari, Police Station City Kotwali, District Dhamtari, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The Police Station- City Kotwali, Dhamtari, District Dhamtari, Chhattisgarh. ... Respondents For Appellant : Mr. Basant Kaiwartya, Advocate For Respondent(s)
Legal Reasoning
: Mr. Ashutosh Shukla, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (20.01.2025) 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 29.06.2019, passed by the learned Special Judge POCSO (F.T.C.) Dhamtari in Special Criminal Case No.73/2018, by which, the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 452 of I.P.C. U/s. 307 of I.P.C U/s. 354 of I.P.C. read with Section 8 of the POCSO Act. (However, in light of Sec. 42 of POCSO Act, punished only U/s. 8 of POCSO Act : Rigorous imprisonment for 3 years and fine of Rs.500/-, in default of payment of 3 fine, months' additional rigorous imprisonment. : Rigorous imprisonment for life and fine of Rs.500/-, in default of payment of 3 fine, additional months' rigorous imprisonment. : Rigorous imprisonment for 3 years and fine of Rs.500/-, in default of 3 fine, payment of months' additional rigorous imprisonment. All the sentences to run concurrently. 2. Case of the prosecution, in brief, is that on 15.02.2018 at about 3:00 P.M. at Tikrapara Ward, Police Station- City 3 Kotwali, District Dhamtari, the appellant unauthorisedly tress-passed the house of the victim and assaulted her and caused injuries which were sufficient in ordinary course of nature to cause death and outraged her modesty; thereby, the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, FIR was registered vide Ex.P-21, MLC was conducted vide Ex. P-16, Panchanama was prepared vide Ex.P-23 and the knife was recovered from the spot. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 19 witnesses and exhibited 36 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein for the aforesaid offences as mentioned in the 4 opening paragraph of this judgment against which the present appeal has been preferred. 5. Mr. Basant Kaiwartya, learned counsel for the appellant, would submit that the offence under Sections 324 & 325 of I.P.C. is made out, but offence under Section 307 of I.P.C. is not made out against the appellant and even otherwise, taking into the prosecution case as it is, since the appellant is in custody since 31.03.2018 for more than 6 year and 9 months, therefore, he be sentenced for the period already undergone and the appeal be allowed in part. 6. Mr. Ashutosh Shukla, 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 appellant for the aforesaid offences; therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. PW-2, who is minor victim, has been examined and she has supported the case of the prosecution stating that on the date of offence, the appellant tress-passed her house and 5 closed the doors and assaulted her and outraged her modesty and when she was trying to run away, the appellant had caused injury in her neck by knife, by which she became unconscious. She was medically examined by Dr. Sanjeev Gupta (PW-11) and it has beeen stated that the victim remained unfit for 5 days from 15.02.2018 to 20.02.2018. As such, taking the injuries as it is, as fracture was found in the head, the injuries were sufficient in ordinary course of nature to cause death in terms of Section 307 of I.P.C. 9. Now, the question is, whether the trial Court is justified in convicting the appellant for offence under Section 307 of the I.P.C.? 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.” 6 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 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 1 (1988) 4 SCC 551 7 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 paragraph 21 of the report as under: - “21. In offence under Section 307 all the ingredients of the offence of murder are present For the except the death of the victim. 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 notwith- standing no modification of sentence need be made. ...” 2 (2003) 10 SCC 434 8 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 15. commission of murder; and 16. (b) the doing of an act towards it. 17. 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. ...” 18. Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana4 has laid down the 3 (2004) 13 SCC 189 4 (2015) 11 SCC 366 9 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 To justify a circumstances of each case. 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.” 19. The Supreme Court in the matter of State of U.P. and another v. Jaggo alias Jagdish and others5, relying upon its earlier decision in the matter of Habeeb Mohammad v. 5 1971(2) SCC 42 10 The State of Hyderabad6 has held that the witness whose evidence is essential to the “unfolding of the narrative” should be examined, and observed in paragraphs 14 and 15 as under: - “14. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the "unfolding of the narrative" should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad v. The State of Hyderabad6 for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 15. This Court in Habeeb Mohammad's case (supra) referred to the observations of Jenkins, C.J. in Ram Ranjan Roy v. Emperor7 that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye-witnesses should be before the Court. Lord Roche in Stephen Seneviratne v. The King8 referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad's case, 6 AIR 1954 SC 51 7 8 ILR 42 Cal 422 AIR 1936 PC 289 11 (supra) said that the absence of an eye-witness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for cross- examination by the accused. That would have elicited the correct facts. If Ramesh were an eye- witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence.” 20. Reverting to the facts of the case in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellant has been charged for causing attempt to murder of the victim and considering the evidence available on record that the injuries were sufficient in ordinary course of nature to cause death of victim, we confirm the conviction for the offence under Section 307 of I.P.C., but considering the facts and circumstances of the case, the sentence of imprisonment of life is converted to 7 years rigorous imprisonment. However, the conviction and sentence of the appellant for the offence under Section 452 of I.P.C. and Section 354 of I.P.C. read with Section 8 of the POCSO Act 12 would remain unaltered and all the sentences are directed to run concurrently. 21.
Decision
In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 22. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok