Durg, Chhattisgarh v. 1 - State of Chhattisgarh Through P.S. - Jamul, District : Durg, Chhattisgarh
Case Details
1 2025:CGHC:5673 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1899 of 2022 1 - Rajesh Sahu, S/o Panna Lal Sahu, Aged About 39 Years, R/o Aazad Chowk, Ramnagar, P.S. - Vaishali Nagar, District : Durg, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through P.S. - Jamul, District : Durg, Chhattisgarh ... Respondent For Appellant For Respondent/ State : : Mr. Sajal Kumar Gupta, Advocate Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 30.01.2025 1. By way of this appeal filed under Section 374(2) of the Code of
Facts
Criminal Procedure, 1973, the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 28.10.2022 passed by learned Sessions Judge, Durg, District- Durg (C.G.) passed in Sessions Case No. 191/2021 whereby the appellant stands convicted and sentenced as under:- 2 Conviction Sentence U/s 324 of IPC Rigorous Imprisonment for 1 year U/s 307 of IPC RI for 7 years and to pay fine of Rs. 500/- and in default of payment of fine, to undergo RI for 1 month 2. Case of the prosecution, in brief, is that Jiva Umre is maternal uncle of complainant- Shubham Thakur. Complainant- Shubham Thakur's mother Reshma Umre was ill, who lived in Village- Dhaur. Complainant and his maternal uncle Jiva Umre used to work in Supela, Bhilai. On the date of the incident i.e. on 19/01/2021, complainant was going to Village Dhaur on a motorcycle with his maternal uncle Jiva Umre to see her mother due to her ill health. At around 08:30 p.m., when they reached near Mehta Bari, the accused/appellant had parked a rickshaw on the road and loaded with pillows, due to which there was no way to go ahead, complainant got down and asked the accused/appellant to remove the rickshaw, but the accused refused the same and when complainant started to move the rickshaw forward, the accused/appellant abused him in filthy language, threatened to kill him and assaulted him with knife near his left arm and wrist. When his maternal uncle- Jiva Umre came to intervene, then the accused/appellant assaulted Jiva Umre with knife. Due to which, he sustained several injuries on his body. Thereafter, they both were brought to the Government Hospital, Durg, where Jiva Umre's condition was critical and, thereafter, he was referred to Mekahara Hospital, Raipur. Subsequently, FIR (Ex.P/1) was lodged against the appellant for the offence punishable under Section 294, 506, 324 and 307 of IPC. During investigation, on 20/01/2021, spot map (Ex.P/2) was prepared. Statements of witnesses were recorded. 3 Seizure memo was prepared vide Ex.P/4 and P/7. Medical examination of complainant was done. Medical examination report of injured Jiya Umre was obtained. On 20/01/2021, memorandum statement of the accused/appellant was recorded vide Ex.P/5 and thereafter, knife used in the incident was seized vide Ex.P/6 at the behest of the appellant. Thereafter, the accused/appellant was arrested. After completion of usual investigation, the charge-sheet was filed against the appellant for the offence under Sections 294, 506, 324 and 307 of IPC before the learned trial Court. Learned trial Court framed the charges under Sections 307 of IPC and Section 25(1-B)(B) of Arms Act against the appellant, to which he abjured his guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. He did not adduce any evidence in his defence. 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment acquitted the appellant of the offence under Section 25(1-B) (B) of Arms Act & convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal. 5.
Legal Reasoning
It has been observed by Division Bench of this Court in para 19 of its judgment in the matter of Pareshwar Satnami Vs. State of CG passed in CRA No.188 of 2012 as under:- “19. The Supreme Court in the matter of Jai Narain Mishra and others Vs. State of Bihar where four to five person attacked a man with deadly weapons but causing only three simple and one grievous hurt to the injured by farsa, their Lordships held that offence under 326 of IPC would be made out and held as under in paragraph 11 of the report:- “11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C. and sentenced to 5 years rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1½" x 1½" x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be 7 deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307, I.P.C., but Section 326, I.P.C. His conviction, therefore, under Section 307, I.P.C. is set aside and we convict him under Section 326, I.P.C. His sentence of 5 years rigorous imprisonment will have to be to 3 years rigorous reduced accordingly imprisonment." 13. It has been observed by this Court in the matter of Rajesh Vs. State of Chhattisgarh in CRA No.09/2020 in paras 21 & 22 of its judgment, as under. "21. Supreme Court in the matter of Neelam (supra), held in para 8, which reads thus:- "8. A reading of the above would indicate that though the general condition of the patient was very bad yet there is no categoric statement in the medical certificate issued by Dr. S.M. Sehgal that the injuries were in fact dangerous to life. We are unable to fathom as to whether this was a deliberate omission or an oversight but whatsoever it may be the benefit must accrue to the accused. We have also gone through the evidence of Dr. S.M. Sehgal and opined that he had admitted that he had not mentioned that the injury was dangerous to the life as he did not think it necessary to do so.” 22. Thus, looking to the facts and circumstances case, the nature and number of injuries coupled with the medical and further considering the fact that there is nothing in the medical report of four doctors that injures sustained by the injured were fatal to life, it would not be safe to hold that the appellant cause injury to injured Narendra Majumdar (PW/5) in an attempt to commit his murder. However, the 8 nature and number of injuries caused and the weapon used for causing such injury, it can safely be said that the accused/appellant had caused grievous injuries to the injured with dangerous weapon iron rod making him liable to be convicted under Section 326 IPC.” 16. In light of above, it is evident that though the injured- Jiva Umre sustained several injuries on his body but the evidence of Dr. Priyanka (P.W.-8) clearly shows that the injuries were treated in time therefore were not proved fatal to his life and, as such the same was not sufficient to cause his death. Three considerations appear to be essential namely nature of act done, the intention or knowledge of the agent and circumstance under which the act is done. Without the ingredient of knowledge for intention there cannot be any offence of attempt to murder. A great amount of care is to be taken to differentiate between offence under Section 307 of IPC and other like under Sections 324, 325, 326 etc. If the intention or necessary knowledge to cause death as envisaged under Section 307 of IPC which defines murder is there then it is immaterial whether or no any hurt was caused to victim by the accused. 17. Thus, in the present case also, prosecution has failed to prove this fact that the injuries sustained by the injured- Jiva were dangerous to life and the same were caused in attempting to commit murder of the injured. Therefore, the act of the accused/appellant does not fall within the ambit of Section 307 of IPC but makes him liable to be convicted under Section 326 of IPC. 18. In the aforesaid view of the matter, the conviction under Section 307 9 IPC recorded against the accused/appellant cannot be sustained and therefore, it deserves to be quashed and set aside by holding that the accused/appellant has committed the offence under Section 326 of IPC only by causing grievous hurt. Thus, the conviction of the accused/appellant under Section 307 IPC is altered to Section 326 of IPC. However, the conviction under Section 324 of IPC and sentence awarded thereunder shall remain intact. 19. As regards the sentence under Section 326 of IPC, it is clear that the incident took place in the year 2021, the appellant is in jail for more than 4 years, there is no minimum sentence prescribed under Section 326 of IPC and the maximum sentence is 10 years. In these circumstances, the ends of justice would be served if he is sentenced to the period already undergone by him and directed to pay fine of Rs. 500/- with default sentence of one month R.I. 20. In the result, the appeal is allowed in part. While maintaining conviction of the appellant under Section 324 of IPC and sentence awarded thereunder by the trial Court, his conviction under Section 307 of IPC is altered to Section 326 of IPC and he is sentenced thereunder to the period already undergone by him. However, he shall also pay fine of Rs.500/- under Section 326 of IPC and in default thereof shall suffer RI for one month. The fine deposited by the appellant under Section 307 of IPC shall be adjusted accordingly. The appellant is reported to be in jail since 20.01.2021 and thus completed more than 4 years, he be set at liberty forthwith, 10 if no longer required in any other criminal case. 21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV
Arguments
Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is bad in law and in facts and thus liable to be set aside. Due explanation has been given by the appellant in his statement recorded under Section 313 of Cr.P.C. but the same has not been taken into consideration by the trial Court. There is no evidence available on record with regard to the involvement of the present accused/appellant in the matter. The 4 impugned judgment passed by the learned trial Court is illegal, erroneous and contrary to law and therefore is liable to be set-aside. Alternatively, he submits that as per the medical evidence, the offence under Section 307 of IPC is not made out against the appellant. Prosecution has failed to prove its case beyond reasonable doubt. He further submits that the learned trial Court did not consider the evidence on record in its proper perspective, which has resulted in a great miscarriage of justice. Even, if the entire prosecution case is taken as it is, at best the offence under Section 326 IPC is made out against the accused/appellant. Appellant has remained in jail for more than 4 years, therefore, the appellant may be sentenced to the period already undergone by him. He has placed reliance on this Court’s judgment in the matter of Shrawan Kumar and others vs. State of Chhattisgarh passed in Criminal Appeal No. 641 of 2003; 2024 SCC OnLine Chh 9155. 6. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from the record of the learned trial Court that the learned trial Court framed the charges against the appellant for the offence under Section 307 of IPC and Section 25(1-B)(B) of Arms Act. After appreciation of oral and documentary evidence, learned trial Court acquitted the appellant of the 5 offence under Section 25(1-B)(B) of Arms Act and convicted and sentenced him for the offence under Section 324 and 307 of IPC. 9. Complainant- Shubham Thakur (P.W.-1) stated that on the date of the incident, accused assaulted him with knife on his left hand and when his maternal uncle Jiva Umre (injured) tried to intervene on which, the accused inflicted injuries with knife 10-12 times on his stomach, head and other parts of the body. Thereafter, he lodged the FIR (Ex.P/1) at Police Station- Jamul and in the said FIR, he admitted his signature from A to A part. 10. Jiva Umre (P.W.-2) stated that on the date of the incident, the accused abused his nephew (complainant) and assaulted him with knife due to which, he sustained injury on his left hand and when he tried to intervene, then accused assaulted him also with knife 10-12 times on his body, due to which he sustained several injuries on his body. 11. Dr. Raveena Khandelwal (P.W.-5) stated that she medically examined the injured- Shubham Thakur and found two injuries over his body and opined that both the injuries are simple in nature and gave her report vide Ex.P/10 in this regard. 12. Dr. Priyanka (P.W.-8) examined the injured- Jiva Umre and stated that she found total 9 injuries over his body and after looking to the condition of the injured, she referred him to Higher Medical Institution for treatment and surgery. She gave medical examination report in this regard vide Ex.P/13 wherein she admitted her signature from A to A part. In her query report (Ex.P/14), she opined that if the injured person had not treated in time, then he would have died due to the injuries caused by the said knife. 13. Dr. S. Chandrakar (P.W.-10) stated that the injured Jiva Umre was admitted in his hospital from 20.01.2021 to 06.02.2021. The attested copy of 6 the central discharge card of the injured Jiva Umre related to his treatment at Bhimrao Ambedkar Hospital is Ex.P/23. 14. Thus, it is clear from the statements of both the treating doctors that they did not opine about the nature of injuries so sustained by the injured. 15.