Chattisgarh High Court
Birbahadur Singh And Anr vs State Of Chhattisgarh on 16 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.265 of 2010
1. Reshamlal Pradhan, S/o Lekru Pradhan, Age 54 Year,
2. Rajesh Pradhan, S/o Reshamlal Pradhan, Age 26 Year,
Both are R/o Vill-Sariya, Distt.Raigarh (CG)
----- Applicants
Versus
1. Birbahadur Singh, S/o Angad Singh Thakur, age 25 years, R/o Village-
Kora, Thana Sariya, Distt.Raigarh (CG)
2. Rajkumar Singh, S/o Late Bheem Singh Thakur, aged about 30 years,
Village Bhatali, Thana Sariya, Distt.Raigarh (CG)
3. State of Chhattisgarh, through Station House Officer, P.S. Sariya,
Distt.Raigarh (CG)
----- Respondents
And
Criminal Appeal No.819 of 2009
1. Birbahadur Singh S/o Shri Angad Singh Thakur, Aged about 25 years,
R/o Village Korra, Police Station Saria, District Raigarh (CG)
2. Rajkumar Singh S/o Late Bhim Singh Thakur, Aged about 30 years,
R/o Village : Bhathali, P.S. Saria, District Raigarh (CG)
----- Appellants
Versus
State of Chhattisgarh, through Station House Officer, P.S. Saria,
District Raigarh (CG)
----- Respondents
-----------------------------------------------------------------------------------------------------
For Applicants: Mr.Sanjay Agrawal, Advocate in Cr.R.No.265/2010
For Appellants: Mr.Varun Sharma, Advocate in Cr.A.No.819/2009
For Respondent/State: Mr.Afroz Khan, Panel Lawyer
-----------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ.
JUDGMENT ON BOARD
(16.8.2022)
Sanjay K. Agrawal, J.
1. By the impugned judgment dated 28.10.2009, learned Additional
Sessions Judge, Sarangarh, in S.T. No.6/2009 acquitted the accused
persons for offence under Sections 450, 147, 148, 149 and 307 of the
IPC and convicted them for offence under Sections 452, 324/34 and
325/34 of the IPC. The accused persons preferred Criminal Appeal
No.819/2009 against their conviction for the aforesaid offence
questioning their conviction and sentence awarded, whereas the
complainant/injured witnesses have preferred Criminal Revision
No.265/2010 against acquittal of the accused persons for offence
under Sections 452, 324/34 and 325/34 of the IPC. Since common
question of law and fact are involved in both cases, they were clubbed
together, heard together and being disposed of by this common
judgment.
2. The case of the prosecution, in brief, is that on 14.10.2008 at 9.15
p.m. two accused persons with common intention entered into motor-
cycle repairing shop of Rajesh Pradhan (PW-10) and assaulted
Rajesh Pradhan (PW-10) and Resham Lal Pradhan (PW-3) by sword,
iron rod etc. by which they suffered injuries, which were sufficient to
cause their death and thereby committed the offence. Further case of
the prosecution is that on the fateful day Rajesh Pradhan (PW-10)
was working in his motor-cycle repairing shop, at that time, the
appellants entered into his shop with sword, iron rod etc. and
assaulted him and when Resham Lal Pradhan (PW-3) came to
intervene, they also assaulted Resham Lal Pradhan by which he also
suffered injury. Thereafter, Resham Lal Pradhan (PW-3) lodged the
FIR to Police Station Saria for offence under Sections 450, 147, 148,
149 and 307 of the IPC vide Ex.P-5. Both the injured witnesses
Resham Lal Pradhan (PW-3) and Rajesh Pradhan (PW-10) were sent
to Primary Health Center, Saria for medical examination, where
Dr.Devraj Behra (PW-7) examined them and submitted his report vide
Exs.P-4 and P-13, they were referred for x-ray examination, which
were submitted vide Exs.P-12 and P-14 by K.G. Hospital, Raigarh. In
x-ray report of Rajesh Pradhan (Ex.P-14), fracture of ulna bone was
found by radiologist, which has been proved by Dr.Devraj Behra (PW-
7). Thereafter, iron rod, sword and bamboo stick were seized, which
were sent for examination and after due investigation, charge-sheet
was filed before the Judicial Magistrate First Class, Sarangarh, who in
turn, committed the case to the Additional Sessions Judge, Sarangarh.
3. The prosecution in order to bring home the offence, examined as
many as 13 witnesses in support of its case and exhibited 26
documents Exs.P-1 to P-26. Defence has not examined any witness
in its support, however, exhibited one document Ex.D-1. Statements
of the accused / appellants were recorded under Section 313 of the
CrPC in which they abjured the guilt and pleaded innocence and false
implication and claimed to be tried.
4. The trial Court after completion of trial and upon appreciation of oral
and documentary evidence, by its impugned judgment, acquitted the
accused persons for offence under Sections 450, 147, 148, 149 and
307 of the IPC, but convicted them for offence under Sections 452,
324/34 and 325/34 of the IPC, against which, criminal revision and
criminal appeal have been preferred by respective parties as noticed
in paragraph 1 of this judgment.
5. Mr.Sanjay Agrawal, learned counsel appearing for the
applicants/complainants in Criminal Revision No.265/2010, would
submit that the trial Court is absolutely unjustified in acquitting the
accused persons / respondents No.1 and 2 for offence under Sections
450, 147, 148, 149 and 307 of the IPC and looking to the evidence
available on record, they ought to have convicted for offence under
Sections 450, 147, 148, 149 and 307 of the IPC, particularly
considering the nature of injury, which was sufficient to cause death.
Therefore, criminal revision be allowed.
6. Mr.Varun Sharma, learned counsel for the appellants in Criminal
Appeal No.819/2009, would submit that only evidence available
against the appellants is that vide Ex.P-14 fracture was found in
forearm (ulna bone) of Rajesh Pradhan (PW-10), which was said to be
grievous in nature proved by Dr.Devraj Behra (PW-7) and it was
caused on non-vital part of the body. There is no other evidence
available on record. Therefore, the learned trial Court has rightly not
convicted the appellants for offence under Sections 450, 147, 148,
149 and 307 of the IPC. Considering the nature of injuries and also
considering that the appellants were remained in jail for 18 days
during trial, therefore, they be sentenced to the period already
undergone by setting aside the sentence for 3 years.
7. On the other hand, Mr.Afroz Khan, learned Panel Lawyer for the
respondent/State, would support the impugned judgment.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
9. Now, the question is, whether the trial Court is justified in acquitting
the accused persons 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 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 others 1 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
1 (1988) 4 SCC 551
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
others 2, 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 para 21 of the report as under: -
"21. In offence under Section 307 all the ingredients 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 Bihar 3 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
2 (2003) 10 SCC 434
3 (2004) 13 SCC 189
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 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 Haryana 4 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 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
4 (2015) 11 SCC 366
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. The Supreme Court in the matter of Jai Narain Mishra and others v.
State of Bihar 5 where four to five persons 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 the 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 ½" 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 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
5 1971(3) SCC 762
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 reduced
accordingly to 3 years rigorous imprisonment."
17. Reverting to the facts of the present 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 IPC, it is quite vivid that in the instant
case, though the appellants have used sword, iron rod etc. to assault
Rajesh Pradhan (PW-10), but one of the injury which was suffered by
Rajesh Pradhan (P-10) was fracture of ulna bone (Ex.P-14), which
was proved by Dr.Devraj Behra (PW-7) i.e. non-vital part of the body
and injury to other injured witness Reshal Lal Pradhan (PW-3) was
simple in nature and motive of the offence has also been found
established, but considering the nature of injuries and in view of the
decision of the Supreme Court in Jai Narain Mishra (supra), where
three injuries were of simple nature though deadly weapons were
used and the fourth injury, though endangering life could not be
deemed to be an injury which would have necessarily caused death
but for timely medical aid, their Lordships of the Supreme Court
altered conviction from Section 307 of the IPC to Section 326 of the
IPC, whereas, in the present case, one injury i.e. fracture of ulna bone
was caused to Rajesh Pradhan (PW-10), which is non-vital part of the
body and the said injury could not have necessarily caused the death
of Rajesh Pradhan (PW-10) but for timely medical aid. Therefore,
having regard to the manner in which the offence is committed and
other attending circumstances as noticed herein-above, we are of the
considered opinion that the trial Court has rightly acquitted the
accused persons for offence under Section 307 of the IPC and other
relates offences. We hereby affirm the acquittal of accused persons /
respondents No.1 and 2 for offence under Sections 450, 147, 148,
149 and 307 of the IPC.
18. In Criminal Appeal No.819 of 2009, the appellants have challenged
their conviction under Sections 452, 324/34 and 325/34 of the IPC.
19. Dr.Devraj Behra (PW-7) has clearly proved the document Ex.P-14 in
which fracture of ulna bone was found which is said to be grievous in
nature. Even otherwise, considering the definition of grievous hurt,
which contained in Section 320 of the IPC i.e. fracture or dislocation of
a bone or tooth is a grievous hurt, which has duly proved by injured
witnesses Resham Lal Pradhan (PW-3) and Rajesh Pradhan (PW-10),
the trial Court is absolutely justified in convicting the appellants for
offence under Sections 452, 324/34 and 325/34 of the IPC considering
the nature of injury and weapon seized from the appellants. We do not
find any illegality or perversity in the finding recorded by the trial Court.
20. It has been contented by the learned counsel for the appellants that
the appellants were remained in jail for 18 days during trial and they
have also deposited the fine amount as directed by the trial Court and
the appellants and the complainants both are residents of same
village i.e. Korra, they have now developed good relation and they
have mutual respect to each other, therefore, the period already
undergone i.e. 18 days be held to be sufficient sentence and jail
sentence for 3 years be set aside.
21. After hearing learned counsel appearing for the parties and after going
through the records and considering the fact that incident is of
14.10.2008 i.e. near about 15 years have been elapsed and they have
mutual respect to each other and they were remained in jail for 18
days during trial, we hereby set aside the sentence of 3 years and
sentence them to the period already undergone.
22. In conclusion, Criminal Revision No.265/2010 is dismissed and
Criminal Appeal No.819/2009 is partly allowed. Conviction of the
appellants under Sections 452, 324/34 and 325/34 of the IPC are
maintained, but their sentence is reduced to the period already
undergone by them.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/-
