Chattisgarh High Court
Shambhu Yadav vs State Of Chhattisgarh on 30 January, 2025
1
2025:CGHC:5432
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1481 of 2024
Judgment Reserved on 17.01.2025
Judgment Pronounced on 30.01.2025
Shambhu Yadav S/o Rajau Ram Aged About 23 Years R/o Rajapara Kanker,
P.S. - Kanker, District North Bastar Kanker (C.G.)
... Appellant
versus
State Of Chhattisgarh Through P.S. Kanker, District North Bastar Kanker
(C.G.)
... Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Prahlad Panda, Advocate.
For Respondent : Mr. Ajay Kumrani, Panel Lawyer.
Hon'ble Mr. Justice Naresh Kumar Chandravanshi
C A V Judgment
1. With consent of the parties, the matter is heard finally.
2. This criminal appeal has been preferred by the appellant under Section
415 (2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (henceforth
'BNSS,2023") questioning the legality and propriety of the judgment of
conviction and order of sentence dated 07.06.2024 passed by Principal
Sessions Judge, Kanker, District Uttar-Bastar Kanker (C.G.) in Session case
No. 29 / 2020, whereby the learned trial Court, after holding the appellant
guilty, convicted and sentenced him in the following manner:-
S.No. Conviction Sentence
01. U/s. 294 IPC Rigorous Imprisonment for
1 month with fine of
Rs.100/-, in default of
payment of fine, to further
undergo RI for 10 days.
02. U/s. 307 IPC Rigorous imprisonment of
7 years with fine of
Rs.500/-, in default of
payment of fine, to further
undergo rigorous
imprisonment for one
month
03. U/s. 324 IPC Rigorous imprisonment for
six months with fine of
Rs.400/-, in default of
payment of fine, to further
undergo rigorous
imprisonment for 15 days.
All the sentences were ordered to run concurrently.
3. Case of the prosecution, in brief, is that on 28.08.2020 at about 7.00 pm
complainant Madhu Kumar Markam along with his friends namely Sunil Yadav
(Victim) and Chintu had gone to visit Gadhiya Mountain at Rajapara, Kanker, District
Kanker. When they were sitting at the stair under the aforesaid mountain, then
appellant/ along with his friend Sumit Yadav went there, Sumit Yadav picked Sunil
Yadav (victim) up by holding his coller and appellant abused him in filthy language
by saying that "you steal the chicken (Hen) from his house and eat it", thereafter,
appellant /accused assaulted him by sharp edged weapon like knife ("Kati", which is
used in 'Cock Fighting' ) on his chest with an intention to kill him, due to which, Sunil
Yadav fell down on the spot and blood started oozing out from his chest. Seeing
this, complainant Madhu Kumar Markar and Chintu intervened in the matter and
stopped the fighting. During course of aforesaid intervention, complainant also
sustained injuries on his left hand. Complainant and Chintu took Sunil Yadav to
Hospital and admitted him there. Thereafter, complainant filed written report
(Ex.P-1) at Police Station, Kanker. Based on which, FIR (Ex.P-2) was registered by
Police bearing Crime No. 237 of 2020 for the offence under Sections 294, 323, 307
read with Section 34 of the IPC. During course of investigation, police prepared spot
map, recorded statement of witnesses under Section 161 of the Cr.P.C., got
medical examination of victim Sunil Yadav and complainant Madhu Kumar Markam
vide Exs. P-15 & P-16, respectively from Dr. Preeti Paikra (PW-8), seized blood
stained jeans pant and full shirt from victim Sunil Yadav vide Ex.P-4, seized blood
stained soil and plain from the place of occurrence vide seizure memo (Ex.P-7).
Based on memorandum statement (Ex.P-9) of appellant, seized weapon of offence
from his house alongwith his blood stained pant & shirt vide seizure memo Ex.P-10,
arrested appellant and co-accused Sumit Yadav, obtained query report (Ex.P-17)
about nature of injury and seized weapon vide Ex.P-17 & Ex.P-18, obtained indoor
patient ticket of appellant from Govt. Komal Dev District Hopital, kanker, prepared
spot map (Ex. P-3) by the police and also got prepared spot map (Ex.P-21) from
concerned Revenue Inspector, also obtained bed head ticket from from Dr. Bhimrao
Ambedkar Memorial Hospital, Raipur, obtained FSL report vide Ex.P-31 in respect
of seized articles.
4. After completion of investigation, charge-sheet for the offence under Sections
294, 323, 307 read with Section 34 and Sections 324 and 352 of the IPC was filed
against the appellant and co-accused Sumit Yadav in the Court of Chief Judicial
Magistrate, Kanker, North Bastar , Kanker, who in turn, committed the case to the
Principal Sessions Judge, Kanker, District North Bastar, Kanker, who tried the
case and framed charges upon the appellant and co-accused for the offence under
Sections 294, 307/34 & 324/34 of the IPC and the same were read over and
explained to the appellant, which he denied and claimed trial.
5. In order to bring home the charges against the appellant & co-accused
Sumit Yadav, the prosecution examined as many as 13 witnesses and
exhibited 31 documents. Statement to the appellant under Section 313 of the
CrPC was also recorded in which accused persons denied all the
circumstances appearing against them and claimed their innocency and false
implication. But, they have not examined any witness in support of their
defence.
6. Learned Principal Session Judge, Kanker, District North Bastar
considering the evidence available on record vide impugned judgment dated
07.06.2024 acquitted the co-accused Sumit Yadav of the charges under
Sections 307 / 34 and 324 / 34 of the IPC and convicted and sentence him for
the offence 294 of the IPC. Further, he convicted the appellant for the
offence under Sections 294, 307 & 324 of the IPC and sentenced him, as has
been mentioned in opening paragraph of the judgment. Being aggrieved
from the same, only appellant - Shambhu Yadav has preferred instant
appeal.
7. Contention of learned counsel appearing for the appellant is that, there
is no cogent and reliable evidence available on record to convict the appellant
for the said offence. Even in medical report, no grievous injuries has been
reported by the doctor, rather victim has sustained only two injuries, those
injuries are reported to be simple in nature. It is contented that, only one
injury sustained to the victim was on the chest and other injuries was on the
nose. Necessary ingredients to convict the appellant under Section 307 of
the IPC has not been proved by the prosecution. It is next contended that
uttering said filthy language by appellant has not been supported by said eye-
witnesses namely Madhu Markam (PW-1) and Chintu @ Gajanand (PW-3).
On which hand, Madhu Markam (PW-1) had sustained injuries is also
contradictory, as he himself has deposed that while intervention he had
sustained injuries on the finger of his right hand. But as per Dr. Preeti Paikra
(PW-8), who medically examined him, has stated his injuries were on the
palm of left hand. As such, learned counsel for the appellant submits that
conviction and sentence of appellant under Sections 294 & 324 of the IPC is
also not sustainable. He further submits that altercation happened between
the victim and appellant all of sudden without premeditation. Weapon of
assault is also not deadly, said assault was not made by the appellant with an
intention to kill the victim. Hence, if the appellant is held responsible for
causing injuries to the victim, then offence under Section 307 IPC may be
altered to under Section 326 of the IPC and the appellant has already served
jail sentence for about 9 months and 7 days during trial and he is in jail since
the date of judgment i.e. from 7.6.2024 till date i.e. about 8 months. Thus, he
has already suffered jail sentence of about one year & seven months,
therefore, he be awarded jail sentence of the period already undergone by
him.
8. On the other hand, learned counsel appearing for the State while
supporting the impugned judgment would submit that stab injury was caused
by appellant by sharp edged weapon "kati" , that too, on chest of the victim,
which is sensitive part of the body and nose also on the alleged trivial issue of
stealing of chicken. On account of such injuries sustained, victim remained
admitted in Dr. Bhimrao Ambedkar Memorial Hospital, Raipur from
29.08.2020 to 08.09.2020. Injuries causing by the appellant to the victim on
vital part shows his intention to kill him. The impugned judgment is based on
due appreciation of evidence, which does not call for any interference in the
instant appeal, therefore, the instant appeal is liable to be dismissed.
9. I have heard learned counsel appearing for the parties and perused the
record of trial Court with utmost circumspection.
10. Sunil Yadav (PW-2) is injured witness. He has stated in his court
statement that on 28.08.2020 at about 7 - 8 pm, he alongwith his friends
Madhu Markam (PW-1) and Chintu @ Gajanand Kunjam (PW-3) were sitting
at the below stair of Gadhiya Mountain, at that time, appellant came there
and abused him in filthy language, thereafter, he hold his (victim) coller and
manhandled him. He further deposed that appellant assaulted him by means
of knife (kati) on his face & chest. On being shouted by him, his friends
came, thereafter, he fented and fell down on the spot. He was immediately
taken to Govt. Komal Deo Hospital,Kanker, where he regained his
consciousness, thereafter, he was taken to MEKAHA Hospital, Raipur where
he admitted for 10 - 12 days. He has admitted in his cross-examination that
because of dispute of Hen, altercation between them had occurred and
during such altercation, he had sustained injuries. He has also admitted that
at that time, he had consumed some liquor, but he has denied the suggestion
of defence counsel that he sustained injuries because because he fell on the
rocky surface.
11. Madhu Markam (PW-1), who made written complaint (Ex.P-1), based
on which, FIR (Ex.P-2) was registered by the police, while supporting
aforesaid facts, has also supported the statement of victim Sunil Yadav
(PW-2). As per his deposition, he was talking with Chintu @ Gajanand
Kunjam (PW-3) on the stair, the victim was present under the stair, at that
time, altercation erupted between victim and appellant / accused Shambhu
and they also involved in mayhem / scuffle. He rushed to intervene and pacify
the dispute, Chintu @ Gajanand Kunjam (PW-3) also came behind. This
witness has also stated that the appellant by saying victim that "you eat
chicken after stealing it", assaulted upon Sunil Yadavby by sharp edged
weapon and during intervention, he had also suffered injuries on fingers of his
right hand, thereafter, they took the victim to Govt. Komal Deo Hospital,
Kanker, where he was provided treatment, thereafter, he made written report
(Ex.P-1). This witness has admitted in his cross-examination also that
altercation had happened between victim and the appellant and in that
altercation, victim had sustained injuries. He has also admitted that at that
time, victim has consumed liquor, but his statement of examination-in-chief
that appellant had assaulted victim - Sunil Yadav by means of sharp edged
weapon is un-controverted in cross-examination.
12. Chintu @ Gajanand Kunjam (PW-3) is also said to be eye-witness to
the incident, but he has only supported the fact that when he alongwith victim
and Madhu Markam were present at the stair below the Gadhiya mountain, at
that time, scuffle had taken place between victim and the appellant. On being
called by Sunil Yadav, he reached at the place of occurrence, at that time,
victim was just to fell on the spot, therefore, they had taken him to the
Hospital for treatment. He has shown his ignorance that why dispute had
occurred. He has not stated about the fact that how victim had sustained
injuries. He has also admitted in cross-examination that he had not seen that
on which part of the body, the victim had sustained injuries. Thus, this
witness has supported the case of prosecution half halfheartedly.
13. Savitri Yadadv (PW-4) is wife of the victim. After receiving information
given by Lokesh Thakur to her about the incident, then she along with her
mother-in-law rushed to Govt. Komal Dev Hospital, Kanker, where victim had
told them that appellant had assaulted him by means of knife (Kati) on his
chest. She has stated in her cross-examination that she had seen the injuries
over the chest of victim, but Lokesh Thakur (PW-5) has not supported the
case of prosecution at all and has turned hostile.
14. Dr. Preeti Paikra (PW-8) had medically examined victim Sunil Yadav on
the date of incident itself. As per her deposition, she has found two injuries
over the person of victim - Sunil Yadav firstly stab would size 7 cm x 4 cm X
muscle deep and secondly lacerated wound over the nose size 1 cm X 0.02
cm X Skin deep. This witness has also stated that smell of liquor was coming
out from the mouth of Sunil Yadav.
15. As per her deposition, Madhu Markarm (PW-1) had sustained lacerated
would sized 5 cm X 0.03 cm x Skin deep on palm of his left hand. She has
further deposed that injuries sustained by victim Sunil Yadav was present on
the chest was open pneumothorax, therefore, she has referred to higher
center. She has also deposed that injuries sustained by Madhu Markam was
simple in nature, but she has opined that injuries sustained by both the
victims was caused by sharp and hard object. Her statement is well
supported by medical report of both the victims I.e Ex.P-15 & Ex.P-16,
respectively prepared by her. She has denied the suggestion taken by the
defence counsel in cross-examination, that during course of cock fighting, if
knife like kati is tied to the leg of rooster and someone is holding the rooster
in his hand and it suddenly tries to escape by flapping its wings, then the
knife tied to its leg can cause an injury like the one present on the chest of
the victim Sunil Yadav, rather she has stated in her court statement that
injuries sustained to the victim can be caused by weapon of offence seized
from the appellant i.e. Kati. Thus, deposition of victim Sunil Yadav also get
support from medical evidence.
16. It is evident from deposition of aforesaid witnesses that at the time of
incident, altercation and scuffle had occurred between victim and the
appellant and in that scuffle, appellant had assaulted victim on his chest and
nose, therefore, he sustained injuries, which is also proved from medical
evidence Dr. Preeti Paikra (PW-8) and medical report (Ex.P-15) prepared by
her. Presence of such injuries over the chest of victim has also been proved
by Dr. S. N. Gole (PW-13), who had treated him in Dr. Bhimrao Amedekar
Memorial Hospital, Raipur. Nothing has been elicited in cross-examination of
aforesaid witness to discard their deposition that victim Sunil Yadav had
sustained such injuries on being assault made by the appellant.
17. Domendra Sinha (PW-11), who is the Investigating Officer of the case,
has seized vide seizure memo (Ex.P-10) blood stained clothes of the
appellant, as also weapon of crim i.e. kati on the basis of his memorandum
statement (Ex. P-9). He has also seized blood stained clothes from victim
vide seizure memo (Ex.P-4) and blood stained soil and plain soil vide seizure
memo vide Ex.P-7 from the spot. But independent witnesses of aforesaid
proceeding namely Ranjeet Singh Thakur (PW-06) & Pravesh Chouhan
(PW-07) have not supported aforesaid proceeding. Therefore, FSL report
(Ex.P-31) in which blood stain has been reported to be found in aforesaid
articles, is not very much helpful to the prosecution. Despite that, since there
is direct evidence in the instant case against the appellant, therefore, none
proving of seizure of aforesaid articles is not fatal to the case of the
prosecution.
18. In view of the above discussion of evidence adduced by the
prosecution, it is found proved that at the time of incident, appellant had
assaulted victim Sunil Yadav by means of s harp edged weapon like knife ("Kati",
which is used in 'Cock Fighting') and caused stab injuries on his chest and lacerated
would on his nose.
19. Though, learned trial Court has also convicted the appellant for the offence
under Section 294 & 324 of the IPC for abusing victim Sunil Yadav and assaulting
Madhu Markam (PW-1), but deposition of victim Sunil Yadav (PW-2) has not
supported by other two eye-witnesses i.e. Madhu Markam (PW-1) and Chintu @
Gajanand Kunjam (PW-3) that appellant had uttered said filthy language. As also
there is gross contradiction in deposition of Madhu Markarm (PW-1) and his medical
report (Ex.P-16) prepared and proved by Dr. Preeti Paikra (PW-8) that in which
hand, Madhu Markam sustained injuries because as per his deposition, he had
sustained injuries on his fingers of right hand whereas as per aforesaid medical
report / evidence, he had sustained injuries on his left palm.
20. Having considered aforesaid unsupported statement of victim - Sunil Yadav
(PW-2) and highly contradictory fact in respect of alleged injuries sustained by
Madhu Markam (PW-1) holding appellant guilty by the trial Court for the offence
under Sections 294 and 324 of the IPC is not sustainable and the same deserves to
be set aside.
21. As has been held above, that appellant had caused stab injuries to the victim
Sunil Yadav (PW-2) on his chest and lacerated wound over his nose, therefore,
question arises for consideration that whether said crime committed by the appellant
is fall under the offence of 307 IPC.
22. In the case of State of Maharashtra v. Balram Bama Patil 1, their Lordships
of the Supreme Court have held as under :-
1 AIR 1983 SC 305 : (1983) 2 SCC 28
"9....................To justify a conviction under section 307 of
IPC, it is not essential that bodily injury capable of causing
death should have been inflicted. Although the nature of
injury actually caused may often give considerable
assistance in coming to a finding as to the intention of the
accused, such intention may also be deduced from other
circumstances, and may even, in some cases, be
ascertained without any reference at all to actual wounds.
The section makes a distinction between an act of the
accused and its result, if any. Such an act may not be
attended by any result so far as the person assaulted is
concerned, but still there may be cases in which the culprit
would be liable under this section. It is not necessary that the
injury actually caused to the victim of the assault should be
sufficient under ordinary circumstances to cause the death of
the person assaulted. 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 this
section. An attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is present an
intent coupled with some overt act in execution thereof."
23. In the case of Hari Mohan Mandal Vs. State of Jharkhand2, their
Lordships of the Supreme Court has held that the nature or extent of injury
suffered, are irrelevant factors for the conviction under this section, so long as
the injury is inflicted with animus. It has been held:-
"10. ....To justify a conviction under this Section, it is
not essential that bodily injury capable of causing death
2 (2004) 12 SCC 220
should have been inflicted. Although the nature of injury
actually caused may often give considerable assistance
in coming to a finding as to the intention of the accused,
such intention may also be deduced from other
circumstances, and may even, in some cases, be
ascertained without any reference at all to actual
wounds. ... 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 Section. An attempt in order to be criminal need not
be the penultimate act. It is sufficient in law, if there is
present an intent coupled with some overt act in
execution thereof.
11. It is sufficient to justify a conviction under Section
307 if there is present an intent coupled with some overt
act in execution thereof. It is not essential that bodily
injury capable of causing death should have been
inflicted. If the injury inflicted has been with the avowed
object or intention to cause death, the ritual nature,
extent or character of the injury or whether such injury is
sufficient to actually causing death are really factors
which are wholly irrelevant for adjudging the culpability
under Section 307 IPC. The Section makes a distinction
between the act of the accused and its result, if any. The
Court has to see whether the act, irrespective of its
result, was done with the intention or knowledge and
under circumstances mentioned in the Section.
Therefore, it is not correct to acquit an accused of the
charge under Section 307 IPC merely because the
injuries inflicted on the victim were in the nature of a
simple hurt."
24. In the case in hand, though Dr. Preeti Paikra (PW-8) has opined
through her query report (Ex.P-17 & Ex.P-18) that if immediate treatment
would not be provided to the victim, then he may have died, but as per MLC
report prepared by her, there was only one stab injury over left side of chest
of victim, other injury of nose was also not grievous, it has also not been
proved by prosecution that because of aforesaid injuries, any internal organ
of victim had damaged, though she has stated that there was open
pneumothorax over the left chest of victim, but only on this count intention of
appellant to kill the victim cannot be safely drawn, as if appellant would have
such an intention, then he may have caused said injuries by applying more
force and may have caused more than one injury over the person of victim.
25. Further, as per admission made by Madhu Markarm (PW-1) and Chintu
@ Gajanand Kunjam (PW-3) prior to their reaching below the Gadhiya
mountain, the appellant was present alongwith his friend at that place, which
seems to be visiting place for the residents of nearby villagers. There is no
material on record to hold that there was any pre-arrange plan of appellant to
commit crime. The occurrence took place all of sudden and crime of weapon
is also not so deadly.
26. It is also found from the evidence of the eye-witness that prior to the
injuries caused by appellant to the victim, altercation/scuffle was going on
between them, thus, offence is found to have been committed during sudden
quarrel and the injuries caused was also not found to be fatal, though it was
on a sensitive part of the body. Having considered the aforesaid fact situation
of the case, this Court is of the opinion that prosecution has failed to prove
beyond reasonable doubt that the appellant intended to kill victim Sunil Yadav
(PW-2). Thus, offence caused by the appellant would not come within the
purview of offence under Section 307 of the IPC and accordingly, conviction
of the appellant is altered from Section 307 of the IPC to one under Section
326 of the IPC.
27. Accordingly, this appeal is allowed in part. Conviction and sentence of
appellant held by the learned trial Court for the offences under Section 294 &
324 of the IPC is set aside. Further instead of convicting the
appellant/accused under Section 307 of the IPC, he is convicted under
Section 326 of the IPC and sentenced him to undergo RI for three years .
Fine sentence and other directions of the trial Court shall remain intact.
28. Let a copy of this judgment and original record be transmitted to the trial
Court concerned forthwith for necessary information and compliance.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
AMIT by AMIT KUMAR
KUMAR DUBEY
Date: 2025.01.31
DUBEY 16:46:15 +0530
