[Cites 38, Cited by 0]

Chattisgarh High Court

P.Vankat Rao vs State Of Chhattisgarh on 27 March, 2026

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

                                                                                        Page 1 of 37




                                                                            2026:CGHC:14553
                                                                                              NAFR
                                  HIGH COURT OF CHHATTISGARH AT BILASPUR
                                                  CRA No. 96 of 2003
                                               Reserved on : 19.03.2026
                                               Delivered on : 27.03.2026
                      P. Vankat Rao, S/o P. Appa Rao Telgu, Aged 19 years, R/o Qr. No. 66/b Zone
                      1 BMY Charooda District- Durg (C.G.)
                                                                                    --- Appellant (s)
                                                         versus
                      State of Chhattisgarh through Police Station G.R.P. Bhilai, District- Durg
                      (C.G.)
                                                                                 --- Respondent(s)
                                                  CRA No. 143 of 2003
                      Mohammad Hasnen, S/o Mohammad Raja, Aged About 23 Years Muslim,
                      Resident of Nehru Nagar Bhilai, District Durg (Chhattisgarh)
                                                                                      ---Appellant(s)
                                                         Versus
                      State of Chhattisgarh through the Police Station G.R.P. Bhilai, District Durg
                      (C.G.)
                                                                                 --- Respondent(s)
                                                           and
                                                  CRA No. 150 of 2003
                      Gurudayal alias Kaku Singh S/o Ajeet Singh Sikh, Aged About 26 Years, R/o
                      Street No. SDA, Qtr. No. 1/A Khuripar Zone-3 near Water Tank, Police
                      Station Chhawni, District- Durg (C.G.)
                                                                                     ---Appellant (s)
                                                         Versus
                      State of Chhattisgarh through Police Station G.R.P. Bhilai, District- Durg
                      (C.G.)
                                                                                    ---- Respondent
                      For Appellant in CRA No. : Mr. Avinash Chand Sahu & Mr. Amit Nayak,
                      96/2003                    Advocates.
                      For Appellant in CRA No. : Ms. Chanchal Verma & Mr. Syed Jayed Ziya
                      143/2003                   Ali, Advocates on behalf of Mr. Syed Ishhadil
                                                 Ali, Advocate.
                      For Appellant in CRA No. : Mr. Varun Sharma, Advocate.
                      150/2003
                      For State                  : Mr. Krishna Gopal Yadav, Dy. Govt. Advocate


ARUN
KUMAR
DEWANGAN
Digitally signed by
ARUN KUMAR
DEWANGAN
Date: 2026.03.27
13:28:19 +0530
                                                                   Page 2 of 37

              Hon'ble Shri Justice Narendra Kumar Vyas

                            CAV JUDGMENT

1. Since these appeal arise out of same incident as well as crime

number, they are heard analogously and are being disposed of by this

common order.

2. These appeals have been preferred by the appellants under Section

374 (2) of the Code of Criminal Procedure, 1973 against judgment

dated 06.01.2003 passed by Special Judge, Special Court [under

Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,

1989], Raipur (C.G.) in Session Trial No. 299/2000, wherein the said

court convicted and sentenced the appellants as under:-

         Conviction                             Sentence

     U/s 148 of IPC       : R.I. for 1 year and fine of Rs. 500/- in default of
                            payment of fine, further R.I. for 2 months.

U/s 307/149 of IPC : R.I. for 7 years and fine of Rs. 5000/- in default of payment of fine, further R.I. for 6 months.

U/s 324/140 of IPC : R.I. for 1 year and fine of Rs. 500/- in default of payment of fine, further R.I. for 2 months.

U/s 395/397 of IPC : R.I. for 7 years and fine of Rs. 5000/- in default of payment of fine, further R.I. for 6 months.

(All the sentences to run concurrently)

3. The case of the prosecution, in brief, is that on 13.08.2000

Government Railway Police, Chouki Charoda received information that

some persons who belong to liquor mafia are intending to sell illicit

liquor near departure yard of railway station. On the basis of

information received, Head Constable- Matarulal sent two constables

posted at chouki namely Yogendra Singh Parihar and Parmanand

Bhoi, when they reached to departure yard, four persons had

unloaded 5-6 cartons and after seeing the police, they left the liquor's

cartons and ran away towards Bhilai by vehicle i.e. Metador. In the

said vehicle, more liquor cartons were also kept. Thereafter, the

constables had sent one person namely Chinna for informing the

same to police chouki for calling vehicle. In the meantime, the accused

persons namely Jaiyu, Fahim, Shakin, Bhaskar Rao and 6-7 persons

came by Commander Jeep bearing registration No. M.P.-24-G-5759

with knife and stick and started abusing them, assaulted the police

personnel. Accused Jaiyu, Fahim, Shakir assaulted Yogendra Singh

on his stomach, rib and head by knife and accused- Bhaskar

assaulted Parmanand Bhoi on his stomach by knife.

4. It is also case of the prosecution that the rest of the accused have

assaulted the police personnel by stick, hands and fists. Both the

constables made an attempt to escape from them then other persons

namely Iqbal, Ravi, Tuntun, came and uploaded the liquor and ran

away from the spot. The said vehicle was driven by one Gurudayal

Singh. The police reached there and on the basis of complaint lodged

by constable- Parmanand Bhoi, Head Constable- Matrulal registered

the FIR. Both the constables were sent to Durg hospital for treatment

and subsequently, due to health condition, constable- Yogendra Singh

was referred to Sector-9 hospital at Bhilai. On medical examination, it

was found that the injuries sustained by constable- Yogendra Singh

and constable- Parmanand were grievous in nature.

5. After collecting the material, evidence, charge-sheet was filed before

the Railway Magistrate Raipur, who has committed the case to the

learned Special Judge, Raipur, for trying the offence. On the basis of

material collected by the prosecution, offence under Sections 148,

307/149, 324/140 & 395/397 was registered against the appellants.

The learned trial Court framed charges, which was denied by the

accused and they pleaded innocence and false implication.

6. The prosecution, in order to bring home the guilt of the appellants, has

examined witnesses namely constable- Parmanand Bhoi (PW-1),

constable-Yogendra Singh (PW-2), G.P. Sharma (PW-3), constable-

Ashutosh Sharma (PW-4), Md. Iqbal (PW-5), Dr. P. Balkishore (PW-6),

Dr. S.R. Surendra (PW-7), constable- Motiram Sahu (PW-8), Tuntun @

Jayvibhuti (PW-9), Head Constable- Matrulal Chakravarty (PW-10), G.

Shrinivas Rao (PW-11), Jamil Khan (PW-12), Yogendra Pandey (PW-

13), Dilip Kumar (PW-14), Bhagwat Rao (PW-15), Dr. K.H. Ramesh

(PW-16), K. Ravi (PW-17), V. Chinnarao (PW-18) & R.P. Chelak (PW-

19) & exhibited documents namely Dehati Nalsi (Ex. P/1), report by

the complainant (Ex. P/2), Najri Naksha (Ex. P/3), seizure memo (Ex.

P/4), seizure panchnama (Ex. P/5), medical records (Ex. P/6), X-ray

plates (Ex. P/7 & P/8), list of seizure (Ex. P/9), medical reports (Ex.

P/10 & P/13), seizure memo (Ex. P/14), statement of Tuntun (Ex.

P/15), FIR (Ex. P/16), Rojnamcha Sanha (Ex. P/17C & P/18C), map

(Ex. P/19), statement of Jamil Khan (Ex. P/20), memorandum (Ex.

P/21 & P/22), list of seizure (Ex. P/23, P/24 & P/25), statement of K.

Ravi Kumar (Ex. P/26), statement of K. Chinna Rao (Ex. P/27),

application for medical examination (Ex. P/28 & P/29), application for

query report (Ex. P/30), memorandum (Ex. P/31), list of seizure (Ex.

P/32), memorandum (Ex. P/33), list of seizure (Ex. P/33), list of

seizure (Ex. P/34), memorandum (Ex. P/35), list of seizure (Ex. P/36 &

P/37), medical examination of knife (Ex. P/38), application for medical

examination (Ex. P/39), memo for FSL report (Ex. P/40), receipt (Ex.

P/41), FSL report (Ex. P/42) & serology report (Ex. P/43). The accused

were examined under Section 313 of the Cr.P.C. wherein they have

denied the charges levelled against them and would submit that they

have been falsely implicated in the crime in question and the

prosecution has lodged false case to protect liquor mafia. The accused

have not examined any witness in their support, but they have

exhibited statements of Parmanand Bhoi (Ex. D/1 & D/2), Yogendra

Singh (Ex. D/3) & Md. Iqbal (Ex. D/4).

7. The prosecution to prove guilt of the appellants have examined the

persons who have sustained injuries and also examined the doctors

who have medically examined the injured persons. Learned trial Court

after appreciating the evidence and material on record has held that

the appellants have committed the offence for which they have been

charged vide judgment of conviction dated 06.01.2003. Being

aggrieved with the judgment of conviction, the appellants have

preferred these appeals before this Court mainly contending that the

prosecution has not been able to prove its case beyond reasonable

doubt under Sections 307/149 of IPC as well as Section 395/397 of

IPC.

8. Learned counsel for the appellant in CRA No. 96/2003 would submit

that there are contradictions and omissions in the statements of

Parmanand Bhoi (Ex. P/1) & Yogendra Singh (Ex. P/2), Mohammad

Iqbal (Ex. P/5). He would further submit that the ocular evidence is not

corroborative by the medical evidence as they have not supported the

prosecution case, thus, the testimony of the complainants namely

Parmanand Bhoi (PW-1), Yogendra Singh (PW-2) & Md. Iqbal (PW-5)

should not have been relied upon without there being corroboration by

any independent evidence. He would further submit that the appellants

did not have any motive sharing the common object and according to

the complainants themselves, the appellants have not caused any

injury to the complainant. In view of the evidence, the appellants could

not be held responsible for the act of other co-accused. He would

further submit that there is no motive of the appellants to commit

murder as well as to commit offence of dacoity as alleged by the

prosecution and the memorandum as well as seizure memo have not

been proved beyond reasonable doubt according to the provisions of

criminal law.

9. He would further submit that the medical report given by Dr. P.

Balkishore (Ex. P/6) does not satisfy the required ingredients for

commission of offence under Section 307 of IPC and even the injuries

sustained by the complainant are not so grievous in nature which may

cause death, as such, the conviction of the appellants is

disproportionate to be alleged offence. He would further submit that

the learned trial Court has failed to see and held that the statement of

the prosecution witnesses are full of omissions, contradictions and

improvement so that the same should have not been relied upon by

the trial Court to hold the appellants guilty for the offence. He would

further submit that there is no foundation for conviction, as such the

judgment of conviction passed by the learned trial Court suffers from

perversity and illegality which warrants interference by this Court.

Learned counsel for the appellants in support of their submission have

relied upon the case reported in Devchand Vs. State of M.P. [2013

(3) CGLJ 625], Neelam Bahal & another Vs. State of Uttarakhand

[(2010) 2 SCC 229] & Asif Ahmad Vs. State of Chhattisgarh [2012

(1) CGLJ 157].

10. He would further submit that the judgment of conviction passed by the

learned trial Court is legally unsustainable and based on improper

appreciation of evidence. He would further submit that as per the

testimony of the injured witness (PW-1), the appellant is alleged to

have assaulted only by hands and fists, without use of any deadly

weapon or intention to cause death, thereby failing to attract the

essential ingredients of Section 307 of IPC. He would further submit

that the appellant's name does not appear in the FIR, which is the

earliest version of the prosecution case, and he was also not properly

identified during identification proceedings which creates serious doubt

regarding his involvement in the crime in question. He would further

submit that the prosecution has failed to attribute any specific injury or

overt act to the appellant as witness (PW-12) & (PW-17) and other

independent witnesses have not supported the prosecution case,

thereby weakening its credibility whereas witness (PW-5) has

categorically stated that the appellant was not involved in the incident.

Despite acknowledging contradictions and omissions in the

prosecution evidence, the trial Court erroneously proceeded to convict

the appellant. He would further submit that there is no reliable

evidence to establish that the appellant was part of any unlawful

assembly or shared a common object, making the application of

Section 149 of IPC untenable, as such the appellant is entitled to get

benefit of doubt and the impugned judgment deserves to be set aside

and would pray for quashing of the judgment of conviction passed by

the trial Court.

11. Learned counsel for the appellant in CRA No. 143/2003 would submit

that the co-accused persons have already been convicted, as such

conviction has been upheld whereas the case of the present appellant

stands on a completely distinct footing both on facts and law. He would

further submit that it is well-settled principle of law that each accused

must be judged on the basis of evidence led against him individually,

and conviction of co-accused cannot automatically result in conviction

of another accused. In this regard, reliance is placed on Kshmira

Singh Vs. State of Madhya Pradesh (AIR 1952 SC 159), wherein it

has been held that each case must be decided on its own facts and

the case of each accused must be judged separately. He would further

submit that there is no clear, cogent and independent evidence

establishing the guilt of the present appellant beyond reasonable

doubt. The appellant's name is conspicuously absent in the FIR as

well as in another FIR lodged on the same day, and even in the spot

report, the victim did not name the appellant, as such omissions in the

earliest version of the prosecution case clearly indicate that the

implication of the appellant is an afterthought.

12. He would further submit that there is no recovery, seizure or

memorandum attributed to the appellant, nor has any co-accused

implicated him and no incriminating material has been seized from his

possession. The prosecution has also failed to prove the presence,

participation, or any overt act on the part of the appellant in the alleged

offence. He would further submit that the appellant was not previously

known to the victim, and despite this, no Test Identification Parade

(TIP) was conducted during investigation. He would further submit that

the alleged dock identification for the first time in Court is weak,

unreliable and unsafe for conviction. In this regard, reliance is placed

on Amrik Singh Vs. State of Punjab [(2022) 9 SCC 402] & P.

Sasikumar Vs. State [(2024) 8 SCC 600] wherein Hon'ble the

Supreme Court has held that identification for the first time in Court

without prior TIP, especially when the accused is not known to the

witness, cannot be safely relied upon and may prove fatal to the

prosecution case.

13. He would further submit that the prosecution evidence suffers from

material contradictions, improvements, and omissions, which strike at

the root of its credibility. There is also non-compliance with procedural

requirements, such as prompt forwarding of FIR to the Magistrate,

creating further doubt about the authenticity of the prosecution story.

He would further submit that there is no evidence to establish that the

appellant was a member of any unlawful assembly or shared any

common object, therefore, the application of Section 149 IPC is wholly

unsustainable. Mere presence, even if assumed, does not attract

liability in absence of proof of common object. He would further submit

that the entire prosecution case is based on assumptions, conjectures,

and afterthought allegations. It is well settled principle of law that

suspicion, however strong, cannot take the place of proof and if two

views are possible, the view which is favourable to the accused must

be adopted.

14. He would further submit that in view of absence of the appellant's

name in FIR, lack of TIP, absence of recovery, no credible

identification and failure to prove presence or participation, it is

submitted that the prosecution has miserably failed to establish the

case beyond reasonable doubt. Accordingly, the appellant is entitled to

get benefit of doubt and deserves to be acquitted irrespective of the

conviction of other co-accused.

15. Learned counsel for the appellant in CRA No. 150/2003 would

submit that the evidence on record only establishes that he was

driving the vehicle, as stated by PW-2 Constable Yogendra Singh,

and no active role in the alleged assault has been attributed to him.

The independent witness Mohd. Iqbal (PW-5) has categorically

stated that the appellant was not part of the group of attackers,

thereby disassociating him from the alleged incident. He would

further submit that Parmanand Bhoi (PW-1) in his dehati nalishi, did

not allege any involvement of the appellant in the assault and

merely stated that he was driving the vehicle. However, in his court

statement (para 7), he made an improved version by attributing the

role of assault by hand and fists to the appellant, as such material

improvement in testimony renders the evidence unreliable and

unworthy of reliance against the appellant. He would further submit

that there is no evidence to establish that he shared any common

object with the co-accused or that he was a member of any

unlawful assembly. In this regard, reliance is placed on Naresh @

Natesh Vs. State of Haryana [(2023) 10 SCC 134], wherein

Hon'ble the Supreme Court has held that for invoking Section 149

IPC, the prosecution must prove that the accused was a member of

an unlawful assembly and shared a common object, with

knowledge of the offence likely to be committed. In absence of such

proof and in absence of any overt act, conviction under Section 149

IPC of is unsustainable, therefore, fastening vicarious liability under

Section 149 IPC is legally untenable. Accordingly, it is submitted

that the conviction of the appellant with the aid of Section 149 of

IPC is improper, unsupported by evidence and liable to be set aside

by this Court.

16. On the other hand, learned State counsel would submit that the

prosecution has proved the case beyond reasonable doubt, therefore,

the finding arrived at by the trial Court convicting the appellants for

commission of offence as stated above, is legal, justify and does not

warrant any interference by this Court and would pray for dismissal of

the appeals.

17. The record of the case would show that arising out of the same

incident, Criminal Appeal Nos. 64/2003, 71/2003, 171/2003, 229/2003

were also filed wherein this Court vide judgment dated 25.04.2023 has

partly allowed the appeals and reduced the sentence from 7 years to 4

years. Against that judgment, the accused have preferred Criminal

Appeal Nos. 4795 / 2024, 4797/2024 & 4798/2024 before Hon'ble the

Supreme Court which are pending.

18. I have heard learned counsel for the parties and perused the

documents placed on record with utmost circumspection.

19. From perusal of records, the point to be determined by this Court is:-

"Whether conviction of the appellants for the offence under Sections 307, 148, 149, 395/397 of IPC is legal and justify or not?".

20. To appreciate the Point of determination, it is expedient for this Court

to first go through the evidence and thereafter the legal position

applicable to the present facts of the case.

21. From records of the trial court, it is quite vivid that the prosecution has

examined constable- Parmanand Bhoi (PW-1) who has stated in his

examination-in-chief at paragraphs 6 to 8 & 19 and in cross-

examination at paragraphs 29 & 30 as under:-

"6- esjs ukd esa] ekFks esa ck;ha vksj] ck;sa isV esa] nkfguk gkFk esa pksVsa vkbZ Fkh rFkk gkFk&eqDdksa ls Hkh ekjihV dh xbZ FkhA esjs isV esa pkdw ls pksV vkbZ Fkh rFkk MaMs ls flj] gkFk] iSj esa pksVas vkbZ FkhA ukd esa eqDds ls pksV vkbZ FkhA 7- iz'u%& vkt vki crk ldrs gSa fd fdl vfHk;qDr us vkidks fdl gfFk;kj ls dgak ij ekjk\ mRrj%& vkjksih tS;w us eq>s pkdw ls esjs isV ij] vkjksih HkkLdj jko us pkdw ls esjs gkFk esa] vkjksih 'kkfdj vgen us pkdw ls esjs mij okj fd;k Fkk] ysfdu eSa cp x;kA vkjksih 'kkfgn bejku us gkFk&eqDds ls ekjkA gluSu vkjksih us pkdw ls esjs isV esa ekjk] tks igys okyh pksV ds mij yxkA vkjksih xq:n;ky us gkFk&eqDds ls ekjk FkkA vkjksih HkkLdj ikfVy us gkFk&eqDdksa ls ekjk FkkA vkjksih dqaoj flag us gkFk&eqDdksa ls ekjk FkkA vkjksih HkV~Bw mQZ /kuhjke us eq>s MaMs ls flj ij ekjkA vkjksih oasdVjeu us gkFk&eqDdksa ls ekjkA 8- esjs lkFkh ;ksxsUnz dks vkjksihx.k ekj jgs Fks] ftls eSus vius vak[kksa ls ns[kk FkkA ftl le; ge yksxksa ds lkFk ekjihV gks jgh Fkh] ml le; ogak ij dksbZ ckgjh vkneh ugha Fkk] gekjs fpYyk;s tkus ij ogak ij VquVqu jke] jfo] bdcky vk;s vkSj bUgsa vkrs ns[kdj vkjksihx.k ogak ls Hkkx x;saA 'kjkc dh isfV;ksa dks Hkh vkjksihx.k mBkdj vius lkFk ys x;sA 19- eSusa iqfyl dks Qghe }kjk iqfyl c;ku iz-Mh- 1 esa gkFk&eqDdksa ls eq>s ekjus dh ckr Li"Vr% ugha crkbZ gS] vU; yksxksa us ekjihV fd;k] ;g ckr fy[kkbZ gSA gkftj vnkyr lHkh vkjksihx.k esjs vkSj ;ksxsUnz ds mij >iV iM+s vkSj ekjihV djuk pkyw dj fn;kA eSus vius vkidks cpkus dh dksf'k'k dh FkhA eSus iqfyl dks viuh fjiksVZ iz-ih-1] eq[; U;kf;d eftLVªsV] nqxZ dks dh xbZ fyf[kr fjiksVZ iz-ih-2 ,oa c;ku iz-Mh-1 ,oa Mh-2 esa eSus ;g crk;k Fkk fd eq>s 'kkfdj vgen us pkdw ls ekjk] ;fn ;g ckr uk fy[kh gks rh eSa dkj.k ugha crk ldrkA eSaus iqfyl dks ;g ckr crkbZ Fkh fd 'kkfdj us eq>s pkdw ekjk rks eSa cpk x;k] ;fn ;s ckrsa Hkh uk fy[kh gks rks eSa dksbZ dkj.k ugha crk ldrkA 29- ftu yksxksa us ge yksxksa ds lkFk ekjihV dh] os yksx 10&15 feuV rd ge yksxksa ds lkFk ekjihV dh vkSj fQj Hkkx x;sA ekjus okys tc Hkkx x;s] mlds djhcu 10 feuV ckn ekSds ij eV:yky igqapsA ekSds ij vkj{kd ;ksxsUnz flga pksV [kkdj fxjk iM+k FkkA eSaus ;ksxsUnz vkj{kd ls dksbZ ckrphr ugha dj ik;k] og tehu es iM+k Fkk] tSls gha eSa mlds ikl igqapk] oSls gha iz-vkj- eV:yky eksVjlk;fdy ls vk;s FksA ;g ckr lgh gS fd eSaus iz-vkj- eV:yky ds ikl ;g lwpuk fHktokbZ Fkh fd iwjh O;oLFkk djds vk;s] eky ys tkuk gSA iz-vkj- eV:yky ,d vU; vkj{kd vk'kqrks"k 'kekZ ds lkFk vk;s FksA eSa vkj{kd vk'kqrks"k ds lkFk Fkkuk x;k vkSj iz-vkj- eV:yky th vkj{kd ;ksxsUnz dks ysdj vLirky x;sA eSa lqcg ds djhc 9 cts nqxZ vLirky igqapk FkkA esjs igqapus ds igys iz-vkj- eV:yky] vkj{kd ;ksxsUnz dks ysdj vLirky igqap x;s FksA vkj{kd ;ksxsUnz dk eqykfgtk gks x;k Fkk vkSj mls Hkjrh djus ds fy;s lsDVj&9 vLirky fjQj fd;k tk jgk FkkA esjs vLirky igqapus ds djhcu vk/kk ?kaVk ckn MkWDVj us vLirky esa esjk eqykfgtk fd;k Fkk vkSj eq>s Hkjrh fd;k FkkA eSa vkt ml MkWDVj dk uke ugha crk ldrkA esjk eqykfgtk djkus ds igys iz-vkj- eV:yky us eq>ls iwNrkN dj eqykfgtk QkeZ Hkjk FkkA ;g ckr

lgh gS fd eSaus iz-vkj- eV:yky dks cksyk Fkk fd eq>s vKkr yksxkas us ekjk gSA bl le; ¼eqykfgtk QkeZ Hkjrs le;½ eq>s ekjus okyksa dk uke ugha ekywe FkkA 30- ckn esa eq>s ekjus okyksa ds uke /khjs&/khjs irk pys] ysfdu ftl fnu eSa vLirky ls fMLpktZ gqvk] ml fnu esjs dks uke ekjus okyksa dk irk ugha pyk FkkA Lor% dgrk gS fd eSa ftl fnu vLirky ls fMLpktZ gqvk] ml fnu eq>s dqN vkjksfi;ksa ds uke ekywe FksA eSaus iz-ih-1] ih-2] Mh-1 ,oa Mh-2 esa ;g ckr fy[kkbZ Fkh fd tks yksx vk;s Fks] mu yksxksa us eq>s dgk Fkk fd 'kjkc ns nks] ;fn ;s ckrsa uk fy[kk gks rks dksbZ dkj.k ugha crk ldrkA eSaus vius iqfyl c;ku iz-Mh-1 esa ;g ckr crkbZ Fkh fd vkjksih tS;w us esjs mij pkdw ls okj fd;k rks eSaus vius dks cpko fd;k Fkk rFkk eSaus ;g Hkh crk fn;k Fkk fd tS;w us eq>s isV ij pkdw ekjk Fkk] ;fn ;s ckras uk fy[kk gks rks dkj.k ugha crk ldrkA ;g ckr lgh gS fd tks >xM+k gqvk] og 'kjkc ekfQ;kvkas dk gekjs lkFk gqvk Fkk vkSj eSaus blh ckr dks ysdj eV:yky dks 'kjkc ekfQ;k okys tks 'kjkc dh /ka/kk djrs gSa] mu yksxksa us ekjihV fd;k gS] ;g crk;k Fkk vkSj mUgsa ekjus okyksa dk uke ugha crk;k FkkA "

22. Constable- Yogendra Singh (PW-2) has stated in his examination-in-

chief at paragraphs 3 to 8 and in cross-examination at paragraphs 16,

23, 26, 27, 30, 31 as under:-

"3- 8-30 cts ,d thi vkbZ] mlesa gkftj vnkyr mifLFkr lHkh vkjksihx.k dks ns[kdj lk{kh us dgk fd ;gh yksx Fks] rFkk buesa ls vkjksih dkdw mQZ xq:n;ky dks ns[kdj lk{kh us dgk fd ;g thi pyk FkkA ml thi xkM+h dk uacj ,e-ih-24@th@5759 Fkk] og dekaMj thi FkhA vkjksihx.k pkdw] MaMk fy;s gq, FksA eSaus ns[kk fd vkjksih 'kkfdj vgen] tS;w mQZ t;flag] HkkLdj jko ds gkFk eas pkdw FkkA 4- gkftj vnkyr lHkh vkjksihx.k 'kjkc dh isVh dks mBk jgs Fks] bl ij eSaus vkSj esjs nksLr vkj{kd ijekuan us jksdk rks eq>s vkjksih 'kkfdj vgen us pkdw ls esjs lhus esa ekjkA ¼uksV%& lk{kh us lhus dh pksV fn[kkbZ] lhus ds chp esa djhcu 3 bap yack vkSj 2 lwr pkSM+k ?kko utj vk jgk gSA½ 5- vkjksih tS;w mQZ t;flag us eq>s ukfHk ds ikl pkdw ekjk FkkA ¼uksV%& lk{kh us pksV fn[kkbZ] ukfHk ds ikl esa mlds ck;ha vksj ,d lekukarj pksV djhc 4 bap yach vkSj 3 lwr pkSM+h ?kko utj vk jgh gSA½ ¼,d lwr cjkcj 1-5 ,e,e gksrk gSA½ vkjksih tS;w us eq>s ck;as isV dh rjQ Hkh pkdw ekjk FkkA ¼uksV%& lk{kh us mDr pksV fn[kk;k] tks ck;sa isV esa 3 bap djhc yack vkSj 3 lwr pkSM+k ?kko utj vk jgk gSA½ tS;w vkjksih us eq>s ,d pkdw vkSj ekjk Fkk tks eq>s nk;sa Hkqtk ds ikl yxk FkkA 6- vkjksih HkkLdj jko us eq>s flj ds ck;ha vksj pkdw ekjk] eq>s flj ds pksV esa Vkads yxs FksA 7- eq>s vkjksih HkV~Bw mQZ /kuhjke us ykBh nkfgus iSj esa ?kqVus ds uhps ykBh ls ekjk Fkk] ftlesa vHkh Hkh lwtu gS rFkk nkfgus gkFk esa ykBh ls ekjk Fkk rFkk ck;sa tka?k esa Hkh ihNs dh vksj ls ykBh ls ekjk FkkA 8- 'ks"k vkjksihx.k eq>s gkFk&eqDdksa ls ekjs FksA 16- esjk DokVZj Fkkus ds ikl eas gS] eq>s vanktu 6-45 cts lqcg Fkkuk cqyok;k x;k Fkk rks eSa Fkkuk igaqpk FkkA esjs Fkkus igqapus ds igys vkj{kd ijekuan HkksbZ Fkkus esa igqap pqdk FkkA eq>s ekSf[kd vkns'k iz-vkj- eV:yky us fn;k FkkA eSa vkSj ijekuan HkksbZ ekSds ij djhcu 7-30 cts lqcg igaqpsA

gekjs lkeus esVkMksj Hkkxh] ysfdu eSa mldk uacj ugha ns[k ik;kA mlds ckn ge yksx 8-30 cts lqcg rd ogak ij cSBs jgsA ge yksxksa us ogak j[ks gq, 'kjkc dh dkVwZu dh tIrh ugha cukbZA ;g ckr lgh gS fd ge yksxksa dks Fkkus ls 'kjkc tIr djus ds fy;s Hkstk x;k FkkA 'kjkc dh tc ge ns[kjs[k dj jgs Fks rks gesa ekjihV djus okys vk;s vkSj ekjihV fd;s rks eSa csgks'k gks x;kA esjs gks'k esa vkus ds djhcu vk/ks ?kaVs ckn iz-vkj- eV:yky th vk;s FksA iz-vkj- eV:yky ds vkus ds igys esjh vkj{kd ijekuan ls ckrphr gqbZ FkhA vkj{kd ijekuan us eq>s ;g ugha dgk fd og ekjihV djus okyksa dks ugha igpku ik;kA tSls gha iz-vkj- eV:yky vk;s] oSls gh mUgksusa eq>s viuh xkM+h esa fcBkdj vLirky ysdj pys x;sA ?kVukLFky ij esjh iz-vkj- eV:yky vkSj vkj{kd ijekuan ls dksbZ ckrphr ugha gqbZ] tc eq>s vLirky ys tk;k tk jgk FkkA 23- eSaus vius iqfyl c;ku esa vkjksih tS;w }kjk eq>s esjs isV ds ikl pkdw ekjus dh ckr ugha crkbZ Fkh rFkk eSus ;g Hkh ckr ugha crkbZ fd eq>s ck;ha isV ds ikl pkdw ekjkA eSaus iqfyl dks vius c;ku esa vkjksih tS;w }kjk ck;ha Hkqtk ds ikl pkdw ekjus dh ckr ugha crkbZ FkhA uk crkus dk dkj.k ;g gS fd eSaus lkewfgd :i ls ekjihV djus okyh ckr crk nh Fkh] blfy;s vyx&vyx ugha crkbZ FkhA 26- iwoZ fnukad dks eSa vkSj vkj{kd ijekuan ,d lkFk U;k;ky; vk;s Fks] vkt vyx&vyx vk;s gSaA eq>ls vkjksfi;ksa dh igpku dh dk;Zokgh Fkkus esa djkbZ xbZ FkhA Fkkus esa ekjus okyksa ds vykok vkSj Hkh O;fDr Fks] ysfdu ftu&ftu yksxksa us eq>s ekjk Fkk] mudks eSaus igpkuk FkkA Fkkus esa ekjus okyksa dk igpku djok;k Fkk vkSj iwNs Fks fd ftu yksxksa us rqEgs ekjk gS] os buesa ls gS ;k ugha] rc eSaus mUgsa igpkuk Fkk vkSj dgk Fkk fd bUgksusa ekjk gSA eq>ls igpku ds le; ekjus okyksa ds uke ugha iwNs Fks vkSj uk gha eSus vkjksfi;ksa ls mudk uke iwNkA lcdk uke eq>s irk ugha pyk] igpkuus ds ckn eq>s nks yksxkas ds uke irk pysA 27- ;g dguk xyr gS fd vkjksih tS;w mQZ t;flag us esjs lkFk dksbZ ekjihV ugha fd;kA vkjksih tS;w mQZ t;flag] xak/khuxj fHkykbZ eas jgrk gSA ?kVuk ds le; vkjksih tS;w 'kjkc dk rLdjh djrk FkkA gekjks ,sfj;k esa rLdjh ugha djrk FkkA eq[kfcj yksx crkrs Fks fd tS;w] 'kjkc rLdjh djrk gSA esjh tkudkjh esa ugha gS fd tS;w ds mij 'kjkc dh rLdjh dk fdrk dsl pykA eq>s ;g tkudkjh ugha gS fd ?kVuk ds le; tS;w dkWyst esa i<+kbZ djrk Fkk ;k ughaA eq>s bl ckjs eas dksbZ tkudkjh ugha gS fd vkjksih tS;w ds fo:) dksbZ dsl dksVZ esa 'kjkc rLdjh dk pyk;k ughaA 30- ;g dguk lgh gS fd fnukad 17-3-2000 dks iqfyl ls esjk c;ku fy;k FkkA iqfyl us esjk c;ku esjs crk;s vuqlkj fy[kk FkkA eaS vkjksih /kuhjke mQZ HkM~Mw dks ml le; ls tku jgk gwa] tc eq>s irk pyk fd mldh tekur U;k;ky; ls gks xbZA eSaus vius iqfyl c;ku iz-Mh- 3 esa /kuhjke mQZ HkM~Mw dk uke ekjus okys ds :i esa cryk;k FkkA eSa vLirky ls fMLpktZ gksus ds djhc Ms<+ ekg ckn viuh M~;wVh Tokbu fd;k FkkA eSa tc cksyus&pkyus esa l{ke gks x;k vkSj M~;wVh djus esa l{ke gks x;k] rc eSaus M~;wVh Tokbu dh FkhA eSa /kuhjke mQZ HkM~Mw dk uke ugha tkurk Fkk] blfy, eSaus mldk uke c;ku esa ugha crk;k Fkk] vnkyr esa igyh ckj crk;k FkkA 31- gkftj vnkyr lheki v[rj dqjS'kh dh vksj lk{kh us b'kkjk djds dgk fd eSa bldks ^^Qghe** ds uke ls tkurk gwaA eq>s bl ckjs esa tkudkjh ugha gS fd ^^Qghe** dksbZ vU; O;fDr gS] ftlds fo:) dbZ dslsl dksVZ esa iasfMax gS ;k ughaA gkftj vnkyr vkjksih lheki v[rj dqjS'kh ds fo:) vU; vnkyrksa esa fdrus dsl py jgs gSa] eq>s bldh tkudkjh ugha gSA

eq[kfcj yksxksa us eq>s crk;k Fkk fd Qghe ds cgqr lkjs dsl dksVZ esa isafMax gS] blfy;s ;g ckr eSaus vius c;ku esa iqfyl dks crkbZ FkhA tc lheki v[rj dqjS'kh dks iqfyl us idM+k] rc eq>s tkudkjh gqbZ fd bls tks ^^Qghe** eSa crk jgk gwa] og ugha Fkk] og okLro esa lheki v[rj dqjS'kh gS vkSj bls idM+rs le; eSa FkkA esjs iqfyl c;ku iz-Mh- 3 esa ^^>ksiM+h** 'kCn uk fy[kk gks rks eSa dkj.k ugha crk ldrkA eSaus iqfyl dks vius c;ku iz- Mh- 3 esa ;g crk fn;k Fkk fd vkjksih 'kkfdj vgen ds gkFk esa pkdw Fkk] ;fn uk fy[kk gks rks dkj.k ugha crk ldrkA eSaus iqfyl c;ku esa 'kkfdj vgen us pkdw ls ekjk] ;g ckr fy[kkbZ gSA bl laca/k esa lk{kh dk iqfyl c;ku iz-Mh- 3 ns[kk x;k] mlds iqfyl c;ku esa 'kkfdj vgen }kjk pkdw ls ekjus dh ckr fy[kh gS] ysfdu lhuk esa pkdw ekjus dh ckr ugha fy[kh gSA"

23. The injured witnesses (PW-1 & PW-2) were sent for medical

examination to Dr. P. Balkishore (PW-6), who has given the medical

report. As per his report, the injuries sustained by Yogendra Singh are

as under:-

(i) Stab wound 2.5x1.5 cm. on right side of stomach.

(ii) Stab wound 2.5x1.5 cm. left side of stomach.

(iii) Stab wound 2.5x1.5 cm. on 9th & 10th ribs over chest.

(iv) Incised wound 4x1.5 cm. deep to bone on left side of parietal region over head.

(v) Incised wound 7.5x5 cm. on left sight of face.

24. This witness has examined the knife and stated as under:-

"pkdw ua 1 %& LVhy dh ewB okyh pkdw] ftldh CysM 16 ls-eh- vkSj 3 ls- eh pkSM+kbZ Fkh] ftlesa ,d cVu yxk gqvk Fkk] cVu flLVe Fkk ftldk vkf[kjh dk ikbafVax fljk Ms<+ ls-eh- pkSM+kbZ dk Fkk pkdw dh VksVy yackbZ gasfMy lfgr 33 ls-eh- FkhA ml pkdw esa [kwu ds /kCcs tSls Fks] ftls eSaus xksy ?ksjk dj vius gLrk{kj dj fy;s FksA pkdw ua 2 %& LVhy dh ewB okyh pkdw] ftldh ewB IykfLVd vkSj LVhy nksuksa dh Fkh] ftldh VksVy yackbZ 28 lsa-eh- Fkh] ftlesa CysM 13x2-5 ls-eh- pkdw ds uksd ds fljs ij [kwu ds /kCcs tSls fu'kku Fks] ftls eSaus ?ksjk cukdj vius nLr[kr fd;sA"

25. He has stated at paragraph 4 that the accused have assaulted injuries

by knife only.

26. The prosecution has examined Dr. S.R. Surendra (PW-7) who

examined constable- Parmanand Bhoi and as per his report, the

injuries sustained by Paramanand Bho are as under:-

      (i)    Swelling 3x2 cm. over upper side of nose.


      (ii)     Rednes on left eye.
      (iii)    Incised wound 1x0.25x0.25 cm. on upper side of stomach.
      (v)      Incised wound 2x1 cm. over back side of head.

27. The prosecution has examined Dr. K.H. Ramesh (PW-16) who has

operated injured Yogendra Singh (PW-2) and has stated as under:-

"(1) fnukad 13-3-2002 dks eSa lsDVj&9 gkWLihVy] fHkykbZ esa ltZjh foHkkx esa fo'ks"kK ds in ij inLFk ,oa dk;Zjr~ FkkA iwoZ ls gekjs vLirky esa vkj{kd ;ksxsUnz flag ifjgkj Hkjrh Fkk] mldk isV dk vkijs'ku fd;k Fkk] mldh vakr esa pksV vkbZ FkhA eSaus fuEukuqlkj ik;k%& 1- mldh isV esa Ms<+ ls nks yhVj rd [kwu tek gqvk FkkA 2- NksVh vakr ds vanu 6 Nsn ik;s x;s] vkar vkSj xqnkZ ds ihNs ds ijr esa tgak ls [kwu dh uyh uhps dh vksj tkrk gS] 1 ls-eh- dVk gqvk FkkA 3- cM+h vakr esa tgak [kwu dk izHkko gksrk gS] ogka ij ,d NksVk lk Qvk gqvk ?kko FkkA 4- LVed ds ckn tgak ls NksVh vakr pkwy gksrh gS] ogka ij 1 x1 ls-eh-

vkdkj dk dqy NS% ?kko Fkk tks lHkh ?kko Nsn okys FksA 5- eSaus 6 bap yackbZ okys vrM+h ds Hkkx esa 6 Nsn gksuk crk;k gS] mls dkVdj flykbZ dj fn;k vkSj LVed ls NksVh vakr esa tks tkus okyh uyh Fkh] mlesa Nsn Fkk] mls Hkh flykbZ dj fn;kA 6- ,cMkfeu esa tks [kwu Hkjk Fkk] mls fudkydj lkQ dj vakr dks vanj Mkydj fQj ls flykbZ dj fn;kA (2) lHkh pksVsa Hkksadk gqvk LVsc ?kko Fkk tks fdlh uqdhys o l[r gfFk;kj ;k oLrq ls vk ldrh gSA vkgr~ dh pksVsa mlds thou ds fy, [krjukd Fkh ;fn le; ij vkijs'ku ugha gksrk rks mldh e`R;` Hkh gks ldrh FkhA esjh fjQjy csM gsM fVfdV iz-ih- 6 tks dqy 27 iUus esa gS] mlds ^^v** ls ^^v** Hkkx ij gS ftlds Hkkx ^^c** ls ^^c** ij esjs gLrk{kj gSA"

28. Both the medical witnesses were extensively cross-examined by the

defence but nothing was brought on record to rebut the gravity of the

injuries sustained by the complainant. The prosecution has examined

Md. Iqbal (PW-5) and Jamil Khan (PW-12), who have narrated the

incident which took place on 13.03.2000, but the said witnesses were

subsequently declared hostile by the prosecution as they have denied

the involvement of the appellants in the crime in question, therefore,

the prosecution has cross-examined them. Md. Iqbal (PW-5) has

stated in his cross-examination that the Police has investigated him

and also admitted that in his statement before the Police (Ex. D/4) it

has been written that "Venkat, Shahid, Kunwar Singh & other persons

has been written and he has given the said statement before the

Police". When he was asked why you have not showing the present of

Venkat, Shahid & Kunwar Singh, he has stated that today he became

confused.

29. The prosecution has examined the injured persons, who have clearly

deposed that they have been assaulted by the appellants as detailed

in foregoing paragraphs. Considering the facts that the statements of

the injured persons is vital evidence wherein they have clearly

explained the incident and there was no effective cross-examination to

disbelieve the occurrence of incident and involvement of the

appellants.

30. Even from the evidence of the victim's witnesses (PW-1 & PW-2), it is

quite vivid that the sworn testimony by the injured witness generally

carries significant weight. Such testimony cannot be dismissed as

unreliable unless there was pellucid and substantial discrepancy or

contradiction that undermine their credibility. If there is any

exaggeration in the deposition that is immaterial to the case, such

exaggeration should be disregarded. However, it does not warrant the

rejection of entire evidence. Therefore, the suspicion raised by the

appellants regarding the genesis of the case and evidence of the

injured persons is rendered unfounded and deserves to be rejected.

31. Hon'ble the Supreme Court has examined the evidentiary value of

injured witness in case of Balu Sudam Khalde and Another Vs.

State of Maharashtra [(2023) 13 SCC 365] and has held as under:-

"26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:-

(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.

32. The statement of one injured person has also been supported by

another injured person (PW-2) whose credibility has not been diluted

despite extensive evidence by the defence, as such it cannot be

rejected as there is no major contradiction and can be accepted as its

face value. On the basis of above principle when this Court tests the

version of injured persons (PW-1 & PW-2), it is fortunate that the said

witness has passed the test mentioned above and there is no variation

in his version from statement made before the Court. There is no

material variation regarding identification of accused as well as the

manner in which the occurrence took place. Thus, they have fully

supported the case of the prosecution, therefore, finding of the trial

Court with regard to commission of offence under Sectoin 307 of IPC

cannot be said to have been suffered from perversity or illegality

warranting interference by this Court.

33. Now this Court has to examine the submission made by learned

counsel for the appellant that the appellant in CRA No. 143/2003

namely Md. Hasnen cannot be convicted as the role played by all the

accused have to be separately analyzed by the Court and the

prosecution has not been able to establish the role played by the

appellant Md. Hasnen and also on the count that the appellant's name

is absent in the FIR, is being examined by this Court.

34. The injured person (PW-1) in his evidence before the trial Court has

specifically stated that Hasnen accused has assaulted him by knife in

his stomach which was revived an old injury and there is no cross-

examination to dilute the said version of the injured person which

inspired confidence on the case of the prosecution. Thus, prosecution

has been able to prove their case beyond reasonable doubt regarding

involvement of appellant- Md. Hasnen, therefore, the submission

made by learned counsel for the appellant that Md. Hasnen has not

played any role in commission of the offence, is liable to be rejected

and accordingly, it is rejected.

35. The further submission of learned counsel for the appellant that name

of accused-Md. Hasnen is not mentioned in the FIR is being

considered by this Court. From perusal of the FIR (Ex. P/16), it is quite

vivid that in the FIR apart from Jaiyu, Fahim, Shakeel, Bhaskar Rao &

6-7 other persons were included. The injured witness (PW-2) in his

evidence before the trial Court after seeing the accused namely

accused Akhtar Qureshi has stated that Akhtar Qureshi was present

alog with Jai Singh, Bhaskar Rao, Shakeel Ahmed, Bhaskar Patil,

Shahid Imran, Md. Hasnen, Dhaniram, Gurudayal, Kunwar Singh &

Venkat Rao. It is pertinent to mention here that after the incident, the

accused Md. Hasnen along with other accused Jai Singh, Bhaskar

Rao, Shakeel Ahmed, Bhaskar Patil, Shahid Imran, Md. Hasnen,

Dhaniram, Gurudayal, Kunwar Singh & Venkat Rao were absconded

and proceeding was drawn on 13.08.2001 but subquently they have

been arrested on 01.04.2002 and produced before the trial Court.

Even the injured witness (PW-2) has clearly stated that Md. Hasnen

has assaulted him by knife and there is not rebuttal to this fact during

course of cross-examination. This clearly demonstrates that accused

Md. Hasnen has also assaulted PW-2 and his role is not different from

the role played by other accused in commission of offence. It is also

equally well settled position of law that the FIR is not encyclopedia of

crime but during investigation, the prosecution has collected the

material against the appellant- Md. Hasnen and has rightly been tried

by the trial Court, therefore, the submission made by learned counsel

for the appellant that the appellant- Md. Hasnen is not involved in the

commission of offence or he has not played the role is misconceived,

deserves to be rejected and accordingly, it is rejected.

36. So far as submission of learned counsel for the appellants that there

was no intention of the appellants to commit murder of the injured

person, as such offence under Section 307 of IPC cannot be made out

is being considered by this Court. To consider this submission, this

Court has to examine whether the injuries caused by the appellants

are sufficient for causing death to the victim or not or the accused have

any intention or not to commit the offence.

37. From the evidence of injured person Yogendra Singh, who was

examined by Dr. P. Balkishore (PW-6) and Dr. K.H. Ramesh (PW-16),

who has done operation of injured Yogendra Singh (PW-2) and has

given opinion that the injuries sustained by the him are grievous in

nature and if it is not operated in time then the injured may be expired.

Parmanand Bhoi (PW-1) was also examined by Dr. S.R. Surendra

(PW-7) who has given opinion that the injuries sustained by the him

were simple in nature and if there are no such injuries then he will be

recovered within seven days.

38. It is well settled position of law that to sustain conviction under Section

307 of IPC, it is not necessary that bodily injury capable of resulting in

death should have been inflicted. The Court has to examine whether

the act, irrespective of its result, was done with the intention or

knowledge and under circumstances mentioned in Section 307 of IPC

to convict the accused for commission of offence under Section 307 of

IPC, has been proved by the prosecution beyond reasonsable doubt

or not. It is equally well settled position of law that the intention of the

accused can be ascertained from the actual injury, if any, as well as

from surrounding circumstances. Among other things, the nature of the

weapon and the severity of the blows inflicted can be considered to

infer intention.

39. From the evidence brought on record, it is quite vivid that the accused

namely Jaiyu has assaulted by knife in the stomach of PW-1, other

accused- Bhaskar Rao has also assaulted by knife but he was

rescued and accused- Shahid Irfan has assaulted by hands and fists

and accused- Hasnen has assaulted by knife in the stomach reviving

an old injury thereafter Gurudayal, Bhaskar Rao, Kunwar Singh,

Venkat Raman have assaulted him by hands and fists. The accused-

Dhaniram has assaulted by stick on his head and the accused have

snatched the liqour box. Even the learned trial Court while

appreciating the evidence has also recorded its finding in paragraph

43 of judgment that the injury caused to the injured persons was

grievous in nature and if it is not operated within time period then that

may also cause death, as such there is sufficient evidence on record

to prove beyond reasonable doubt that there was intention to commit

murder of PW-2.

40. Learned trial Court has also recorded its finding that in other part of the

body where the injuries have been caused, is within the knowledge of

the appellants that the injuries sustained by the injured person is

sufficient to cause death. In the present case, there is common

intention of the appellants to snatch liquor, which was seized by the

police while performing their statutory duty, on strength of knife, which

has been used to commit the offence and the injury sustained by

Yogendra Singh is grievous in nature which is duly supported by

medical evidence of doctor K.H. Ramesh (PW-16) who has operated

the victim, it is proved beyond doubt that the offence committed by the

appellants falls within the ambit of commission of offence under

Section 307 of IPC, therefore, the appellants have rightly been

convicted for the offence under Section 307 of IPC regarding assault

to the injured Yogendra Singh.

41. Section 307 of IPC is always matter of scrutiny and the Hon'ble

Supreme Court in case of Sivamani & Another vs. State

represented by Inspector of Police, [2023 SCC Online SC 1581]

has held in paragraph 9 as under:

"9. In State of Madhya Pradesh v Saleem, (2005) 5SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was

inflicted does not follow as a matter of course. In the same judgment, it was pointed out that '...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.' The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019)3 SCC 605. Yet, in Jage Ram (supra) and Kanha(supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, 'The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent."

42. Again, Hon'ble the Supreme Court in the case of Shoyeb Raja Vs.

State of Madhya Pradesh [2024 INSC 731] has examined what will

be the essential ingredients to attract offence under Section 307 of

IPC and has held as under:-

"11.1 In State of Maharashtra v. Kashirao3, the Court identified the essential ingredients for the applicability of the section. The relevant extract is as below:

"The essential ingredients required to be proved in the case of an offence under Section 307 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 excuse for incurring the risk of causing such death or injury." (2003) 10 SCC 434 11.2 This Court in Om Prakash v. State of Punjab4, as far back as 1961, observed the constituents of the Section, having referred to various judgments of the Privy Council, as under:

"a person commits an offence under Section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the

fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression "whoever attempts to commit an offence" in Section 511, can only mean "whoever : intends to do a certain act with the intent or knowledge necessary for the commission of that offence".

The same is meant by the expression "whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder" in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression "by that act" does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time." (Emphasis supplied) 11.3 Hari Mohan Mandal v. State of Jharkhand5 holds 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 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 1961 SCC OnLine SC 72 (2004) 12 SCC 220 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."

(Emphasis supplied)"

43. Learned trial Court after appreciating the entire evidence and material

placed on record has recorded its finding at paragraph 38 with regard

to commission of offence under Section 307 of IPC. This Court after

appreciation of evidence material on record and considering the law

on the subject, can very well reach to conclusion that the prosecution

has proved the case beyond reasonable doubt that the complainant

Paramanand Bhoi (PW-1) and Yogendra Singh (PW-2) have been

caused injuries by the accused and injuries sustained by Yogendra

Singh (PW-2), is serious in nature, therefore, the appellants have

rightly been convicted under Section 307 of IPC.

44. With regard to commission of offence under Section 324 of IPC, the

learned trial Court has recorded its finding that the offence under

Section 324 of IPC is made out against the appellants. From the

evidence of injured witnesses (PW-1& PW-2) which was duly

supported by the medical evidence (PW-6, PW-7 & PW-16) apart

grievous injuries, the victims have suffered simple injuries by means of

stick, hands & fists.

45. From perusal of Section 324 of IPC wherein "hurt" is necessary

ingredience for proving the offence under this Section and the term

"hurt" has been defined in Section 319 of IPC which means performing

an act which leads to physical pain, injury or any disease to a person.

Section 324 of IPC further provides that the hurt may be caused

voluntarily or it can be caused by using dangerous weapons or mean.

A person will be liable to have caused hurt voluntarily through

dangerous weapons and means as provided in Section 324 IPC. The

section 324 IPC reads as under:-

"Section 324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

46. Thus, to establish an offence under Section 324 IPC, the presence of

following ingredients is a must which are as follows:-

"1. Voluntary hurt caused to another person by the accused, and

2. Such hurt was caused:

(A). By any instrument used for shooting, cutting or stabbing, or any other instrument likely to cause death, or, (B). By fire or other heated instruments, or (C). By poison or other corrosive substance, or, (D). By any explosive substance, or , (E). By a substance that is dangerous for the human body to swallow, inhale, or receive through blood, or (F). By an animal."

47. Section 324 of IPC has come up for consideration before Hon'ble

Supreme Court in the case of Anuj Singh @ Ramanuj Singh @ Seth

Singh Vs. The Stte of Bihar [AIR 2022 SC 2817] wherein it has been

held in paragraph 22 as under:-

"22. In the case at hand, it is evident from the evidence of prosecution witnesses that the two appellants have caused hurt on the body of the informant, PW-6 by using firearm on account of an altercation which took place between the appellants and the informant PW-6. It also stands corroborated from the evidence of the prosecution witness that there existed previous enmity between the parties due to a land dispute and the same can be perceived from their acts. Thus, the charge of Section 324 IPC stands established against the two appellants. Once

the charge against the appellants under Section 324 IPC of voluntarily causing injuries by firearm, which is a dangerous weapon stands established, they cannot escape the punishment for using arms prescribed by Section 27 of the Arms Act."

48. From analysis of the above facts and circumstances, it is quite vivid

that the prosecution has rightly proved the case beyond reasonable

doubt against the appellants for commission of offence under Section

324 of IPC, as such the appellants are liable to be convicted for

commission of offence under Section 324 of IPC and conviction of

the appellants for commission of offence under Section 324 of IPC,

deserves to be upheld and accordingly, it is upheld.

49. Now this Court has to determine whether the offence under Sections

148 & 149 of IPC is made out or not. For better understanding, it is

expedient for this Court to extract Sections 141, 148 & 149 of IPC,

which read as under:-

"Section 141- Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-- (First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.--

An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

Section 148- Rioting, armed with deadly weapon.--

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 149- Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

50. To determine whether the offence under Sections 148 & 149 of IPC is

made out or not, it is expedient for this Court to extract the relevant

paragraphs of the FIR (Ex. P/16) which reads as under:-

"eSa iqfyl pkSdh th-vkj-ih- pjksnk esa iz-vkj- ds in ij rSukr gwaA vkt fnukad 13-3-2000 dks dqN 'kjkc ekfQ;k ds yksxksa ds }kjk esVkMksj esa voS/k 'kjkc fcdzh gsrq ys tkus dh lwpuk ij fMikpZj ;kMZ rjQ vkj- 237] 280 dks jokuk fd;k x;k FkkA iqfyl }kjk idM+ ysus dh lwpuk ij eSa gejkgh vkj- 216 vk'kqrks"k 'kekZ ds ekSds esa igaqpk ns[kk oks fMikpZj ;kMZ ds ikl fLFkr >ksiM+k ds lkeus 'kjkc jsM eesa x;sA vkj- ;ksxsUnz flag] vkj- ijekuan HkksbZ [kwu ls yFkiFk iM+s gq;s FksA vkj- ;ksxsUnz flag cksyus dh fLFkfr esa ugha Fkk mlds flj] isV esa ilyh esa pksVs vkdj [kwu fudy jgh Fkh rFkk vkj- ijekuan HkksbZ ds cka;s isV ,oa cka;s Hkkx flj esa pksVsa Fkh] ftls iqaMqokn fd;k crk;k fd thi dz- ,eih 24 th 5759 esa ts;s] Qghe] lkfdj] HkkLdj jko rFkk 6&7 mlds vU; lkFkh ,d jk; gksdj pkdw] MaMk] ykBh ysdj vk;s vkSj lkys iqfyl okys 'kjkc dSls Fkkuk ys tkrs gha dgdj pkdw] M.Mk] gkFk eqDds ls ekjihV dj pksVsa nksuksa dks igqapk;s vkSj 'kjkc ds dkVwZu iM+s gq;s dks ysdj thi lfgr Hkkx x;s gSa fd fjiksVZ ij ekSds esa vijk/k iathc) fd;k x;k pkSdh vkus ij i`Fkd ls dk;e fd;k x;kA"

51. The prosecution has also examined the complainants who have

deposed the involvement of the appellants and their presence in the

place of occurrence. The evidence of the complainant has already

been referred to by this Court in foregoing paragraph. From perusal of

which it is quite vivid that the appellants who are more than five, have

constituted an unlawful assembly, committed rioting, were armed with

deadly weapon and with a common object of snatching the liquor

cartons which was seized by the police while performing their official

duty, thus, the basic ingredients for commission of offence, has been

proved by the prosecution to bring home the guilt of the appellants for

commission of offence under Sections 148 & 149 of IPC. Hon'ble the

Supreme Court in Zainul Vs. The State of Bihar [2025 INSC 1192]

has examined Section 149 of IPC and has held at paragraphs 45, 46,

47, 49, 50 & 61 as under:-

"45. Albeit the essentials of Section 149 of the IPC are oftrepeated and firmly established, they are reiterated herein for the sake of convenience:

i. There must be an assembly of five or more persons; ii. An offence must be committed by any member of that unlawful assembly;

iii. The offence committed must be in order to attain the common object of that assembly, or iv. The members of the assembly must have the knowledge that the particular offence is likely to be committed in order to attain the common object.

46. Section 149 of the IPC stipulates that if an offence is committed by any member of an unlawful assembly (of 5 or more persons) in prosecution of the common object (as defined in Section 141 of the IPC) of that assembly, or if the members of the assembly knew that the said offence is likely to be committed in prosecution of the said common object, every person who, at the time of committing that offence, was a member of that assembly, will be guilty of that offence.

47. The first limb of the provision envisages the commission of an offence by a member of an unlawful assembly in order to attain the common object of that assembly. Whereas, the second limb of the provision encapsulates knowledge on the part of a member of the unlawful assembly qua the likelihood of such offence being committed in order to attain the common object.

xxx xxx xxx xxx

49. The expression "in prosecution of the common object"

means that the offence committed must be directly connected with the common object of the assembly, or that the act, upon appraisal of the evidence, must appear to have been done with a view to accomplish that common object. In Charan Singh v. State of U.P., reported in (2004) 4 SCC 205, this Court held that the test for determining the "common object" of an unlawful assembly must be assessed in light of the conduct of its members, as well as the surrounding circumstances. It can be deduced from the nature of the assembly, the weapons carried by its members, and their conduct before, during, or after the incident. The relevant observations read as thus:-

"13. [...]Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot

render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.

14. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the

scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words, it can develop during the course of incident at the spot eo instanti."

(Emphasis supplied)

50. To put it briefly, Section 149 of the IPC makes all the members of an unlawful assembly constructively liable when an offence is committed by any member of such assembly with a view to accomplish the common object of that assembly or the members of the assembly knew that such an offence was likely to be committed. However, such liability can be fastened only upon proof that the act was done in pursuance of a common object. The essentials of Section 149 were succinctly explained by the Constitution Bench in the decision of Mohan Singh v. State of Punjab, reported in AIR 1963 SC 174. It reads thus:-

"8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more.[...]"

(Emphasis supplied) xxx xxx xxx xxx

61. The law on the point can be summarized to the effect that where there are general allegations against a large number of persons, the court must remain very careful before convicting all of them on vague or general evidence. Therefore, the courts ought to look for some cogent and credible material that lends assurance. It is safe to convict only those whose presence is not only consistently established from the stage of FIR, but also to whom overt acts are attributed which are in furtherance of the common object of the unlawful assembly."

52. Again Hon'ble the Supreme Court in case of Dablu Etc. Vs. State of

Madhya Pradesh [2026 INSC 224] has held at paragraph 13 as

under:-

"13. It is settled in law that in view of Section 149 IPC, every member of the unlawful assembly is vicariously liable for acts done by anyone of them to achieve a common object. Therefore, two things are essential to attract Section 149 IPC. The first is "unlawful assembly" and the second is "common object". The presence of the accused persons as part of the unlawful assembly is sufficient for conviction even if no overt act is imputed to each one of them individually. In the case at hand, all the accused persons had alighted from the bus together armed with firearms, thus, they were part of the unlawful assembly and had arrived at the bus stand with a common object. The movement of the accused persons in the above manner is sufficient enough to draw an inference that they had a common object. Therefore, the presence of the accused persons in the unlawful assembly to achieve a common object makes all of them vicariously liable for the acts of the unlawful assembly."

53. From perusal of the records, evidence, material on record as well as

the law laid down by Hon'ble the Supreme Court, it is evident that the

prosecution has proved the case beyond reasonable doubt that the

appellants are members of unlawful assembly, involved in rioting

armed with deadly weapon and have committed the offence with

common object. Thus, the finding recorded by the learned trial Court

for commission of offence by the appellants under Sections 148 & 149

of IPC, is legal, justify and does not warrant any interference by this

Court.

54. Now this Court has to examine whether the conviction of the

appellants under Section 395/397 of IPC is legal and justify or not. For

better understanding, it is expedient for this Court to extract Sections

391, 395 & 397 of IPC, which read as under:-

"Section 391-Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such

commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity. Section 395- Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Section 397- Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

55. Now this Court has to examine whether conviction of the appellants for

commission of offence under Section 395/397 of IPC is legal, justify or

does not warrant any interference by this Court.

56. Learned trial Court while convicting the appellants for commission of

offence under Section 395 read with Section 397 of IPC has also

recorded its finding at paragraph 42 of the judgment that the injured

persons have clearly deposed about involvement of the appellants as

well as the manner in which the crime in question has been committed

by the appellants, thus on appreciation of evidence, material on

record, it is quite vivid that this finding is incorrect finding as the trial

Court has not given any finding out of unlawful assembly which

offender uses deadly weapon to commit dacoity to prove the

commission of offence under Section 397 of IPC. As such, this finding

is against the law laid down by Hon'ble the Supreme Court in the case

of Ganesan Vs. State represented by Station House Officer [AIR

2021 SC 5643] wherein it has been held at paragraphs 12.4, 15 & 16

as under:-

"12.4. On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the

number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393,394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability,however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.

xxx xxx xxx xxx

15. Even otherwise there is no difference between Section 391/395 and Section 397 IPC so far as sentence/punishment except the difference in case of Section 397 IPC the punishment shall not be less than seven years. Otherwise, the 'robbery' and 'dacoity' are sine qua non. 'Dacoity' is nothing but an exaggerated version of 'robbery' with a difference in number of accused. Therefore, also even in a case where the accused is not convicted for the offence under Section 397 IPC, still he can be punished under Section 395 IPC and no prejudice shall be caused to him as ultimately the prosecution has to prove the 'robbery' and 'dacoity' either for the offence punishable under Section 395 IPC or under Section 397 IPC. However, to bring the case against the accused under Section 397 IPC, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person. Therefore, the case is made out under Section 391 IPC read with Section 395IPC. Despite the fact that the courts below convicted the accused under Section 397 IPC which is held to be unsustainable, in that case also if the case is made

out under Section 391 IPC read with Section395 IPC, still they can be convicted for the offence punishable under Section 391 read with Section 395 IPC even without even altering the charge. As observed hereinabove in the present case, the learned trial court framed the charge against the accused for the offence under Sections 395 and 397 IPC both.

16. Now so far as the submission on behalf of the appellants - accused that even no case is made out for the offence under Section391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery. Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of 'dacoity'.Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC."

57. Considering the provisions of Section 395/397 of IPC, evidence,

material on record and also considering the law laid down by Hon'ble

the Supreme Court in case of Ganesan (supra), it is quite vivid that

the offence under Section 397 of IPC is not made out, but the

appellants are liable to be convicted under Section 395 of IPC. Thus,

the conviction of the appellants under Section 397 of IPC, deserves to

be set aside and accordingly, it is set aside. The appellants are

acquitted from the charges levelled against them under Section 397 of

IPC, but their conviction under Section 395 of IPC, is maintained.

58. Now this Court has to consider whether the sentence awarded to the

appellants is appropriate or not. The appellants remained in jail during

trial and also after conviction till this Court has enlarged them on bail.

Considering the fact that the offence under Section 397 of IPC against

the appellants is not made out and for commission of offence under

Section 307 of IPC, the sentence which can be awarded, is for a term,

maximum sentence, which may be extended upto 10 years and for

offence under Section 395 of IPC, which can be awarded,

imprisonment for life or with rigorous imprisonment for a term, which

may be extended upto 10 years as such no minimum sentence has

been prescribed under these Sections.

59. From perusal of records, it is quite vivid that the offence was

committed in the year 2000, at the relevant time, the appellants were

at young age between 19 to 26 years and now 26 years have already

been lapsed, they are now middle aged persons. Considering these

aspects of the matter, this Court is of the opinion that ends of justice

would be served, if the sentence of 7 years for commission of offence

under Sections 307 & 395 of IPC are reduced to 4 years while

maintaining conviction under Section 307 & 395 of IPC. So far as the

sentence awarded to the appellants for commission of offence under

Sections 148 & 324 of IPC are concerned, they are affirmed. All the

sentences will run concurrently.

60. The jail custody which appellants have undergone during trial and after

conviction, will be subjected to set off as per Section 428 of Cr.P.C/

Section 468 of the BNSS 2023. The details of incarceration period of

the appellants are given in the table form as under:-

                   Name of               Period of           Period of        Total
                Appellant/Appeal       incarceration      incarceration       Days
                      No.               during trial       period after
                                                            conviction
              P. Vankat Rao          From 19.03.2000 From 06.01.2003 109 days

(CRA No. 96 of 2003) to 03.06.2000 & to 05.02.2003 04.01.2002 to (29 days) 08.01.2002 (80 days)

Mohammad Hasnen From 10.04.2000 From 06.01.2003 99 days (CRA No. 143 of to 19.06.2000 to 06.02.2003 2003) (69 day) (30 days)

Gurudayal alias Kaku From 19.03.2000 From 06.01.2003 104 days Singh to 03.06.2000 to 06.02.2003 (CRA No. 150 of (74 day) (30 days) 2003)

61. The appellants are on bail, their bail bonds shall stand cancelled. The

appellants are directed to surrender before the concerned trial Court

within two months from the date of receipt of copy of this judgment to

serve out remaining part of the sentence.

62. If they fail to surrender before the trial Court, the concerned

Superintendent of Police shall take suitable action against them and

sent the compliance report to this Court immediately.

63. With the aforesaid modifications, the appeals are partly allowed.

Sd/-