[Cites 32, Cited by 0]
Chattisgarh High Court
Ramkrishna Vaishya @ Chotu And Ors vs State Of Chhattisgarh on 12 March, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 26
2026:CGHC:11869
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved on : 17-02-2026
Delivered on : 12 .03.2026
CRA No. 645 OF 2005
1. Ram Krishna Vaishya @ Chotu aged about 35 years, s/o Sitaram
Vaishya r/o. Om Nagar, Jarhabhata, Bilaspur (CG).
2. Jhallu aged about 32 years s/o. Kanhaiyalal Dhimar, r/o. Amlai, Dist.
Shahdol (MP) died and deleted on 23-2-2016.
3. Munnan Verma, aged about 30 years, s/o. Albela Verma, r/o. Behind
VIP, Guest House, Dhanpuri, District Shahdol (MP).(died and deleted).
4. Lallu aged about 30 uyears, s/o. Jageshwar Panika, r/o. Dhanpuri,
District Shahdol (MP).
... Appellants
Versus
State of Chhattisgarh through Police Station City Kotwali, Bilaspur
(CG). ... Respondent/State
For Appellants : Mr. Manoj Paranjpe, Sr. Advocate with
Mr. Rishabh Gupta, Advocates.
For Respondent/State : Mr. Sanjeev Pandey, Dy. Advocate General.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. This appeal has been preferred by the appellants under Section 374 (2)
of the Code of Criminal Procedure, 1973 against judgment dated
3.8.2005 passed by learned VIIIth Additional District Sessions Judge,
(FTC) Bilaspur (C.G.) in Sessions Trial No. 35/2002, whereby the
appellants stand convicted and sentenced as under:-
Conviction Sentence
U/s 450 of IPC : R.I. for 5 years and fine of Rs. 5000/-,in
default of payment of fine, to undergo
additional R.I. for 6 months.
U/s 307 of IPC : R.I. for 10 years and fine of Rs.25,000/-
each, in default of payment of fine, to
undergo additional R.I. for 1 year.
U/s. 307/34 of IPC R.I. for 10 years and fine of Rs.25,000/- each
and in default of payment of fine, additional
R.I. for 1 year.
(All the sentences are directed to run
concurrently).
2. The case of prosecution is that complainant Sunita Tiwari (P.W./13)
who was residing at Lala Kashyap Colony where she was running
beauty parlour. On 29.10.2001 at about 8.45 in the night when she was
taking tea along with Suchcha Nand Wadhwani (P.W./18) in her house,
at that time appellant Ram Krishna Vaishya @ Chhotu who is known to
the victim resident of Jarhabhata entered into the house of complainant
along with other persons. One of the accused Ram Krishna Vaishya
told Suchcha Nand Wadhwani to return the papers pertaining to the
house which has resulted into dispute and they started threatening to
kill Suchcha Nand Wadhwani by fire. At that time when Sunita Tiwari
(PW/13) intervened, then the accused Ram Krishna fired at her by
firearm (gun) as a result of which she received a bullet injury above
thigh in the stomach causing bleeding also. He has again fired by gun
which crossed between Sunita Tiwari (PW-13) and Suchcha Nand
Wadhwani (PW/18) and stuck to the wall. Thereafter, Suchcha Nand
Wadhwani (PW/18) has taken care of the victim and took her to District
Hospital Bilaspur. On the basis of the complaint, Crime No. 346/1 was
registered by the City Police Station on 29.10.2001 for commission of
offence under Section 307/34 of IPC read with Sections 25 and 27 of
the Arms Act.
3. After completion of the investigation, charge sheet was filed before
the Court of Chief Judicial Magistrate Bilaspur, who in turn committed
the case to the Court of Additional Sessions Judge, Bilaspur which
was registered as Sessions Case No. 364 of 2003. The learned trial
Judge after conclusion of trial convicted and sentenced the appellants
as submitted above, but the learned trial Court has acquitted the
accused Ram Krishna @ Chhotu for commission of offence under
Section 25 and 27 of the Arms Act as before no proper permission
from competent authority i.e District Magistrate has been obtained by
the prosecution to initiate prosecution against him for commission of
said offence.
4. In order to bring home the guilt of the appellants, the prosecution
examined 18 witnesses namely Jhumuklal Bhoi (PW-1), Ramcharan
Rajak (PW-2), Doctor Smt. S. Thakur (PW-3), Vikram Khetrapal (PW-
4), Dr. S. Chatterjee, Medical Oficer (PW-5), P.S. Toppo, Tahsildar
(PW-6), Dhruw Prasad, Head Constable (PW-7), Sehattar Prasad
Kurre, Constable (PW-8), B. Prasad (PW-9), Rajendra Bojwani (PW-
10), Pradeep Wadhwani (PW-11), Ramnarayan Joshi (PW-12), Sunita
Tiwari, complainant (PW-13) Dr. L. Singh, Medical Officer (PW/14),
Daroga Singh, constable (PW/15), Shiv Prasad Singh, Investigating
Officer, (PW/16), Ramesh Wadhwani (PW/17) and Suchcha Nand
Wadhwani, eye witness (PW/18) and exhibited the documents from
seizure memo (Ex.P-1), agreement (Iqrarnama (Article A/1), Seizure
memo (Ex.P/2), Doctor's report (Ex.P/3 & P./4), complainant's x-ray
report (Ex.P/5 & P/6), complainant dying declaration (Ex.P/7),
Rojnamcha Sanha (Ex.P/8), FIR (Ex.P/9), property seizure memo
(complainant house) Ex.P/10), property seizure memo (Ex.P/11),
original register of hotel (Ex.P/12), Dehati nalishi (Ex.P/13), seizure
memo (complainant cloth) Ex.P/14), medical report of Sachhinand
Wadhwani (Ex.P/15), Government Inspection report (Ex.P/16), work
certificate form (Ex,P/17), spot map (Ex.P/18), receipt of goods sent
for examination (Ex.P/19), test report (Ex.P/20) and arrest memo (Ex.
P/21).
5. Statements of the accused/appellants were recorded under Section
313 CrPC in which they denied the allegations made against them
and pleaded their innocence and false implication in the case. The
appellant examined 2 witnesses namely Rasik Bakhsh, (DW/1) and
Shailedra Masih (DW/2) in their defense and exhibited documents
from Ex.D/1 to Ex.D/8.
6. After hearing the parties, learned District Sessions Judge on the basis
of material on record and upon considering the statements of the
witnesses has passed the judgment of conviction and order of
sentence against the appellants as mentioned above. Being
aggrieved with the judgment of conviction and order of sentence, the
appellants have preferred the instant Criminal Appeal.
7. Learned counsel for the appellants would submit that the finding
recorded by the trial Court is contrary to the evidence, material on
record as the statement of the victim has not been taken into
consideration in its true prospect. He would further submit that the
prosecution has failed to prove the necessary ingredients of the
offence under Section 307 of the IPC. Learned trial Court ought to
have considered that no case under Section 307/34 of IPC is made
out against the appellants. Learned trial Court has not considered the
whole evidence adduced by the prosecution as well as that of the
defence. Learned trial Court has also failed to appreciate that looking
to the evidence on record there was no intention to assault Sunita
Tiwari. He would further submit that the learned trial Court ought to
have considered that there is nothing on record regarding
memorandum or seizure of the weapon which could have been
important evidence to connect the appellants with the crime in
question. He would further submit that from the dying declaration of
the injured (Ex.P/7), it would be crystal clear that there was no
intention of appellant No.1 to assault the injured and there appears to
be no evidence to connect the appellants No. 2, 3 and 4 with the
crime in question.
8. He would further submit that conviction of the appellants in the
present case is completely based on circumstantial evidence and as
per well settled position of law that in a case based on circumstantial
evidence, the prosecution must convince the Court that
circumstances pointed towards the guilt of the accused alone and
non-else as also lack of his innocence, then only on circumstantial
evidence, the accused can be convicted. He would further submit that
the prosecution is unable to prove the case against the appellants
beyond reasonable doubt, as such they are entitled to claim acquittal
by granting benefit of doubt. He would submit that order of conviction
passed by the learned trial Court suffers from perversity and illegality
warranting interference by this Court. Lastly, he would further submit
that there are mitigating factors available on record as the incident
took place on 29-10-2001 and more than 24 years have already been
lapsed and the appellants have already remained in jail from
13.04.2002 to 26.04.2002 and thereafter, from date of conviction on
03.08.2005 till this Court has granted bail on 21.11.2005, thus they
remained in jail for 03 months and 26 days and even after releasing
on bail, they have never misused the liberty granted to them and they
have no past criminal antecedents. It has been further contended that
if the accused are directed to undergo the remaining jail sentence,
the family life of the appellants will be adversely affected, as such he
would pray that the sentence may be reduced considering the
mitigating factors available on record. To substantiate his submission,
he would refer to the judgment rendered by Hon'ble the Supreme
Court in case of Tilku alias Tilak Singh Vs. State of Uttarakhand
[2025 SCC OnLine SC 353].
9. To substantiate that the conviction of the appellants in the present case
is completely based on circumstantial evidence and no circumstances
point out the involvement of the appellants in connection with the crime
in question he has referred to the judgment of the Hon'ble Supreme
Court in the matter of Sharad Birdhichand Sarda vs. State of
Maharashtra, reported in (1984) 4 SCC 166, judgment of the Hon'ble
Division Bench of this Court in the matter of Kamlesh @ Tikam
Manhare vs. State of Chhattisgarh in CRA No 177 of 2019 decided
on 2-1-2025, judgment of Hon'ble Supreme Court in case of Sanjay
vs. State of Uttar Pradesh, reported in 2025 SCC Online SC 572,
State of Madhya Pradesh vs. Kashiram and others, reported in
2009 (4) SCC 26 judgment of this Court in the matter of Ismail
Mohammad vs. State of Chhattisgarh in Criminal Appeal No. 602/2003
and also judgment of High Court of Madhya Pradesh in case of
Sukhpal @ Chukhande Singh vs. State of Madhya Pradesh in Criminal
appeal No. 176/2017.
10. Per contra, learned counsel for the State supporting the impugned
judgment passed by the learned trial Court would submit that the
prosecution has proved its case beyond reasonable doubt, thus the
appellants have rightly been convicted and sentenced for the aforesaid
offence. He would further submit that the findings and the approach of
the trial court in this regard being based on proper appreciation of the
evidence are in conformity with law, the same does not require any
interference by this Court and would pray for dismissal of this appeal.
11. I have heard learned counsel for the parties and perused the
documents placed on record with utmost circumspection.
12. From the submissions made by the parties, the point emerged for
determination is whether the trial Court was justified to convict the
appellants for commission of offence under Sections 307, 450 of IPC
and imposition of jail sentence of 10 years and 5 years respectively
with fine is legal and justified?.
13. To appreciate this point, this Court has to meticulously examine the
evidence led by the prosecution and also to examine the findings of
the trial Court.
14. The victim (PW/13) in her examination-in-chief has betrayed the
contention made in the FIR and has stated that accused started
assaulting Suchcha Nand Wadhwani in her house and when she came
for rescue Suchcha Nand Wadhwani and told him do not commit
assault in my house, then Ram Krishna fired by his country made pistol
which was getting shot above her thigh in the stomach and thereafter
he has again fired by his country made pistol which crossed between
Suchcha Nand Wadhwani and herself and the bullet hit the wall. She
has further stated that due to injury she fell down. Thereafter, Ram
Krishna along with his accomplice fled away from her house. She has
stated that she remained in the hospital for 1 month and 10 days. She
has also stated that she has put her signature on the dying declaration
(Ex P/7). The witness was extensively cross-examined by the defense,
wherein she has affirmed that she got injury and there was blood stain
in her clothes also. She has denied that she has stated to the Police
that Suchcha Nand Wadhwani assaulted her by country made pistol.
She has stated that in the report and dying declaration she has made
correct information and also stated that in the FIR she has stated that
due to quarrel between Suchcha Nand Wadhwani and Ram Krishna
Vaishya she came to rescue then Ram Krishna fired on her by country
made pistol which has caused injury on her stomach, thereafter, she
fell down and also stated that thereafter another bullet has been shot
which is left between her and Suchcha Nand Wadhwani.
15. Shiv Prasad Singh (PW/16) who has done the investigation has stated
that on submission made by victim one gown containing blood stain in
which there was one whole due to bullet was seized. He has also
admitted that in Ex. P/10 at the place of occurrence how many pellets
of bullets were seized has not been mentioned.
16. Suchcha Nand Wadhwani (PW/18) who was present at the place of
occurrence stated that by name and by face he knew Ram Krishna
Vaishya, Lallu Prasad Diwan, Munna and Jhallu. He has also
supported the case of the prosecution and stated that when the victim
told him that she will not involve between them, then Chhotu became
angry and all the accused started assaulting him, thereafter, Chhotu
had fired at Sunita Tiwari by gun and she got gun injury above her
thigh in the stomach. The said witness was extensively cross-examined
by the defense, but in the cross-examination he remained affirmed. On
the contrary, in the cross-examination he has stated that when he has
pressed the injured part of the victim by cloth then he got blood in his
hands and thereafter, he has rapped the victim by bed-sheet. The
witness has categorically denied that due to scuffle he fell down and
also denied that during scuffle he has pointed his country made
pistol at Chhotu and denied that he has fired at Chhotu and
between rescuing them the victim came and sustained injuries.
17. The prosecution examined Dr. Smt. S. Thakur (PW-3) who examined
the victim and has stated that egg shaped gunshot was found on her
right iliac fossa and sides were burnt admeasuring 2 ½ X 2 inch and
width of injury was upto peritoneal plant. The side muscles torned and
blood was leaked. There was lot of wound from her right iliac fossa to
right lumber region in which reddishness was there. She has further
stated that the condition of victim was serious and pulse rate was slow,
her blood pressure was 70/60, therefore, she has referred the matter to
surgical expert.
18. Vikram Khetrapal, Surgical Specialist (PW/4) who has examined the
victim and has reiterated the injuries and accordingly, an emergency
operation was conducted. He has stated that after the operation he has
removed bullets and 24 pellets. He has also stated that victim was
admitted on 29.10.2001 and she was discharged on 03.12.2001. The
Doctor in his report has assessed the injuries as well as pellets
recovered from the body of the victim and operation done by him which
reads as under:
"1- ejht 'kkd dh gkyr es a Fkk] 'kjhj esa ihykiu FkkA ukMh dh xfr 90 izfr
feuV] CyM izs'kj 64 fe-fe- eDZ;wyh FkkA Lokal dh xfr 22 izfr feuV FkhA ejht
jlDysl Fkk] tka?k ds mijh ,d frgkbZ fgLls ij ,oa nkfgus vkbZyd Qkslk esa ?kko
FkkA mlls jDr Jko gks jgk FkkA ,oa [kwu tek gqvk FkkA pksV dk vkdkj 3 x <kbZ
bap x isV dh xgjkbZ rd FkkA pksV dh foLr`r izd`fr tkuus ds fy,] vkijs'ku dh
vko';drk FkhA ejht dk rqjUr [kwu tkap] ,oa [kwu dh O;oLFkk dh lykg nh xbZ
vkSj ejht dks bejtsUlh vkijs'ku ds fy, rS;kj djus ds fy, crk;k x;kA
2- vkijs'ku djus ij eSusa fuEu ik;k%&
1- nkfguh tka?k ij buXok;uy bykesaV ds uhps] tka?k ds lkeus fgLls Ikj <kbZ x
nks bap x ekal isf'k;ksa dh xgjkbZ rd dk ,d xu 'kkV cksuZ ftlesa jDr okfguh Hkh
pksV xzLr FkhA ?kko dh fdukjs dkyk iMk Fkk vkSj >qylk gqvk FkkA fdukjk
yslsjsVsM FkkA vkSj ?kko ls [kwu fudy jgk FkkA ;gka ls isysVl fudkys x,A
2- nkfgus dksfguh ij rhu bap yEckbZ dk [kjksp FkkA
3- isV ds lkeus fgLls ij nkfgus vkbZyd ,oa yEcj {ks= essa [kjksp tks yky jax dh
Fkh ikbZ xbZA
4- nkfguh vksj ls fupys isjkfeyh;uu bulhtu ls isV [kksyus ij isV ds vUnj
fdlh izdkj dk [kwu tek gqvk ugha ik;k x;kA ,oa varfM;k Hkh LoLFk FkhA
5- lHkh ulksa dks ¼jDr okfgfu;ksa½ cka/kk x;k] ekal isf'k;ksa dks ijrokj fjis;j fd;k
x;kA"
19. P.S. Toppo, Tahsildar (PW-6) who has recorded dying declaration (Ex.
P/7) has stated in his evidence that the victim was competent enough
to depose her evidence and he has asked her when the incident took
place, then she has replied the same and recorded in the Ex. P/7
wherein she has put her signature by her left hand as in her right
hand I.B. set was installed. The witness was cross-examined wherein
he has affirmed that the victim was in a position to depose the
statement without any difficulty and no witness was present at the
time of recording of statement.
20. Dr. L. Singh, Medical Officer (PW/14) who has examined Suchcha
Nand Wadhwani on 30.10.2001 has submitted his report wherein it
was found that there was liner abrasion below the lips, there was a
braze of 2/1 cm and all the injuries were before 12 hours of
examination. In the cross-examination he has admitted that these
injuries may be caused because of fell down also but the injury No. 2
may not be caused by nails, but it may be caused by any material.
21. The accused in their statements under Section 311 of CrPC has denied
the allegations and have taken plea of false implication. They
examined defense witness Rakshit Baksh wherein he has stated that
Suchcha Nand Wadhwani told him that to create pressure upon
Chhotu then he removed his country made pistol when Sunita Tiwari
intervened bullet was shot to her. The witness was cross-examined by
the prosecution, wherein he has stated that the Suchcha Nand
Wadhwani and Suntia Tiwari came to the house of Dr. Aviram Sharma
at 9 O' clock in white Maruti Car in which Ramesh was also there, the
victim was sitting in the back seat and wearing red gown and there was
bleeding from her body. He has stated that whatever Suchcha Nand
Wadhwani has informed him, he has not informed to Dr. Abhiram
Sharma. He has denied that when the victim was taken to Dr. Abhiram
Sharma's clinic, she was rapped by bed-sheet and voluntarily stated
that she wore maxi or gown.
22. From the evidence brought on record, particularly the statement of the
victim wherein she has clearly stated that Ram Krishna fired at her
which remains unshaken in the extensive cross-examination by the
appellants. The eye witness has also supported the version of victim
and incident of fired by country made pistol is affirmed by the Smt. S.
Thakur (PW-3) as well as Dr. Viktram Khetrapal (PW-4) who has done
the operation of the victim. The Smt. S. Thakur has clearly stated that
the condition of the victim was serious and blood pressure was also
lower.
23. Thereafter, Shiv Prasad Singh, Investigating Officer (PW-16) who has
investigated the matter has arrested the accused Ram Krishna on
30.10.2001 and Punchnama was prepared as Ex. P/21. In the
Punchnama (Ex. P/21). The prosecution has also sent the seized
articles i.e. purse, baniyan, maxi of the victim article A, B, C, D and in
the baniyan and maxi of the victim there is blood stain for chemical
examination to FSL. The prosecution has also sent the various articles
for forensic test. In the report it was found that 44 distorted pellets
admeasuring 15. 60 gms., 24 partial distorted pellets in which blood
stain was there. The weight of this Article was 6.56 gms. In article W/1
it was found distorted overshot band was found admeasuring radius of
0.707 cm. In the chemical analysis it was found that it contains led and
nitrate. Similarly, in other articles also there was led and nitrate was
found and it was opined that the Articles Ex. P/1 and Ex. P/2 were
used part of bullet of smooth bore weapon. The Article Ex.P/1 may be
part of load of 12 bore used bullets. The Article Ex. P/2 may be piece of
used bullets, fragments of cartridge bed.
24. From the appreciation of this evidence and material on record, it is
proved beyond doubt that the victim suffered injury due to shot by
bullet and from the evidence it is also proved beyond doubt by the
prosecution that appellant No. 1 Ram Krishna has shot bullet upon the
victim. This finding is supported by statement of victim, Suchcha Nand
Wadhwani who was present at the place of occurrence and supported
the version of victim as detailed above derived from consideration of
entire evidence and material placed by the prosecution. Thus, there is
clear intention of the appellant to commit offence is proved by the
prosecution beyond reasonable doubt. Use of bullet has been proved
by the prosecution through the evidence of the victim, Dr. S. Thakur
(PW-3) and the Dr. Vikram Khetrapal (Ex. P4) as well as Exhibit P/16
the report of forensic science. As such the ingredients to attract offence
under Section 307 are proved by the prosecution beyond reasonable
doubt.
25. Even from the evidence of the victim's witness PW/13, 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 is rendered unfounded.
26. The Hon'ble 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} wherein the Hon'ble Supreme
Court 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.
27. The statement of injured person has also been supported by eye
witness Suchha Nand Wadhwani (PW/18) whose credibility has not
been diluted despite extensive evidence by the defense and eye
witness holds high evidentiary value and cannot be rejected without
major contradiction and can be accepted as its face value. The Hon'ble
Supreme Court in case of Rai Sandeep @ Deepu alias Deepu Vs.
State (NCT of Delhi) reported in (2012) 8 SCC 21 has held as under:
"22. In our considered opinion, the "sterling witness should be
of very high quality and caliber whose version should, therefore,
be unassailable. The court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be
relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
of the statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as
to the factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-relation
with each and every one of other supporting material such as
the recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well
as all other such similar tests to be applied, can it be held that
such a witness can be called as a "sterling witness" whose
version can be accepted by the court without any corroboration
and based on which the guilty can be punished. To be more
precise, the version of the said witness on the core spectrum of
the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in order to
enable the court trying the offence to rely on the core version to
sieve the other supporting materials for holding the offender
guilty of the charge alleged."
28. On the basis of above principle when this Court tests the version of
Suchcha Nand Wadhwani PW/18 the eye witness, it is fortunate that
the said witness has passed the test mentioned above and there is no
variation in her 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, he has fully
supported the case of the prosecution.
29. So far as further submission of the appellants that Section 34 of IPC is
not attracted to punish other accused has also been considered by the
trial Court while recording its finding that when Ram Krishna Vaishya
has fired, he has not stated that all the three accused were not present
and also from the defense taken by the other accused it is not
established that they have made any attempt to avoid commission of
offence to escape from the clutches of Section 34 of IPC. The
collective action of all the accused persons entering in the house
indicates sharing of common intention. Section 34 of IPC makes a co-
perpetrator who had participated in the commission of offence. The
Hon'ble Supreme Court in case of reported in 2022 (7) SCC 521 in
paragraphs 26 to 29 has held as under:
"26. Section 34 IPC makes a co-perpetrator, who had
participated in the offence, equally liable on the principle of joint
liability. For Section 34 to apply there should be common
intention between the co-perpetrators, which means that there
should be community of purpose and common design or pre-
arranged plan. However, this does not mean that co-perpetrators
should have engaged in any discussion, agreement or valuation.
For Section 34 to apply, it is not necessary that the plan should
be pre-arranged or hatched for a considerable time before the
criminal act is performed. Common intention can be formed just
a minute before the actual act happens. Common intention is
necessarily a psychological fact as it requires prior meeting of
minds. In such cases, direct evidence normally will not be
available and in most cases, whether or not there exists a
common intention has to be determined by drawing inference
from the facts proved. This requires an inquiry into the
antecedents, conduct of the co- participants or perpetrators at
the time and after the occurrence. The manner in which the
accused arrived, mounted the attack, nature and type of injuries
inflicted, the weapon used, conduct or acts of the
co-assailants/perpetrators, object and purpose behind the
occurrence or the attack etc. are all relevant facts from which
inference has to be drawn to arrive at a conclusion whether or
not the ingredients of Section 34 IPC are satisfied. We must
remember that Section 34 IPC comes into operation against the
co-perpetrators because they have not committed the principal or
main act, which is undertaken/performed or is attributed to the
main culprit or perpetrator. Where an accused is the main or final
perpetrator, resort to Section 34 IPC is not necessary as the said
perpetrator is himself individually liable for having caused the
injury/offence. A person is liable for his own acts. Section 34 or
the principle of common intention is invoked to implicate and
fasten joint liability on other co-participants.
27. Further, the expression/term "criminal act" in Section 34 IPC
refers to the physical act, which has been done by the co-
perpetrators/participants as distinct from the effect, result or
consequence. In other words, expression "criminal act" referred
to in Section 34 IPC is different from "offence". For example, if A
and B strike Lathi at X, the criminal act is of striking lathis,
whereas the offence committed may be of murder, culpable
homicide or simple or grievous injuries.
28.The expression "common intention" should also not be
confused with "intention" or "mens rea" as an essential ingredient
of several offences under the IPC. Intention may be an ingredient
of an offence and this is a personal matter. For some offences,
mental intention is not a requirement but knowledge is sufficient
and constitutes necessary mens rea. Section 34 IPC can be
invoked for the said offence also [refer Afrahim Sheikh and Ors.
(supra)]. Common intention is common design or common intent,
which is akin to motive or object. It is the reason or purpose
behind doing of all acts by the individual participant forming the
criminal act. In some cases, intention, which is ingredient of the
offence, may be identical with the common intention of the co-
perpetrators, but this is not mandatory.
29. Section 34 IPC also uses the expression "act in furtherance
of common intention". Therefore, in each case when Section 34
is invoked, it is necessary to examine whether the criminal
offence charged was done in furtherance of the common
intention of the participator. If the criminal offence is distinctly
remote and unconnected with the common intention, Section 34
would not be applicable. However, if the criminal offence done or
performed was attributable or was primarily connected or was a
known or reasonably possible outcome of the
preconcert/contemporaneous engagement or a manifestation of
the mutual consent for carrying out common purpose, it will fall
within the scope and ambit of the act done in furtherance of
common intention. Thus, the word "furtherance" propounds a
wide scope but should not be expanded beyond the intent and
purpose of the statute. Russell on Crime, (10th edition page
557), while examining the word "furtherance" had stated that it
refers to "the action of helping forward" and "it indicates some
kind of aid or assistance producing an effect in the future" and
that "any act may be regarded as done in furtherance of the
ultimate felony if it is a step intentionally taken for the purpose of
effecting that felony." An act which is extraneous to the common
intention or is done in opposition to it and is not required to be
done at all for carrying out the common intention, cannot be said
to be in furtherance of common intention [refer judgment of R.P.
Sethi J. in Suresh (supra)].
30. From the evidence of the victim (PW/1) as well as Suchcha Nand
Wadhwani (PW-18), it is manifest that the accused persons, acting in
furtherance of their common intention, assaulted the victim. Presence
of all the accused at the scene substantially facilitated the successful
commission of the offence. The act was carried out pursuant to a pre-
arranged plan, and the commission of the offence would not have been
possible without the aid and participation of the other accused. It is well
settled that for fastening liability with the aid of Section 34 of the IPC,
each accused must participate in the commission of the offence in
some manner, which stands duly established in the present case.
Consequently, the submission advanced by the learned senior counsel
for the appellants that all the accused cannot be convicted with the aid
of Section 34 IPC is misconceived and is liable to be rejected. It is well
settled position of law that element of participation in the commission of
offence, is the chief feature that distinguishes Section 34 IPC from
Section 149 IPC and other Sections. The Hon'ble Supreme Court in
case of Vasant @ Girish Akbarasab Sanavale and Another vs. The
State of Karnataka {2025 INSC 221} has examined the provisions of
Section 34 of the IPC as under:-
"86. It is true that to convict any particular accused constructively
under Section 34 of an offence, say of murder, it is not necessary
to find that he actually struck the fatal blow, or any blow, but
there must be clear evidence of some action or conduct on his
part to show that he shared in the common intention of
committing murder", (pp. 457-458).
87. The net result of the above discussion is that although
Section 34 deals with a criminal act which is joint and an
intention which is common, it cannot be said that it completely
ignores or eliminates the element of personal contribution of the
individual offender in both these respects.
88. On the other hand, it is a condition precedent of Section 34,
IPC, that the individual offender must have participated in the
offence in both these respects. He must have done something,
however slight, or conduct himself in some manner, however
nebulous whether by doing an act or by omitting to do an act so
as to indicate that he was a participant in the offence and a guilty
associate in it. He must also be individually a party to an
intention which he must share in common with others.
89. In other words, he must be a sharer both in the 'criminal act'
as well as in the 'common intention' which are the twin aspects of
Section 34, IPC. In view of the above position, it is difficult for the
accused to legitimately urge before the Court that owing to the
mention of Section 34, IPC, in the charge, he was misled or
prejudiced in his defence by being persuaded to presume that all
consideration of his individual liability was completely shut out as
a result thereof. He would be presumed to know the law on the
point and if, in spite of it, he deluded himself into any such belief,
he would be doing so at his own peril. [See: Om Prakash(supra)]
90. As held by this Court in Suresh Sakharam Nangare v. The
State of Maharashtra, 2012 (9) Judgements Today 116, if
common intention is proved but no overt act is attributed to the
individual accused, Section 34 of the code will be attracted as
essentially it involves vicarious liability but if participation of the
accused in the crime is proved and common intention is absent
Section 34 cannot be invoked. In other words, it requires a pre-
arranged plan and pre supposes prior concert therefore there
must be meeting of mind."
31. From plain reading of the above paragraph for applying Section 34 of
IPC there should be a common intention of all the accused persons
which means community of purpose and common design. The
common intention does not mean that the co-accused persons should
have engaged in any discussion or agreement so as to prepare a plan
or hatch a conspiracy for committing the offence. Common intention is
a psychological fact and it can be formed a minute before the actual
happening of the incident or as stated earlier even during occurrence
of the incident. Thus, the learned trial Court has rightly convicted all the
accused with the aid of Section 34 of IPC.
32. So far as submission of learned counsel for the appellants that there
was no intention to fire bullet upon victim as such, offence under
Section 307 of IPC cannot be made out is being considered by this
Court now. From the evidence brought on record, it is quite vivid that
the accused has used the pistol for firing upon victim twice as one
bullet shot above her thigh in the stomach and thereafter he has again
fired from his country made pistol which crossed between Suchcha
Nand Wadhwani and herself and the bullet hit the wall. Even the
learned trial Court while appreciating that whether the accused has
intention or not has recorded its finding that once the accused has fired
Suchcha Nand Wadhwani and the victim then any prudent man will
understand that due to use of bullet body injury will cause death. The
trial Court has also recorded its finding that in the present case the
accused has not only used bullet twice which clearly proved his
intention to kill the victim or other persons, thus, all the ingredients of
Section 307 of IPC is made out. 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, reported in
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."
33. Again, Hon'ble Supreme Court in the case of Shoyeb Raja vs. State
of Madhya Pradesh, reported in 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)"
34. Thus, it is quite vivid that the finding recorded by the learned trial Court
convicting the appellants under Section 307 of IPC cannot be held to
suffer from perversity or illegality warranting interference by this Court.
35. The further submission of the learned senior counsel for the appellants
that conviction of the appellants under Section 450 of IPC is not made
out is being considered by this Court. Section 450 of IPC provides that
whoever commits house trespass in order to commit of any offence
punishable with (imprisonment for life) shall be punished with
imprisonment of either description for a term not exceeding 10 years
and shall also be liable to fine. From the evidence and material on
record, it is quite vivid that the appellants have committed trespass and
thereafter by deadly weapon they have committed an offence under
Section 307 of IPC which has been found proved by the evidence
adduced by the prosecution, particularly the evidence of PW-13 and
PW-18. Thus, the trial Court while convicting the accused for the
offence under Section 450 of IPC has rightly recorded its finding in
convicting the accused persons. This finding neither suffers from
perversity nor illegality warranting interference by this Court.
36. Further submission of the appellant that since the incident has taken
place in the year 2001 and more than 25 years have already been
lapsed, the appellants have settled in their life and if they are ordered
to suffer remaining jail sentence it will not only ruin their life as well as
their family members who are dependent upon them. Thus, he would
pray for reducing the sentence already undergone by them. The record
of the case shows that the accused Ram Krishna Vaishya remained in
jail from 30.10.2001 to 29.12.2001 and the other accused Lallu was
absconded and surrendered on 13.04.2002 and remained in jail from
13.04.2002 to 26.04.2002. Thereafter, they have been released on bail
by this Court on 21.11.2005, thus, they remained in jail for 03 months
and 26 days. It is reported that appellant No. 2 Jhallu S/o Kanhaiya Lal
Dhimar passed away on 23.03.2006 as per the death certificate
annexed with the record and appellant No. 3 Munna Verma S/o Albela
Verma passed away on 20.10.2013, as such, this appeal so far it
relates to appellants No. 2 and 3 stands abated.
37. Now, the submission for already undergone is being considered by this
Court. Looking to the gravity of the offence and the manner in which
the victim was injured, there are no mitigating factors available on
record, but looking to the facts that the incident pertains to 2001 and
more than 25 years have been lapsed and there is no minimum
sentence provided under the Indian Penal Code for commission of
offence under Section 307 of IPC as well as Section 450 of IPC. This
Court cannot lose sight of law laid down by the Hon'ble Supreme Court
in the case of Paramweshwari vs. The State of Tamilnadu and
others, reported in 2026 INSC 164 wherein the Hon'ble Supreme
Court has examined the mitigating factors for reducing the sentence
and held in paragraphs 22, 24 and 34 has held as under:
"22. The objective of punishment is to create an effective
deterrence so that the same crime/actions are prevented and
mitigated in future. The consideration to be kept in mind while
awarding punishment is to ensure that the punishment should not
be too harsh, but at the same time, it should also not be too
lenient so as to undermine its deterrent effect.
24. This objective was also reiterated by this Court in a catena of
judgments (see: Ahmed Hussein Vali Mohammed Saiyed and
Another vs. State of Gujarat reported in (2009) 7 SCC 254); Guru
Basvaraj Alias Benne Settappa vs. State of Karnataka reported in
(2012) 8 SCC 734 and various others) wherein it was held that
the object of awarding appropriate sentences is that society
should be protected and the crimes should be deterred. The
balancing has to be done between the rights of the accused and
the needs of the society at large.
34. The misplaced understanding of various courts in treating
compensation as a substitute of sentence is both a matter of
concern and a practice which should be condemned. We have
observed a trend amongst various High Courts wherein the
sentences awarded to the accused persons by the Trial Court are
reduced capriciously and mechanically, without any visible
application of judicial mind. Considering the gravity of the situation
as thus, we have culled out certain basic factors, which are to be
kept in mind by the courts while dealing with imposition of
sentence, in line with the view taken by this Court in the
aforementioned cases. The said factors are enunciated as below:
A. Proportionality: Adherence to the principle of "just deserts"
ought to be the primary duty of the courts. There should be
proportionality between the crime committed and the
punishment awarded, keeping in consideration the gravity of
the offence.
B. Consideration to Facts and Circumstances:
Due consideration must be given to the facts and
circumstances of the case, including the allegations,
evidence and the findings of the trial court.
C. Impact on Society: While imposing sentences, the courts
shall bear in mind that crimes essentially impair the social
fabric of the society (of which the victim(s) is/are an
indispensable part) and erodes public trust. The sentence
should be adequate to maintain the public trust in law and
administration, however, caution should also be taken, and
the Court shall not be swayed by the outrage or emotions of
the public and must decide the question independently.
D. Aggravating and Mitigating Factors: The courts, while
deciding the sentence or modifying the sentence, must weigh
the circumstances in which the crime was committed, and
while doing so, the court must strike a fair balance between
the aggravating and the mitigating factors.".
38. In light of the law laid down by Hon'ble the Supreme Court and the
facts of the case, and further considering the fact that the prosecution
has also not placed any material on record indicating the criminal
antecedents of appellants as ordered by this Court and they are
regularly attending the trial Court after releasing by this Court on bail
and have not misused the liberty granted to him while granting bail by
this Court, I am of the view that ends of justice would be served if the
jail sentence of 10 years for commission of offence under Section 307
and 307/34 of IPC awarded by the trial Court is reduced to seven years
and also reducing the sentence under Section 450 of IPC for 3 years
and enhancing the fine amount from Rs. 25,000/- to Rs. 50,000/- for
commission of offence under Section 307 of IPC and for commission of
offence under Section 450 of IPC from Rs. 5,000/- to Rs. 10,000/- and
for commission of offence under Section 307/34 of IPC the fine amount
will be enhanced from Rs. 25,000/- to Rs. 50,000/- which shall be
payable to the victim by the appellant No. 1 and 4 as victim
compensation. The appellants are directed to deposit the enhancing
amount of Rs.55,000/- before the trial Court within a period of two
months from the date of passing of this judgment and thereafter the
learned trial Court shall pay the aforesaid enhanced amount to the
victim within two weeks from the date of depositing the aforesaid
amount by the appellants.
39. Accordingly, conviction under Sections 450, 307 and 307/34 of IPC are
affirmed, but jail sentence of 10 years awarded by the trial Court under
Section 307 and 307/34 of IPC is reduced to seven years and for
commission of offence under Section 450 of IPC is reduced to three
years enhancing the fine amount as detailed above, in default in
payment of fine amount one year R.I. will also be suffered by them for
all the offence. All the sentence as awarded by this Court shall run
concurrently.
40. Consequently, the instant appeal is partly allowed to the extent
indicated herein-above with regard to appellant No. 1 and 4 and so far
appellant No. 2 and 3 are concerned, it is abated on account of their
death.
41. From the records, it appears that the appellant No. 1 and 4 are on bail
and their bail bonds shall stand cancelled. The appellants themselves
shall surrender before the concerned trial Court for serving out the
remaining part of the jail sentence within 8 weeks from the date of
judgment. If the appellants fails to surrender before the concerned trial
Court, the Police authority will take necessary steps and information
will be submitted to the Registry of this Court.
42. Let a copy of this judgment and the original record be transmitted to the
trial court concerned forthwith for necessary information and
compliance.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
RAVVA
SATYANARAYANA
RAJU
