Partly allowed

Pradeep Saraf and Anr. v. State of Chhattisgarh

Chhattisgarh HC9 Oct 2023CRA/910/2009

Case brief

AI extract

What is this about?

The High Court affirmed the trial court's acquittal on charges of attempt to murder (Section 307 IPC) due to insufficient evidence regarding intent to cause death, but upheld convictions for other offences. It reduced the sentence for one appellant to time already spent in custody and imposed a fine and compensation on both.

What did the court decide?

Conviction maintained; sentence reduced for one appellant to time served; other appellant sentenced to rigor till rising of Court; compensation of Rs. 50,000 awarded.

Pradeep Saraf and Anr. Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Revision No. 139 of 2010

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Subhash Agrawal, S/o Shri Radhakrishan Agrawal, aged about 47 years, R/o Village -Bhamnidih, Tahsil- Champa, Distt. Janjgir-Champa (C.G.)

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---- Applicant/Complainant

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Versus

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State of Chhattisgarh, Through – Police Station Bhamnidih, Tahsil & Distt. Janjgir-Champa (C.G.)

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Pradeep Saraf, S/o Kunj Bihari Saraf, aged about 51 years,

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Amit Saraf, S/o Rajendra Prasad Saraf, aged about 65 years,

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Suresh Saraf, S/o Rajendra Prasad Saraf, aged about 27 years,

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Shourabh Saraf, S/o Keshav Prasad Saraf, aged about 24 years,

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All R/o Village – Bhamnidih, P.S. Bhamnidih, Distt. Janjgir Champa (C.G.) ---- Respondent s

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Criminal Appeal No. 910 of 2009

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Pradeep Saraf, S/o Kunj Bihari Saraf, aged 51 years, R/o Village – Bamnidih, District Janjgir-Champa (C.G.)

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Amit Saraj, S/o Rajendra Prasad Saraf, aged 27 years, Bamnidih, District – Janjgir-Champa (C.G.)

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---- Appellants/accused

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Versus

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State of Chhattisgarh, Through – Police Station Bhamnidih, Tahsil & Distt. Janjgir-Champa (C.G.)

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---- Respondent

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(Cause Title taken from Case Information System)

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------------------------------------------------------------------------------------For Applicant : Mrs. Renu Kochar, Adv. in Cr.R. No.139/2010 For Appellants: : Mr. Sanjay Agrawal, Adv. in Cr.A. No.910/2009 For Respondent-State : Mr. Avinash Singh, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Naresh Kumar Chandravanshi, Judge

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Judgment on Board

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(09.10.2023)

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Per Naresh Kumar Chandravanshi, J.

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By the impugned judgment dated 08.12.2009, learned Second Upper Sessions Judge (FTC), Janjgir (C.G.) in Sessions Trial No. 101/2008 acquitted the respondents No. 4 & 5 of the offence under Sections 294, 506 (part-II), 307, 450, 325 & 323 read with Section 34 of the IPC and also acquitted respondents No. 2 & 3 of the offences under Sections 294, 506 (part-II), 450 & 307 of the IPC and convicted & sentence the aforesaid respondents No. 2 & 3 namely Pradeep Saraf & Amit Saraf in following manner :-

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Conviction	S	entence
Under section 452 instead of 450 of IPC	Rigorous each with	imprisonment for two year fine of Rs.500/-
Under Section 324 instead of 324 of IPC	Rigorous each	imprisonment for on year
Under Section 325 of the IPC	Rigorous each with	imprisonment for one year fine of Rs.500/-
Under Section 323 / 34 of the IPC (two counts)	Rigorous each	imprisonment for two year
	All the se run concu	ntences have been directed to rrently

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The appellants/accused have preferred Criminal Appeal No. 910 /

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2009 against their conviction and sentence awarded to them, whereas, complainant injured preferred Criminal Revision No. 139 of 2010

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3 against acquittal of the respondents No. 4 & 5 of offence under Section under Sections 294, 506 (part-II), 307, 450, 325 & 323 read with Section 34 of the IPC; and also against the acquittal of respondents No. 2 & 3 of the offences under Sections 294, 506 (part-II), 450 & 307 of the IPC. Since common question of law and fact are involved in both cases, they were clubbed together, heard together and being disposed of by this common judgment.

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The case of the prosecution, in brief, is that complainant – Subhash Agrawal lodged a report in Police Station Bamhanideeh alleging that on 03.03.2008 at about 8.45 AM in the morning he was sitting in his shop, at that time, accused persons namely Pradeep Saraf & Amit Saraf came with Hocky stick and started beating him and abusing him in filthy language and threatened to kill them, as a result thereof, Anand Agrawal sustained injuries on his head whereas Santosh Agrawal sustained injuries on his left hand and foot, they also broken the money box (xYyk½ of the shop and scattered the goods. On the spot, Anil Sighania, Gudda Khan saw the incident and intervened in the matter. Respondents Suresh & Saurabh also came there and started abusing and beating him. On the basis of report of complainant Subhash Agrawal FIR for the offences under Sections 294, 506 part -II, 307 read with Section 34 of the IPC was registered against the accused persons. Victim/injured namely Anand Agrawal & Santosh Agrawal were sent to B.D.M. Hospital, Champa, Anand Agrawal has been referred to Bilaspur

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4 for further treatment and from there he was admitted for treatment in Apollo Hospital by his family members, whereas, On being X-ray of Santosh Aggarwal done, bone fracture was found. Dr. K.R. Singh (PW-7), Medical Officer, Govt. B.D.M. Hospital, Champa, District JanjgirChama examined them. According to him, injured Santosh Agrawal has sustained following injuries :-

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(i) An incised wound measuring 2 x1 x1 cm on the right leg but it was in the middle part.

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(ii) one amputated right pinkie finger of size 1 x1x1 cm (ulna bone) He was referred to X-ray examination of right pinkie finger and his right foot.

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Dr. K.R. Singh (PW-7) gave his opinion the aforesaid injuries were caused by a hard and blunt object he has given his report vide Ex.P-10.

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Whereas, injured Anand Agrawal sustained following injury :- (1) There was a torn wound, which was 7 x2 x 2 in size and was on the right side of the parietal occipital region, from where the blood was coming out continuously.

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Injured Anand was advised for X-ray & CT scan of head.

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Dr. K.R. Singh (PW-7) gave his opinion the aforesaid injuries were caused by a hard and blunt object and I had written to give my opinion about the nature of injury after the X-ray report came. I referred the injured person to the hospital for further treatment and for examination and surgical opinion. The examination report given

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by him is Ex.P-2.

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Dr. Sarita Nagarchi (PW-11), Medical Officer, Primary Health Center, Sodhi, Police Station Bamnideeh (C.G.) has examined another injured persons namely Vijay Kumar Agrawal & Subhash Agrawal. According to her, injured Vijay Kumar Agrawal has sustained following injuries :=-

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(I) Victim/injured had 3 cm scratches in his hand.

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(ii) He was complaining mild pain in the ear.

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Dr. Sarita Nagarchi (PW-11) has opined that injury suffered by the victim was on minor extent. The examination report given by her is Ex.P-18.

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Whereas, injured Subhas Agrawal sustained following injury :- (I) on left big toe, got a slight injury.

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(ii) he is complaining pain on his back.

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Dr. Sarita Nagarchi (PW-11) has opined that injury suffered by the victim was on minor extent. The examination report given by her is Ex.P-19.

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A broken hockey, broken plastic chair, a motorcycle road, blood stained road and blood stained clothes of the injured persons were seized vide Ex.P-04 & P-05 and the same were sent for chemical examination.

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After completion of investigation, the police filed charge-sheet in the court of Judicial Magistrate First Class, Champa, District JanjgirChampa, who in turn, committed the case to the Court of Sessions, from where the Second Upper Sessions Judge, (FTC), Janjgir received the case on transfer for trial. The appellants/accused abjured their guilt and entered into defence that they have not committed any offence and they

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have falsely been implicated in the alleged crime.

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The prosecution in order to bring home the offence, examined as many as 15 witnesses in support of its case and exhibited 22 documents. Accused persons examined one witness i.e. Vijay Rathore (DW-1) and exhibited documents i.e. Ex.D/01/C & 02/C in support of their defence. Statements of the accused/appellants were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence and false implication.

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The trial Court after completion of trial and upon appreciation of oral and documentary evidence available on record, by its impugned judgment, acquitted the respondents No. 4 & 5 of the offence under Sections 294, 506 (part-II), 307, 450, 325 & 323 read with Section 34 of the IPC and also acquitted respondents No. 2 & 3 of the offences under Sections 294, 506 (part-II), 450 & 307 of the IPC, but convicted the respondents No. 2 & 3 namely Pradeep Saraf & Amit Saraf for commission of offence punishable under Sections 452, 324, 325 and 323 (two counts) of the IPC. Against which, criminal revision and criminal appeal have been preferred by respective parties as noticed in opening paragraph of the judgment.

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Mrs. Renu Kochar, learned counsel appearing for the applicant/complainant in Criminal Revision No. 139/2010, would submit that the trial Court is absolutely unjustified in acquitting the respondents No. 4 & 5 of the offence under Sections 294, 506 (part-II), 307, 450, 325

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7 & 323 read with Section 34 of the IPC and also acquitting respondents No. 2 & 3 of the offences under Sections 294, 506 (part-II), 450 & 307 of the IPC and looking to the evidence available on record, they ought to have convicted for the aforesaid offences, particularly, considering the nature of injury, which was sufficient to cause death, therefore, criminal revision may be allowed.

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Mr. Sanjay Agrawal, learned counsel for the appellants in Criminal Appeal No. 910/2009, would submit that only evidence available against the appellants is that vide Ex. P-10, two lacerated would have reported to be found on left leg and left little finger of injured Santosh (now dead), which was said to be grievous in nature proved by Dr. K.R. Singh (PW-7) , which is non-vital part of the body. Therefore, learned trial Court has rightly not convicted the appellants under Sections 294, 506 (partII), 450 & 307 of the IPC. Considering the nature of injuries and also considering the fact appellant No. 1 – Pradeep Saraf was not remained in jail for a single day, as he was arrested on 16.04.2008 and on the same day i.e. on 16.04.2008 he has been released on bail during trial, whereas, appellant No. 2 – Amit Saraf was remained in jail for 29 days during trial, as he was arrested on 19.03.2008 and he has been released on bail on 16.04.2008, therefore, they be sentenced to the period already undergone by setting aside the maximum sentence of two years. During the course of arguments, learned counsel for the appellants submits that injured Santosh Agrawal (PW-4) has expired in

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the Corona Pandemic.

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On the other hand, Mr. Pawan Kesharwani, learned Panel Lawyer appearing for the respondent / State, would support the impugned judgment.

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We have heard learned counsel for the parties, considered their rival submissions made here-inabove and also went through the record with utmost circumspection.

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Complainant Subhash Agrawal (PW-3) has deposed in his deposition that on the date of incident at about 8.45 am in the morning, he was sitting in his clothes shop and when he saw that appellant Amit Saraf kept motorcycle rod, Pradeep Saraf kept with Hocky stick, Suresh & Saurabh, all four together, had gone to Galla shop of his brother Vijay Agrawal and Amit Saraf attacked in the head of Anand Agrawal and all four persons were abusing and were also talking about setting fire. When he (complainant) went to intervene, at that time Santosh also came there at the same time, and accused Pradeep Saraf is said to have assault in the leg of Santosh with a hocky stick. When elder brother Vijay Agrawal came to the spot to rescue him, Suresh and Saurabh beat him with their hand & fist. At that time, Anil Singhania & Gudda came there intervened in the altercation and pacified the dispute.

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Santosh Agrawal (PW-4), Smt. Manju Agrawal (PW-12), Anand Agrawal (PW-13) & Vijay Agrawal (PW-2) has supported the statements of Subhash Agrawal (PW-1).

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9 14. Now, the question is, whether the trial Court is justified in acquitting the accused persons of the offence under Section 307 of the IPC.

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At this stage, it would be appropriate to notice Section 307 of the IPC, which states as under :-

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“307. Attempt to murder. —Whoever does any act with such intention or knowledge, and under such 5 circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

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Attempts by life-convicts. —When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”

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The essential ingredients required to be proved in the case of an offence under Section 307 of the IPC are:

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(i) that the death of a human being was attempted;

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(ii) that such death was attempted to be caused by, or in consequence

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of the act of the accused; and

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(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excused for incurring the risk of causing such death or injury.

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The Supreme Court in the matter of Hari Singh v. Sukhbir Singh 1 a nd others has held that under Section 307 of the IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

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Similarly, in the matter of State of Maharashtra v. Kashirao and others2 , their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury

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1 (1988) 4 SCC 551

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2 (2003) 10 SCC 434

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capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in para 21 of the report as under: -

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“21. In offence under Section 307 all the ingredients of the offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained, alteration of conviction notwithstanding no modification of sentence need be made.

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The Supreme Court in the matter of Jai Narain Mishra and others v. State of Bihar3 where four to five persons attacked a man with deadly weapons but causing only three simple and one grievous hurt to the injured by farsa, their Lordships held that offence under 326 of the IPC would be made out and held as under “

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“11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C. and sentenced to 5 years rigorous imprisonment. According

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3 (1971) (3) SCC 762

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to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1½" x ½” x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by

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13 Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regapinkie bonerd to the injury intended to be 5 1971(3) SCC 762 9 caused and, in our opinion, the offence is not one under Section 307, I.P.C., but Section 326, I.P.C. His conviction, therefore, under Section 307, I.P.C. is set aside and we convict him under Section 326, I.P.C. His sentence of 5 years rigorous imprisonment will have to be reduced accordingly to 3 years rigorous imprisonment.”

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Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court for the offence under Section 307 of the IPC, it is quite vivid that in the instant case, the appellants have used weapons like hocky stick, motorcycle rod, etc. to assault the victim / injured persons namely Santosh Agrawal (died), Anand Agrawal, Vijay Kumar Agrawal & Subhash Agrawal, but one of the injury, which was suffered by Santosh Agrawal (PW-4) was fracture of ulna bone, which was proved Dr. K.R. Singh (PW-7), i.e. non-vital part of the body and the injury suffered by injured persons are not grievous in nature and motive of offence has also been found established, but considering the nature of injuries and in view of the decision rendered by the Supreme Court in Jai Narain

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Mishra (supra), where three injuries of simple nature though deadly weapon were caused and the fourth injury, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid, their Lordships of the Supreme Court altered conviction from Section 307 of the IPC to Section 326 of the IPC, whereas, in the present case, one injury, i.e. fracture of ulna bone was caused to Santosh Agrawal (PW-4), which is non-vital part of the body i.e. right pinkie finger and the said injury coulld not have necessarily caused the death of Santosh Agrawal but for timely medical aid. Therefore, having regard to the manner in which the offence is committed and other attending circumstances as notice hereinabove, we are of the considering opinion that the trial Court has rightly acquitted the accused person of the ofence under Section 307 of the IPC and other related offences i.e. offences under Sections 294, 506 (part-II) & 450 of the IPC, as necessary ingredients is not found to be proved from the evidence adduced by the prosecution. Therefore, we hereby affirm the acquittal of accused persons /respondents No. 2 & 3 for the offences under Sections 294, 506 (part-II) & 450 of the IPC.

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In Criminal Appeal No. 910/2009, the appellants have challenged their conviction under Sections 452, 324, 325 & 323 (two counts) of the IPC.

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Dr. K.R. Singh (PW-07) has clearly proved the document Ex.P-10 in which fracture of ulna bone has reported to be found which is said to

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be grievous in nature. Further considering the fact that although the offence of attempt to murder has not been established but the common intention is clearly made out against the appellants , as they assaulted by means of hocky stick, rod, etc. and caused grievous injury to one Santosh Agrawal and simple injuries to other injured persons by entering into the shop illegally, thus, the trial Court is absolutely justified in convicting the appellants under Sections under Sections 452, 324, 325 & 323 (two counts) of the IPC considering the nature of injury and weapon sezied from the appellants. We do not find any illegality or perversity in the finding regarding conviction recorded by the trial Court.

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So far as sentence part is concerned, it has been contended by counsel for the appellants that appellant No. 1 – Pradeep Saraf was not remained in jail for a single day, as he was arrested on 16.04.2008 and on the same day i.e. on 16.04.2008 he has been released on bail during trial, whereas, appellant No. 2 – Amit Saraf was remained in jail for 29 days during trial, as he was arrested on 19.03.2008 and he has been released on bail on 16.04.2008 and they have also deposited the fine amount as directed by the trial Court and the facts that appellants and the complainant both are resident of same village i.e. Bamhnideeh and they have now developed good relation and they have mutual respect to each other, therefore, the period already undergone i.e. 29 days by appellant No. 2 – Amit Saraf be held to be sufficient sentence and maximum jail sentence of two years be set aside, whereas, appellant

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16 No. 1 Pradeep Saraf, who was not remained in jail for a single day, may be sentenced to undergo TRC.

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After hearing learned counsel appearing for the parties and after going through the record and considering the fact that incident is of 03.03.2008 i.e. near about 15 years have been elapsed and they have developed mutual respect to each other and the fact that appellant No. 2 Amit Sararf was remained in jail for 29 days whereas appellant No. 1 Pradeep Saraf was not remained in jail for a single day, we hereby set aside the jail sentence awarded to the appellants and impose sentence to the appellant No. 2 to the period already undergone by him and also sentence to appellant No. 1 Pradeep Saraf till rising of the Court.

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25 . In conclusion, Criminal Revision No. 139 /2010 filed by the complainant/injured is dismissed and Criminal Appeal No. 910/2009 is partly allowed. Conviction of the appellants under Sections 452, 324, 325 & 323 (two counts) of the IPC are hereby maintained, but sentence imposed upon appellant No. 2 Amit Saraf is reduced to the period already undergone by him and since the appellant No. 1 Pradeep Saraf was not remained in jail, he is sentenced till rising of the Court and in lieu thereof, apart from fine imposed upon them appellant No. 1 – Pradeep Saraf shall pay an amount of compensation of Rs.30,000/- and appellant No. 2- Amit Saraf shall pay an amount of Rs. 20,000/- as compensation i.e. total Rs.50,000/- within a period of 60 days from today, which shall be equally payable / distributed to the injured persons.

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It is pertinent to mention here that one of the injured persons namely Santosh Agrawal has expired during corona pandemic, therefore, his share, in the aforesaid amount of compensation, shall be payable to his legal heirs.

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Accordingly, Criminal Revision No. 139 /2010 is dismissed and Criminal Appeal No. 910 of 2009 is partly allowed.

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Sd/Sd/(Naresh Kumar Chandravanshi) (Ramesh Sinha) Judge Chief Justice

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Dubey/-

Pradeep Saraf and Anr. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Pradeep Saraf and Anr. v. State of Chhattisgarh

Case brief

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What the court decided

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