Rajendra Singh Gond Vs State of Chhattisgarh

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CRA No. 488 of 2019

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Digitally signed by ANKIT ANKITKUMAR KUMAR SINGH SINGH Date:2024.09.10 15:01:13 +0530

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2024:CGHC:34720-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 488 of 2019

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(Arising out of judgment dated 28.01.2019 passed in Sessions Trial No.19/2018 by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba, C.G.)

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Rajendra Singh Gond S/o Late Heera Singh Gond, aged about 30 years, R/o Village Jalke, Lal Matiyapara, Chowki Korbi, Police Station Passan, District Korba Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, through the Station House Officer, Police Station Pasaan, District Korba Chhattisgarh.

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... Respondent

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For Appellant :- Mr. Aditya Khare, Advocate. For Respondent-State :- Mr. Sharad Mishra, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad Judgment On Board

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(06.09.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has

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CRA No. 488 of 2019

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been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 28.01.2019 passed by the Additional Judge to the Court of Additional Sessions Judge Katghora, District Korba, Chhattisgarh in Sessions Trial No. 19/2018 whereby the appellant has been convicted for offence punishable under Section 307 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹2,000/-; in default of payment of fine amount the appellant has to undergo additional imprisonment for 1 month.

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The case of the prosecution, in a nutshell, is that on 03.01.2018 at about 5:00 pm at village Jalke, Lal Matiyapara, Chowki Korbi, Police Station Passan, District Korba Chhattisgarh, the appellant assaulted his neighbour Bundkunwar (PW-6) by axe by which she suffered injuries which were sufficient in ordinary course of nature to cause death and thereby committed the offence.

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It is further case of the prosecution that on the date of offence i.e. 03.01.2018, when victim (PW-6) was going to her parental house, on the way, the appellant came there armed with axe and started quarreling with her and

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assaulted her by axe by which she suffers injuries, she was escorted to the hospital and she was undergone for treatment from 03.01.2018 to 15.01.2018. On the report of victim (PW-6) dehati nalsi was registered vide Ex.P/18. Zero FIR and thereafter, numbered FIR were also registered vide Exs.P/19 and P/15, respectively. During treatment her (PW-6) dying declaration was recorded vide Ex.P/5. She was medically examined vide Ex.P/8 by Dr. Avinash Kashyap (PW-8). Spot map was prepared vide Ex.P/17. Appellant was arrested vide Ex.P/11. Pursuant to memorandum statement of the appellant (Ex.P/2) weapon of offence i.e. axe was seized vide Ex.P/3. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (not exhibited) dated 29.06.2018 on the weapon of offence i.e. axe (Article F) blood was found.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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CRA No. 488 of 2019

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 19 documents and articles A-1 to A-16, whereas, the appellant in defence has neither examined any witness, nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Aditya Khare, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that as per MLC report (Ex.P/8) proved by Dr. Avinash Kashyap (PW-8) all the injuries were simple in nature and even otherwise, on the basis of the said medical report (Ex.P/8) and on the basis of statement of Dr.

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Avinash Kahsyap (PW-8), the appellant could have been convicted for offence under Section 323 of the IPC and sentenced to the period already undergone by him as he is in jail since 09.01.2018, more than 6 years. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Sharad Mishra, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence in question and, as such, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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Considering the finding recorded by the trial Court in paragraphs No.23 & 24 of its judgment; statement of Mahesh Kumar (PW-2), Jaimohan Kumar (PW-4) and Dr. Avinash Kahsyap (PW-8), who has proved the MLC report (Ex.P/8) of the victim and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/2) weapon of offence i.e. axe was seized vide Ex.P/3

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on which in FSL report (not exhibited) dated 29.06.2018 blood was found, we are of the considered opinion that the injuries caused by the appellant over the body of Bundkunwar (PW-6) were sufficient in ordinary course of nature to cause death.

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Now, the question is, whether the trial court is justified in convicting the appellant for 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 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 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 and others 1 has held that under Section 307 of the IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 1 (1988) 4 SCC 551

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“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 others 2, their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in para 21 of the report as under: -

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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

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2 (2003) 10 SCC 434

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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 Parsuram Pandey and

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others v. State of Bihar 3 has also held that to constitute an offence under Section 307 of the IPC, two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. It has been held in paragraph 15 of the report as under: -

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“15. To constitute an offence under Section 307 two ingredients of the offence must be present:

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(a) an intention of or knowledge relating to commission of murder; and

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(b) the doing of an act towards it.

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For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. ...”

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3 (2004) 13 SCC 189

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Similarly, the Supreme Court in the matter of Jage Ram

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and others v. State of Haryana 4 has laid down the ingredients of the offence under Section 307 of the IPC and held as under: -

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“12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.

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Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.”

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Coming to the facts of the case in the light of the aforesaid principles of law laid down by their Lordships of the

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4 (2015) 11 SCC 366

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Supreme Court for offence under Section 307 of the IPC, it is quite vivid that on the date of offence, there was quarrel took place between the appellant and PW-6 and out of anger the appellant is said to have assaulted PW-6 by axe by stating her that her (PW-6) son has entered into the party of his relatives and had the food (जा�ति�सगा�के�पा�቏ኍ� ेሰ�ति�लवा� �नकेरस�गाभा��खा�या�है�) by which she suffered grievous injuries. Considering the statement of Dr. Avinash Kashyap (PW-8), who conducted MLC of PW-6 and prepared the medical report of PW-6 (Ex.P/8), in which, he has clearly stated that Bundkunwar has suffered multiple incised wound injuries, one deep cut 7x3 cm upto ribs on the Lt. Scapula region; one deep cut 7x3 cm upto bone on the Rt. Scapula; deep cut 7x4 cm upto nuerovascular bundle on the Lt. side of the neck; deep cut 8x4 cm utpo bone on the Rt. Occipital, all the injuries were caused forcefully by the sharp and heavy weapon and further considering the statement of Mahesh Kumar (PW-2) and Jaimohan Singh (PW-6), in which they have clearly implicated the appellant in crime in question and also considering the fact that pursuant to memorandum statement of the appellant (Ex.P/2) weapon of offence i.e. axe was seized vide Ex.P/3 and on the said weapon in the FSL report (not exhibited) dated 29.06.2018

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blood was found, we are of the considered opinion that the trial Court has rightly convicted the appellant for offence punishable under Section 307 of the IPC, however, in light of the decisions of the Supreme Court in the above-stated judgments, sentence of imprisonment of life awarded by the trial Court to the appellant is set aside and the appellant is sentenced to the period already undergone by him as he is in jail since 09.01.2018, more than 6 years, we direct that he be released from the jail forthwith, if not required in any other matter, but the fine amount with stipulations imposed by the learned trial Court is hereby maintained.

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This criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ankit

Rajendra Singh Gond v. State of Chhattisgarh

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Rajendra Singh Gond v. State of Chhattisgarh

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