Guru Prasad Vs State of Chhattisgarh

	... Respondent(s)
For Petitioner(s)	: Mr. S.N. Nande and Mr. B.N. Nande, Advocate
For Respondent(s)	: Mr. Anant Bajpai, Panel Lawyer
For Complainant	: Mr. Basant Dewangan, Advocate
Hon’ble	Shri Justice Narendra Kumar Vyas

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C A V Judgment

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This appeal is preferred under Section 372(2) of the Code of Criminal Procedure 1973 against judgment dated 01.03.2005 passed by Fourth Additional Sessions Judge, (Fast Track) Raigarh (C.G.) in Sessions Trial No. 68 of 2004, whereby the appellants have been convicted and

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sentenced in the following manner:-

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Name of the appellants	Conviction	Sentence
Tosh Ram	307 IPC	RI for 7 years and fine of Rs. 100/- in default of payment of fine to further undergo additional RI for one month.
Guru Prasad, Tek Ram and Santosh Patel	307/34	RI for 7 years and fine of Rs. 100/- in default of payment of fine to further undergo additional RI for one month.
Tosh Ram, Guru Prasad, Tek Ram and Santosh Patel	325/34	RI for 1 year and fine of Rs. 100/- in default of payment of fine to further undergo additional RI for one month.
Tosh Ram, Guru Prasad, Tek Ram and Santosh Patel	323/34	RI for 1 year (6 months RI for causing injury to Balmukund and RI for 6 months for causing injury to Jeetram) with fine of Rs. 100/- in default of payment of fine to further undergo additional RI for one month each of the accused. with a direction to run the sentences concurrently.

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Case of the prosecution, in brief is that on 27.12.2003 complainant Jeet Ram Patel lodged FIR (Ex.P-14) before Police Station Sariya, Raigarh bearing Crime No. 93 of 2003 alleging that before one month on oral agreement with Tekram Patel he sold paddy @ 335 per bag in cash and

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after 10 days he sold paddy to him @ 338 per bag. When the complainant demanded money, then he started quarreling with him with regard to rate and on the fateful day he has called Panchayat and about 8.30 PM, when he was standing outside of the house in the street at that time, Harishankar Panika and Bhishmdev Patel called Tekram to participate in the Panchayat then Tosh ram armed with axe Tangiya , Tekram, Guruprashad and Santosh came with lathi and threatened to kill the son of elder brother of complainant and also warned him that by calling them in Panchayat the complainant intends to assault and kill them.

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It is also case of the prosecution that Tekram assaulted two times on the left hand of Upendra. Toshram assaulted on the head of Upendra with axe/Tangiya, as a result of which, Upendra fell there and become unconscious. Thereafter, Toshram assaulted Puran @ Tekram on the head with axe/Tangiya, blood was oozing and he fell on the ground. Subsequently, Tekram, Guruprasad and Santosh assaulted Puran with lathi and assuming that Puran likely to die, they fled away from there. The incident was reported to Police by Jeetram (PW-6) and on the basis of report/complaint, FIR (Ex.P-14) was registered. The victims were sent to Hospital for medical examination. Statements of the witnesses were recorded. Memorandum statement of Guruprasad was recorded (Ex.P11), lathi was seized (Ex.P-12), danda (Ex.P19) and Tangiya (Ex.P-20) were seized. Appellants were arrested by arrest memo (Ex.P-13).

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After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Sarangarh, who in turn committed the case to the Court of Four Additional Sessions Judge (FTC) Raigarh which was registered as Sessions Case No. 68 2004. The learned trial Court framed the charges under Section 307, 323, 325, 34 of the IPC against the appellants.

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The prosecution in order to prove the guilt of the appellants examined 14 witnesses i.e. Dr. Smt. Jay Kumari (PW-1), Samay Lal (PW-2), Menharu (PW-3), P.S. Saji (PW-4), Dr. R.K. Agrawal (PW-5), Jeetram (PW-6), Upendra Kumar (PW-7), Tekram @ Puran (PW-8), Bhishmadev (PW-9), Harishankar Panika (PW-10), Balmukund (PW-11), Kishorchandra Behra (PW-12), S.K.Sidar (PW-13), Kamalnarayan Sharma (PW-14) and exhibited the documents from (Ex.P-1) to (Ex.P21). Statements of the accused/appellants were recorded under Section 313 CRPC in which they denied the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. The appellants in their support examined Jogitram (DW-1).

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After hearing the parties, learned 4^th Additional Sessions Judge (FTC) on the basis of material on record and upon considering the statements of the witnesses 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 preferred this Criminal Appeal. During the trial, the appellant Guru

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Prasad Patel remained in jail from 29.12.2003 to 05.01.2004, Appellant Toshram Patel, remained in jail from 28.01.2004 to 31.01.2004, Appellant Tekram Patel remained in jail from 28.01.2004 to 31.01.2004 and Appellant Santosh Patel remained in jail from 28.01.2004 to 31.01.2004. This Court vide order dated 15.03.2005 has released the appellant No.4 on bail and other accused were released by this Court on 24.03.2005.

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Dr. Smt. Jay Kumar (PW-1) examined injured Upendra Kumar (PW-7), Jeetram Patel (PW-6) Balmukund and Tekram (PW-8) and on medical examination following injuries were found on the bodies of the injured which are as under:-

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Injured Upendra Kumar Patel (PW-7):-

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(I) irregular swelling at Right forearm.

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(ii) lacerated wound about 3x2.5x1cm on left parietal area. Both injuries are fresh within four hours caused by hard and blunt object. For injury No.1, he advised for X-ray of forearm including elbow joint.

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Injured Tekram (PW-8):-

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(I) lacerated wound about 5x2x1.5 cm on left parietal area.

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(ii) lacerated wound about 3x1.5x1 cm on left parietal area. Both injuries are fresh within four hours caused by hard and blunt object. Blood was oozing. Advised for x-ray of skull.

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Injured Jeetram (PW-6):-

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(I) Two parallel contusion about 7x3 cm and 6.2.2 cm over back, caused by hard and blunt object. Nature of juries is simple.

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Injured Balmukund(PW-11):-

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(I) Contusion of about 7x2 cm and 5x2 cm partial over right scapula.

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(ii) Contusion of 3x2 cm above right eye brow. Both injury are fresh within 4 hours caused by hard and blunt object. Injury heal withing 5-7 days. Nature of injuries is simple.

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Dr. P.S. Saji (PW-4) has done x-ray of injured Upendra and Tekram Patel on the advice of Dr. Smt. Jay Kumar (PW-1) and after x-ray, she found fracture at ulna bone and submitted her report (Ex.P-5). She also noticed hair line fracture on the left parietal bone and submitted her report (Ex.P-6).

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Jeetram (PW-6) deposed that on 27.12.2003 the incident was informed to him by his son then he called Panchayat and informed the incident to members of Panchayat and thereafter the appellants were called by villagers in Panchayat. On this, Toshram was armed with Tangiya, Tekram, Guruprasad and Santosh were having lathis in their hands came there and Tekram assaulted below right elbow of Upendra, Toshram assaulted on the head of Upendra where he fell on the ground. When Tekram reached there then Guru Prasad, Santosh and Toshram assaulted him with bamboo stick as a result of which his head was broken and he fell on the ground and Guruprasad assaulted him with lathi. Thereafter, they took Upendra and Tekram to Police Station Sariya and thereafter to Hospital Baramkela for treatment subsequently doctor advised for referring the patient to Raigarh District Hospital. In the cross examination, the witness remained affirm and there was no cross

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examination on the point of assault made by the accused. On the contrary, the witness has admitted that Tekram told him that by calling Panchayat they want to assault him and denied that subsequently they started assaulting Tekram. He also denied that in the same incident of assault the accused were also injured and also admitted that they have lodged the report that all the accused have assaulted them.

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Upendra Kumar (PW-7) deposed that on the date of incident, Tekram and Toshram came with stick where Tekram assaulted below the left elbow hand as a result of which, his hand was broken then Toshram assaulted on his head with Tangiya and he fell on the ground, become unconscious. He became conscious at Raigahr Hospital at 5.00 Am in the night. He deposed that during investigation, Police seized his baniyan and lungi (Ex.P-9). In the cross-examination, he denied that they have assaulted the accused in the same incident and accused were also injured.

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Tekram (PW-8) while supporting the case of the prosecution reiterated the contents of the FIR, deposed that Guru Prasad and Santosh were assaulting his uncle Jeetram and on account of dispute with regard to the sale of paddy, causing injury to his uncle and he became unconscious. His hand was also broken in the incident. At the same time, when he reached the spot then Guru Prasad told that you intent to kill them and thereafter Toshram assaulted on his head with Tangiya. Guruprasad assaulted on his head with lathi and Santosh assaulted on his leg as such he became unconscious. Harishankar and Bhishamdev

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Patel tried to intervene in the fight but the accused did not stop. He became conscious in the Hospital and his clothe were seized by the Police during investigation under Ex.P-10. In the cross-examination, nothing was brought on record on the contrary; he has denied that when his family members were assaulting the accused he reached there to support them.

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Harishankar (PW-10) who was eye witness of the incident established the assault made by the accused but he has stated that he cannot say who has assaulted to which of the injured person. He has stated that Upendra hand was broken, Puran head was broken and both fell down. He has also stated that Balmukund and Jeetram were also assaulted; as such they fell down and become unconscious and thereafter he left the place of occurrence. In the cross examination, he has admitted that he has told police that all the four injured fell down and if this fact has not been mentioned in the statement before the police he cannot assign any reason for it.

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Balmukund (PW-11) deposed that Toshram armed with Tangiya assaulted Upendra with it and Tekram assaulted with lathi. Guruprasad and Santosh assaulted on the head of Tekram. Toshram assaulted on the head Tekram on the back of Guruprasad. Santosh assaulted on the back of Balmukund and blood was oozing and accused Tekram assaulted on the back of Jeetram with lathi. In the cross-examination, he has stated that first assault was made on Upendra which was committed by Tekram and he has seen assault made by Toshram

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thereafter Guruprasad assaulted on the back of Upendra but this fact has not been mentioned in the Police statement therefore, he cannot say anything. He has also denied that in the same assault the accused were also injured and assault made by them has caused injury to Tekram.

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Learned counsel for the appellants would submit that learned trial Court has erred in analyzing the evidence produced before it and ignored the vital and major portion of the evidence which is favouring the appellant and eye-witness Harishankar (PW-10) was not reliable witness. He would further submit that Dr. Jay Kumari Patel (PW-1) has categorically stated in her evidence that the injuries sustained by the complainant were not sufficient to cause death of Tekram @ Puran and Upendra. He would further submit that in view of the important medical evidence, prima-facie, the offence for which they were charged and convicted is not sustainable. He would further submit that the appellants have also sustained injuries on their body and a report was made by the accused against the victim but nothing has been submitted by the prosecution to explain the injuries of accused, thus the trial Court’s finding is perverse, contrary to the evidence and material on record. He would further submit that there is doubt over initiation of incident or assault or use of weapon for commission of offence, therefore, the appellants are entitled to get benefit of doubt.

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Learned counsel for the appellants would further submit that even the prosecution was unable to establish the offence under Section 307 IPC

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as there are so many contradictions and omissions in the statements of the prosecution witnesses which are not reliable, therefore, the trial Court has erred in analyzing the evidence produced before it. He would further submit that the prosecution is unable to prove the essential ingredients of offence under Section 307 IPC i.e. the intention or knowledge (mens-rea), overt act and possibility of causing death of such offence.

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He would further submit that as per statement of (PW-1) all the injuries are simple in nature and the learned trial Court even did not consider the vicinity of the place of occurrence where the availability of independent witnesses cannot be ruled out. Learned trial Court did not appreciate the credibility of the witnesses ignoring the contradiction and omission particularly in their case diary statement and the statement made before the Court, as such the prosecution has failed to bring home the charge under Section 307/34 IPC against the accused beyond reasonable doubt. He would further submit that the incident pertains to the year 2003 and more than 23 years have elapsed since then. Appellant Guru Prasad Patel remained in jail from 29.12.2003 to 05.01.2004. Appellant Toshram Patel, remained in jail from 28.01.2004 to 31.01.2004. Appellant Tekram Patel remained in jail from 28.01.2004 to 31.01.2004 and Appellant Santosh Patel remained in jail from 28.01.2004 to 31.01.2004, therefore, he would pray for reducing the sentence already undergone by them. To substantiate his submission, he would refer to judgment of Hon’ble Supreme Court in the case of

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Sivamani v. State represented by Inspector in Criminal Appeal No. 3619 of 2023 decided on 28^th November, 2023 .

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Per contra, learned counsel for the State would submit that according to the prosecution case, the appellants had suspicion that the complainants not interested to pay money of paddy which was given by complainant on the oral agreement, therefore, without any personal grievance against the complainant, they assaulted them, causing various injuries including the fracture at radius ulna bone of Upendra and fracture on hair line fracture on the left parietal bone Tekram Patel, therefore, the trial Court has not committed any mistake in awarding the rigorous imprisonment of seven years to the appellants. He would further submit that the trial court after appreciating the evidence and material on record has convicted and sentenced the appellants which does not suffer from perversity or illegality. He would further submit that the prosecution has proved its case beyond reasonable doubt and there is no material available on record to set aside the well reasoned finding recorded by the trial court warranting any interference by this court and would pray for dismissal of appeal.

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I have heard learned counsel for the parties and perused the records of the trial Court.

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From the submissions made by the parties the point emerged for determination is whether conviction of the appellants for commission of offence under Section 307, 307/34, 325/34, 323/34 is legal and justified.

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To appreciate the point emerged for determination, it is expedient for

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this Court to extract Sections 307, 320 and 326, 325 IPC.

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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. 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. Illustrations

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(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.

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(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

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(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.

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(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.

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In the present case, from the evidence of injured witnesses namely

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Upendra Kumar (PW-7), Tekram @ Puran (PW-8), Jeetram (PW-6) and Balmukund (PW-11), it is established that the appellants assaulted the injured persons by Tangiya and lathi. Their testimonies are substantially corroborated by medical evidence of Dr. Smt. Jay Kumari (PW-1) and Dr. P.S. Saji (PW-4). The medical evidence demonstrates that injured Upendra sustained fracture of ulna bone and injured Tekram sustained

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hairline fracture over left parietal bone. The injuries suffered by Jeetram and Balmukund were simple in nature. The injuries were caused by hard and blunt objects. PW-1 in her cross examination in para-13 has admitted that in the report of injured person she has not mentioned that the injuries caused to them are sufficient to cause death and also admitted that in the report it has not been mentioned that because of the injury death of injured is possible. She has also admitted in para-14 about the fact that the injuries were not sufficient to cause death. She has also admitted that the Investigating Officer has also not sought query on this point from her. She has also admitted that due to free fight between the parties, the injury could be caused to Upendra (PW-7) and Tekram (PW-8) happen due to fall down on the hard surface.

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From the aforesaid evidence of Dr. Smt. Jay Kumari (PW-1) and Dr. P.S. Saji (PW-4), it is quite vivid that the Upendra (PW-7) and Tekram (PW-8) have sustained injuries in their ulna bone (Ex.P-5) and hair line fracture (Ex.P-6) respectively, Considering the fact that the Doctor (PW-1) who has treated the injured has not given opinion that the injuries sustained by the injured may not be sufficient to cause death. It is equally well settle legal position of law that the injuries caused to the injured are always not necessary for attracting the offence under Section 307 IPC but the other ingredients which are essential to attract the offence under Section 307 has to be seen i.e. intention of the accused to commit the offence which can be ascertained from the actual injury if any as well as from surrounding circumstance among other things, nature of weapon

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used and severity of the blows inflected can be considered to infer intent. From the evidence of injured persons Upendra (PW-7) it is quite vivid that accused Toshram has assaulted on the right side of the head by axe. The prosecution has examined Dr. R.K. Agrawal (PW-5) who in his evidence has stated that the injured were admitted in the hospital but has not stated about duration of hospitalization for treatment. Thus it is quite vivid that from the evidence brought by the prosecution, they are unable to establish the severity of the injury caused to the injured which may sufficient to cause death. Even the prosecution is unable to prove that the accused have intention to commit the offence under Section 307 IPC, from the evidence of the injured (PW-7) Upendra it is quite vivid that there was sudden provocation due to calling of Panchayat and as per evidence of Investigation Officer (PW-13) there was free fight between the parties. Thus, it is quite vivid that the accused have no intention to commit offence under Section 307 IPC corroborated with the gravity of the injury, as such it cannot be said that the prosecution has able to prove all the ingredients of offence under Section 307 IPC beyond reasonable doubt. The Hon’ble Supreme Court in the case of Roshan Lal Vs. The State of Haryana & Anr reported in 2026 INSC 524 wherein the Hon’ble Court has considered the essential ingredients to attract section 307 IPC in following manner:-

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In order to constitute an offence under Section 307 IPC two elements are essential to be established. First, the intention or knowledge to commit murder. Secondly, the actual act of trying to commit the murder. Thus, it must have both the necessary mens-rea and actus reus. Hence, to sustain a conviction under this section, it is necessary to establish that had the accused

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succeeded in his attempt and had the victim met his death because of such act, the offence of murder punishable u/s 302 IPC would be established.

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However, an accused charged u/s 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt, as the determinative factor is intention or knowledge and not the nature of the injury. This principle was discussed by this Court in State of Madhya Pradesh v. Saleem @ Chamaru, (2005) 5 SCC 554, the relevant paragraph of which reads hereunder;-

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“12. 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 all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in 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.

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Nevertheless, the nature of injury actually caused does render considerable assistance to the court in ascertaining the intention of the accused. However, courts may also ascertain the intention from other circumstances, even without reference to actual wounds. The aforesaid principle stands reiterated in the case of Bipin Bihari v. State of M.P. (2006) 8 SCC 799, as follows:

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“9. 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. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all

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to actual wounds. 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. 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”. Keeping in mind the above principles, what falls for determination before this Court is whether the appellants caused the injuries in question, and whether such act accompanied by the requisite intention or knowledge, was committed in circumstances which, if resulting in death, would render the act culpable as murder.

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Having concluded as above, we now proceed to examine the crucial issue as to whether the injuries in question were inflicted with the requisite intention or knowledge, and in such circumstances that, had death ensued, the act would amount to murder.

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The words 'such intention' found in Section 307 IPC, refer to the intention referred to in Section 300 IPC. It means: (i) intention to cause death; (ii) intention to cause such bodily injury, which the offender knows is likely to cause death; (iii) intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death. The essential ingredient of the offence of attempt to murder is the intention to cause death. Such intention exists prior to the actual attempt and must be established independently of the act itself or the actus reus. Once the requisite intention to commit murder is proved, the eventual outcome of the attempt becomes irrelevant, unless the attempt culminates in death, in which case the offence would fall within Section 300 IPC. In the absence of proof of intention, a conviction under this provision cannot be sustained.

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32.Intention, however, can be inferred from surrounding circumstances, such as the type of weapon employed, the words spoken by the accused at the time of the incident, the motive behind the act, the parts of the body targeted, the nature and extent of the injuries inflicted, as well as the force and manner in which the blows were delivered.

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Tested on the anvil of the aforesaid legal principles, the factual matrix of the present case may now be considered. There is no history of enmity known between the appellants and the injured.The prosecution has also failed to bring on

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record any material suggesting prior planning, preparation, or concerted intention on the part of the appellants to cause the death of Amar Singh (PW3). On the contrary, the evidence reveals that the incident occurred suddenly when the injured intervened in an altercation involving the driver of the jeep. The assault, therefore, appears to have arisen in the heat of the moment and as a spontaneous reaction to such intervention, rather than pursuant to any pre-conceived intention to eliminate the complainant.

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The circumstances, viewed holistically, suggest that the object of the appellants was primarily to deter or intimidate the complainant from interfering in the ongoing altercation. It is also significant that the weapons allegedly used by the appellants were ordinary lathis, which, though capable of causing grievous hurt depending upon the manner of use, cannot in the facts of the present case be regarded as inherently deadly weapons. There is nothing on record to indicate that the appellants persisted in the assault with such brutality or ferocity so as to unmistakably disclose an intention to cause death.

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Undoubtedly, the injuries sustained by Amar Singh (PW3) were grievous in nature, and the medical evidence demonstrates that the injury to the head subsequently led to serious complications. However, the gravity of the injury by itself cannot be determinative of the offence under Section 307 IPC unless the prosecution is able to establish the requisite mens rea contemplated under the provision. The intention to commit murder cannot be presumed merely because the injuries were ultimately opined to be dangerous to life. In the absence of evidence showing prior motive, premeditation, repeated deliberate blows with deadly weapons, or any conduct indicative of a determined effort to cause death, this Court is unable to hold that the appellants possessed the intention or knowledge necessary to attract Section 307 IPC in the light of Bipin Bihari (supra).

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In light of the evidence, material placed on record and the law on the subject it is quite vivid that the prosecution is unable to prove the offence under Section 307 IPC beyond reasonable doubt against appellant/accused Toshram, Guru Prasad, Tek Ram and Santosh Patel, as such they are given benefit of doubt and are acquitted of offence under Section 307 IPC as well as under Section 307/34 IPC.

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Further considering that the victims have got injury and presence of the accused at the place of occurrence is not disputed by the appellants. The injured persons have been cross-examined by the accused extensively by accused before the trial Court but they are unable to rebut the evidence regarding their involvement in the commission of offence. Considering the it is well settled position of law that an accused can be convicted on the basis of the sole testimony of the victim , provided the Court finds the testimony to be credible, trustworthy and of sterling quality . The Hon’ble Supreme Court has examined the evidentiary value of injured witness in case of Balu Sudam Khalde and

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Another vs State of Maharashtra {2023 (13) SCC 365} wherein the

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Hon’ble Supreme Court has held as under :-

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"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:-

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(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.

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(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.

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

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(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.

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(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."

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From the medical evidence as well as ocular testimony of the victims it is proved beyond reasonable doubt by the prosecution that the accused have caused injuries to the victims as Upendra (PW-7) sustained fracture in ulna bone and Tekram (PW-8) sustained hair line fracture and other two victims Jeetram (PW-6) and Balmukund (PW-11) got simple injury, therefore, this Court has to examine nature of injury caused to the victims. To appreciate the gravity of the injury this Court has to extract Section 320 and 326 of the IPC for determination of nature of injury.

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320. Grievous hurt.—

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The following kinds of hurt only are designated as “grievous”:— Firstly- Emasculation. Secondly— Permanent privation of the sight of either eye. Thirdly — Permanent privation of the hearing of either ear, Fourthly — Privation of any member or joint. Fifthly — Destruction or permanent impairing of the powers of any member or joint.

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Sixthly — Permanent disfiguration of the head or face. Seventhly — Fracture or dislocation of a bone or tooth. Eighthtly — Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

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Section 326 IPC; - Voluntarily causing grievous hurt by dangerous weapons or means—Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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From perusal of Section 320 IPC, it is quite vivid, that fracture falls within the seventhly kinds of hurt as defined in Section 320 IPC. From the medical evidence x-ray reports (Ex.P-5 and Ex.P-6), evidence of Doctor Jai Kumari (PW-1) and Dr. R.K. Agrawal (PW-5), it is quite vivid, that the prosecution has proved beyond reasonable doubt that the accused have caused grievous hurt to the victims PW-6, PW-7, therefore, they are liable to be convicted for the offence under Section 326 of the IPC instead of Section 307, 307/34 of the IPC as the prosecution is able to strictly proved that the injuries caused to the victim is one of the injuries as provided under Section 320 of IPC, therefore, the appellants are convicted under Section 326 of the IPC instead of Section 307 of the IPC, as held by Hon’ble Supreme Court in the case of Mathai v. State of Kerala (2005) 3 SCC 260.

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From the evidence of the victims Upendra Kumar (PW-7), Jeetram (PW6) and Balmukund (PW-11), it is manifest that the accused persons, acting in furtherance of their common intention, assaulted the victims. Presence of the accused at the scene substantially facilitated the successful commission of the offence 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 counsel for the appellants that all the accused

¶119

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cannot be convicted with the aid of Section 34 of the IPC is misconceived and is liable to be rejected.

¶121

It is well settled position of law that element of participation in the commission of offence, is the chief feature that distinguishes Section 34 of the IPC from Section 149 of the 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

¶122

the provisions of Section 34 of the IPC as under:-

¶123

“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).

¶124

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.

¶125

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.

¶126

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)].

¶127

As held by this Court in Suresh Sakharam Nangare v. The State of Maharashtra, 2012 (9) Judgements Today 116, if

¶128

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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 prearranged plan and pre supposes prior concert therefore there must be meeting of mind.”

¶130

Thus the accused are liable to the convicted under Section 326, 326/34 instead of Section 307, 307/34 of the IPC.

¶131

During pendency of the appeal, the appellants have moved an application under Section 320(2) of CrPC for permission to compound the offence under Section 325 read with Section 34 and Section 323 read with section 34 IPC supported by memorandum of compromise with the victim and affidavit of Upendra Kumar, Balmukund and Jeetram wherein they have stated that in unequal terms that during pendency of the appeal they have developed love and affection with the appellants and agreed to mutually settled the inter-se dispute with them.

¶132

On behalf of the victims the counsel has also appeared and not disputed about existing of memorandum of settlement between the appellant and the victims. In view of compromise arrived at between the appellants and the victim, the application filed under Section 320(2) CrPC is allowed and the offense under Sections 325, 325/34, 323, 323/34 is compounded and the accused are discharged from the said offence.

¶133

Since this Court in foregoing paragraph has converted the conviction of the appellants from offence under Section 307, 307/34 IPC to 326, 326/34 of the IPC, now this Court has to consider the sentence to be

¶134

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imposed upon the appellant while holding their conviction under Section 326 , 326/34 of the IPC. It is well settled legal position of law that before imposition of punishment this Court has to consider the aggravating and mitigating factors by strike a fair balance between the aggravating and the mitigating factors. In light of theses parameters, this Court is considering the sentence to be imposed upon the appellants for conviction under Section 326, 326/34 of the IPC. From the record, it is quite vivid, that the incident pertains to year 2003 and more than 23 years have already been lapsed, and the appellants are not having any past criminal antecedents, they have not misused the liberty of bail granted to them during the trial and even during pendency of the appeal and also considering the fact that appellants and the victims have compounded the offence under Sections 325,325/34, 323, 323/34 of the IPC as per memorandum of compromise arrived at between them, I am of the view that the appellants are convicted under Section 326,326/34 IPC and they are sentenced to undergo R.I. for 04 months each of the appellants and all sentences are directed to run concurrently.

¶136

Accordingly, the appeal is allowed in part. The appellants are on bail. Their bail bonds and surety bonds are cancelled. They are directed to surrender before the trial Court within two months from the date of judgment passed by this Court to serve out the remaining part of jail sentence as reduced by this Court. The appellants are entitled to get set off, of the period of sentence already undergone by them as per provision of Section 428 CrPC/468 of BNSS. In case, the appellants fail

¶137

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to surrender within time period as given by this Court, the trial court will proceed against them in accordance with law and send compliance report to this Court.

¶139

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for compliance.

¶140

Sd/-

¶141

(Narendra Kumar Vyas) Judge

¶142

santosh

Guru Prasad v. State of Chhattisgarh

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