Chhakkulal Vs State of Chhattisgarh

This Appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 31.05.2008 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur (Chhattisgarh) in Sessions Case No.39/2007, whereby the appellant has been convicted for

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commission of offence under Section 307 of IPC and sentenced to undergo RI for 7 years and to pay fine of Rs.200/-, in default of payment of fine, to further undergo additional RI for 3 months.

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Case of prosecution is that Complainant namely Samelal Gond is the permanent resident of village Dhanaura, Kirhatola, PS Marvahi, where he resides along with his family members. The appellant is his younger brother and the family partition had took place 20 years ago between them but there was some dispute regarding partition of house. On 3.6.2007 regarding the same dispute, a panchayat was held in front of the house of the accused/appellant. The meeting was held at a Chabutra prepared for sitting. The village Sarpanch Amin Singh, Kotwar Subelal and other persons were sitting there then the appellant brought a Gun from his house and fired on the injured Samelal Gond, due to which, the Complainant received injuries from the bullet of the Gun on both thighs. The complainant went to his house from where he was taken to the PS Marvahi where FIR was lodged.

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Statement of witnesses were recorded. After completion of investigation, charge-sheet was filed.

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In order to bring home the guilt, the prosecution has examined as many as 13 witnesses and exhibited 14 documents vide Ex.P/1 to Ex.P/14 to prove its case against the appellant.

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Statement of the accused/appellant was also recorded in which, he pleaded innocence and false implication and exhibited one document vide Ex.D/1.

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Learned trial Court after appreciating the oral and documentary evidence convicted and sentenced the accused/appellant as mentioned in opening paragraph of this judgment.

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Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned Trial Court failed to consider that the prosecution has failed to prove its case beyond reasonable doubt and learned trial Court has grossly erred in holding the appellant guilty under Section 307 of IPC. Learned trial Court has not appreciated the prosecution evidence in accordance with the established principles of law relating to appreciation of evidence and thus, the impugned judgment of conviction and order of sentence of the trial Court is based on surmises and conjectures, therefore, the same is liable to be set aside. Reliance has been placed in the judgment dated 20.04.1981 passed in the matter of Kundan Singh vs. State of Punjab {(1982) 3 SCC 213} by the Hon’ble Supreme Court.

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Alternatively, learned counsel for the appellant submits that if this Court ultimately comes to the conclusion that the conviction of the appellant is proper, then, considering the fact that the incident took place in the

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year 2007; this appeal is pending since 2008; the appellant was aged about 46 years at the time of filing of this Appeal; the appellant has remained in jail for 5 months and 13 days and he did not misuse the liberty while on bail; he is facing the lis since 2008 i.e. for about 17 years and therefore, the jail sentence awarded to the appellant may be reduced to the period already undergone by him.

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Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merits is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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It is clear from the record of the learned trial Court that the trial Court framed charges against the appellant under Section 307 of IPC and after appreciating the oral and documentary evidence, convicted the accused/appellant for the said offence and sentenced him as mentioned in opening paragraph of this judgment.

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This Court in the matter of Pareshwar Satnami vs. State of Chhattisgarh reported in CRA No. 188 of 2012 in the judgment

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dated 26.07.2022 held in paragraphs 17, 18 & 19 which reads as

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under:-

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17. The Supreme Court in the matter of Parsuram Pandey and others v. State of Bihar 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 that 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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18. Similarly, the Supreme Court in the matter of Jage Ram and others V. State of Haryana 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

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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 injuries, situs of the injury and the severitty 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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19. The Supreme Court in the matter of Jai Narain Mishra and others V. State of Bihar 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 in paragraph 11 of the report:-

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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 to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1^½ ”^{X ½”} X chest wall deep (would 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 in 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 noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four to five persons attack a

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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 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 regard to the injury intended to be 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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Complainant Samelal Gond (PW-3) stated that on the date of incident accused appellant called injured and other persons to his home for partition. When the said persons went to the home of accused appellant, the appellant came with a gun and shot at Complainant Samelal due to which, Samelal sustained injuries in his right thigh. Thereafter, the injured lodged FIR (Ex.P/1). Police seized clothes of the injured as per seizure memo (Ex.P/2). This witness also admitted his signature on the spot map (Ex.P/3).

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Amin Singh Maravi (PW-4) supported the statement of complainant and stated that he has seen the injury of complainant and this witness also saw that the Bhagbat was standing holding a gun.

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Vedvati (PW-1), Bhagwat Gond (PW-2), and Sevadas (PW-5) stated that they saw injury of complainant Samelal.

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Dr. Sheela Saha (PW-9) stated that She was posted at CHC, Marvahi. She examined the complainant on 3.06.2007 and through her report (Ex.P/11) found following injuries 1) lacerated wound active bleeding, size 1.5 inch x 1 inch, medial aspect of left

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thigh caused by hard and blunt object, 2) abrasion which were 3 in number, size 0.5 x 0.5 inch, located at the place as injury No.1, 3) abrasion 5-6 in number, size 0.5 x 0.5 inch, located at medial aspect of right thigh. PW-9 opined that looking to the wound, it is caused by bullet charra and she advised for X-ray.

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Radiologist at CIMS Bilaspur namely Dr. Anil KP Singh conducted X-ray of both thighs of the injured and found no bone injury.

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It is clear that complainant stated against the appellant and other witnesses supported his statement and Dr. Sheela Saha (PW-9) also stated that injured sustained gun shot injury.

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On the basis of statements of the Doctors, it is clear that the injured sustained simple injures in his right thigh. In the case relied upon by counsel for the appellant in the matter of Kundan Singh (supra), wherein the appellant inflicted simple injuries, the Hon’ble Supreme Court altered the conviction of appellant under Section 307 IPC to Section 324 IPC and reduced the sentenced awarded to the appellant to the period already undergone by him.

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In light of the guidelines of the Hon’ble Supreme Court and that the appellant sustained simple injures, this Court is of the view that offence under Section 307 IPC is not proved against the appellant and it is altered/converted into Section 324 of IPC.

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As regards sentence imposed upon the appellant. It is clear that the incident took place in the year 2007; this Appeal is pending since 2008 and the appellant was aged about 46 years when this Appeal was filed i.e. 2008 and has also remained in jail for more than 5

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months. Hence, this Court is of the view that ends of justice would be served if the appellant is sentenced to the period already undergone by him.

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In view of the aforesaid discussion, the sentence imposed upon the appellant is modified to the extent of the period already undergone by him, however, the fine amount imposed on the appellant by the trial Court shall remain intact.

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Consequently, this Appeal is allowed in part to the extent indicated above. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC.

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Let a copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith.

Sd/-

(Rajani Dubey)

JUDGE

Avinash

Chhakkulal v. State of Chhattisgarh

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Chhakkulal v. State of Chhattisgarh

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