1

2026:CGHC:23802

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 204 of 2005

Judgment reserved on 23.04.2026

Judgment delivered on 15.06.2026

1.Guru Prasad S/o. Manbodh Patel, Aged 39 years, Occupation

Cultivation.

2.Tosh Ram Patel, S/o. Tek Ram Patel, Aged 24 years, Occupation

Cultiovation, R/o. Amalipali.

3.Tek Ram Patel, S/o. Manbodh patel, Aged 40 years, Occupation, R/o.

Amalipali,

4.Santosh Patel S/o. Guru Prasad Patel, Aged 19 years, Occupation-

Student, R/o. Amalipali.

... Appellant (s)

versus

State of Chhattisgarh Through Police Station Sariya, Tahsil Sarangarh,

District Raigarh (CG)

... 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

C A V Judgment

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1.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

sentenced in the following manner:-

Name of the

appellants

Conviction Sentence

Tosh Ram 307 IPCRI 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.

2.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.

3.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.P-

11), 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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4.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.

5.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.P-

21). 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).

6.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.

7.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:-

Injured Upendra Kumar Patel (PW-7):-

(I) irregular swelling at Right forearm.

(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.

Injured Tekram (PW-8):-

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

(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.

Injured Jeetram (PW-6):-

(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):-

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

(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.

8.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).

9.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.

10.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.

11.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.

12.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.

13.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.

14.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.

15.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.

16.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.

17.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.

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

the trial Court.

19.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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20.To appreciate the point emerged for determination, it is expedient for

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

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

(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.

(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.

(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.

(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.

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

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.

22.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:-

26. 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.

27. 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;-

“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.

28. 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:

“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.

30. 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.

31. 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.

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.

33. 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.

34. 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.

35. 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).

23. 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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24.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

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

Hon’ble Supreme Court has held as under :-

"26. When the evidence of an injured eye-witness is to be

appreciated, the under- noted legal principles enunciated by the

Courts are required to be kept in mind:-

(a) The presence of an injured eye-witness at the time and place of

the occurrence cannot be doubted unless there are material

contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be

believed that an injured witness would not allow the real culprits to

escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value

and unless compelling reasons exist, their statements are not to be

discarded lightly.

(d) The evidence of injured witness cannot be doubted on account

of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in

the evidence of an injured witness, then such contradiction,

exaggeration or embellishment should be discarded from the

evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken

into consideration and discrepancies which normally creep due to

loss of memory with passage of time should be discarded."

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25.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.

320. Grievous hurt.—

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.

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.

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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26.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.

27.From the evidence of the victims Upendra Kumar (PW-7), Jeetram (PW-

6) 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

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cannot be convicted with the aid of Section 34 of the IPC is

misconceived and is liable to be rejected.

28.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

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

“86. It is true that to convict any particular accused

constructively under Section 34 of an offence, say of murder, it

is not necessary to find that he actually struck the fatal blow, or

any blow, but there must be clear evidence of some action or

conduct on his part to show that he shared in the common

intention of committing murder”, (pp. 457-458).

87. The net result of the above discussion is that although

Section 34 deals with a criminal act which is joint and an

intention which is common, it cannot be said that it completely

ignores or eliminates the element of personal contribution of the

individual offender in both these respects.

88. On the other hand, it is a condition precedent of Section 34,

IPC, that the individual offender must have participated in the

offence in both these respects. He must have done something,

however slight, or conduct himself in some manner, however

nebulous whether by doing an act or by omitting to do an act so

as to indicate that he was a participant in the offence and a

guilty associate in it. He must also be individually a party to an

intention which he must share in common with others.

89. In other words, he must be a sharer both in the ‘criminal act’

as well as in the ‘common intention’ which are the twin aspects

of Section 34, IPC. In view of the above position, it is difficult for

the accused to legitimately urge before the Court that owing to

the mention of Section 34, IPC, in the charge, he was misled or

prejudiced in his defence by being persuaded to presume that

all consideration of his individual liability was completely shut

out as a result thereof. He would be presumed to know the law

on the point and if, in spite of it, he deluded himself into any

such belief, he would be doing so at his own peril. [See: Om

Prakash(supra)].

90. As held by this Court in Suresh Sakharam Nangare v. The

State of Maharashtra, 2012 (9) Judgements Today 116, if

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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 pre-

arranged plan and pre supposes prior concert therefore there

must be meeting of mind.”

29.Thus the accused are liable to the convicted under Section 326, 326/34

instead of Section 307, 307/34 of the IPC.

30. 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.

31.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.

32.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

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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.

33. 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

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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.

34.Let a copy of this judgment and the original record be transmitted to the

trial court concerned forthwith for compliance.

Sd/-

(Narendra Kumar Vyas)

Judge

santosh