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2026:CGHC:11869

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Reserved on : 17-02-2026

Delivered on : 12 .03.2026

CRA No. 645 OF 2005

1.Ram Krishna Vaishya @ Chotu aged about 35 years, s/o Sitaram

Vaishya r/o. Om Nagar, Jarhabhata, Bilaspur (CG).

2.Jhallu aged about 32 years s/o. Kanhaiyalal Dhimar, r/o. Amlai, Dist.

Shahdol (MP) died and deleted on 23-2-2016.

3.Munnan Verma, aged about 30 years, s/o. Albela Verma, r/o. Behind

VIP, Guest House, Dhanpuri, District Shahdol (MP).(died and deleted).

4.Lallu aged about 30 uyears, s/o. Jageshwar Panika, r/o. Dhanpuri,

District Shahdol (MP).

... Appellants

Versus

State of Chhattisgarh through Police Station City Kotwali, Bilaspur

(CG). ... Respondent/State

For Appellants :Mr. Manoj Paranjpe, Sr. Advocate with

Mr. Rishabh Gupta, Advocates.

For Respondent/State :Mr. Sanjeev Pandey, Dy. Advocate General.

Hon'ble Shri Justice Narendra Kumar Vyas

CAV Judgment

1.This appeal has been preferred by the appellants under Section 374 (2)

of the Code of Criminal Procedure, 1973 against judgment dated

3.8.2005 passed by learned VIIIth Additional District Sessions Judge,

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(FTC) Bilaspur (C.G.) in Sessions Trial No. 35/2002, whereby the

appellants stand convicted and sentenced as under:-

Conviction Sentence

U/s 450 of IPC :R.I. for 5 years and fine of Rs. 5000/-,in

default of payment of fine, to undergo

additional R.I. for 6 months.

U/s 307 of IPC :R.I. for 10 years and fine of Rs.25,000/-

each, in default of payment of fine, to

undergo additional R.I. for 1 year.

U/s. 307/34 of IPCR.I. for 10 years and fine of Rs.25,000/- each

and in default of payment of fine, additional

R.I. for 1 year.

(All the sentences are directed to run

concurrently).

2.The case of prosecution is that complainant Sunita Tiwari (P.W./13)

who was residing at Lala Kashyap Colony where she was running

beauty parlour. On 29.10.2001 at about 8.45 in the night when she was

taking tea along with Suchcha Nand Wadhwani (P.W./18) in her house,

at that time appellant Ram Krishna Vaishya @ Chhotu who is known to

the victim resident of Jarhabhata entered into the house of complainant

along with other persons. One of the accused Ram Krishna Vaishya

told Suchcha Nand Wadhwani to return the papers pertaining to the

house which has resulted into dispute and they started threatening to

kill Suchcha Nand Wadhwani by fire. At that time when Sunita Tiwari

(PW/13) intervened, then the accused Ram Krishna fired at her by

firearm (gun) as a result of which she received a bullet injury above

thigh in the stomach causing bleeding also. He has again fired by gun

which crossed between Sunita Tiwari (PW-13) and Suchcha Nand

Wadhwani (PW/18) and stuck to the wall. Thereafter, Suchcha Nand

Wadhwani (PW/18) has taken care of the victim and took her to District

Hospital Bilaspur. On the basis of the complaint, Crime No. 346/1 was

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registered by the City Police Station on 29.10.2001 for commission of

offence under Section 307/34 of IPC read with Sections 25 and 27 of

the Arms Act.

3.After completion of the investigation, charge sheet was filed before

the Court of Chief Judicial Magistrate Bilaspur, who in turn committed

the case to the Court of Additional Sessions Judge, Bilaspur which

was registered as Sessions Case No. 364 of 2003. The learned trial

Judge after conclusion of trial convicted and sentenced the appellants

as submitted above, but the learned trial Court has acquitted the

accused Ram Krishna @ Chhotu for commission of offence under

Section 25 and 27 of the Arms Act as before no proper permission

from competent authority i.e District Magistrate has been obtained by

the prosecution to initiate prosecution against him for commission of

said offence.

4.In order to bring home the guilt of the appellants, the prosecution

examined 18 witnesses namely Jhumuklal Bhoi (PW-1), Ramcharan

Rajak (PW-2), Doctor Smt. S. Thakur (PW-3), Vikram Khetrapal (PW-

4), Dr. S. Chatterjee, Medical Oficer (PW-5), P.S. Toppo, Tahsildar

(PW-6), Dhruw Prasad, Head Constable (PW-7), Sehattar Prasad

Kurre, Constable (PW-8), B. Prasad (PW-9), Rajendra Bojwani (PW-

10), Pradeep Wadhwani (PW-11), Ramnarayan Joshi (PW-12), Sunita

Tiwari, complainant (PW-13) Dr. L. Singh, Medical Officer (PW/14),

Daroga Singh, constable (PW/15), Shiv Prasad Singh, Investigating

Officer, (PW/16), Ramesh Wadhwani (PW/17) and Suchcha Nand

Wadhwani, eye witness (PW/18) and exhibited the documents from

seizure memo (Ex.P-1), agreement (Iqrarnama (Article A/1), Seizure

memo (Ex.P/2), Doctor’s report (Ex.P/3 & P./4), complainant’s x-ray

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report (Ex.P/5 & P/6), complainant dying declaration (Ex.P/7),

Rojnamcha Sanha (Ex.P/8), FIR (Ex.P/9), property seizure memo

(complainant house) Ex.P/10), property seizure memo (Ex.P/11),

original register of hotel (Ex.P/12), Dehati nalishi (Ex.P/13), seizure

memo (complainant cloth) Ex.P/14), medical report of Sachhinand

Wadhwani (Ex.P/15), Government Inspection report (Ex.P/16), work

certificate form (Ex,P/17), spot map (Ex.P/18), receipt of goods sent

for examination (Ex.P/19), test report (Ex.P/20) and arrest memo (Ex.

P/21).

5.Statements of the accused/appellants were recorded under Section

313 CrPC in which they denied the allegations made against them

and pleaded their innocence and false implication in the case. The

appellant examined 2 witnesses namely Rasik Bakhsh, (DW/1) and

Shailedra Masih (DW/2) in their defense and exhibited documents

from Ex.D/1 to Ex.D/8.

6.After hearing the parties, learned District Sessions Judge on the basis

of material on record and upon considering the statements of the

witnesses has 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 have preferred the instant Criminal Appeal.

7.Learned counsel for the appellants would submit that the finding

recorded by the trial Court is contrary to the evidence, material on

record as the statement of the victim has not been taken into

consideration in its true prospect. He would further submit that the

prosecution has failed to prove the necessary ingredients of the

offence under Section 307 of the IPC. Learned trial Court ought to

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have considered that no case under Section 307/34 of IPC is made

out against the appellants. Learned trial Court has not considered the

whole evidence adduced by the prosecution as well as that of the

defence. Learned trial Court has also failed to appreciate that looking

to the evidence on record there was no intention to assault Sunita

Tiwari. He would further submit that the learned trial Court ought to

have considered that there is nothing on record regarding

memorandum or seizure of the weapon which could have been

important evidence to connect the appellants with the crime in

question. He would further submit that from the dying declaration of

the injured (Ex.P/7), it would be crystal clear that there was no

intention of appellant No.1 to assault the injured and there appears to

be no evidence to connect the appellants No. 2, 3 and 4 with the

crime in question.

8.He would further submit that conviction of the appellants in the

present case is completely based on circumstantial evidence and as

per well settled position of law that in a case based on circumstantial

evidence, the prosecution must convince the Court that

circumstances pointed towards the guilt of the accused alone and

non-else as also lack of his innocence, then only on circumstantial

evidence, the accused can be convicted. He would further submit that

the prosecution is unable to prove the case against the appellants

beyond reasonable doubt, as such they are entitled to claim acquittal

by granting benefit of doubt. He would submit that order of conviction

passed by the learned trial Court suffers from perversity and illegality

warranting interference by this Court. Lastly, he would further submit

that there are mitigating factors available on record as the incident

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took place on 29-10-2001 and more than 24 years have already been

lapsed and the appellants have already remained in jail from

13.04.2002 to 26.04.2002 and thereafter, from date of conviction on

03.08.2005 till this Court has granted bail on 21.11.2005, thus they

remained in jail for 03 months and 26 days and even after releasing

on bail, they have never misused the liberty granted to them and they

have no past criminal antecedents. It has been further contended that

if the accused are directed to undergo the remaining jail sentence,

the family life of the appellants will be adversely affected, as such he

would pray that the sentence may be reduced considering the

mitigating factors available on record. To substantiate his submission,

he would refer to the judgment rendered by Hon’ble the Supreme

Court in case of Tilku alias Tilak Singh Vs. State of Uttarakhand

[2025 SCC OnLine SC 353].

9.To substantiate that the conviction of the appellants in the present case

is completely based on circumstantial evidence and no circumstances

point out the involvement of the appellants in connection with the crime

in question he has referred to the judgment of the Hon’ble Supreme

Court in the matter of Sharad Birdhichand Sarda vs. State of

Maharashtra, reported in (1984) 4 SCC 166, judgment of the Hon’ble

Division Bench of this Court in the matter of Kamlesh @ Tikam

Manhare vs. State of Chhattisgarh in CRA No 177 of 2019 decided

on 2-1-2025, judgment of Hon’ble Supreme Court in case of Sanjay

vs. State of Uttar Pradesh, reported in 2025 SCC Online SC 572,

State of Madhya Pradesh vs. Kashiram and others , reported in

2009 (4) SCC 26 judgment of this Court in the matter of Ismail

Mohammad vs. State of Chhattisgarh in Criminal Appeal No. 602/2003

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and also judgment of High Court of Madhya Pradesh in case of

Sukhpal @ Chukhande Singh vs. State of Madhya Pradesh in Criminal

appeal No. 176/2017.

10.Per contra, learned counsel for the State supporting the impugned

judgment passed by the learned trial Court would submit that the

prosecution has proved its case beyond reasonable doubt, thus the

appellants have rightly been convicted and sentenced for the aforesaid

offence. He would further submit that the findings and the approach of

the trial court in this regard being based on proper appreciation of the

evidence are in conformity with law, the same does not require any

interference by this Court and would pray for dismissal of this appeal.

11.I have heard learned counsel for the parties and perused the

documents placed on record with utmost circumspection.

12.From the submissions made by the parties, the point emerged for

determination is whether the trial Court was justified to convict the

appellants for commission of offence under Sections 307, 450 of IPC

and imposition of jail sentence of 10 years and 5 years respectively

with fine is legal and justified?.

13.To appreciate this point, this Court has to meticulously examine the

evidence led by the prosecution and also to examine the findings of

the trial Court.

14.The victim (PW/13) in her examination-in-chief has betrayed the

contention made in the FIR and has stated that accused started

assaulting Suchcha Nand Wadhwani in her house and when she came

for rescue Suchcha Nand Wadhwani and told him do not commit

assault in my house, then Ram Krishna fired by his country made pistol

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which was getting shot above her thigh in the stomach and thereafter

he has again fired by his country made pistol which crossed between

Suchcha Nand Wadhwani and herself and the bullet hit the wall. She

has further stated that due to injury she fell down. Thereafter, Ram

Krishna along with his accomplice fled away from her house. She has

stated that she remained in the hospital for 1 month and 10 days. She

has also stated that she has put her signature on the dying declaration

(Ex P/7). The witness was extensively cross-examined by the defense,

wherein she has affirmed that she got injury and there was blood stain

in her clothes also. She has denied that she has stated to the Police

that Suchcha Nand Wadhwani assaulted her by country made pistol.

She has stated that in the report and dying declaration she has made

correct information and also stated that in the FIR she has stated that

due to quarrel between Suchcha Nand Wadhwani and Ram Krishna

Vaishya she came to rescue then Ram Krishna fired on her by country

made pistol which has caused injury on her stomach, thereafter, she

fell down and also stated that thereafter another bullet has been shot

which is left between her and Suchcha Nand Wadhwani.

15.Shiv Prasad Singh (PW/16) who has done the investigation has stated

that on submission made by victim one gown containing blood stain in

which there was one whole due to bullet was seized. He has also

admitted that in Ex. P/10 at the place of occurrence how many pellets

of bullets were seized has not been mentioned.

16.Suchcha Nand Wadhwani (PW/18) who was present at the place of

occurrence stated that by name and by face he knew Ram Krishna

Vaishya, Lallu Prasad Diwan, Munna and Jhallu. He has also

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supported the case of the prosecution and stated that when the victim

told him that she will not involve between them, then Chhotu became

angry and all the accused started assaulting him, thereafter, Chhotu

had fired at Sunita Tiwari by gun and she got gun injury above her

thigh in the stomach. The said witness was extensively cross-examined

by the defense, but in the cross-examination he remained affirmed. On

the contrary, in the cross-examination he has stated that when he has

pressed the injured part of the victim by cloth then he got blood in his

hands and thereafter, he has rapped the victim by bed-sheet. The

witness has categorically denied that due to scuffle he fell down and

also denied that during scuffle he has pointed his country made

pistol at Chhotu and denied that he has fired at Chhotu and

between rescuing them the victim came and sustained injuries.

17.The prosecution examined Dr. Smt. S. Thakur (PW-3) who examined

the victim and has stated that egg shaped gunshot was found on her

right iliac fossa and sides were burnt admeasuring 2 ½ X 2 inch and

width of injury was upto peritoneal plant. The side muscles torned and

blood was leaked. There was lot of wound from her right iliac fossa to

right lumber region in which reddishness was there. She has further

stated that the condition of victim was serious and pulse rate was slow,

her blood pressure was 70/60, therefore, she has referred the matter to

surgical expert.

18.Vikram Khetrapal, Surgical Specialist (PW/4) who has examined the

victim and has reiterated the injuries and accordingly, an emergency

operation was conducted. He has stated that after the operation he has

removed bullets and 24 pellets. He has also stated that victim was

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admitted on 29.10.2001 and she was discharged on 03.12.2001. The

Doctor in his report has assessed the injuries as well as pellets

recovered from the body of the victim and operation done by him which

reads as under:

“1- ejht 'kkd dh gkyr esa Fkk] 'kjhj esa ihykiu FkkA ukMh dh xfr 90 izfr

feuV] CyM izs’kj 64 fe-fe- eDZ;wyh FkkA Lokal dh xfr 22 izfr feuV FkhA ejht

jlDysl Fkk] tka?k ds mijh ,d frgkbZ fgLls ij ,oa nkfgus vkbZyd Qkslk esa ?kko

FkkA mlls jDr Jko gks jgk FkkA ,oa [kwu tek gqvk FkkA pksV dk vkdkj 3 x <kbZ

bap x isV dh xgjkbZ rd FkkA pksV dh foLr`r izd`fr tkuus ds fy,] vkijs’ku dh

vko’;drk FkhA ejht dk rqjUr [kwu tkap] ,oa [kwu dh O;oLFkk dh lykg nh xbZ

vkSj ejht dks bejtsUlh vkijs’ku ds fy, rS;kj djus ds fy, crk;k x;kA

2- vkijs’ku djus ij eSusa fuEu ik;k%&

1- nkfguh tka?k ij buXok;uy bykesaV ds uhps] tka?k ds lkeus fgLls Ikj <kbZ x

nks bap x ekal isf’k;ksa dh xgjkbZ rd dk ,d xu 'kkV cksuZ ftlesa jDr okfguh Hkh

pksV xzLr FkhA ?kko dh fdukjs dkyk iMk Fkk vkSj >qylk gqvk FkkA fdukjk

yslsjsVsM FkkA vkSj ?kko ls [kwu fudy jgk FkkA ;gka ls isysVl fudkys x,A

2- nkfgus dksfguh ij rhu bap yEckbZ dk [kjksp FkkA

3- isV ds lkeus fgLls ij nkfgus vkbZyd ,oa yEcj {ks= essa [kjksp tks yky jax dh

Fkh ikbZ xbZA

4- nkfguh vksj ls fupys isjkfeyh;uu bulhtu ls isV [kksyus ij isV ds vUnj

fdlh izdkj dk [kwu tek gqvk ugha ik;k x;kA ,oa varfM;k Hkh LoLFk FkhA

5- lHkh ulksa dks ¼jDr okfgfu;ksa½ cka/kk x;k] ekal isf’k;ksa dks ijrokj fjis;j fd;k

x;kA”

19.P.S. Toppo, Tahsildar (PW-6) who has recorded dying declaration (Ex.

P/7) has stated in his evidence that the victim was competent enough

to depose her evidence and he has asked her when the incident took

place, then she has replied the same and recorded in the Ex. P/7

wherein she has put her signature by her left hand as in her right

hand I.B. set was installed. The witness was cross-examined wherein

he has affirmed that the victim was in a position to depose the

statement without any difficulty and no witness was present at the

time of recording of statement.

20.Dr. L. Singh, Medical Officer (PW/14) who has examined Suchcha

Nand Wadhwani on 30.10.2001 has submitted his report wherein it

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was found that there was liner abrasion below the lips, there was a

braze of 2/1 cm and all the injuries were before 12 hours of

examination. In the cross-examination he has admitted that these

injuries may be caused because of fell down also but the injury No. 2

may not be caused by nails, but it may be caused by any material.

21.The accused in their statements under Section 311 of CrPC has denied

the allegations and have taken plea of false implication. They

examined defense witness Rakshit Baksh wherein he has stated that

Suchcha Nand Wadhwani told him that to create pressure upon

Chhotu then he removed his country made pistol when Sunita Tiwari

intervened bullet was shot to her. The witness was cross-examined by

the prosecution, wherein he has stated that the Suchcha Nand

Wadhwani and Suntia Tiwari came to the house of Dr. Aviram Sharma

at 9 O’ clock in white Maruti Car in which Ramesh was also there, the

victim was sitting in the back seat and wearing red gown and there was

bleeding from her body. He has stated that whatever Suchcha Nand

Wadhwani has informed him, he has not informed to Dr. Abhiram

Sharma. He has denied that when the victim was taken to Dr. Abhiram

Sharma’s clinic, she was rapped by bed-sheet and voluntarily stated

that she wore maxi or gown.

22.From the evidence brought on record, particularly the statement of the

victim wherein she has clearly stated that Ram Krishna fired at her

which remains unshaken in the extensive cross-examination by the

appellants. The eye witness has also supported the version of victim

and incident of fired by country made pistol is affirmed by the Smt. S.

Thakur (PW-3) as well as Dr. Viktram Khetrapal (PW-4) who has done

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the operation of the victim. The Smt. S. Thakur has clearly stated that

the condition of the victim was serious and blood pressure was also

lower.

23.Thereafter, Shiv Prasad Singh, Investigating Officer (PW-16) who has

investigated the matter has arrested the accused Ram Krishna on

30.10.2001 and Punchnama was prepared as Ex. P/21. In the

Punchnama (Ex. P/21). The prosecution has also sent the seized

articles i.e. purse, baniyan, maxi of the victim article A, B, C, D and in

the baniyan and maxi of the victim there is blood stain for chemical

examination to FSL. The prosecution has also sent the various articles

for forensic test. In the report it was found that 44 distorted pellets

admeasuring 15. 60 gms., 24 partial distorted pellets in which blood

stain was there. The weight of this Article was 6.56 gms. In article W/1

it was found distorted overshot band was found admeasuring radius of

0.707 cm. In the chemical analysis it was found that it contains led and

nitrate. Similarly, in other articles also there was led and nitrate was

found and it was opined that the Articles Ex. P/1 and Ex. P/2 were

used part of bullet of smooth bore weapon. The Article Ex.P/1 may be

part of load of 12 bore used bullets. The Article Ex. P/2 may be piece of

used bullets, fragments of cartridge bed.

24.From the appreciation of this evidence and material on record, it is

proved beyond doubt that the victim suffered injury due to shot by

bullet and from the evidence it is also proved beyond doubt by the

prosecution that appellant No. 1 Ram Krishna has shot bullet upon the

victim. This finding is supported by statement of victim, Suchcha Nand

Wadhwani who was present at the place of occurrence and supported

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the version of victim as detailed above derived from consideration of

entire evidence and material placed by the prosecution. Thus, there is

clear intention of the appellant to commit offence is proved by the

prosecution beyond reasonable doubt. Use of bullet has been proved

by the prosecution through the evidence of the victim, Dr. S. Thakur

(PW-3) and the Dr. Vikram Khetrapal (Ex. P4) as well as Exhibit P/16

the report of forensic science. As such the ingredients to attract offence

under Section 307 are proved by the prosecution beyond reasonable

doubt.

25.Even from the evidence of the victim’s witness PW/13, it is quite vivid

that the sworn testimony by the injured witness generally carries

significant weight. Such testimony cannot be dismissed as unreliable

unless there was pellucid and substantial discrepancy or contradiction

that undermine their credibility. If there is any exaggeration in the

deposition that is immaterial to the case, such exaggeration should be

disregarded. However, it does not warrant the rejection of entire

evidence. Therefore, the suspicion raised by the appellants regarding

the genesis of the case is rendered unfounded.

26.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

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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.

27.The statement of injured person has also been supported by eye

witness Suchha Nand Wadhwani (PW/18) whose credibility has not

been diluted despite extensive evidence by the defense and eye

witness holds high evidentiary value and cannot be rejected without

major contradiction and can be accepted as its face value. The Hon’ble

Supreme Court in case of Rai Sandeep @ Deepu alias Deepu Vs.

State (NCT of Delhi) reported in (2012) 8 SCC 21 has held as under:

“22. In our considered opinion, the “sterling witness should be

of very high quality and caliber whose version should, therefore,

be unassailable. The court considering the version of such

witness should be in a position to accept it for its face value

without any hesitation. To test the quality of such a witness, the

status of the witness would be immaterial and what would be

relevant is the truthfulness of the statement made by such a

witness. What would be more relevant would be the consistency

of the statement right from the starting point till the end, namely,

at the time when the witness makes the initial statement and

ultimately before the court. It should be natural and consistent

with the case of the prosecution qua the accused. There should

not be any prevarication in the version of such a witness. The

witness should be in a position to withstand the cross-

examination of any length and howsoever strenuous it may be

and under no circumstance should give room for any doubt as

to the factum of the occurrence, the persons involved, as well

as the sequence of it. Such a version should have co-relation

with each and every one of other supporting material such as

the recoveries made, the weapons used, the manner of offence

Page 15 of 26

committed, the scientific evidence and the expert opinion. The

said version should consistently match with the version of every

other witness. It can even be stated that it should be akin to the

test applied in the case of circumstantial evidence where there

should not be any missing link in the chain of circumstances to

hold the accused guilty of the offence alleged against him. Only

if the version of such a witness qualifies the above test as well

as all other such similar tests to be applied, can it be held that

such a witness can be called as a “sterling witness” whose

version can be accepted by the court without any corroboration

and based on which the guilty can be punished. To be more

precise, the version of the said witness on the core spectrum of

the crime should remain intact while all other attendant

materials, namely, oral, documentary and material objects

should match the said version in material particulars in order to

enable the court trying the offence to rely on the core version to

sieve the other supporting materials for holding the offender

guilty of the charge alleged.”

28.On the basis of above principle when this Court tests the version of

Suchcha Nand Wadhwani PW/18 the eye witness, it is fortunate that

the said witness has passed the test mentioned above and there is no

variation in her version from statement made before the Court. There is

no material variation regarding identification of accused as well as the

manner in which the occurrence took place. Thus, he has fully

supported the case of the prosecution.

29.So far as further submission of the appellants that Section 34 of IPC is

not attracted to punish other accused has also been considered by the

trial Court while recording its finding that when Ram Krishna Vaishya

has fired, he has not stated that all the three accused were not present

and also from the defense taken by the other accused it is not

established that they have made any attempt to avoid commission of

offence to escape from the clutches of Section 34 of IPC. The

collective action of all the accused persons entering in the house

indicates sharing of common intention. Section 34 of IPC makes a co-

perpetrator who had participated in the commission of offence. The

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Hon’ble Supreme Court in case of reported in 2022 (7) SCC 521 in

paragraphs 26 to 29 has held as under:

“26. Section 34 IPC makes a co-perpetrator, who had

participated in the offence, equally liable on the principle of joint

liability. For Section 34 to apply there should be common

intention between the co-perpetrators, which means that there

should be community of purpose and common design or pre-

arranged plan. However, this does not mean that co-perpetrators

should have engaged in any discussion, agreement or valuation.

For Section 34 to apply, it is not necessary that the plan should

be pre-arranged or hatched for a considerable time before the

criminal act is performed. Common intention can be formed just

a minute before the actual act happens. Common intention is

necessarily a psychological fact as it requires prior meeting of

minds. In such cases, direct evidence normally will not be

available and in most cases, whether or not there exists a

common intention has to be determined by drawing inference

from the facts proved. This requires an inquiry into the

antecedents, conduct of the co- participants or perpetrators at

the time and after the occurrence. The manner in which the

accused arrived, mounted the attack, nature and type of injuries

inflicted, the weapon used, conduct or acts of the

co-assailants/perpetrators, object and purpose behind the

occurrence or the attack etc. are all relevant facts from which

inference has to be drawn to arrive at a conclusion whether or

not the ingredients of Section 34 IPC are satisfied. We must

remember that Section 34 IPC comes into operation against the

co-perpetrators because they have not committed the principal or

main act, which is undertaken/performed or is attributed to the

main culprit or perpetrator. Where an accused is the main or final

perpetrator, resort to Section 34 IPC is not necessary as the said

perpetrator is himself individually liable for having caused the

injury/offence. A person is liable for his own acts. Section 34 or

the principle of common intention is invoked to implicate and

fasten joint liability on other co-participants.

27. Further, the expression/term “criminal act” in Section 34 IPC

refers to the physical act, which has been done by the co-

perpetrators/participants as distinct from the effect, result or

consequence. In other words, expression “criminal act” referred

to in Section 34 IPC is different from “offence”. For example, if A

and B strike Lathi at X, the criminal act is of striking lathis,

whereas the offence committed may be of murder, culpable

homicide or simple or grievous injuries.

28.The expression “common intention” should also not be

confused with “intention” or “mens rea” as an essential ingredient

of several offences under the IPC. Intention may be an ingredient

of an offence and this is a personal matter. For some offences,

mental intention is not a requirement but knowledge is sufficient

and constitutes necessary mens rea. Section 34 IPC can be

invoked for the said offence also [refer Afrahim Sheikh and Ors.

Page 17 of 26

(supra)]. Common intention is common design or common intent,

which is akin to motive or object. It is the reason or purpose

behind doing of all acts by the individual participant forming the

criminal act. In some cases, intention, which is ingredient of the

offence, may be identical with the common intention of the co-

perpetrators, but this is not mandatory.

29. Section 34 IPC also uses the expression “act in furtherance

of common intention”. Therefore, in each case when Section 34

is invoked, it is necessary to examine whether the criminal

offence charged was done in furtherance of the common

intention of the participator. If the criminal offence is distinctly

remote and unconnected with the common intention, Section 34

would not be applicable. However, if the criminal offence done or

performed was attributable or was primarily connected or was a

known or reasonably possible outcome of the

preconcert/contemporaneous engagement or a manifestation of

the mutual consent for carrying out common purpose, it will fall

within the scope and ambit of the act done in furtherance of

common intention. Thus, the word “furtherance” propounds a

wide scope but should not be expanded beyond the intent and

purpose of the statute. Russell on Crime, (10th edition page

557), while examining the word “furtherance” had stated that it

refers to “the action of helping forward” and “it indicates some

kind of aid or assistance producing an effect in the future” and

that “any act may be regarded as done in furtherance of the

ultimate felony if it is a step intentionally taken for the purpose of

effecting that felony.” An act which is extraneous to the common

intention or is done in opposition to it and is not required to be

done at all for carrying out the common intention, cannot be said

to be in furtherance of common intention [refer judgment of R.P.

Sethi J. in Suresh (supra)].

30.From the evidence of the victim (PW/1) as well as Suchcha Nand

Wadhwani (PW-18), it is manifest that the accused persons, acting in

furtherance of their common intention, assaulted the victim. Presence

of all the accused at the scene substantially facilitated the successful

commission of the offence. The act was carried out pursuant to a pre-

arranged plan, 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.

Page 18 of 26

Consequently, the submission advanced by the learned senior counsel

for the appellants that all the accused cannot be convicted with the aid

of Section 34 IPC is misconceived and is liable to be rejected. It is well

settled position of law that element of participation in the commission of

offence, is the chief feature that distinguishes Section 34 IPC from

Section 149 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

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

Page 19 of 26

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.”

31.From plain reading of the above paragraph for applying Section 34 of

IPC there should be a common intention of all the accused persons

which means community of purpose and common design. The

common intention does not mean that the co-accused persons should

have engaged in any discussion or agreement so as to prepare a plan

or hatch a conspiracy for committing the offence. Common intention is

a psychological fact and it can be formed a minute before the actual

happening of the incident or as stated earlier even during occurrence

of the incident. Thus, the learned trial Court has rightly convicted all the

accused with the aid of Section 34 of IPC.

32.So far as submission of learned counsel for the appellants that there

was no intention to fire bullet upon victim as such, offence under

Section 307 of IPC cannot be made out is being considered by this

Court now. From the evidence brought on record, it is quite vivid that

the accused has used the pistol for firing upon victim twice as one

bullet shot above her thigh in the stomach and thereafter he has again

fired from his country made pistol which crossed between Suchcha

Nand Wadhwani and herself and the bullet hit the wall. Even the

learned trial Court while appreciating that whether the accused has

intention or not has recorded its finding that once the accused has fired

Suchcha Nand Wadhwani and the victim then any prudent man will

understand that due to use of bullet body injury will cause death. The

trial Court has also recorded its finding that in the present case the

accused has not only used bullet twice which clearly proved his

Page 20 of 26

intention to kill the victim or other persons, thus, all the ingredients of

Section 307 of IPC is made out. Section 307 of IPC is always matter of

scrutiny and the Hon’ble Supreme Court in case of Sivamani &

Another vs. State represented by Inspector of Police, reported in

2023 SCC Online SC 1581 has held in paragraph 9 as under:

“9. In State of Madhya Pradesh v Saleem, (2005) 5SCC

554, the Court held that to sustain a conviction under

Section 307, IPC, it was not necessary that a bodily injury

capable of resulting in death should have been inflicted.

As such, non-conviction under Section 307, IPC on the

premise only that simple injury was inflicted does not

follow as a matter of course. In the same judgment, it was

pointed out that ‘...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.’ The position that because a fatal injury was not

sustained alone does not dislodge Section 307, IPC

conviction has been reiterated in Jage Ram v State of

Haryana, (2015) 11 SCC 366 and State of Madhya

Pradesh v Kanha, (2019)3 SCC 605. Yet, in Jage Ram

(supra) and Kanha(supra), it was observed that while

grievous or life-threatening injury was not necessary to

maintain a conviction under Section 307, IPC, ‘The

intention of the accused can be ascertained from the

actual injury, if any, as well as from surrounding

circumstances. Among other things, the nature of the

weapon used and the severity of the blows inflicted can

be considered to infer intent.”

33.Again, Hon’ble Supreme Court in the case of Shoyeb Raja vs. State

of Madhya Pradesh, reported in 2024 INSC 731 has examined what

will be the essential ingredients to attract offence under Section 307 of

IPC and has held as under:

“11.1 In State of Maharashtra v. Kashirao3, the Court identified

the essential ingredients for the applicability of the section. The

relevant extract is as below:

“The essential ingredients required to be proved in the case of

an offence under Section 307 are:

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

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

consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death;

or that it was done with the intention of causing such bodily

Page 21 of 26

injury as : (a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause

death, or that the accused attempted to cause death by doing

an act known to him to be so imminently dangerous that it must

in all probability cause (a) death, or (b) such bodily injury as is

likely to cause death, the accused having no excuse for

incurring the risk of causing such death or injury.” (2003) 10

SCC 434

11.2 This Court in Om Prakash v. State of Punjab4, as far back

as 1961, observed the constituents of the Section, having

referred to various judgments of the Privy Council, as under:

“a person commits an offence under Section 307 when he has

an intention to commit murder and, in pursuance of that

intention, does an act towards its commission irrespective of the

fact whether that act is the penultimate act or not. It is to be

clearly understood, however, that the intention to commit the

offence of murder means that the person concerned has the

intention to do certain act with the necessary intention or

knowledge mentioned in Section 300. The intention to commit

an offence is different from the intention or knowledge requisite

for constituting the act as that offence. The expression

“whoever attempts to commit an offence” in Section 511, can

only mean “whoever : intends to do a certain act with the intent

or knowledge necessary for the commission of that offence”.

The same is meant by the expression “whoever does an act

with such intention or knowledge and under such circumstances

that if he, by that act, caused death, he would be guilty of

murder” in Section 307. This simply means that the act must be

done with the intent or knowledge requisite for the commission

of the offence of murder. The expression “by that act” does not

mean that the immediate effect of the act committed must be

death. Such a result must be the result of that act whether

immediately or after a lapse of time.” (Emphasis supplied)

11.3 Hari Mohan Mandal v. State of Jharkhand5 holds that the

nature or extent of injury suffered, are irrelevant factors for the

conviction under this section, so long as the injury is inflicted

with animus. It has been held:

“10. …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 1961 SCC

OnLine SC 72 (2004) 12 SCC 220 all to actual wounds. …

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.

Page 22 of 26

11. 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. If the injury inflicted

has been with the avowed object or intention to cause death,

the ritual nature, extent or character of the injury or whether

such injury is sufficient to actually causing death are really

factors which are wholly irrelevant for adjudging the culpability

under Section 307 IPC. 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. Therefore, it is not correct to acquit an

accused of the charge under Section 307 IPC merely because

the injuries inflicted on the victim were in the nature of a simple

hurt.” (Emphasis supplied)”

34.Thus, it is quite vivid that the finding recorded by the learned trial Court

convicting the appellants under Section 307 of IPC cannot be held to

suffer from perversity or illegality warranting interference by this Court.

35.The further submission of the learned senior counsel for the appellants

that conviction of the appellants under Section 450 of IPC is not made

out is being considered by this Court. Section 450 of IPC provides that

whoever commits house trespass in order to commit of any offence

punishable with (imprisonment for life) shall be punished with

imprisonment of either description for a term not exceeding 10 years

and shall also be liable to fine. From the evidence and material on

record, it is quite vivid that the appellants have committed trespass and

thereafter by deadly weapon they have committed an offence under

Section 307 of IPC which has been found proved by the evidence

adduced by the prosecution, particularly the evidence of PW-13 and

PW-18. Thus, the trial Court while convicting the accused for the

offence under Section 450 of IPC has rightly recorded its finding in

convicting the accused persons. This finding neither suffers from

perversity nor illegality warranting interference by this Court.

Page 23 of 26

36.Further submission of the appellant that since the incident has taken

place in the year 2001 and more than 25 years have already been

lapsed, the appellants have settled in their life and if they are ordered

to suffer remaining jail sentence it will not only ruin their life as well as

their family members who are dependent upon them. Thus, he would

pray for reducing the sentence already undergone by them. The record

of the case shows that the accused Ram Krishna Vaishya remained in

jail from 30.10.2001 to 29.12.2001 and the other accused Lallu was

absconded and surrendered on 13.04.2002 and remained in jail from

13.04.2002 to 26.04.2002. Thereafter, they have been released on bail

by this Court on 21.11.2005, thus, they remained in jail for 03 months

and 26 days. It is reported that appellant No. 2 Jhallu S/o Kanhaiya Lal

Dhimar passed away on 23.03.2006 as per the death certificate

annexed with the record and appellant No. 3 Munna Verma S/o Albela

Verma passed away on 20.10.2013, as such, this appeal so far it

relates to appellants No. 2 and 3 stands abated.

37.Now, the submission for already undergone is being considered by this

Court. Looking to the gravity of the offence and the manner in which

the victim was injured, there are no mitigating factors available on

record, but looking to the facts that the incident pertains to 2001 and

more than 25 years have been lapsed and there is no minimum

sentence provided under the Indian Penal Code for commission of

offence under Section 307 of IPC as well as Section 450 of IPC. This

Court cannot lose sight of law laid down by the Hon’ble Supreme Court

in the case of Paramweshwari vs. The State of Tamilnadu and

others, reported in 2026 INSC 164 wherein the Hon’ble Supreme

Page 24 of 26

Court has examined the mitigating factors for reducing the sentence

and held in paragraphs 22, 24 and 34 has held as under:

“22. The objective of punishment is to create an effective

deterrence so that the same crime/actions are prevented and

mitigated in future. The consideration to be kept in mind while

awarding punishment is to ensure that the punishment should not

be too harsh, but at the same time, it should also not be too

lenient so as to undermine its deterrent effect.

24. This objective was also reiterated by this Court in a catena of

judgments (see: Ahmed Hussein Vali Mohammed Saiyed and

Another vs. State of Gujarat reported in (2009) 7 SCC 254); Guru

Basvaraj Alias Benne Settappa vs. State of Karnataka reported in

(2012) 8 SCC 734 and various others) wherein it was held that

the object of awarding appropriate sentences is that society

should be protected and the crimes should be deterred. The

balancing has to be done between the rights of the accused and

the needs of the society at large.

34. The misplaced understanding of various courts in treating

compensation as a substitute of sentence is both a matter of

concern and a practice which should be condemned. We have

observed a trend amongst various High Courts wherein the

sentences awarded to the accused persons by the Trial Court are

reduced capriciously and mechanically, without any visible

application of judicial mind. Considering the gravity of the situation

as thus, we have culled out certain basic factors, which are to be

kept in mind by the courts while dealing with imposition of

sentence, in line with the view taken by this Court in the

aforementioned cases. The said factors are enunciated as below:

A. Proportionality: Adherence to the principle of “just deserts”

ought to be the primary duty of the courts. There should be

proportionality between the crime committed and the

punishment awarded, keeping in consideration the gravity of

the offence.

B. Consideration to Facts and Circumstances:

Due consideration must be given to the facts and

circumstances of the case, including the allegations,

evidence and the findings of the trial court.

C. Impact on Society: While imposing sentences, the courts

shall bear in mind that crimes essentially impair the social

fabric of the society (of which the victim(s) is/are an

indispensable part) and erodes public trust. The sentence

should be adequate to maintain the public trust in law and

administration, however, caution should also be taken, and

the Court shall not be swayed by the outrage or emotions of

the public and must decide the question independently.

D. Aggravating and Mitigating Factors: The courts, while

deciding the sentence or modifying the sentence, must weigh

the circumstances in which the crime was committed, and

while doing so, the court must strike a fair balance between

the aggravating and the mitigating factors.”.

Page 25 of 26

38.In light of the law laid down by Hon’ble the Supreme Court and the

facts of the case, and further considering the fact that the prosecution

has also not placed any material on record indicating the criminal

antecedents of appellants as ordered by this Court and they are

regularly attending the trial Court after releasing by this Court on bail

and have not misused the liberty granted to him while granting bail by

this Court, I am of the view that ends of justice would be served if the

jail sentence of 10 years for commission of offence under Section 307

and 307/34 of IPC awarded by the trial Court is reduced to seven years

and also reducing the sentence under Section 450 of IPC for 3 years

and enhancing the fine amount from Rs. 25,000/- to Rs. 50,000/- for

commission of offence under Section 307 of IPC and for commission of

offence under Section 450 of IPC from Rs. 5,000/- to Rs. 10,000/- and

for commission of offence under Section 307/34 of IPC the fine amount

will be enhanced from Rs. 25,000/- to Rs. 50,000/- which shall be

payable to the victim by the appellant No. 1 and 4 as victim

compensation. The appellants are directed to deposit the enhancing

amount of Rs.55,000/- before the trial Court within a period of two

months from the date of passing of this judgment and thereafter the

learned trial Court shall pay the aforesaid enhanced amount to the

victim within two weeks from the date of depositing the aforesaid

amount by the appellants.

39.Accordingly, conviction under Sections 450, 307 and 307/34 of IPC are

affirmed, but jail sentence of 10 years awarded by the trial Court under

Section 307 and 307/34 of IPC is reduced to seven years and for

commission of offence under Section 450 of IPC is reduced to three

years enhancing the fine amount as detailed above, in default in

Page 26 of 26

payment of fine amount one year R.I. will also be suffered by them for

all the offence. All the sentence as awarded by this Court shall run

concurrently.

40.Consequently, the instant appeal is partly allowed to the extent

indicated herein-above with regard to appellant No. 1 and 4 and so far

appellant No. 2 and 3 are concerned, it is abated on account of their

death.

41.From the records, it appears that the appellant No. 1 and 4 are on bail

and their bail bonds shall stand cancelled. The appellants themselves

shall surrender before the concerned trial Court for serving out the

remaining part of the jail sentence within 8 weeks from the date of

judgment. If the appellants fails to surrender before the concerned trial

Court, the Police authority will take necessary steps and information

will be submitted to the Registry of this Court.

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

trial court concerned forthwith for necessary information and

compliance.

Sd/-

(Narendra Kumar Vyas)

Judge

Raju