A division bench of the Chhattisgarh High Court allowed an appeal and acquitted the accused of the charges made against him for attempt to murder. The reason for the aforementioned was the failure of prosecution to prove the two elements of Section 307 IPC. The court also observed that the prosecution failed to examine the injured victim thus depriving the appellant the opportunity to cross-examine the said witness.
Brief Facts:
The appellant was convicted and sentenced under Sections 147, 148 and 307 (read with Section 149) of the IPC and the present appeal was filed to question the legality, validity and correctness of the same. The appellant herein and eight other accused persons were tried for the offences punishable under the aforesaid offences on the allegation that on 27-6-2018 between Village Kalepal & Chikpal in dense forest, the appellant along with eight other accused (acquitted) and other absconded accused persons being members of banned Naxalite organization, armed with deadly weapons constituted unlawful assembly and used force and assaulted Ganiram (injured) – Constable DRG and thereby committed the aforesaid offences. All the accused persons were tried for the aforesaid offences and ultimately, the trial Court had convicted the present appellant in the aforesaid manner and acquitted eight accused persons against which this appeal has been preferred.
Contentions of the Appellant:
The appellant contended that injured Ganiram himself has not been examined and it has not been proved beyond reasonable doubt as to whether he suffered injuries and furthermore, no memorandum statement has been recorded and seizure vide Exs.P-3, P-4 & P-5 has been made from the spot, as such, in absence of disclosure statement, the appellant cannot be connected with the aforesaid seizure. Axe has been seized vide Ex. P-20, but it has neither been sent to FSL for forensic examination nor blood has been found on the same and even according to the doctor Dr. P. Venugopal (PW-13), injuries were fresh and serious in nature, no X-ray report has been found except report Ex. P-7 and the doctor himself has stated the injuries to be simple in nature. The appellant has already been in jail for 4 years 4 months and maximum jail sentence of five years has been awarded to the appellant. In that view of the matter, the appeal deserves to be allowed.
Observations of the Court:
The bench observed that the prosecution was obliged to examine the injured – Ganiram, to prove whether he was assaulted by the appellant and whether he has suffered injuries which were sufficient to cause death in terms of Section 307 of the IPC. In that case, the appellant could have an opportunity to cross-examine injured Ganiram qua his presence and his injuries which were sufficient to cause death. The court further relied on the case of Hari Singh v. Sukhbir Singh and others (1988) 4 SCC 551 and held that Section 307 of the IPC (attempt to murder) requires the court to examine whether the act, irrespective of its result, was done with the intention or knowledge of the accused. Intention/Knowledge is the necessary element which has to be gathered from all circumstances and not merely from the consequences that ensue. Similar observations were made in the case of Parsuram Pandey and others vs. State of Bihar (2004) 13 SCC 189 where the court held that to constitute an offence under Section 307, two ingredients of the offence must be present: (i) an intention of or knowledge relating to commission of murder and, (ii) the doing of an act towards it.
The bench also relied on the Supreme Court judgment in the matter of State of U.P. and another v. Jaggo alias Jagdish and others1971(2) SCC 42 and observed that the witness whose evidence is essential to the “unfolding of the narrative” should be examined. Thus, in the present case, the appellant has been deprived of the opportunity to cross-examine the injured, Ganiram which could have been proven to be fatal to the prosecution’s version. Apart from the fact that the appellant was apprehended as he was getting himself hide immediately after the incident during search operation conducted by the police party, no incriminating article has been seized from the appellant as no disclosure statement of the appellant has been recorded. Admittedly, the appellant was not apprehended from the spot. So far as axe and katta are concerned which have been seized vide Ex. P-20, same have been seized from an unidentified location i.e., Kalepal, Patelpara. Therefore, the prosecution has failed to prove that the appellant had intention or knowledge relating to commission of murder or towards it.
Decision of the Court:
Accordingly, conviction and sentences imposed upon the appellant under Sections 147, 148 & 307 read with Section 149 of the IPC were set aside and the appellant was acquitted of the said charges.
Case Title:
Sannu Kudami vs State of Chhattisgarh
Coram: Justice Shri Sanjay K. Agrawal and Justice Rakesh Mohan Pandey
Citation/Case No.: Criminal Appeal No. 337 of 2022
Advocate for the Appellant: Mr. Suresh Kumar Verma
Advocate for the Respondent/State: Mr. Ashish Tiwari
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