Nafr High Court
Case Details
1 2025:CGHC:1109 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 381 of 2004 1. Ganesh Ram Bishal Ram Aged About 35 Years Occupation-Agriculture, R/o-Village- Luge(Lume), P.S.-Magarlod, Distt.-Dhamatari, Chhattisgarh 2. Tejram Sahu, aged about 29 years, son Bandhuram, 3. Tilak Ram Sahu, aged about 37 vears, son of Shri Bisalram Sahu. 4. Jeevan Sahu, aged about 46 years, son of shri Khomuram, 5. Tekram Vishwakarma, aged about 21 years, son of Shri Dayaram 6. Dayaram, aged about 48 years, son of Shri Hariram Vishwakarma, 7. Pratap alias Surajdas, aged about 42 years, son of Shri Premdas Manikpuri, 8. Rajkumar alias Raju, aged about 19 years, son of Shri Deehuram, All are resident of village – Luge (Lume) P.S. Magarlod, District Dhamtari C.G. ... Appellants State Of Chhattisgarh, through :Police Station Magarlod, District Dhamtari, Chhattisgarh. ... Respondent versus For Petitioner(s) For complainant : Mr. Shashi Bhusan Tiwari, Advocate : Mr. Ruhul Amin, Advocate Tarachand For State 08.01.2025
Legal Reasoning
Mr. Kalpesh Ruparel, P.L. S.B.: Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 1. This appeal under Section 374 (2) of the Criminal Procedure Code, 1973 (for short Cr.P.C.) has been filed by the appellants being aggrieved by the judgment and order of sentence dated 13.04.2004 passed by the additional Judge to the Court of Additional Sessions Judge, District Dhamtari, (C.G.) in Session Trial No. 285/2001 2 by which, learned trial Court held the appellants guilty of commission of offence and sentenced as described below - Conviction Sentence 1. U/s 148 IPC 02 year rigorous imprisonment with fine amount of Rs, 1,000/- and in default of payment of fine, further R.I. for 3 months. 2. U/s 323 R/w 149 IPC 01 year rigorous imprisonment with fine amount of Rs, 1,000/- and in default of payment of fine, further R.I. for 3 months. 3. U/s 307 R/w. 149 IPC 07 year rigorous imprisonment with fine amount of Rs, 1,000/- and in default of payment of fine, further R.I. for 01 year. Substantive sentences ordered to run concurrently 2. Case of the prosecution in brief is that the complainant Chaitram Pw-1 is a Deputy Sarpanch of village- Luge. A woman of the village 40 years old Gangabai has been kept as wife by one Bandhuram, due to which there was a dispute in the village. On 14.01.2001 at about 8:45 pm complainant Chaitram Pw-1 had gone to the betel shop near the house of Bandhuram Sahu at village Luge. At that time, on account of previous enmity, all the appellants came together and formed an unlawful assembly and being its member with common object assaulted the complainant Chaitram Pw-1 with tangiya, danda in order to kill him and filthily abused him and caused grievous injuries. At that time Tarachand Sahu Pw-2 came out of his house who was also assaulted by the appellants. The incident was reported in the Police Station Magarlod upon which Dehati Nalsi Ex- P/37 was registered and on that basis FIR Ex-P/38 was lodged in Police Station Magarlod. Spot map Ex-P/39 was prepared, Patwari Map Ex-P/2 was prepared. The injured was medically examined at Government Hospital, Magarlod as per the Ex-P/9 and P/10. FIR report Ex-P/11 was received on an application Ex- P/11A. 3. Vide Ex-P/5 blood stains and plain soil was put in the box from the spot. Vide Ex-P/4 one 2 feet knotted wooden Lathi containing blood stains was seized and one stick was seized from appellant Ganesh Ram vide P/14. Vide Ex- P/15 two pieces of Birha 3 Stick was seized from the appellant Dihuram. Vide Ex- P/16 one birha stick was seized from the appellant Tejram. 4. During the course of investigation, at the instance of appellant Tilakram one Dhaura Stick was seized vide Ex- P/6. A tendu stick was seized from the appellant Jeevan Vide Ex-P7. Vide Ex- P/8 one birha stick was seized from the appellant Tekram. Vide Ex- P/1 the cloths of the complainant Chaitram Pw-1 was seized. At the instance of appellant Tarachand one chain, one lungi containing blood stains was seized vide Ex- P/3. The seized sticks was sent for examination to Government Hospital, Magarlod vide Ex-P/17. The statement of the witnesses were recorded and after due investigation, charge-sheet was filed before the competent court. The case was committed by the competent Court and which was made over to the trial court for trial. The appellants were charged for commission of offenses as stated above and who denied the charges and claim to be tried. Their statement under Section 313 of CrPC was recorded and they examined Prahlad Dw-1 and Shriram Dw-2 in their defence. 5. By the judgment impugned learned Court below has held the accused/appellant guilty and imposed the sentence on them as described above which is under challenge in this appeal. 6. Learned counsel for the appellant submits that conviction of the appellants under Section 307 read with Section 149 of the IPC could not be made out. He submits that Dr. R. S. Thakur Pw-11 who has examined the injured complainant has not stated that the injury caused to him is sufficient enough to cause death. He submits that the offence will not travel beyond Section 325 of the IPC. He further submits that the conviction of the appellants under Section 148 of the IPC is bad in law as the alleged assault was not made by the deadly weapon. He further submits there is no evidence to suggest that the appellants formed an unlawful assembly, therefore, the appellants are entitled to acquittal. Alternatively he submits that the incident had occurred on 14.01.2001 and the appellants were granted bail by the earned trial court and after their conviction, their sentence were also suspended by this Court and during this 4 period they were not involved any of the criminal activity and they have reformed the society therefore the sentence awarded to the appellants may be reduced to the period already undergone. Apart from this he submits that the appellants are the first offender and as such they may granted benefit of The Probation of Offenders Act, 1958. To buttress his submission he placed reliance on the judgment of Hon’ble Supreme Court in the case of Jugut Ram Vs. State of Chhattisgarh reported in (2020) 9 SCC and Nirmala Devi Vs. State of Himachal Pradesh reported in 2023 SCC Online SC 899. 7. Per contra, learned counsel for the State opposes the submission and submits that the evidence brought by the prosecution is sufficient enough to hold the appellants guilty of the aforesaid offences. The manner in which the assault was made, the intention of appellants can be safely gathered and the conviction of the appellants under Section 307 of the IPC cannot said to be faulty. Apart from this he submits that long pendency of the trial cannot be a ground to reduce the sentence. The appellants are not entitled to benefit of The Probation of Offenders Act, 1958. 8. Mr. Ruhul Amin appears on behalf of complainant Tarachand Pw-2 and submits that the appellants and the complainant Tarachand are the residents of the same village and during these years, their relationships have become cordial. He submits that he has no objection, in the event, if the sentence is reduced to the period already undergone. 9. I have heard learned counsel for the parties, considered their rival submissions and perused the records. 10. In the case in hand, injury was received by the Tarachand Pw-2 and he was examined by Dr. K.K. Som Pw-10. On medical examination he found lacerated wound on the temporal region and the blood was oozing out and there was a swelling in it. He suspected fracture in the radius ulna joined on the left elbow. He advised to conduct an x-ray and injured was sent for hospital for it. 11. Dr. R. S. Thakur Pw-11 stated that complainant Tarachand Pw-2 was admitted in civil hospital, Dhamatari from 15.01.2001 and was referred from PHC, Magarlod 5 from civil hospital, Dhamtari on 15.01.2001 and was admitted there till 24.01.2001. He did not find any symptoms of head injury. On x-ray being conducted, he did not found any fracture on the head and left hand elbow. Dr. K. K. Som Pw-10 who also examined complainant Chaitram Pw-1, he also found a lacerated wound on the temporal region of his head and the blood was oozing out. He suspected the fracture in the femur bone and there was a scratch on the left hand and the injuries could have caused by hard and blunt object and the injuries could have been of grievous nature. The complainant injured was advised to conduct an x-ray and he was sent to Government hospital, Dhamtari. Dr. R. S. Thakur Pw-11 stated that the complainant Chaitram Pw-1 who was referred to Government Hospital, Dhamtari from PHC, Magarlod and he was admitted there from 15.01.2001 to 24.01.2001. in the X-ray no injury was found on the head of the complainant Chaitram Pw-1, however, a fracture was found on the 6th and 7th ribs of Chaitarm Pw-1. There was a fracture on the right index finger of the Chaitram and injury was serious in nature. He gave his medical examination report ex-P/13. Dr. K.K. Som Pw-10 stated in his report stated that the in the absence of treatment and in the event of excessive bleeding death could have been caused of complainant Chaitram. However, Dr. R. Thakur Pw-11 categorically stated that there is no possibility of death of complainant Chaitram on account of the injury sustained by him. The Doctor Pw-10 and Pw-11 did not find any fracture on the head of the complainant Chaitram Pw-1 and Tarachand Pw-2. The grievous injury was sustained by the complainant Chaitram Pw-1 which is in the nature of fracture on 6th and 7th ribs and right index finger. He was admitted from 15.01.2001 to 24.01.2001. 12. Complainant Chaitram was examined as Pw-1. He has vividly described the happening of the incident and categorically deposed that the appellant Ganesh Ram assaulted him on the head, Deehuram assaulted him on the right side with lathi as a result of which he sustained injuries. Tilak, Dihu, Raju, Tejram and Jeevan assaulted him on the left side resulting into injuries on his finger and chest. During the cross- examination nothing is brought on record to suggest that this witness can not be 6 relied upon. His statement is also corroborated by Pw-2 Taarachand who also stated that he was caught hold by the appellants and the appellant Ganeshram assaulted him on the head with tangiya and rest of them assaulted them with stick. As a result of which he sustained injuries on his head and on the thigh. Their statements also finds corroboration with medical evidence. Therefore, it cannot be said that the appellants were not involved in the incident and they have not caused grievous to the complainant Chaitram Pw-1 and Tarachand Pw-2. 13. Considering the manner in which the incident has occurred and the weapon used in the injury sustained and other medical evidence available on record, in the considered opinion of this Court, the offence committed by the appellants cannot be said to Section 307 of the IPC rather it would fall under Section 325 of the IPC for voluntarily cause and grievous hurt to the victims. It is also to be seen that though the assault said to have been caused on the head of the vital parts and ribs but from the cumulative assessment of the medical and oral evidence would clearly indicate that there is no intention on the part of the appellants to commit murder of the injured Chaitram Pw-1 and Tarachand Pw-2. Therefore, the conviction to the appellants under section 307 is set aside. The other submission of the learned counsel for the appellant is that the appellants cannot be held guilty of section 149 of IPC. Statements of Chaitram Pw-1 and Tarachand Pw-2 clearly establishes the overt act of the appellants. The have categorically deposed the role played by the appellants in commission of the offence. Even otherwise, overt act is not necessary to attract section 149 of the IPC. The appellants were members of unlawful assembly hence the submission of Shri Tiwari is repelled. 14. Therefore, after cumulative assessment of the evidence on record, while maintaining the conviction of the appellants under section 148, 323 read with section 149 of IPC, instead of section 307 read with section 149 of IPC they are convicted under section 325 read with section 149 of IPC. 7 15. Now the next question is with regard to sentence which may be imposed upon the appellants and as to whether they cam be given benefit of section 4 of Probation of Offenders Act, 1958. 16. Hon’ble Supreme Court in case of Deo Narain Mandal Vs. State of UP reported in (2004) 7 SCC 257 observed in paragraph 8 as under: “8.This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words, the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.” 17. Hon’ble Supreme Court in case of State of MP Vs. Ghanshyam Singh reported in (2003) 8 SCC 13 held as under:- “13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of 8 greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of Callifornia that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” 18. While determining the quantum of punishment various factors needs to be consider. Nature and gravity of offence, penalty provided for the offence, manner of commission of offence, proportionality between crime & punishment, character of the offender, age and sex of the offender, antecedents if any, possibility of reforms, impact of crime on society etc are some of the relevant consideration in determining the quantum of punishment. Court has to strike a balance between crime and punishment. Possibility of reform is an important mitigating factor while imposing appropriate sentence. Undue sympathy should not be given only because of long drawn pendency of criminal proceedings. In light of the above broad principles the facts of the instant case is examined. The appellants during pendency of this appeal were enlarged on bail. Nothing has been brought to the notice to this court that they have misused the liberty granted to them. It has also not brought on record by state respondent that during this period they were involved in any other crime or previous criminal antecedents. Possibility of reform cannot be ruled out. As submitted by the learned counsel for the complainant that the appellants are the residents of same 9 village and now for all these years their relationship have turned cordial. Therefore, looking to the entire facts circumstances and mitigating factors as stated above and in order to strike balance between crime and punishment ends of justice will be met if the sentences imposed on the appellants by the learned trial Court is reduced reasonably. Hence, the appellant are sentenced to 1 month rigorous imprisonment for offence under section 148, 323 read with section 149 of IPC, 6 months rigorous imprisonment for offence under section 325 read with section 149 of IPC with fine of Rs.1,000/- on each count, in default of payment of fine 10 days additional rigorous imprisonment. 19. Now this Court has to consider whether in the given facts and circumstances of the case benefit of Probation of Offenders Act, 1958 can be extended to the appellants or not. 20. The Hon’ble Supreme Court considering the provisions of Section 4 of the Probation of Offenders Act and Section 360 CrPC in the case of Ved Prakash vs. State of Haryana, (1981) 1 SCC 447 has held as under;- “We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of suck materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislations which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfill the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act. In the present case, the offender is a young person and his antecedents have no 10 blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are stabilizing factors in life. A long period of litigation and the little period of imprisonment suffered? will surely serve as a deterrent. We are mindful of the fact that a firearm has been used by the appellant and we cannot sleep over the gravity of the offence. Nevertheless, the report of the Probation officer states that the appellant is not given to any bad habits or stresses of poverty. A land dispute led to the crime and that does not survive any longer”. 21. Again the Hon’ble Supreme Court in the case of State of Maharastra vs. Jagmohan Singh Kuldeep Singh and other, (2004) 7 SCC 659 has held in paragraph 27 as under:- “27. The learned counsel appearing for the accused submitted that the incident is of the year 1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that benefit of Probation of Offenders Act, 958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The incident is more than 10 years old. The dispute was between the neighbours over a trivial issue of cleaning of drainage. The incident took place in a fit of anger. All the parties are educated and also distantly related. The incident is not such as to direct the accused to undergo sentence of -16- imprisonment. In our opinion, it is a fit case in which the accused should be released on Probation by directing them to execute a bond of one year for good behav+iour.” 22. From the record, it is not in dispute that the incident took place in the year 2001 and since then they have been facing the trial i.e. for last 24 years and it is not a case where the appellants have misused the liberty granted to them. No past criminal antecedents against them is brought on record by the prosecution during pendency of the appeal. The appellants and complainant have settled their score and are living cordially and peacefully in the same village. The appellants have attained their ripe age. Considering the mitigating circumstances as discussed, instead of sending the appellants to jail, they shall get the benefit of Section 4 of Probation of offender Act . 1958. Appellants shall file one surety to the tune of Rs. 10,000/- each coupled with personal bond to the effect within 90 days from the date of receipt of the copy of 11 order before the concerned trial Court, they shall not commit any offence, shall observe good behaviour and shall maintain peace during the period of one year and if there is breach of any of the conditions, they will be subjected to undergo the sentence as awarded this judgment. 23. Accordingly, the appeal is partly allowed. The appellants need not to surrender before the concerned trial Court to serve out the remaining sentence, if they are not required in any other case. 24. It is reported that appellants are in bail during pendency of the appeal their bail bond shall be kept alive for six months as per provision of section 481 of BNSS, 2023. The record of the trial Court with copy of the judgment be sent back for information and compliance. HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.02.12 14:34:37 +0530 H. Ansari Sd/- (Sachin Singh Rajput) Judge