High Court of Chhattisgarh · 2025
Case Details
ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.04.22 16:17:44 +0530 Reserved on 22/01/ 2025 Delivered on 21/04/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 433/2004 1. Prakash, S/o Mangal Panika, aged about 19 Years, R/o Haldi Badi, P.S. Chirmiri, District Koria (C.G.) 2. (Deleted) Lakshman (Died) (As Per Honble Court Order Dated 13-12-2024) 3. (Deleted) Ramesh (Died) (As Per Honble Court Order Dated 13-12-2024) 4. Bodhan, S/o Mangal Panika, aged about 28 Years, R/o Haldi Badi, P.S. Chirmiri, District Koria, Chhattisgarh. Versus --- Appellants State of Chhattisgarh Through Police Station House Officer, P.S. Chirmiri, Tahsil Manendragarh, District Koria (C.G.) & Cr.A.No. 725/2004 --- Respondent Heera Lal, S/o Shri Ram Charan, aged about 20 Years, R/o. Dangore, Police Station – Manendragarh, District Koriya (C.G.) Versus --- Appellant The State of Chhattisgarh Through Police Station House Officers P.S> Chirmiri, Tahsil-Manendragarh, District Koriya (C.G.) --- Respondent Cause Title is taken from CIS system __________________________________________________________________ For Appellants
Legal Reasoning
State of Punjab reported in (2016) 13 SCC 280 and on the decision of this Court in the matter of Bhagat Ram and others v. State of Madhya Pradesh (now Chhattisgarh) -4- rendered in CRA No. 2960/1998 on 15.02.2023. She thus submits that there are major omissions and contradictions in the statement of prosecution witnesses which renders their testimony incredible, and therefore, conviction of the accused/appellants cannot be sustained and being this extending the benefit of doubt, Cr.A. No.433/2004 deserves to be allowed. 7. Shri Shivam Agrawal learned counsel for the appellant in Cr.A No. 725/2004 in addition to the above arguments advanced by Ms. Shashtri, submits that there is no allegation of assault against accused/appellant Heera Lal and he was not even a member of unlawful assembly, therefore, he cannot be convicted with the aid of Section 149 of IPC. He further submitted that the prosecution was not able to prove that this appellant acted in prosecution of the common object, and therefore, he is entitled for acquittal by allowing his appeal. Alternatively, it is submitted that if the conviction part of the judgment impugned is not likely to be interfered with, looking to facts and circumstances of the case and also the fact that the incident had taken place in the year 1997, that he was granted bail during trial, and even during the pendency of this appeal the sentence imposed on him was suspended by this Court and he was directed to be released on bail, the sentence awarded to him may be reduced to the period already undergone. In support of this submission, he placed reliance on the decision of the Supreme Court in the matter of Roy Fernandes v. State of Goa and others reported in (2012) 3 SCC 221 and submits that by such a long lapse of time the appellant might have reformed himself by streamlining into society and as such looking to his conduct all along it can be presumed that he may not be detrimental to the society, and therefore benefit of provision of Section 4 of the Probation of Offender Act may be extended to him. Submissions on behalf the State 8. On the other hand, learned counsel for the State combating the submissions of the counsel for the appellants submits that from the evidence of Akhilesh (PW-3), -5- Awadhesh Singh (PW-4) and Bharat Singh (PW-11), the offence alleged against the appellants is clearly made out. He further submits that the oral testimony of these witnesses is also corroborated by the Medical Evidence of Dr. R.R. Gajpiye (PW-9). He submits that the Akhilesh (PW-3) sustained fracture on the right radius bone and Awadhesh Singh (PW-4) sustained injury on his head, therefore, the well merited finding of conviction recorded by the learned trial Court may not be disturbed by this Court. He further submits that looking tot he overt act attributed to the appellants, they do not deserve any leniency from this Court, and being so the appeals are liable to be dismissed. 9. Heard learned counsel for the parties, considered their rival submission and also perused the record. 10. The question which falls for consideration before this Court is whether the judgment impugned by the learned trial Court can sustain the scrutiny of this Court. Six accused persons were put to trial before the learned trial Court and all of them were convicted as stated in the first paragraph of this Judgment. Five accused persons are before this Court in these appeals assailing the validity of the impugned judgment. In this case three injured persons who have been examined. The first one is Akhilesh (PW-3). He deposed in his statement before the learned trial Court that he knows the appellants, they have come to a marriage and were intoxicated. Some of them were keeping sword and farsa (a weapon like axe). He could not remember as to who was keeping sword and farsa. He alongwith Bharat (PW-11) and Awadhesh (PW-4) were assaulted. He categorically deposed that he was assaulted by Prakash (A/1) with farsa. As as result he sustained fracture on the irght hand. He goes on to depose others have also assaulted him. Bharat (PW-11) was assaulted by Lakshman (A/2 deceased appellant) he sustained injuries on stomach. Awadesh (PW-4) was assaulted by Bodhan (A/4) he sustained head injuries. He has lodged the FIR (Ex-P/1). He also deposed that he was medically examined on the same day. He was cross examined however he denied the suggestion -6- that appellant have not assaulted them and appellants were falsely implicated. Nothing incriminating is brought on record to disbelieved the testimony of this witness. 11. Another injured witness is Awadhesh (PW-4). He also deposed in the same line. He deposed that the appellant assaulted them in marriage and they were keeping sword, farsa, rod and stick. Prakash (A/1) was holding farsa, Deepak was holding rod, deceased appellant Lakshman was holding stick, Heeralal was holding sword. Bodhan (A/4) was not holding anything. He did not see anything in the hand of deceased appellant Ramesh. He further deposed that Bodhan (A/4) was talking to him. He goes on to depose that Prakash (A/1) assaulted from sharp side of farsa on his head as a result of the cut bleeding was on the head. Some appellants were holding rod and stick and they have also beaten him , he sustained injuries from chest to leg. Prakash (A/1) assaulted Akhilesh (PW-3) with farsa he does not remember whether he sustained injuries on hand. He does not remember who has assaulted Bharat (PW-11). In cross examination he denies the suggestion that there was darkness at the place of incident. He stated that he has told the police that Prakash (A/1) was holding fars, Deepak was holding rod, and Heeralal was holding sword. He further deposed he cannot tell the reason if it is not written in his police statement Ex-D/1. 12. Third injured witness is Bharat (PW-11). He deposed that he knows the appellant. He also knows injured Awadhesh (PW-4) and Karan Singh (not examined). They have gone to a marriage where appellants have also come. There was uproar, Awadhesh (PW-4) talked to one of the appellants. At that time some one assaulted on the shoulder of Awadhesh (PW-4) with stick like thing. He fell down and as he bent to lift him, Prakash (PW-1) assaulted him and he also fell down. Thereafter all the appellants started beating. Appellants were holding swords etc. He could not see as to who as assaulted Akhilesh (PW-3). He could not see who has assaulted Karan. After the assault he became unconscious and gained consciousness in the hospital. He had 13 stitches on his right stomach. He denied the suggestion that there was darkness at the spot. He also denied that the appellants have not assaulted them. -7- 13. On analysis of the above statements of the injured witness it is established on record that the at the place of incident, the appellants were present. Allegation of assault on Akhilesh (PW-3) by farsa is against Prakash (A/1). All the injured witnesses have stated that the appellants have assaulted them. Though from their evidence it is not clearly emerging on record that as to which appellant has made the assault by which weapon. There are some omission and contradiction in their statement. But, the omission and contradiction are not of material nature to discard the entire evidence of the injured witness. Their statements through light in the manner the incident has occurred. The appellants and injured witnesses were present in the marriage. Some altercation took place, thereafter, the injured witness were attacked by 8 accused person, hence it is quite natural in this situation of rush, the injured witnesses may not with certainty able to describe as to which appellant was holding which weapon. The ocular evidence is also corroborated by the evidence of Dr. R.R. Choudhary (PW-9) who medically examined the injured witnesses and found injuries on their person including a fracture on the right hand of Akhilesh (PW-3). The police seized a stick at the instance of Heeralal and Deepak, Farsa from Bodhan, Stick from deceased appellant Lakshman, Rod from Prakash. The seized article were also sent for query to Dr. R.R. Choudhary (PW-9) who gave the query report (Ex-P/22) that such injuries could be caused by it. FIR (Ex-P/ 1) was promptly lodged naming the appellants. Learned counsel for appellant Heeralal tried to persuade that the prosecution has not been able to prove the common object and the Heealal was not the member of unlawful assembly. To buttress this he placed reliance on the judgment of the Hon’ble Supreme Court in case of Roy Fernandes (Supra) in which it has been held by the Hon’ble Supreme Court that acts done in pursuance of common object for which members of unlawful assembly could be held liable under section 149 part I of part II will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. As discussed earlier looking to evidence of injured -8- witnesses, medical evidence, overt act of the appellants including appellant Heeralal, the submission of the learned Counsel is liable to be rejected. The learned trial Court on assessment of the evidence available on record found the appellants guilty, convicted and sentenced them. This Court does not see any illegality on such findings hence it is affirmed. Analysis with regard to quantum of sentence 14. Now the question arises for consideration is whether sentence awarded to appellant by trial Court can be reduced to period already undergone or what would be adequate sentence to be imposed in facts and circumstances of the case. 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.” 15. 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 -9- 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 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.” 16. 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. -10- 17. 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. Barring one fracture to Akhilesh (PW-3), the other injuries sustained by injured are not grievous. Therefore, looking to the entire facts circumstances and mitigating factors as stated above 4 years sentence imposed under Section 325 / 149 of IPC appears to be a bit harsh. In order to strike balance between crime and punishment ends of justice will be met if the sentence of 4 years imposed is reduced reasonably. Hence, the sentence of 4 years RI imposed by the learned trial court under section 325/149 IPC is reduced to RI of 6 months. Likewise sentence of 1 and 2 years RI imposed by the learned trial court under section 147 and 324/149 IPC respectively is reduced to RI of 3 months. Fine amount is not disturbed. in default of payment of fine appellants shall undergo addition RI for 15 days. Analysis with regard to Probation of Offenders Act, 1958 18. 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. 19. Sections 4 and 360 CrPC has come up for consideration before the Hon’ble Supreme Court in the case of Ratan Lal vs. State of Punjab 1965 (1) Criminal Law Journal 360, wherein the Hon’ble Supreme Court has held in paragraph-4 as under:- “This Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. The Act distinguishes offenders below 21 years of age and those 677 above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and -11- those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 11 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under SS 3 and 4 of the Act.” 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 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 12 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:- -12- “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 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 behaviour.” 22. In case of Ramesh Kumar alias Babla (Supra) cited by learned counsel for appellants Hon’ble Supreme Court extended the benefit of Probation of Offenders Act, 1958 while maintaining the conviction under section 324 IPC looking to passing of 19 years of occurrence observing that the appellant is aged about 50 years and fully settled in life. 23. From the record, it is not in dispute that the incident took place in the year 1997 and since then they have been facing the trial i.e. for last about 28 years and regularly appearing before the trial Court even after granting bail by this Court. No past criminal antecedents against them is brought on record by the prosecution during pendency of the appeal. The appellants were young boys at the time of incident and by now they must have attained a mature age. Their freedom does appear to be detrimental to society and must have settled in their life. Therefore, instead of sending the appellants to jail, they shall get the benefit of Section 4 of Probation of offender Act. Appellants shall file one surety to the tune of Rs. 10,000/- each coupled with personal bond to the effect within three months from the date of receipt of the copy of judgment before the concerned trial Court, they shall not commit any offence, shall observe good behaviour and shall -13- 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. 24. Accordingly, the appeal is partly allowed as indicated above. The appellants need not to surrender before the concerned trial Court to serve out the remaining sentence. 25. It is reported that appellants are on bail. Their bail bond shall be kept alive for six months as per provision of section 481 of BNSS, 2023. Record of the trial Court with copy of this judgment be sent back for information and necessary compliance. Sd/- Sd/-d/- Judge (Sachin Singh Rajput) Ashish/J
Arguments
: Ms. Meena Shastry (Cr.A.433/2004) and Shri Shivam Agrawal (Cr.A.725/2004), Advocates. For Respondent /State : Shri Pramod Shrivastava, Dy. Government Advocate. ___________________________________________________________________ -2- Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment As these two appeals arise out of judgment dated 27.04.2004 passed by Additional Sessions Judge, Manendragarh, District – Koriya (C.G.) in Session Case No. 280/97 convicting the accused/appellants under Sections 147, 325/149 and 324/149 IPC and sentencing each of them to undergo RI for one year u/s 147 IPC, RI for two years u/s 324/149 IPC and RI for four years u/s 325/149 IPC with fine of Rs. 500/- plus default stipulations, they are being decided by this common judgment. Factual background 2. Case of the prosecution, in brief, is that on 12.05.1997 a marriage ceremony was organized in the house of Tulsai where some altercation took place on account of playing of music. In the said altercation, the appellants started abusing filthily and then left the spot. After some time, all the accused/appellants again came there where accused Bodhanram was carrying battle axe (Farsa), accused Deepak, Laxman, Ramesh and Prakash were carrying club and iron rod with an intention to quarrel. When Akhilesh (PW- 3) and Awadhesh Singh (PW-4) asked the accused/appellants not to quarrel, accused Bodhan assaulted him with battle axe saying that he would kill him, as a result of which he suffered injury on his head which resulted in bleeding. He also caused injury to Akhilesh with the same battle axe on his right wrist. When Bharat Singh (PW-11) tried to intervene in the matter, accused Bodhan assaulted him also with the same battle axe on his stomach and caused a bleeding cut wound thereon. At the same time, accused Prakash, Deepak, Laxman and Ramesh caused injuries to Akhilesh (PW-3), Akhilesh Singh (PW-4) and Bharat Singh (PW-11) with club and iron rod. They stopped the assault on the intervention of the people of vicinity. Thereafter, Akhilesh (PW-3) went to the police station Chirmiri and lodged (FIR Ex. P-1) on the basis of which an offence under sections 147, 148, 149 and 307 IPC was registered against the accused persons. Injured -3- PW-3, PW-4 and PW-11 were sent to Community Health Centre, Chirmiri for treatment. Seizure of plain and blood stained soil was made from the spot. Blood stained clothes of PW-3 and PW-11 were siezed. Seizure of bamboo stick was made from accused Hiralal, club from accused Deepak, Ramesh. Bodhan and Laxman; iron rod from accused Prakash, and battle axe from accused Bodhan, and after completion of investigation charge sheet was filed against the accused persons under the same sections as in the FIR plus under Section 506 (II) IPC. 3. In order to prove the guilt of the accused/appellants, prosecution examined 12 witnesses and exhibited as many as 22 documents. Statements of the accused/appellants were also recorded under Section 313 CrPC where they claimed innocence, false implication in the case, and claimed trial. 4. After hearing the parties and on the basis of the record, learned trial Court convicted and sentenced the accused/appellants as mentioned in paragraph No. 1 of this judgment Hence this appeal. 5. It is pertinent to note here that during the pendency of these appeals, accused/appellants Lakshman and Ramesh have passed away, their appeal stood abated vide order dated 13.12.2024. These appeals now thus pertain to two accused persons namely Prakash, Bodhan and Heera Lal. Submissions on behalf the accused/appellants 6. Ms. Meena Shashtri learned counsel for the appellants argued that the learned trial Court has committed an error of law and fact in convicting the appellants. She further submits that the prosecution could not prove the case against the appellants beyond the reasonable doubt and that learned trial Court did not appreciate the evidence brought before it, in its proper perspective. To buttress her submissions, she placed reliance on the decisions of the Supreme Court in the matter of Ramesh Kumar alias Babla v.