Nafr High Court
Case Details
1 2025:CGHC:38333 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 375 of 2005 1 - Dakeshwar S/o Shri Santosh Kumar Shukla Aged About 21 Years, occupation student R/o Katghora, District Korba (C.G.) 2 - Kirti Kumar (Abated) As Per Honble Court Order Dated 11-03-2025. 3 - Nadim Kumar Jaiswal S/o Prahalad Jaiswal Aged About 22 Years R/o Katghora, District - Korba (C.G.) 4 - Satyendra Pratap Singh S/o Chaitman Pratap Singh Aged About 19 Years , occupation student, R/o Katghora, District - Korba (C.G.). 5 - Ram Kumar Jaiswal S/o Fekuram Jaiswal Aged About 28 Years R/o Katghora, District - Korba (C.G.) 6 - Santosh Rathore S/o Ranjit Lal Rathore Aged About 22 Years, occupation student, R/o Ward No. 09, Tingipur, Katghora, District - Korba (C.G.). 7 - Ravi Jaiswal S/o Fekhu Ram Jaiswal Aged About 26 Years R/o Katghora, District - Korba (C.G.). 8 - Sayyed Hasan Ali S/o Sayyed Hussain Ali Aged About 27 Years, occupation private service, R/o Ward No. 02, Sanjay Nagar, Tahsilbhata, Katghora, District - Korba (C.G.). SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 2 9 - Vikas Kumar Patel S/o Hira Lal Patel Aged About 22 Years, occupation student R/o Cseb Katghora, District - Korba At Present R/o 400 Kv Sub Station Khedamara Jamul Bhilai, P.S. Jamul (CG). 10 - Kamlesh Rao S/o Mahavir Rao Aged About 24 Years, occupation student, R/o Ward No. 02 Sanjay Nagar, Tahsilbhata, Katghora, District - Korba (C.G.). 11 - Khel Lalwani S/o Budhar Lalwani Aged About 24 Years R/o Katghora, District - Korba (C.G.)
Legal Reasoning
12 - Bajrang Jaiswal S/o Shrilal Jaiswal Aged About 25 Years, occupation General Store, R/o Katghora, District - Korba (C.G.). 13 - Gyanendra Pratap Singh S/o Chaitman Pratap Singh Aged About 23 Years, occupation student, R/o Block Colony Katghora, District - Korba (C.G.). aged about 25 years. ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer Police Station Katghora District - Korba (C.G.) (cause title taken from CIS periphery) ... Respondent(s) For Appellant : Mr. Rohan Sharma, Advocate on behalf of Mr. Shailendra Dubey, Advocate. For Respondent/ : Mr. Dilman Rati Minj, Government Advocate. State 04/08/2025 Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (in 3 short ‘Cr.PC’), the present criminal appeal has been preferred by the appellants, calling in question the legality, validity and correctness of the judgment dated 2.4.2005 passed by the Special Sessions Judge, Korba (CG) in Special Sessions Case No.61/2004, by which, the appellants have been convicted and sentenced as under :- Conviction and sentence in respect of Appellant No.4- Satyendra Pratap Singh & Appellant No.-13- Gyanendra Pratap Singh. Conviction Sentence Under Section 147 of the IPC RI for 6 months and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for one month each. Under Section 452 of the IPC RI for one year and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for one month each. Under Section 323 read with RI for 6 months and to 149 of the IPC pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for month each. 4 Conviction and sentence in respect of Appellants Nos.1 to 3 and 5 to 12. Conviction Sentence Under Section 147 of the IPC RI for 6 months and to pay a fine of Rs.500/-, in default of payment of additional RI for one month each. Under Section 452 of the IPC RI for one year and to pay a fine of Rs.500/-, in default of payment of fine, to undergo additional RI for one month each. Under Section 323 of the IPC RI for 6 months and to read with Section 149 of the pay a fine of Rs.500/-, in IPC default of payment of fine, to undergo additional RI for one month each. Under Section 3(1)(x) of the RI for one year and to SC/ST (Prevention of pay a fine of Rs.1000/-, Atrocities) Act in default of payment of fine, to undergo additional RI for 3 months each. All the sentences of the appellants shall run concurrently 5 2. It is pertinent to mention here that all the accused persons/appellants have been acquitted of the charges under Sections 148, 506 (Part-II) and 294 of the IPC. 3. Case of the prosecution, in brief, is that on 16.12.2000, at 10:30 AM, the appellants/accused, in furtherance of their common object, entered a tribal boys hostel situated at Katghora having made preparations for assault. They allegedly assaulted Virendra Kumar (PW-2), Chentram (PW- 3), Devnarayan (PW-4), Ashwini Kumar (PW-6), Chatur Singh (PW-9), Babulal, Shivratan Singh, Anil Kumar and Mahavir (the last four were not examined) using a club. It is also alleged that the accused/appellants abused the victims using caste-related filthy language. In pursuance of the written report (Ex. P/5), FIR (Ex. P/6) was registered by Bhagwat Singh Uike, Hostel Superintendent (PW-5), on the same date of the incident at Police Station Katghora against eight accused persons. The Sumo vehicle used in the commission of the crime was seized vide Ex. P/4. The injured witnesses were examined by Dr. G.S. Kanwar (PW-7) and Dr. S.N. Pandey (PW-8). No external injury was found on the body of Mahavir (not examined), vide Ex. P/12. Simple injuries were found on Anil Kumar, Charan Singh, and Shivratan Singh (not examined), as per Ex. P/8, Ex.-P/9 and Ex. P/10, respectively. The other injured witnesses were also found to have 6 sustained simple injuries. Spot map has been prepared vide Ex.P/2. A club has been seized from accused – Dakeshwar vide Ex.P/3. 4. Statements of the witnesses were recorded and after completion of investigation, the charge sheet has been filed. 5. During trial, the appellants abjured their guilt and claimed to be tried. In order to prove its case, the prosecution examined as many 10 witnesses and exhibited 17 documents vide Ex.P/1 to Ex.P/17. 6. In the statements recorded under Section 313 of the Cr.PC, the appellants stated that they have been falsely implicated and they have not adduced any defence evidence. 7. After evaluating the evidence, the learned Special Judge convicted and sentenced the appellants as mentioned in the opening paragraph of the judgment. During the investigation, it was also found that the victim belongs to a tribal community; therefore, an offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act, 1989) was added, except in the case of appellants Satyendra Pratap Singh and Gyanendra Pratap Singh, as they belong to the same community. 8. Learned counsel for the appellants would submit that the trial Court has not appreciated the evidence in its proper 7 perspective. He further submits that no witness has stated that the incident involved a caste-based atrocity or that it occurred because the victims belong to a tribal community. As per the prosecution's version, the incident arose out of a fight between two groups i.e. residents of the hostel and local youths. Learned counsel for the appellants further submits that the trial Court had acquitted the accused under Section 148 of the IPC. Furthermore, since the incident did not occur with any prior preparation, the ingredients of Section 452 of the IPC would also not attract in the present case and at the most Section 451 of the IPC would be made out, which is also compoundable in nature. He would submit that with respect to the aforesaid Sections, injured witnesses- Virendra Kumar (PW-2), Chentram (PW-3), Devnarayan (PW-4), Ashwini Kumar (PW-6), Chatursingh (PW-9) and Babulal (not examined) have already filed an application for compromise with the accused persons, and the aforesaid offences are compoundable under Section 320 of the Cr.P.C (new Section 359 of the Bhartiya Nagarik Suraksha Sanhita, 2023). as mentioned in its first column. He would further submit that no Test Identification Parade (TIP) was conducted, and the injured witnesses only identified appellants Dakeshwar and Kirti (since deceased). There are material contradictions regarding the number of accused persons. Moreover, the 8 other accused were also not identified in a proper manner; therefore, their conviction is bad in law. He would further submit that the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short “the Act, 2000”), which came into force on 1.4.2001, defines a "juvenile" or "child in conflict with law" as a person who has not completed 18 years of age under Section 2(k). At the relevant time, appellants Dakeshwar, Nadim, Satyendra and Vikas had not attained the age of 18 years, and to that effect, their marksheets have also been filed before this Court. He would further place reliance on the case of Hari Ram Vs. State of Rajasthan and another, reported in (2009) 13 SCC 211, wherein it was held that in cases where the offence was committed prior to the commencement of the Juvenile Justice (Care and Protection of Children) Act, 2000, even if a person had completed 16 years of age at the time of commission of the offence but was below 18 years of age on that date, the benefit of the Act, 2000 would be extended in his favour. The Court finally held at paragraph 68 as under: 68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. 9 9. Learned counsel for the appellants would further submit that injured Shivratan Singh, Charan Singh, Anil Kumar and Mahavir etc (all are not examined) and the said fact has also been recorded in para 29 of the impugned judgment. Furthermore, the other injured persons have already entered into a compromise. Moreover, the prosecution against appellants Dakeshwar, Nadim, Satyendra, and Vikas deserves to be quashed, as they were juveniles at the relevant time and also in view of the fact that the incident occurred more than 25 years ago. Considering the factual circumstances of the case and the subsequent developments, including the amicable settlement arrived at, and the fact that they have been found to be juveniles in conflict with law, the prosecution against these appellants may be dropped. Alternatively, the compromise may be accepted, and the appellants may be acquitted of the charges under Sections 451 & 323/149 of the IPC. Furthermore, since the prosecution has failed to prove the charges under Section 147 of the IPC, and Section 3(1)(x) of Act, 1989, the appellants may also be acquitted of the said charges 10. Learned counsel for the State does not dispute the above- settled legal proposition, as at the relevant time, appellants Dakeshwar, Nadim, Satyendra, and Vikas were juveniles (as per the certificates furnished by them). It is also not disputed 10 that an amicable settlement has been arrived at. Lastly, learned counsel for the appellants would submit that the impugned judgment is well-merited and does not call for any interference. 11.Heard learned counsel for the parties and also perused the record with utmost circumspection. 12. Admittedly, in the instant case, there was an altercation between the appellant Daksehwar, and one of the inmates of the Tribal Hostel Babulal. Thereafter, Daksehwar came into the hostel along with some of his friends. In the said incident, Dakeshwar and the other accompanying youths assaulted several inmates of the hostel, namely Virendra (PW-2), Chentram (PW-3), Devnarayan (PW-4), Ashwani (PW-6), Chatur Singh (PW-9) including Babulal, Shivratan Singh, Charan Singh, Anil Kumar, and Mahavir; however, the latter individuals have not been examined. After examining the evidence of Chentram (PW-3), it is noted that he identified only appellant- Dakeshwar, and Kirti (who died during the pendency of the appeal). This witness further stated that along with them, 20–25 other persons arrived in a Tata Sumo vehicle, entered the hostel, and assaulted him with hands and fists. Similarly, Devnarayan (PW-4) has also identified only two persons, namely appellant- Dakeshwar and Kirti (now deceased). Bhagwat Singh (PW-5), Hostel Superintendent, 11 has not identified any of the appellants. Ashwani Kumar (PW- 6) has completely turned hostile and did not state anything against the appellants. Chatur Singh (PW-9) has not identified the person(s) who assaulted him. He has further stated that about 50 persons entered the hostel. The other witness, Dr. G.S. Kanwar (PW-7), medically examined Anil Kumar, Charan Singh, Shivratan and Babulal vide Ex.P/8 to Ex.P/11 respectively. However, none of these persons have been examined as prosecution witnesses. Dr. S.N. Pandey (PW-8) examined Mahavir and did not find any external injury on his body, and he proved his report vide Ex. P/12. He also examined Devnarayan (PW-4) vide Ex. P/13 and Ashwani Kumar (PW-6) vide Ex. P/14. Furthermore, he examined Virendra (PW-2), did not find any injury on his body, and proved his report vide Ex. P/15. Additionally, he examined Chatur Singh (PW-9) and Chentram (PW-3), did not find any external injury on their bodies, and proved his report vide Ex. P/16 & P/17 respectively. 13. From the aforesaid evidence, it is explicit that the appellants entered the hostel without any preparation, and the trial Court has also acquitted the appellants of the charge under Section 148 of the IPC. Furthermore, in the facts and circumstances of the case, no offence under Section 452 of the IPC would also be made out as there is no evidence of preparation for 12 causing hurt. The victims have identified only two persons, appellant Daksehwar and Kirti, while the other appellants have not been identified. Kirti Kumar died during the pendency of the appeal. Appellant Dakeshar has been found to be a juvenile, with his date of birth recorded as 1.4.1985, which makes him below the age of 18 years at the relevant time as per the Act, 2000. Therefore, his prosecution along with the adult accused persons is neither legal nor proper. The other appellants have not been specifically identified in connection with the charges under Section 147 of the IPC. 14. On perusal of the record, it appears that neither the incident occurred on account of the victims belonging to the tribal community, nor it is established that the appellants with an intention to insult such person(s) committed any act to that effect. Furthermore, no caste certificate was produced during the trial. Therefore, the offence under Section 3(1)(x) of the Act, 1989 has not been made out or proved. Accordingly, the appellants are acquitted of the aforesaid charge. 15. In view of the aforesaid discussion, as sufficient document has been filed to prove that appellants Dakeshwar, Navin, Satyendra, and Vikas had not attained the age of majority as per the Act, 2000, their prosecution before the Regular Sessions Court is held to be bad in law. Furthermore, since the incident occurred more than 20 years ago, and 13 considering the factual circumstances of the case, no useful purpose would be served by sending these individuals for retrial before the Juvenile Justice Board. Accordingly, the prosecution against the appellants -Dakeshwar, Satyendra Pratap Singh, Nadim Kumar Jaiswal and Vikas Kumar Patel is hereby dropped. 16. With regard to the charge under Section 452 of the IPC , there is no evidence of preparation to cause hurt. Accordingly, the offence under Section 452 of the IPC is not made out against any of the appellants, and they are acquitted of the said charge. However, the facts do establish an offence under Section 451 of the IPC, which is a lesser offence compared to Section 452. Therefore, looking to the evidence, at the most, an offence under Section 451 of the IPC would be attracted instead of Section 452 of the IPC. 17. Evidently, Sections 451 & 323 of the IPC are compoundable, and in this regard, an application (IA No.1) under Section 359(1) read with Section 528 of the Bhartiya Nagrik Suraksha Sanhita has been filed, which is willful and in accordance with law. By way of such application, injured persons—Chentram, Babulal, Virendra, Devnarayan, Chatur Singh, and Ashwini have entered into a compromise. 18. Considering the facts and circumstances of the case, IA No.1 is allowed. 19. Accordingly, all the appellants are acquitted of the charges 14 under Sections 451 and 323/149 of the IPC. With regard to the remaining charge under Section 147 of the IPC, only appellant Dakeshwar has been identified, who has been found to be a juvenile, and the proceedings against him have already been dropped. Furthermore, there is no evidence in this regard against the other appellants; therefore, they are also acquitted of the said charge. 20. The appellants are reported to be on bail. They need not surrender. The bail bonds furnished by them shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C.
Decision
21. Consequently, the Appeal is allowed to the extent indicated above. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- (Deepak Kumar Tiwari) Judge Shyna