Chattisgarh High Court
Budhari And Others vs State Of Chhattisgarh on 4 April, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:16041
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 748 of 2007
1. Budhari S/o Savant Ram Sahu, aged 50 years,
2. Bagirath S/o Budhari Sahu, aged 24 years,
3. Ratiram S/o Budhari Sahu, aged 22 years,
All are R/o Village-Amlidih, Police Station-Sahaspur Lohara, District -
Kabirdham (CG)
... Appellants
versus
State Of Chhattisgarh through Station House Officer, Police Station -
Sahaspur Lohara, District-Kabirdham (CG)
... Respondents
For Appellants : Mr. Malay Shrivastava and Ms. Ritika Dubey, Advocates.
For Respondent : Mr. Devesh G. Kela, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey, J
Judgment On Board
04/04/2025
The appellants in this appeal are challenging the legality and validity of the judgment of conviction and order of sentence dated 28.7.2007 passed by 2 Special Judge, Kabirdham (Kawardha) in Special Case No.12/2006 whereby the appellants stand convicted and sentenced as under:
Conviction Sentence Under Section 304 Part-II of IPC to RI for 10 years.
appellant No.1 Budhari.
Under Section 304 Part-II read with RI for 07 years.
Section 34 of IPC to appellants No. 2& 3 - Bhagirathi & Ratiram.
02. Case of the prosecution, in brief, is that on 6.11.2005 at around 10 am complainant Bhagwanti Bai went to Amlidih Khaar with the labours for harvesting the crop standing on the land which was purchased in the name of her husband and was sown by the complainant party. However, when she reached there she saw that the accused persons were harvesting the said crop. When she objected to it, the accused persons abused her filthily and in the name of her caste and beat them also as a result of which Dhursingh sustained grievous injuries and Kunjbai, Rungu and Sundribai also suffered injuries. Based on the report, the police commenced investigation and the injured persons were got medically examined vide Ex.P/10 to P/15. Spot map was prepared vide Ex.P/6. During treatment, injured Dhursingh succumbed to the injuries in Medical College, Raipur on 8.11.2005. Postmortem on the dead body was conducted vide Ex.P/27. Bloodstained clothes of the deceased as also injured Kunjbai were seized. Caste certificates of Bhagwanti Bai and Balaram were seized. Memorandum statements of the accused were recorded and pursuant thereto recovery of axe and clubs was made. The seized articles were sent to FSL and report Ex.P/37 was obtained therefrom. Statements of the witnesses were recorded and after completing investigation, charge sheet under Sections 294, 323, 324, 506B, 34, 307, 302 3 of IPC and Sections 3(1)(x) and 3(2)(5) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (in short "the Act of 1989") was filed against the accused persons. Learned trial Court framed charges under Sections 302/34, 307/34, 324/34, 323/34, 323/34, 506B of IPC and Section 3(1)(x) of the Act of 1989, which were abjured by the accused and they prayed for trial.
03. In order to substantiate its case the prosecution examined 27 witnesses. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined two witnesses.
04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellants as mentioned in para 1 of this judgment. Hence this appeal.
05. At the outset, learned counsel for the appellants submits that appellant No.1 Budhari has been released from jail after completion of the entire sentence and as such, he is not pressing this appeal on behalf of appellant No.1.
06. The above fact is not disputed by learned counsel for the State.
07. In view of above, the instant appeal stands dismissed as not pressed in respect of appellant No.1 Budhari and it survives only in relation to appellants No. 2 & 3.
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08. Learned counsel for the appellants submits that the impugned judgment is contrary to law and material available on record. Learned trial Court did not appreciate the evidence in its proper perspective as there is contradiction and omission in the statements of the witnesses. Learned trial Court ought to have seen that at the time of incident the deceased was accompanied by 30-40 persons and in the given set of facts and circumstances, the appellants ought to have been given benefit of right of private defence of property. This apart, in the present case, the trial Court wrongly held the appellants No. 2 & 3 guilty of the offence of culpable homicide by applying the provisions of Section 34 of IPC whereas they were not having any common intention with appellant No.1 of killing the deceased. Therefore, the impugned judgment in respect of appellants No. 2 & 3 is liable to be set aside.
Alternatively, learned counsel for the appellants submits that if this ultimately comes to the conclusion that conviction of the appellants No. 2 & 3 under Section 304 Part-II/34 of IPC is proper, then considering the facts and circumstances of the case giving rise to the incident which took place in the year 2005, the appeal is pending since 2007, appellants No. 2 & 3 were on bail during pendency of this appeal but never misused the liberty while on bail, their jail sentence may be reduced to the period already undergone by them which comes to near about two years.
09. On the other hand, learned counsel for the State opposing the contention of the appellants submits that the learned trial Court upon minute appreciation of oral and documentary evidence has rightly convicted and sentenced by the appellants by the impugned judgment which calls for no 5 interference by this Court. Therefore, the present appeal being without any substance is liable to be dismissed.
10. Heard learned counsel for the parties and perused the material available on record.
11. It is clear from the record of learned trial Court that the appellants were charged under Sections 302/34, 307/34, 324/34, 323/34, 323/34, 506B of IPC and Section 3(1)(x) of the Act of 1989 and after appreciation of oral and documentary evidence while acquitting them of all these charges, convicted appellant No.1 Budhari under Section 304 Part-II of IPC while convicting appellants No.2 Bagirath and appellant No.3 Ratiram under Section 304 Part- II read with Section 34 of IPC.
12. PW-1 Bhagwantin Bai states that on the date of incident Budhari assaulted Kunjbai, Rungu, Sundri and herself with axe as a result of which she sustained injuries over her wrist and head and Sundri as well as Rungu also sustained injuries over their head whereas Kunjbai suffered injuries over her hand and chest. She states that sons of Budhari also assaulted her with club. She states that Budhari assaulted Dhursingh with axe and his sons with club as a result of which he died.
13. PW-2 Kunjbai, PW-3 Sudri Bai, PW-4 Ramprasad, PW-5 Baliram, PW- 6 Rambai, PW-7 Brijlal, PW-8 Rungu and PW-9 Govind also state that Budhari assaulted on the deceased with axe whereas the other accused/appellants assaulted with club. All these witnesses remained firm in their cross-examination and nothing could be elicited from them by the defence to make their evidence untrustworthy or doubtful. This ocular evidence finds due corroboration from the evidence of PW-11 Dr. Arjun Singh 6 Thakur who medically examined the deceased on 6.11.2005 and PW-22 Dr. Ullas Godle who conducted postmortem on the body of the deceased on 9.11.2005 and noticed corresponding injuries on his body.
14. Learned trial Court minutely appreciated oral and documentary evidence on record and came to the conclusion that it is accused/appellant Budhari who made fatal assault on the deceased with axe and the other appellants assaulted with club. Hence considering the facts and circumstances of the case giving rise to the incident, the manner in which assault was made and the appellants Bagirath and Ratiram acted while appellant Budhari was inflicting injury with axe on the head of the deceased, learned trial Court held that present is a case of culpable homicide not amounting to murder and as such, convicted appellant Budhari under Section 304 Part-II of IPC and appellants Bagirath and Ratiram under Section 304 Part-II/34 of IPC. Having gone through the overall evidence, ocular and medical, on record, this Court finds no illegality or infirmity in the said findings for interference.
15. As regards sentence, considering the facts and circumstances of the case, the manner in which the incident took place; the role attributed to the appellants Bagirath and Ratiram; the fact that the incident took place in the year 2005; this appeal is pending since 2007 and they have remained in jail for near about two years, this Court is of the opinion that no fruitful purpose would be served in sending them back to jail at this stage and the ends of justice would be served if their sentence is reduced to the period already undergone.
16. In the result, the appeal is dismissed as not pressed in relation to appellant No.1 Budhari and it stands allowed in part in respect of appellant 7 No. 2 Bagirath and appellant No.3 Ratiram. While maintaining their conviction under Section 304 Part-II/34 of IPC, their jail sentence is hereby reduced to the period already undergone by them. They are reported to be on bail, therefore, their bail bonds shall continue for a period of six months from today in view of provisions of Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023.
Sd/
(Rajani Dubey)
MOHD by
Digitally signed
MOHD
AKHTAR KHAN Judge
AKHTAR Date:
2025.04.07
KHAN 16:46:45
+0530
Khan