Mohammed Kasim And Ors vs State Of Chhattisgarh
2021 Latest Caselaw 1473 Chatt

                                          1

                                                                             NAFR

                    HIGH COURT OF CHHATTISGARH, BILASPUR

                        Criminal Revision No. 142 of 2012

                          Order reserved on 22.07.2021

                          Order delivered on 30.07.2021

      1.     Mohammed Kasim, S/o Abdul Karim, aged about 23 years,
      Occupation-Press Reporter, R/o Village - Luthra, P.S.- Seepat, District -
      Bilaspur (C.G.)

      2.    Mohammed Ijrail, S/o Sheikh Sattar, aged about 24 years, Occupation
      - Shopkeeper, R/o Village- Luthra, P.S.- Seepat, District - Bilaspur (C.G.)

      3.     Sheikh Majeed, S/o Sheikh Rahim, aged about 40 years, R/o
      Occupation - Agriculturist, R/o Village - Luthra, P.S. - Seepat, District -
      Bilaspur (C.G.)                                                   (In jail)

                                                                    ---- Applicants

                                        Versus

      State of Chhattisgarh, through the Thana Incharge, Arakshi Kendra, Seepat,
      District Bilaspur (C.G.)

                                                                ----Non-applicant



For Applicants             : Mr. Ratnesh Kumar Agrawal, Advocate.
For Non-applicant          : Mr. Raghvendra Verma, Govt. Advocate


                     Hon'ble Shri Justice N.K. Chandravanshi

                                 ORDER [C.A.V.]

(1) The proceedings of the matter have been taken-up through video conferencing.


(2)   Present revision is directed against the impugned judgment dated 13.02.2012

passed by Third Upper Sessions Judge, Bilaspur (C.G.) in Criminal Appeal Nos.

340/11 & 349/11, respectively partly affirming the order dated 24.11.2011 passed by

Judicial Magistrate, First Class, Bilaspur in Criminal Case No. 504/2010 convicting
                                             2

the applicants/accused for the offence punishable under Sections 323/34 & 325/34

of the Indian Penal Code and sentencing each of them to undergo rigorous

imprisonment for three months with fine of Rs.500/- and to undergo rigorous

imprisonment for six months with fine of Rs.500/-, respectively for each offence, with

default stipulation. Both the sentences were ordered to run concurrently.


(3)   Brief facts of the case are that on 03.10.2007 at 7 O'clock evening, the

applicant/accused entered into the shop of complainant unauthorizedly and

committed marpeet with the complainant namely Nand Kumar Tiwari and his son

namely Mukesh Tiwari by means of rod and sticks, as a result of which, they

sustained grievous / multiple injuries on their legs, hands, back-side and several

parts of their body. Based on this, FIR (Ex.P-1) was registered at Police Station,

Seepat under Sections 452, 294, 506, 323 read with Section 34 of the Indian Penal

Code, 1860 (henceforth "IPC"). After filing of charge sheet, the trial Magistrate

framed the charges under Sections 294, 452/34, 323/34, 325/34 & 506-B of the IPC

against the applicants/accused.


(4)   So as to hold the applicants/accused guilty, the prosecution has examined as

many as 10 witnesses. Statements of the applicants/accused were also recorded

under Section 313 of Cr.P.C. in which they denied the circumstances appearing

against them in the prosecution case, pleaded innocence and false implication.


(5)   Vide judgment dated 24.11.2011, learned trial Magistrate has acquitted the

applicants/accused of the offence under Sections 294 & 506-B of the IPC whereas

convicted & sentenced each of them under Sections 323/34, 325/34 & 452 of the

Indian Penal Code.
                                             3

(6)   Applicants/accused preferred appeal there-against before the appellate Court.

The appellate Court vide its impugned judgment dated 13.02.2012, judgment of

conviction and order of sentence passed by the trial Magistrate has been partly

affirmed by the appellate Court, acquitting each of the applicants/accused under

Section 452 of the IPC whereas convicting and sentencing each of them as

mentioned in paragraph two of this order. Hence, this criminal revision.

(7)   Learned counsel appearing for the applicants/accused would submit that

independent witnesses have not supported the case of the prosecution; seizure

witnesses have also not supported the seizure memos (Exs. P-3 & P-4). He would

further submit that medical witness Dr. Rajesh Kumar (PW-10) & Dr. George M.

Khakha (PW-4) have clearly stated in their cross-examination that injuries sustained

by the complainant and his son can be caused on being fell upon the articles, which

were being used by them in their shop. He would also submit that since police officer,

who has registered the FIR (Ex.P-1), has not been examined by the prosecution,

therefore, the first information report has not been proved in accordance with law;

and there was also previous enmity between them, despite that, overlooking all the

aforesaid facts, both the courts below have convicted and sentenced the

applicants/accused as aforementioned, which is unsustainable in law. He would also

submit that even if it is found that applicants/accused have committed the said

crime, then he prayed that liberal view may be taken in respect of the sentence

imposed upon the applicants/accused because there are no past criminal history of

the applicants and the incident took place due to marpeet which was taken place in

the morning between the children.
                                                4


(8)    On the other hand, supporting the impugned judgment, it has been argued by

counsel for the respondent/State that both the courts below were fully justified in

convicting and sentencing the accused/applicants as aforementioned, which does

not call for any interference in the instant revision.

(9) I have heard learned counsel appearing for the parties and perused the

material available on records of both the courts below including impugned judgment

with utmost circumspection.

(10) Nand Kumar Tiwari (PW-2), who is complainant of this case, has stated in his

court statement that on 3.10.2007 when he along with his son was sitting in his shop

and maintaining the accounts of his shop, at that time, applicants/accused came

there and started assaulting them by means of stick, rod and hand & fist, as a result

of which, he [complainant himself] sustained multiple injuries on his hand, backside

and several other places of his body whereas his son [Mukesh Tiwari (PW-3)]

sustained multiple injuries on his head, leg and immediately after the incident, he

went to police station and lodged FIR (Ex.P-1), which he has proved in his

statement.

(11) Mukesh Tiwari (PW-3), who is son of complainant and another injured person,

has fully supported the statement of his father (complainant) and clearly stated that

applicants brutally assaulted him and his father by means of stick and rod and also

with hand and fist, as a result of which, they sustained grievous / multiple injuries on

head, backside and several other parts of the body.

(12) Mohd. Idrish (PW-1) & Sitaram (PW-7), who are said to be the eye witnesses

to the incident, have not supported the case of the prosecution but Dr. Rajesh

Kumar (PW-10), who medically examined Nand Kumar Tiwari (PW-2) and his son

Mukesh Tiwari (PW-3) on 3.10.2007 has stated in his evidence that he found injuries

on both the legs, forehead, face, backside & shoulder of Mukesh Tiwari (PW-3); and

also found injuries on left Thai, hip, left ear, left temporal region, chest, head, face,

left arm and many bruise on backside of injured/complainant Nand Kumar Tiwari

(PW-2). As per his statement , he referred both the injured persons to the District

Hospital for further investigation and opinion. Ex.P-11 is the medical report of

Mukesh Tiwari (PW-3) whereas Ex.P-12 is the medical report of Nand Kumar Tiwari

(PW-2). Statement of Dr. Rajesh Kumar is supported with medical report (Exs.P-11 &

P-12), which were prepared by him in respect of Mukesh Tiwari (PW-3) and Nand

Kumar Tiwari (PW-2), respectively.

(13) Dr. J.M. Khakha (PW-4), who is Radiologist, has stated in his court statement

that Mukesh Tiwari (PW-3) was admitted in CIMS Hospital, Bilaspur, whose X-ray of

left leg was being taken as per his direction and on being examination of his X-ray of

left leg, he found fracture on his tibia bone of left leg. His statement is corroborated

by X-ray report (Ex.P-2), which was prepared by him.

(14) Although independent witnesses have not supported the statements of

complainant Nand Kumar Tiwari (PW-2) and his son Mukesh Tiwari (PW-3) but

medical evidence available on record would support their statements regarding

injuries sustained by them in the said incident. Both the doctors i.e. Dr. Rajesh

Kumar (PW-10) & Dr. J.M. Khakha (PW-4) have stated in their cross-examination

that injuries sustained by both the injured persons can be caused on being fell upon

the hard and rough object and also on the articles, which were used by them in their

bicycle shop but only on their such admission, it cannot be said that they were

sustained such injuries upon being fell on hard and rough or other objects especially

when they have clearly stated in their evidence that they were sustained aforesaid

injuries on being assaulted by applicants/accused. Police Officer, who was registered

FIR (Ex.P-1), has not been examined but complainant Nand Kumar Tiwari (PW-2)

has clearly stated that he lodged FIR (Ex.P-1) and he has also proved his signature

on FIR (Ex.P-1), therefore, only on non-examination of Police Officer, who had

registered the FIR, it cannot be held that FIR has not been proved in accordance

with law.

(15) Furthermore, sticks and roads are commonly available articles in the villages,

therefore, non-proving of seizure memo (Exs. P-3 & P-4) will not adversely affect to

the case of the prosecution. Complainant (PW-2) and Mukesh Tiwari (PW-3) have

been cross-examined in detail by the defence but has not been able to elicit anything

in their cross-examination to discard their testimony against the applicants.

(16) In view of the foregoing discussion and perusing the evidence and material

available on record, I do not find any adverse material to hold that both the courts

below have committed any error in convicting the applicants/accused under Sections

323/34 & 325/34 of the Indian Penal Code, therefore, I upheld the conviction part of

the impugned judgment. Thus, it is held that conviction part of the impugned

judgment is hereby maintained.

[

(17) So far as sentence part of the impugned judgment is concerned, evidence of

the witnesses shows that before the incident, some quarrel took place between the

children, which gave rise to this incident. Both the parties are resident of same

village and as per record there is no previous criminal antecedents has been shown

against the applicants, further except injury of left leg of Mukesh Tiwari (PW-3), other

injuries have not been proved as grievous in nature. Applicants are reported to have

remained in jail from 13.2.2012 till 16.02.2012 and the fact that the incident had

taken place in the year 2007 and thereby more than 14 years have rolled by since

then. Therefore, looking to the facts and circumstances of the case, their sentence is

reduced to the period already undergone by them. However, in lieu thereof, fine of

Rs. 500/- each u/S 323/34 IPC; and fine Rs.500/- each u/S 325/34 IPC imposed by

the trial Court is enhanced to Rs.1,000/- & Rs. 2,000/- to each of the accused

persons, respectively, which shall be payable before the concerned trial Court within

a period of 90 days from today before the concerned trial Court. Failure, if any, in

depositing the amount before the trial Court within the period stipulated, would make

each of the applicants liable to be inside the jail for a period of one month u/S 323/34

IPC & three months u/S 325/34 IPC, respectively. Fine amount deposited, if any,

shall be adjusted by the fine amount as imposed by this Court.

(18) Accordingly, the criminal revision is partly allowed.

Sd/-

                                                                     (N.K. Chandravanshi)
D/-                                                                        Judge