Shyamber @ Chamar Sai And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 5367 Chatt

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                                                                   NAFR

            HIGH COURT of CHHATTISGARH, BILASPUR
                             CRR No. 23 of 2011
                                  Judgment reserved on 28.06.2022
                                  Judgment delivered on 24.08.2022
  1. Siyamber @ Chamar Sai S/o Baliram Chikwa, aged about 50
     years, R/o Village-Kewra, Thana-Lakhanpur, Distt. Surguja,
     Chhattisgarh

  2. Ashodhan Ram S/o Puran Chikwa, age about 22 years, R/o
     Village-Andhla, Thana- Lakhanpur, Dist. Surguja, Chhattisgarh

  3. Urmila W/o Siyamber Chikwa, age about 35 years R/o Village
     Kewra Thana-Lakhanpur, Distt. Surguja, Chhattisgarh.
                                                        ------Petitioners

                                  VERSUS
   •   State of Chhattisgarh through: District Magistrate Ambikapur, Dist.
       Surguja, Chhattisgarh
                                                      -------Respondent

         For Petitioners      : Mr. Neeraj Mehta, Advocate.
         For Respondent       : Mr. Gagan Tiwari, Dy. Govt. Adv.

       Single Bench: Hon'ble Shri Parth Prateem Sahu, Judge
                              C.A.V. Judgment


1. In this revision, petitioners have assailed the judgment dated

   29.12.2010 passed in Criminal Appeal No. 136/2010 whereby

   learned 4th Additional Sessions Judge (F.T.C.), Ambikapur Distt.

   Surguja, Chhattisgarh, while dismissing the appeal, upheld the

   judgment of conviction and modified the sentence of petitioners

   awarded by trial Court.


2. Facts

relevant for disposal of this revision are that one Kalyanram

lodged report on 23.11.2004 at about 06:30 P.M. making allegations

that on 23.11.2004 at about 05:00 P.M. when he was returning from

his agricultural fields to his house, on the way, petitioners stopped

him, abused and assaulted him by means of brick due to which he

suffered grievous injuries, became unconscious and was taken to

hospital. Based on the report made by injured Kalyanram, initially

offence under Section 294, 506, 34 and 323 of IPC was registered

against petitioners. After completion of investigation, based on the

MLC report and x-ray report, police submitted final report before the

Court of judicial Magistrate, 1st Class, Ambikapur for offence defined

under Sections 294, 506, 325/34 of IPC. Learned trial Court framed

charges for commission of aforementioned offence against

petitioners to which they denied and thereafter they were put to trial.

Prosecution examined as many as 10 witnesses namely Kalyanram

as PW-1; Jatanram as PW-2; Ramnarayan as PW-3; Munesh as PW-

4; Rambai as PW-5; Dr. P.S. Kerketta as PW-6; Patago as PW-7;

Balasay as PW-8; B.P. Yadav as PW-9; Dr. M.K. Jain as PW-10 and

exhibited eight documents ie., F.I.R. as Ext. P-1; spot map as Ext. P-

2; reports of doctor as Ext. P-3 & 4; seizure memo as Ext. P-5 & 6

and report of doctor as Ext. P-8 in its support. Statement of accused

persons were recorded under Section 313 of CrPC and the

petitioners/ accused persons have examined two defence witnesses

as DW-1, Ishwar and DW-2, Charan (the then Sarpanch of village

panchayat). Learned trial Court on appreciation of evidence brought

on record by respective parties recorded finding that the petitioners

have assaulted complainant/ injured Kalyanram (PW-1), convicted

them for offence defined under Section 325/34 of IPC and have

acquitted all the petitioners from charges under Section 294, 506 Pt.-

II. Trial Court convicted petitioners for 2-years rigorous imprisonment

and Rs. 500 fine to each of petitioner/ accused. Petitioners aggrieved

by the judgment of conviction and sentence passed by the trial Court

preferred an appeal under Section 374 of CrPC. Learned Appellate

Court considering the grounds of appeal, arguments raised therein

and upon appreciation of evidence upheld the judgment of conviction

passed by trial Court, but while considering the punishment reduced

jail sentence from 2-year rigorous imprisonment to 1-year rigorous

imprisonment and maintained the sentence of fine ordered by ld. trial

Court by impugned judgment.

3. Mr. Neeraj Mehta, learned counsel for the petitioners would submit

that the finding recorded by both the Courts below holding petitioners

guilty for commission of offence under Sections 325/34 of IPC is per

se illegal and perverse to the evidence available on record. It is

further contended that Dr. P.S. Kerketta (PW-6), who examined

injured Kalyanram, in his cross-examination, stated that the injuries

suffered by Kalyanram may be caused if the person fell down while

running. Nature of injuries suffered by injured would not be by hitting

the person throwing brick upon him. This evidence of doctor was not

considered by the Courts below in appropriate manner. In alternate,

he would submit that even if this Court comes to the conclusion that

the finding recorded by the Courts below of assault upon complainant

Kalyanram by petitioners then also in the facts and circumstances of

the case, the manner in which the incident took place, the

punishment imposed upon petitioner is on higher side. Petitioner

during the period of the appeal remained in jail for about 25 days and

therefore the conviction imposed by the appellate court be modified

and reduced to the period already undergone. The fine amount has

already been deposited by petitioners. With respect to his alternate

prayer, counsel for petitioners placed reliance upon the judgment

passed by Hon'ble Supreme Court in case of Mathai vs. State of

Kerala reported in (2005) 3 SCC 260 and Ghasiram and another

vs. State of Chhattisgarh reported in (2011) 3 CGLJ SN 32 (CG).

4. On the other hand, Mr. Gagan Tiwari, learned State counsel opposing

the submissions of counsel for petitioners would submit that the

Courts below upon appreciation of documentary and oral evidence

brought on record have rightly arrived at a finding that the petitioners

have committed offence as alleged against them. He contended that

not only injured Kalyanram, PW-1, had specifically stated in his

evidence about the act of assault committed by petitioner but there

are three eye witnesses to the incident ie. PW-2 - Jatan Ram, PW-3 -

Ramnarayan and PW-5 - Rambai. He also submitted that as per the

MLC report, Ext. P-3 and Ext. P-4, complainant Kalyanram received

four injuries out of which two injuries were lacerated wound; bruise

and swelling. In Ext. P-8 doctor found fracture of left fibula bone.

Medical examination of Kalyanram was immediate and report was

lodged promptly, hence, the submission of learned counsel for

petitioner that the finding recorded by Court below are perverse is not

correct. He would submit that looking to the nature of crime,

impugned judgment passed by appellate court does to call for any

interference.

5. I have heard learned counsel for the parties and also perused the

record of trial Court as well as appellate court.

6. Sofar as, the first ground raised by learned counsel for petitioners

that the findings recorded by Courts below of committing an offence

under Section 325/34 of IPC by the petitioners are perverse, perusal

of F.I.R., Ext. P-1 would show that the report was lodged on the same

day of incident within one and a half hours ie., date and time of

incident was 23.11.2004 at about 05:00 PM and report was lodged on

same day at about 06:30 PM. In the F.I.R. there is allegation that

when complainant (injured) was returning from his agricultural field,

all the three persons stopped him, abused him and assaulted him by

means of brick. Kalyanram, injured and complainant, was examined

as PW-1, in his evidence he stood with the allegations made in the

F.I.R. against petitioners. Jatanram (PW-2) stated that while he was

returning from agricultural field along with Kalyanram, on the way

petitioners stopped him and petitioner No. 3 caught hold of

Kalyanram and thereafter all the three accused persons/ petitioners

assaulted him by means of brick. In cross-examination, though he

stated that when the accused persons came running towards

Kalyanram, he ran away but looking to the MLC report and evidence

of doctor, his evidence could not be disbelieved in its entirety.

Ramnarayan was examined as PW-3 who is also son of Kalyanram

(injured), he also deposed that upon hearing scream of his sister he

reached to the place of incident, saw the petitioners assaulting his

father by means of brick/ stone. Similar is evidence of Rambai, PW-5,

that she saw petitioners assaulting Kalyanram by means of brick. Dr.

P.S. Kerketta was examined as PW-6, he deposed that, he examined

injured Kalyanram on 23.11.2004 and found four injuries. Though in

the deposition sheets injuries No. 1 and 2 are mentioned to be

incised wound but in the MLC report, it is mentioned to be only

lacerated wound and not incised wound. Dr. M.K. Jain, Radiologist,

was examined as PW-10, in his evidence stated that x-ray of injured

was done on 27.11.2004, he found fracture of fibula bone, mentioned

in Ext. P-8

7. In view of the aforementioned facts of the case, that the matter was

reported immediately after incident. Injured was examined on same

day by doctor and diagnosed four injuries including two lacerated

wound and in view of evidence of three eye-witnesses to the incident,

submission made by learned counsel for petitioners that finding

recorded by both the Courts below of commission of offence under

Section 325/34 of IPC to be perverse is not sustainable and it is

hereby repelled. The judgment of conviction passed by both the

Courts below under Section 325/34 of IPC against petitioners is

affirmed.

8. Now this court will consider the alternate prayer made by learned

counsel for petitioner with respect to award of punishment for

commission of offence under Section 325/34 of IPC to be reduced to

petitioners' already undergone. Perusal of evidence of PW-1,

Kalyanram (injured and complainant) would show that he admitted

that petitioner No. 1 is his brother, petitioner No. 3 is wife of his

brother. In F.I.R., Ext. P-1, it is mentioned that there was some

dispute with petitioner No. 1 regarding wages. Complainant/ injured

had got dig one well at his agricultural field where his brother also

worked as labourer. DW-2, Charan, in his statement in paragraph-1

stated that he was sarpanch of village Kewra. Complainant and the

Petitioner No. 1 are real brothers and Petitioner No. 3 is his sister-in-

law. Petitioner No. 1 and complainant have dig a well with their

unanimous decision but later on complainant restrained petitioner No.

1 to use the well of taking water from it. Complainant has not even

paid the amount demanded by petitioner No. 1. He also stated that

with regard to money and water dispute there was panchayat

meeting. From the aforementioned evidence of sarpanch of village

Kewra where the complainant and petitioners are residing, it is

appearing that petitioners No. 1 and 3 are the near relatives of

complainant being his brother and sister-in-law. There was dispute

with regard to taking water from the well and further complainant not

paying wages/ money of digging well to petitioner No. 1. It is not the

case of prosecution that petitioners came their armed with any kind of

weapon but it appears that the dispute took place suddenly on road.

As per allegation, the assault is by means of brick which might be

lying at the place nearby, hence, it cannot be said that the offence

even if committed by petitioners is with pre-planned and unity of

mind. The incident is of the year 2004, petitioners suffered mental

agony for about 18 years of facing criminal case. As submitted by

counsel for petitioners that they were on bail during trial, and were

arrested after judgment of appellate court passed on 29.12.2010 and

their substantive jail sentence was suspended by this Court on

20.01.2011 and granted bail to them. After passing of the order,

petitioners might not have released from the jail immediately it might

have taken couple of days, hence, the submission made by learned

counsel for petitioners that the petitioners have already suffered jail

sentence of 25 days cannot be discarded.

9. Considering the relationship between complainant and petitioners

No. 1 and 3, cause of dispute, the manner in which incident took

place, nature of weapon used, date of incident and the period of 18

years of continuance of criminal case against petitioners, I am of the

view that jail sentence for commission of offence defined under

Section 325 read with Section 34 of IPC is reduced to the period

already undergone by petitioners.

10. For the foregoing discussion, revision is allowed in part and jail

sentence awarded to petitioners of year R.I. is modified to the period

already undergone.

11. Resultantly, revision is allowed in part.

Certified copy as per rules.

Sd/-

(Parth Prateem Sahu) Judge

Pawan