Kewra Bai vs State Of Chhattisgarh
2022 Latest Caselaw 99 Chatt

                                                                           AFR


          HIGH COURT OF CHHATTISGARH, BILASPUR

                  Reserved for Orders on : 15/12/2021

                       Order Passed on : 07/01/2022

                      Criminal Revision No.102 of 2018

 1.

Kewra Bai D/o Prakash Dewangan, Aged About 36 Years

2. Laxmin Bai W/o Prakash Dewangan, Aged About 62 Years

3. Pramila Kewat W/o Santram Kewat, Aged About 37 Years

4. Santoshi Porte W/o Bhagwan Singh, Aged About 37 Years

5. Dujkuwar W/o Ram Kumar Dhruw, Aged About 37 Years (All are r/o Shiv Chowk, Lofandi, P.S. Koni District- Bilaspur, Chhattisgarh)

---- Applicants Versus

 State Of Chhattisgarh, Through The Police Station Koni, District-

Bilaspur, Chhattisgarh

---- Non-applicant

For Applicants : Mr. Somnath Verma, Advocate. For Non-applicant/State : Mr. Anmol Sharma, Panel Lawyer.

Hon'ble Shri Justice Rajendra Chandra Singh Samant

C A V Order

07/01/2022

Heard.

1. This revision petition has been preferred against the judgment dated

05.12.2017, passed by the appellate Court by 8 th Additional Sessions

Judge, District- Bilaspur in Criminal Appeal No.196 of 2017, by which

the judgment of conviction and sentence of the trial Court dated

29.08.2017 in Criminal Case No.833 of 2014 was upheld and the appeal

was dismissed.

2. The applicants were charge-sheeted for commission of offence under

Sections 147, 294, 323 and 506 (Para-2) read with Section 149 of I.P.C.

for which they were tried. The learned trial Court vide judgment dated

29.08.2017 acquitted the applicants from the charges under Sections

294, 323 and 506 (Para-2) read with Section 149 of I.P.C., however all

the applicants were convicted for offence under Section 147 of I.P.C.

and sentenced only with fine of Rs.1000/- with default stipulation. The

learned appellate Court has vide impugned judgment upheld the

judgment of the trial Court and dismissed the appeal.

3. It is submitted by learned counsel for the applicants that the impugned

judgment and the judgment of the trial Court both are erroneous and

against the facts, law and evidence of the case. The applicants were

falsely implicated in the case which is fully concocted. The conviction

under Section 147 of I.P.C. against the applicants cannot sustain as the

applicants have been acquitted from the other charges under Section

294, 323 and 506 (Para-2) read with Section 149 of I.P.C. The essential

ingredients of the offence of riot as defined in Section 146 of I.P.C. were

not specifically proved by the prosecution.

4. Reliance has been placed on the judgment of Supreme Court in the

case of Mariadasan and Others Vs. State of T.N. reported in 1980

Cri.L.J. 412, in which it was held that the fight which started suddenly on

the spur of the moment in a heat of passion, therefore, the accused

persons could be liable only for the individual acts committed by them

and there is no evidence to support the act of rioting. It is submitted that

the Hon'ble Supreme Court has similarly held in the case of State of

Uttar Pradesh Vs. Jodha Singh and Others reported in AIR 1989

Supreme Court 1822. Hence, the applicants are entitled for acquittal in

the case against them, hence, it is prayed that this revision petition be allowed and the impugned judgment as well as the judgment of the trial

Court both may be set aside.

5. Learned State counsel appearing for the non-applicant opposes the

submissions made by the learned counsel for the applicants and

submits that the prosecution has brought sufficient evidence for

establishing the commission of offence by the applicants under Section

147 of I.P.C., therefore, the learned trial Court as well as the appellate

Court both have not committed any error in holding the applicants guilty

under Section 147 of I.P.C. and sentencing them accordingly. Hence,

the present revision petition is devoid of merits, which may be

dismissed.

6. Heard learned counsel for both the parties and perused the document

present on record.

7. Considered on the legality, propriety and correctness of the judgment

passed by the learned trial Court. Ex.P/1 is written complaint given by

Meena Devi Nirmalkar (P.W.-1), in which it was alleged that on

03.01.2014, the applicant No.1 had raised a turmoil in the meeting of the

Gram Panchayat in the presence of all the Panch Members. Later on,

the applicants came to the Government School Lofandi, where the Self-

Help Group of Meena Devi Nirmalkar (P.W.-1) was cooking mid day

meal on 21.01.2014. The applicants quarreled with the Meena Devi

Nirmalkar (P.W.-1) and others by placing their claim that they should be

allowed to cook the mid day meal. The numbered F.I.R. Ex.P/2 was

lodged, on which basis, the case was investigated. In the Court

statement Meena Devi Nirmalkar (P.W.-1) has stated that applicant No.1

and others came to the spot, where the mid-day meal was being cooked

and quarreled with her claiming that the applicants are persons entitled

for cooking mid day meal. It was on this basis, the complaint Ex.P/1 was

given and F.I.R. Ex.P/2 was lodged. She has mentioned about use of

force and manhandling of the applicants but nobody was injured. Similar

is the statement of Mehtarin Nath (P.W.-2), Premin Bai (P.W.-3), Shiv

Kumari (P.W.-4) and Shakun Bai (P.W.-5), who were present on the

spot.

8. The evidence which has been taken into consideration by the learned

trial court for convicting the applicants under Section 147 of I.P.C. is only

to this extent that the applicants were present on the spot, who

quarreled with the complainant, put water on the wooden stove and

caused obstruction in the cooking of the mid day meal. This evidence is

present in the case on the basis of the statement given by the eye

witnesses.

9. The question raised in this revision petition is whether such an act of the

applicants is covered under the definition of 'riot' given under Section

146 of I.P.C. or not.

10. Section 146 of I.P.C. is as follows:-

"146. Rioting.--Whenever force or violence is used by an unlawful

assembly, or by any member thereof, in prosecution of the common

object of such assembly, every member of such assembly is guilty of

the offence of rioting."

11. On perusal of the provision under Section 146 of I.P.C., it is evident that

the unlawful assembly when uses force or violence, only then such an

act could be regarded as 'riot'.

12. Force is defined under Section 348 of I.P.C. which is as follows :-

"349. Force.--A person is said to use force to another if he causes

motion, change of motion, or cessation of motion to that other, or if

he causes to any substance such motion, or change of motion, or

cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing

or carrying, or with anything so situated that such contact affects that

other's sense of feeling: Provided that the person causing the

motion, or change of motion, or cessation of motion, causes that

motion, change of motion, or cessation of motion in one of the three

ways hereinafter described.

First. -- By his own bodily power.

Secondly. --By disposing any substance in such a manner that

the motion or change or cessation of motion takes place without

any further act on his part, or on the part of any other person.

Thirdly. -- By inducing any animal to move, to change its motion,

or to cease to move."

13. Force by itself is not punishable unless, it is a 'criminal force'.

14. The criminal force is defined under Section 350 of I.P.C., which is as

follows:-

"350. Criminal force.--Whoever intentionally uses force to any

person, without that person's consent, in order to the committing of

any offence, or intending by the use of such force to cause, or

knowing it to be likely that by the use of such force he will cause

injury, fear or annoyance to the person to whom the force is used, is

said to use criminal force to that other."

15. Meena Devi Nirmalkar (P.W.-1) has not made any mention regarding

use of any force.

16. Mehtarin Nath (P.W.-2) has stated that the applicants asked the witness

not to cook food and then pulled the burning wood from the stove and

put water on it. This statement of hers remained unrebutted.

17. Premin Bai (P.W.-3) has similarly stated and her statement is not

challenged in the cross-examination.

18. Similarly, the statement of Shiv Kumari (P.W.-4), Shakun Bai (P.W.-5)

and Harirath Nirmalkar (P.W.-6) on this point is also unchallenged. This

act of the applicants pulling the fire wood from the wooden stove is an

act within the definition of 'criminal force' under Section 350 of I.P.C. As

this act has caused F.I.R. and annoyance to the complainant and others.

19. The reliance of the applicants on the judgment of Supreme Court in the

case of Mariadasan and Others Vs. State of T.N. (Supra) and State of

Uttar Pradesh Vs. Jodha Singh and Others (Supra) does not appear to

be applicable in the facts present in this case. The applicants had

arrived at the spot, quarreled with the complainant and others and used

physical force to obstruct the work in progress. The evidence does not

disclose anything as such that the act of using force to cause

annoyance to the complainant and others was an individual act. The

Fifth Clause of the Section 141 of I.P.C. is clear on this point according

to which "an assembly of five or more persons is designated an

"unlawful assembly", if the common object of the persons composing

that assembly is to use criminal force, or show criminal force, to compel

any person to do what he is not legally bound to do, or to omit to do

what he legally entitled to do. Same is the situation present in this case

according to the unrebutted and unchallenged evidence present in the

record of the trial Court. Therefore, I am of this view that the learned trial

Court as well as the appellate Court have not committed any error in the

orders passed, therefore, this revision petition is dismissed and

disposed off.

20. With these observations, this Criminal Revision stands disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Monika