Phoolchand And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 3524 Chatt

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                                                                 NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                    Order Reserved on : 29/03/2022

                     Order Passed on : 12/05/2022

                         CRR No. 674 of 2008


1.    Phoolchand, Aged about 38 years, S/o Bishat Yadav, R/o
      Kampa, P.S. Tumgaon, Tahsil and District Mahasamund (C.G.).

2.    Kundan Lal, Aged bout 50 years, S/o Gandaram Yadav, R/o
      Nayapara, Ward No. 4, PS Mahasamund, Tahsil and District
      Mahasamund (C.G.). (Deleted as per Order dated 06/04/2021
      & 25/06/2021)
                                           ---- Applicants/Petitioners
                                                               (In Jail)
                                Versus

1.    State of Chhattisgarh, Through Tumgaon, Tahsil and District
      Mahasamund (C.G.)

                                                      ---- Respondent

For Applicants/Petitioners : Mr. Jameel Akhtar Lohani, Advocate. For Respondent/State : Mr. Ishan Verma, P.L.

Hon'ble Shri Justice Gautam Chourdiya CAV Order

1) As per order dated 06/04/2021 of this Court, applicant No. 2 Kundan Lal died on 04/05/2020 and accordingly as per direction of this Court, his name was deleted from the cause title. Therefore, this revision is now only on behalf of applicant Phoolchand.

2) Applicant Phoolchand is now was convicted and sentenced by the Judicial Magistrate First Class, Mahasamund (C.G.) vide judgment dated 10/01/2008 passed in Criminal Case No. 101/2005 as under:-

Conviction Sentence

U/s. 294 of Indian R.I. for 1 month and fine of Rs. 100/-, in Penal Code (in short default of payment of fine additional S.I.

"IPC). for 7 days (each)

U/s. 323/34 IPC. R.I. for 6 months and fine of Rs. 200/-, in default of payment of fine additional S.I.

for 15 days (each) U/s. 325/34 IPC. R.I. for 1 year and fine amount of Rs. 500/-, in default of payment of fine additional S.I. for 1 month (each).

U/s. 506-B of IPC R.I. for 6 months and fine amount of Rs. 300/-, in default of payment of fine additional S.I. for 20 days (each).

(All the sentences were directed to run concurrently)

3) In appeal, the Sessions Judge, Mahasamund (C.G.) vide judgment dated 03/10/2008 passed in CRA No. 13/2008 partly allowing the appeal of the applicant, acquitted him of the charge under Section 506-B of IPC and modified the conviction and sentence as under:-

           Conviction                        Sentence
     U/s. 294 IPC              R.I. for 1 month and fine of Rs. 100/-,
                               in default of payment of fine additional
                               S.I. for 7 days (each)
     U/s. 323/34 IPC.          R.I. for 1 month and fine of Rs. 200/-,
                               in default of payment of fine additional
                               R.I. for 7 days (each)
     U/s. 325/34 IPC.          R.I. for 3 months and fine amount of
                               Rs. 500/-, in default of payment of fine
                               additional R.I. for 15 days (each).

(All the sentences were directed to run concurrently)

4) In this revision under Section 397/401 of Code of Criminal Procedure, 1973, the applicant has called in question the legality and propriety of the judgment passed by the Appellate Court.

5) As per prosecution case, on the fateful day i.e. 31/05/2004 at around 11:30 PM when the complainant Lokesh Chandrakar alongwith his friends Vikash Sharma and Manish went to Yadav Dhaba for dinner, there the accused persons Phoolchand and Kundan Lal abused them filthily, threatened them of life and assaulted them with club which was lying there. On matter being reported by the complainant, un-numbered FIR Ex. P-6 was registered under Section 294, 323, 325/34 and 506-B of IPC

against the applicant Phoolchand and his servant (Kundan Lal) at Police Station Mahasamund. Subsequently, FIR (Ex. P-7) bearing Crime No. 133/04 was registered against applicant Phoolchand and his servant at Police Station Tumgaon, District Mahasamund (C.G.) for the said offence. During investigation complainant Lokesh Chandrakar and other injured Vikas Sharma were medically examined vide Ex. P-1 and Ex. P-2. As per Ex. P-1, complainant Lokesh Chandrakar was medically examined on 01/06/2004, he sustained fracture of right upper arm with deformity over right upper arm. In the opinion of Doctor (PW-01 Dr. O.P. Dubey) the said injury was grievous in nature, caused by hard and blunt object. As per Ex. P-2, injured Vikas Sharma was medically examined on 16/06/2004 by PW-02 Dr. L.R. Chandrakar who noticed following injuries on his person :-

i. complete healed scar mark on lateral position of left eyebrow, diameter of scar is 1x1/2cm,

ii. scar mark of healed injury on middle phalanx of left ring finger, diameter of scar is 1/2x1/2cm,

iii. healed scar mark on left leg upper 1/3 position of leg, diameter of scar is 3x2cm,

iv. healed scar mark on right leg middle 1/3 position of right leg, intermediate aspect, diameter of scar is 2x1cm.

In his opinion all the healed scar marks were 14 days old.

6) Vide Ex. P-3, one club was seized from applicant Phoolchand Yadav and likewise as per Ex. P-4 one club was seized from deceased accused Kundan Lal. Spot Map Ex. P-5 was prepared, statement of the witnesses were record and after completing the formalities of the investigation charge sheet was filed against the accused persons under Sections 294, 323, 325, 506-B/34 of IPC.

7) The Trial Court framed charges against the accused persons under Sections 294, 323, 325, 506-B/34 of IPC which were

denied by them and they prayed for trial.

8) The prosecution in support of its case examined as many as 09 witnesses namely PW-01 Dr. O.P. Dubey, PW-02 Dr. L.R. Chandrakar, PW-03 Bhushanlal, PW-04 Gopal, PW-05 Lokesh Chandrakar, PW-06 Vikas Sharma, PW-07 Mahesh Singh (S.I.), PW-08 Chetan Yadav & PW-09 Bhagatram Jaiswal (Head Constable). The statements of the 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. No any defence witness was examined on behalf of the accused persons.

9) Learned Trial Court vide judgment dated 10/01/2008 considering the material available on record convicted and sentenced the accused persons as mentioned in para 1 of this order.

10) Challenging the said judgment, the accused persons filed an appeal and the Appellate Court while acquitting the accused persons of the charge under Section 506B of IPC modified the judgment of the Trial Court and convicted & sentenced them by the impugned judgment dated 30/10/2008 as mentioned in para 2 of this order.

11) Learned Counsel for the applicant submits that the impugned judgment is per se illegal as it has been passed without proper appreciation of the evidence on record. PW-03 Bhushanlal, PW- 04 Gopal who are witnesses to seizure memos Ex. P-3 & Ex. P- 4 have not supported the prosecution case. It is submitted that there was previous enmity between the complainant and the accused persons and even then the complainant went to the Dhaba of the accused persons which creates doubt on the veracity of the prosecution case. The conviction of the accused applicant is based mainly on the evidence of the interested witnesses and therefore, the same is not liable to be sustained.

Alternatively, it is submitted that if this Court confirms the conviction of the accused applicant, considering the facts and

circumstances of the case, the fact that the incident took place around 18 years ago, the applicant was aged 38 years at that time he has no criminal antecedents, he may be given the benefit of Probation of Offenders Act or he may be sentenced to the period already undergone.

12) On the other hand learned Counsel for the State supports the impugned order.

13) Heard counsel for the parties and perused the material available on record.

14) PW-01 Dr. O.P. Dubey medically examined the complainant on 01/06/2004 vide Ex. P-1 and noticed fracture of right upper arm with deformity over right upper arm and opined that the said injury was grievous in nature, caused by hard and blunt object. Likewise, PW-02 Dr. L.R. Chandrakar medically examined injured Vikas Sharma on 16/06/2004 vide Ex. P-2 and noticed that there were four healed scar marks over his left eyebrow, left ring finger, left leg and right leg and the same were 14 days old. Thus, injuries found on the body of the complainant and the injured have been duly proved by the treating Doctors. Though PW-03 Bhushanlal and PW-04 Gopal witnesses to the seizure memos vide Ex. P-3 & Ex. P-4 have not supported the prosecution case but injured complainant Lokesh Chandrakar PW-05 categorically states that on the date of incident he alongwith Vikas Sharma and Manish went to Dhaba of the accused persons where the accused persons started beating them with club on account of there being previous enmity between Vikas Sharma and the accused persons. He states that applicant Phoolchand Yadav assaulted him with club on his right hand and Vikas Sharma was assaulted by the accused persons with club on his head. He states that while assaulting them, the applicant also abused him filthily in the name of his mother which was annoying. In cross-examination he remained firm and denied the adverse suggestions by the defence.

15) PW-06 Vikas Sharma also states that when he alongwith Lokesh

Chandrakar and Manish went to the Dhaba of the accused persons by motorcycle, on account of previous enmity between the applicant Phoolchand and himself, the accused persons started beating them with club as a result of which he sustained injury on his head and both legs. He states that while assaulting them, the accused persons were abusing them filthily in the name of their mother and sister ("Madarchod Tujhe Jaan Se Maar Denge") and also threatened them of life which was very annoying. This witness also remained firm in cross-examination and nothing could be elicited by the defence to discredit him.

16) PW-07 Mahesh Singh, Sub Inspector registered FIR Ex. P-6 and got the medical examination of the complainant done vide MLC Ex. P-1. He has duly proved the FIR Ex. P-6.

17) PW-08 Chetan Yadav, Head Constable registered the numbered FIR Ex. P-7 on the basis of unnumbered FIR.

18) PW-09 Bhagatram Jaiswal, Head Constable conducted investigation and has duly supported the prosecution case.

19) Thus considering the evidence of injured witnesses PW-05 Lokesh Chandrakar & PW-06 Vikas Sharma which finds due corroboration from the evidence of treating Doctors i.e. PW-01 Dr. O.P. Dubey & PW-02 Dr. L.R. Chandrakar, the nature of injuries suffered by them, the promptly lodged FIR Ex. P-7 which has been duly proved by PW-07 Mahesh Singh, even though PW-03 Bhushanlal & PW-04 Gopal the witnesses of seizure memos have not supported the prosecution case, it does not affect the credibility of the prosecution case. Being so conviction of the applicant under Sections 294, 323/34 & 325/34 of IPC maintained by the Appellate Court while acquitting him of the charge under Section 506 of IPC is based on just and proper appreciation of the overall evidence placed on record and as such it is hereby affirmed.

20) Now this Court proceeds to consider the quantum of sentence. In the matter of George Pon Paul Vs. Kanagalet and Others,

(2009) 13 SCC 478 the Hon'ble Supreme Court considering the fact that fine amount has been deposited and paid to the victim as also the long passage of time, sentenced the accused to the period already undergone by him. In the matter of Nasir Vs. State of Uttar Pradesh reported in 2010 (13), SCC 251 the Hon'ble Supreme Court considering the fact that the appellant was sentenced to 5 years imprisonment under Sections 399 and 402 of IPC, occurrence took place 29 years ago, the appellant remained in custody for period of 6 months, allowed the appeal in part and reduced the sentence to the period already undergone by the appellant.

21) Co-ordinate Bench of this Court in the matter of Panchram Vs. State of Chhattisgarh vide order dated 22.07.2016 passed in Criminal Revision No. 620 of 2003 while maintaining conviction of the petitioner under Section 326 of IPC, considering the fact that the incident took place around 16 years ago, the petitioner was on bail, reduced the sentence from 6 months R.I. to the period already undergone by him i.e. 16 days by enhancing the fine amount from Rs. 3,000/- to Rs. 8,000/- with a further direction to pay a sum of Rs. 5,000/- of the said amount to the victim/complainant as compensation.

22) In the present case in the totality of the facts and circumstances of the case, the fact that the incident took place around 18 years back, the age of the applicant at that time i.e. 38 years, he has no criminal record either prior to the incident or after the incident till now, he has been on bail during trial as well as during appeal and also granted bail by this Court in this revision petition, he did not misuse the liberty granted to him, keeping in view the judgments of Hon'ble Supreme Court in the matter of George Pon Paul (Supra) & Nasir (Supra) and the order passed by the Co-ordinate Bench of this Court in the matter of Panchram (Supra), this Court is of the opinion that no fruitful purpose would served in sending the applicant back to jail at this stage and the ends of justice would served if he is sentenced to period already undergone by him i.e. 23 days for the offence under

Sections 323/34 and 325/34 of IPC while enhancing the fine of Rs. 500/- under Section 325/34 to Rs. 5,000/- and default sentence from R.I. for 15 days to R.I. for one month and similarly reducing the jail sentence of 1 month R.I. to 15 days R.I. under Section 294 of IPC, while keeping the fine amount with default sentence imposed thereunder intact. Out of total fine amount of Rs. 5,300/-, a sum of Rs. 3,500/- shall be paid to complainant Lokesh Chandrakar PW-05 and Rs. 1,500/- shall be paid to injured victim Vikas Sharma PW-06 as compensation under Section 357 of Cr.P.C. after due verification by the Trial Court. The fine amount already deposited shall be adjusted accordingly.

23) In the result, the revision petition is allowed in part. Conviction of the applicant under Sections 294, 323/34 & 325/34 of IPC is hereby maintained. Sentence under Section 294 of IPC is reduced from R.I. one month to R.I. for 15 days while keeping the fine sentence with default stipulation intact. The jail sentence of one month R.I. under Section 323/34 is reduced to the period already undergone by the applicant i.e. 23 days while keeping the fine amount with default sentence imposed by the Trial Court as it is. Under Section 325/34 of IPC the jail sentence of three months R.I. is reduced to the period already undergone by the applicant and the fine amount Rs. 500/- imposed by the Trial Court is enhanced to Rs. 5,000/- with default sentence of one month. Out of total fine amount of Rs. 5,300/-, a sum of Rs. 3,500/- shall be paid to complainant Lokesh Chandrakar PW-05 and Rs. 1,500/- shall be paid to injured victim Vikas Sharma PW- 06 as compensation under Section 357(3) of Cr.P.C. after due verification by the Trial Court. The fine amount already deposited shall be adjusted accordingly.

-Sd/-

(Gautam Chourdiya) Judge Chandrakant