Chattisgarh High Court

Sita Ram (Died) And Others vs State Of Chhattisgarh on 28 November, 2022

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                                                                     NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                            CRA No. 628 of 2003
   1. Sita Ram (Died)
   2. Sukhi Ram S/o Sumer Singh R/o Anokala P/s Patna Tah. Baikunthpur
      Distt Koriya (C.G.)
                                                             ---- Appellant
                                  Versus
    State Of Chhattisgarh, Through Police Station Patna, District Koriya
     (C.G.)
                                                         ---- Respondent

For Appellant : Shri Ashok Kumar Shukla, Advocate For State : Shri B.L. Sahu, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

28.11.2022

1. Right at the threshold, it has been brought to the notice of this

Court by the learned counsel for the appellants that the appellant

No. 1 Sita Ram died on 09.07.2008 during pendency of this

appeal. In this regard copy of the death certificate is also

annexed which is taken on record.

2. In view of the above, since appellant No.1 has died during the

pendency of this appeal, the appeal stands abated so far as

appellant No. 1 is concerned.

3. By filing this criminal appeal the appellants have challenged the

judgment of conviction and order of sentence dated 13.05.2003

passed by the Additional Sessions Judge, Baikunthpur in

Sessions Case No. 355/2002 whereby and whereunder the

appellants have been convicted for the offence punishable u/s

323 of the Indian Penal Code (hereafter called as 'IPC') and

sentenced them to undergo RI for 6 months with fine of Rs. 500/-

in default, R.I. for one month.

4. In brief, case of the prosecution is that on the fateful day on

22.03.2002 at 5 pm at village Anjokala the appellants came to

the place of incident, caused injury to the victim and appellant

No. 2 committed rape on her. After completing the investigation a

charge sheet was filed against them for the offence punishable

under Sections 376, 323/34 of IPC. After conclusion of the trial,

Trial Court acquitted from the charges under Sections 376/34

IPC and convicted them as aforesaid.

5. In order to prove its case the prosecution has examined the

victim (PW/1), Rameshwari (PW/2). Kamta Prasad (PW/3),

Amarjit (PW/4), Bhaiyalal (PW/5), Prakash (PW/6), Sudarshan

(PW/7), Dr. A.K. Sharma (PW/8), Tarun Jaiswal (PW/9), Dr.

Smt. Neelam Tirki who has examined the victim (PW/10), Dr.

Ashish Karan who has examined the appellants (PW/11), S.L.

Sharma, Assistant Sub Inspector (PW/12), Salim Tigga, Sub-

Inspector, Police line Baikunthpur (PW/13). The accused

recorded their statements under Section 313 Cr.P.C. wherein

they have stated that they have not committed any offence and

examined Pannalal (DW/1), Dambilsiya Bai (DW/2),

6. The victim (PW/1) was examined before the trial Court who in

examination in chief has stated that when appellant No. 2 was

holding her hand, Rameshwari came to the place of incident and

made loud noise, thereafter, appellants fled away from the place

of incident and also Prakash, Sudarshan and village Sarpanch

came to the place of incident. The victim was examined by Dr.

Neelam Tirki wherein she has mentioned that there was redness

of size 2x2 cm on left shoulder, mark of injury of size 5x3 cm on

right shoulder, mark of injury of size 3x2 cm on the right side of

waist, red injury mark of size 10x3 cm on left hip. The injuries

were simple in nature. She has further stated that there was no

sign of recent sexual intercourse. Learned trial Court after

appreciating the evidence and materials on record acquitted the

appellants from the charges of offence under Section 376/34 IPC

and convicted them for the offence under Section 323 of the

IPC.

7. From the evidence brought on record it is quite vivid that

prosecution has proved its case by adducing cogent evidence.

The prosecution has proved the guilt of the appellants under

Section 323 of the IPC and already examined the witnesses and

evidence of the victim, remained unshaken, therefore, the

judgment passed by the learned trial Court convicting the

appellants under Section 323 IPC does not warrant any

interference.

8. Learned counsel for the appellants would submit that he is not

challenging the conviction of the appellant rather he is

challenging only the aforesaid period of sentence of RI for 6

months awarded u/s 323 IPC. He would further submit that

during the trial appellant No. 2 remained in jail from 13.04.2002

to 24.04.2002 for 12 days and after conviction on 13.05.2003 he

has been released on bail by this Court on 16.06.2003 as such,

he has undergone one month and three days of imprisonment

after conviction. The appellant has already deposited the fine

amount. The incident took place in the year 2002, already 20

years have lapsed. He has already suffered mental agony and

tourture by appearing before the trial Court in given dates. No

material has been placed on record that he has misused the bail

granted to him. This was his first offence. He is not involved in

any other crime. The appellant has already undergone sentence

of 45 days out of 180 days. At the time of offence the appellant

was aged about 45 years and now he is 65 years old, therefore,

a lenient view may be considered and the period of RI for 6

months may be reduced to the period already undergone by him.

9. Learned counsel for the appellants in support of his submission

would draw attention of this Court towards the judgment of

Hon'ble Supreme Court in case of Sitaram Paswan and Anr

vs. State of Bihar 1 and referred to paragraphs 9 and 10 which

read as under :-

9. The fact as emerged in this case. It is apparent that the incident occurred at the spur of the moment and is traverse in nature. There is no material on record to indicate that the appellants have any previous conviction.

In the absence of such evidence, we treat appellants as first offenders. A-1, namely, Sitaram Paswan has made the assault using Danda and the fists and caused simple

1 AIR 2005 SCW 3534

injuries to Krishna Devi, Paltoo Paswan and Vijay Kumar, PW-2, PW-5 and PW-4 respectively. He has been convicted with the aid of Section 34, under Section 324 and under Section 323 I.P.C. whereas the case of A-2 Raj Kumar is different. He has caused injuries to Paltoo Paswan and Vijay Kumar using the sword. Injury found on Paltoo Paswan is sharp cuts on left side of the head and on Vijay Kumar, cut injury on the left side of the head.

10. Having regard to the aforesaid circumstances and taking the overall view of the matter, we feel that the accused- appellant Sitaram Paswan is entitled for the benefit under Section 4 of the Probation of Offenders Act. Therefore, while confirming his conviction, we direct that he be released on probation on his entering into a bond for Rs.10,000/- within the period of three weeks from today before the Court of S.D.J.M. (Sadar), Sitamarhi, for keeping peace and good behaviour. The appeal of the Raj Kumar is dismissed and he would surrender forthwith.

10. Learned counsel for the appellants in support of his submission

would further draw attention of this Court towards the judgment

of this Court in case of Bansingh and Others vs. State of

M.P. 2, relevant paragraphs thereof are extracted below :-

7. So far as question of awarding jail sentences are concerned, it is important to keep in mind the "doctrine of just desert" which is foundation of a criminal sentence which is to be awarded for a punishment. What one really deserves for punishment for having committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "just desert" which is governed by the same principle which says that there cannot be a punishment without guilt and the basic element behind the principle is the proportion between crime and punishment. However, the determination of the quantum of punishment would always depend upon the ancillary factors which further would be subject to the statutory obligations specifically provided by law in force.

In the present case, the incident occurred on 9.11.94 when a quarrel took place between the two groups regarding harvesting of the paddy crops, on which both the groups were claiming their rights. A Civil Suit for declaration of title was also filed and the decree was passed in favour of the applicants. The applicants were on bail during the pendency of the criminal case and also during the pendency of the criminal appeal. Further their sentences

2 2012 CGLJ 102

were suspended by this Court in the year 1999 and since then they are on bail. The applicants, thus, have already undergone for a period of more than one month in this matter. Looking to the entire facts and circumstances of the case and in the background of the above factual scenario of land dispute between the parties, and further that the applicants were throughout on bail since the year 1999, I do not deem it appropriate to send them jail once again. I am of the view that the period already undergone by the applicants (more than one month) is sufficient for the offence u/s 323/149 IPC.

8. For the foregoing reasons, the revision is partly allowed. The conviction and sentences awarded to the applicants u/s 147 IPC are confirmed. Their conviction u/s 323/149 IPC is also confirmed. However, the jail sentences awarded to them are reduced to the period already undergone. The fine sentences awarded u/s 323/149 IPC are maintained.

11. He would further draw attention of this Court towards the

judgment of this Court in case of Harichandra vs State of

Madhya Pradesh 3 relevant paragraph, thereof is extracted

below:-

"8. THUS the act of the accused/appellant in voluntarily causing tooth-bite injury on the delicate part of his body i.e. "penis" with an instrument of cutting i.e. "tooth" squarely falls within the provisions of Section 324 of the Indian Penal Code and that being so the findings recorded by the Court below convicting him under the said section are strictly in accordance with law. This Court approbates the same.As regards sentence part of the judgment impugned, Section 324 IPC does not speak about the jail sentence as mandatory. Moreover, keeping in mind the fact that the accused/appellant herein has already remained in jail for 11 days, that the incident had taken place about 16 years back and that by now he must have become a grown-up man of 44 years reeling under the family responsibilities, this Court deems it proper to reduce the sentence to the period already undergone by him by awarding some reasonable compensation in terms of Section 357 of the Code of Criminal Procedure. Accordingly, as the appellant has already remained in detention for 11 days, his jail sentence is reduced to the period already undergone by him. He however shall deposit Rs. 4000 in the Court below

3 2011 CJ (Chh) 654

to be paid to the victim as compensation within a period of seven months. If the said amount is not deposited in the Court below within this period, the accused/appellant shall be liable for imprisonment for two months."

12. On the other hand learned State counsel would submit that the

sentence awarded by the learned trial Court is just and proper

and does not call for any interference.

13. Considering the law laid down by the Hon'ble Supreme Court

and also considering the facts and circumstances of the case

that the appellant has remained in jail for 45 days, considering

the offence under Section 323 of the IPC, considering pendency

of the case for about 20 years, considering the present age of

the appellant who is 65 years old, I am of the opinion, the ends

of justice would be served if the sentence of six months imposed

upon the appellants by the trial Court is reduced to the period

already undergone by him.