Dhansai And Another vs State Of Chhattisgarh
2022 Latest Caselaw 5619 Chatt

                                   1


                                                                     NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                       CRR No. 121 of 2011
                   Judgment reserved on 17.06.2022
                    Judgment delivered on 08.09.2022

1. Dhansai S/o late Bhagbali, aged about 54 years.

2. Mansukh alias Mansukha S/o Dasrath Suryawanshi, aged about 30
   years.
   Both are R/o of village Matiyari, PS -Seepat, District Bilaspur,
   Chhattisgarh.
                                                    ---- Petitioners
                           Versus

  State of Chhattisgarh, through the Police Station -Seepat, District
  -Bilaspur, Chhattisgarh.
                                                     --- Respondent

  For Petitioners    :   Mr. Somnath Verma, Advocate.
  For State          :   Mr. Ashish Gupta, PL.

              Hon'ble Shri Justice Parth Prateem Sahu
                            C.A.V. Order

1. Heard.

2. Petitioners have challenged correctness and sustainability of impugned

   judgment passed by learned Second Additional Session Judge, Bilaspur

   in Criminal Appeal No.37/2011, whereby learned Appellate Court while

   affirming judgment of conviction passed by Judicial Magistrate First

   Class, Bilaspur for commission of offence punishable under Sections

   323/34 & 325/34 of Indian Penal Code, modified the sentence awarded to

   the petitioners under Section 325/34 of IPC, reduced the substantive jail

   sentence of 6 months Rigorous Imprisonment (RI) to 3 months RI.

3. Facts

relevant for disposal of this revision are that on 24.03.2005 at

about 01:30 pm (afternoon), one Chintaram (S/o Dhansai/petitioner No.1)

thrown stone on roof of house of complainant Bhagwan Singh, upon

which complainant scolded him. Subsequently, on account of scolding of

Chintaram by complainant, dispute took place between Rajesh (brother

of complainant) and appellants near shop of Patiram. When complainant

reached on spot to intervene, petitioners alongwith others assaulted him

and his brother Rajesh by means of club, hands and fist. In the said

incident, they suffered grievous injuries. It was reported to the concerned

Police Station, complainant and his brother Rajesh were sent for medical

examination to the hospital. Petitioners were arrested and after

investigation, submitted final report against the petitioners for commission

of offence punishable under Sections 325/34 of IPC. The learned trial

Court framed charges against the petitioners for offences under Sections

323/34 & 325/34 of IPC, which were denied by them and they were put to

trial. During trail prosecution examined complainant Bhagwan Singh as

PW/1, brother of complainant Rajesh Singh as PW/2, Patiram as PW/3,

Narayan Prasad (eye-witness) as PW/4, Sitaram as PW/5, Kuwar

Gadhewal as PW/6, Dr. Rajesh Kumar (Medical Officer) as PW/7, Dr.

George M. Khakha (Radiologist) as PW/8, Shyam Ratlal (Investigating

Officer) as PW/9 and also proved Ex.P-1 statement of PW-3/Patiram,

Ex.P-2 & P-3 (seizure memo), Ex.P-4 & Ex.P-5 (MLC report of PW/1 &

PW/2), Ex.P-6 (x-ray report of PW/1), Ex.P-8 (spot map), Ex.P-9 &

Ex.P10 (arrest/court surrender memo). After trial learned JMFC

convicted the petitioners for commission of offences under Section

323/34 of IPC and sentence them for fine of Rs.500/- each and Section

325/34 of IPC sentence each of them for RI for 6 months and fine of

Rs.500/- each. The judgment of conviction passed by JMFC vide order

dated 25.11.2009 was put to challenge by the petitioners in an appeal

under Section 374 of Cr.PC before the learned Session Judge. The

learned Appellate Court upon considering the submissions, appreciation

of documentary and oral evidence available on record, upheld the

judgment of conviction under challenge, but have modified the sentence

awarded to them for the offence under Section 325/34 of IPC and

sentence them to undergo RI for 3 months with fine of Rs.500/- each and

also maintained the conviction under Section 323/34 of IPC and sentence

of fine of Rs.500/- each.

4. Shri Somnath Verma, learned counsel for petitioners submits that learned

Courts below failed to consider the fact that prosecution failed to prove

commission of offence by the petitioners under Section 323/34 of IPC &

Section 325/34 of IPC beyond reasonable doubt. He submits that as per

allegations, there were about 5 persons including the petitioners who

assaulted the complainant Bhagwan Singh but the Police overlooking the

allegations, submitted charge-sheet against petitioners only. Referring to

deposition of PW-1/complainant, particularly para 1 of his examination-in-

chief, he submits that there is no specific evidence of complainant

(injured) that who assaulted him by means of club, hands and fist. Dr.

Rajesh Kumar was examined as PW-7 and in his evidence he made

specific statement that at the time of medical examination of injured

(complainant) smell of alcohol was coming out from his mouth, which

shows that at the time of incident complainant himself was under the

influence of liquor. Referring to the evidence of PW-2/Rajesh Singh

(brother of complainant), he submitted that oral dispute initially took place

between Rajesh and petitioners, complainant reached on spot later and

after his intervention, dispute aggravated, which also shows that there

was active participation of complainant in the dispute/quarrel, hence, it

cannot be overlooked that complainant might be the aggressor. PW-2

has made specific statement that at the time of incident, Narayan Prasad,

Narmada and Patiram were present on the spot. Narmada was not

examined before trial Court by prosecution as witness whereas Narayan

Prasad has not supported the case of prosecution but for making

statement that on the date of incident there was some dispute between

complainant Bhagwan Singh and petitioners, he also not made specific

statement with regard to assault by the petitioners with club, hands and

fist. In view of above submission, he submits that prosecution failed to

prove the case beyond reasonable doubt that it is the petitioners who

have assaulted the complainant and caused grievous injuries. In

alternate, he submits that as per case of prosecution quarrel started on

trivial dispute of stone pelting by Chintaram (son of petitioner

No.1/Dhansai). Incident is of the year 2005 and after the said incident,

there was no further report/complaint of any nature of dispute /quarrel

between complainant and petitioners family. Hence, if this Court come to

the conclusion that prosecution proved the case of committing the

aforesaid offences by the petitioners, then period of sentence may be

reduced to the period already undergone by the petitioners. He submits

that fine amount imposed by the Court below have already been

deposited.

5. Per contra, Shri Ashish Gupta, learned State Counsel opposes the

submission of counsel for petitioners and submits that learned trial Court

on appreciation of documentary and oral evidence available on record

passed judgment of conviction and learned Appellate Court affirmed the

same. The occurrence of quarrel/dispute as complaint by complainant

Bhagwan Singh is corroborated by evidence of Narayana/PW-4. Doctor

found corresponding injuries over the person of complainant, hence,

judgment of conviction passed by Court below is based on evidence

available on record and it does not call for any interference.

6. Heard counsel for the parties and perused the records of Courts below.

7. Perusal of record would show that incident is dated 24.03.2005 at about

01:30 pm and after incident report was lodged promptly. Injured

complainant and his brother Rajesh were sent for medical examination to

the hospital, based upon their MLC report, offence under Section 325/34

of IPC was registered against the petitioners. MLC report of complainant

is filed as Ex-P/4 wherein the Doctor mentioned five injuries including

lacerated wound, suspected fracture over the forearm (left), split wound

over left parietal region of head. Injuries Nos.1, 2 & 4 are shown to be

simple in nature. For injury No.3 referred to Orthopedicion for opinion. In

Ex.P-6/x-ray report of PW-1/Bhagwan Singh, doctor opined fracture of

mid-shaft of left radius. PW-2/Rajesh Singh suffered three injuries as

reported by the doctor in his MLC report which is filed as Ex-P/5.

8. PW-1/complainant in his evidence stated that when he reached at the

place of incident where oral quarrel/dispute was going on between the

petitioners with his younger brother Rajesh, he was assaulted by the

petitioners alongwith Devi Prasad, Chinta and Dashrath by means of

club. Due to assault of club, he suffered injuries on his head and fracture

injury on left hand. In para 1 of his examination-in-chief, PW-2/Rajesh

stated that after coming of PW-1/Bhagwan Singh at the place of incident,

dispute aggravated and the petitioners came armed with club from their

house, assaulted them due to which his brother Bhagwan Singh suffered

fracture injuries over his hand and also suffered head injuries.

9. Dr. Rajesh Kumar, Medical Officer of the Primary Health Centre, Seepat,

was examined as PW-7. In his evidence, he proved Ex-P-4/MLC report of

Bhgwan Singh and stated that there was 'lacerated wound on occipital

region, swelling over forearm, suspected fracture and split injuries over

the parietal region on the person of complainant. He further stated that

PW-2/Rajesh suffered three injuries.

10. Eye witness Narayan Prasad was examined as PW-4, though he did not

support case of prosecution as recorded in his statement under Section

161 of Cr.PC, but from the evidence of injured PW/1 & PW/2 it is proved

that petitioners assaulted them. Further doctor/PW-7 proved the

corresponding injuries mentioned in MLC report. As per MLC report Ex-

P/4 & Ex-P/5, complainant Bhagwan Singh and his brother Rajesh Singh

were examined on the date of incident at about 10:40 pm.

11. Dr. George M. Khakha (Radiologist) was examined as PW-8, who proved

Ex-P-6/x-ray report of Bhagwan Sing showing fracture injury on left radius

bone. The Investigating Officer (Shyam Ratlal)/PW-9 in his evidence

stated that he received 'Rojnamcha Sanha dated 24.03.2005' for

investigation.

12. From the aforementioned evidence available on record, it is evident that

the petitioners had assaulted complainant Bhagwan Singh and his brother

Rajesh by means of club, due to which complainant suffered grievous

injuries over his person. In view of evidence available on record,

submission of counsel for petitioners that prosecution failed to prove

charges against petitioners beyond reasonable doubt is not sustainable.

13. So far as submission made by counsel for petitioners that sentence

awarded to petitioners is excessive and hence it may be modified to the

extent of period already undergone is concerned, perusal of record would

show that the dispute arose on the trivial issue of throwing stone on the

house of Bhagwan Singh by son of petitioner No.1, one-two days earlier to

incident. Incident was of 24.03.2005. Petitioners have already faced

mental agony of facing criminal case since 2005. They are villagers, not

having any criminal back ground as submitted by counsel for petitioners.

The weapon used was club. Hon'ble Supreme Court in case of George

Pon Paul vs Kanagalet & Ors reported in 2009 (13) SCC 478.

Considering the appeal filed by the accused persons against the order of

High Court, wherein the High Court allowed the revision petition of

complainant and enhanced the jail sentence from 'Till rising of Court' to

undergo 2 years R.I under Section 326 of IPC taking note of the period

already lapsed in pursuing the criminal case restricted the period of

sentence already undergone. In case of Pancham vs State of

Chhattisgarh, Criminal Revision No.620 of 2003 decided on 22.07.2016,

High Court considering the period of incident 16 years ago reduced the

sentence of RI of 6 months to the period already undergone ie of 16 days

for conviction under Section 326 of IPC by enhancing the fine amount of

Rs.3,000/- to Rs.8,000/- with a further direction to pay sum of Rs.5,000/- of

the said amount to the victim as compensation.

14. In the case at hand, petitioners and complainants are resident of same

village, cause of incident is throwing stone on house of complainant about

1-2 days prior to the incident, date of incident is about 17 years back, the

petitioners were on bail during trial, appeal and also during pendency of

this revision. As on date petitioner No.1 is about 67 years and Petitioner

No.2 is about 44 years of age and hence considering the aforesaid

judgment in case of George Pon Paul (supra) and order passed in

Criminal Revision No.620/2003 by Co-ordinate Bench of this Court, this

Court is of the opinion that no fruit full purpose will be served in sending

the petitioners back to jail at this stage and it will meet the ends of justice if

the petitioners are sentenced for period already undergone by them ie 12

days for offence under Sections 325/34 of IPC while enhancing the fine

amount. The petitioners have already deposited amount of fine imposed

upon them.

15. Accordingly, the revision petition is allowed in part. Conviction of the

petitioners under Sections 323/34 & 325/34 of IPC are upheld. Jail

sentence awarded under Section 325/34 of IPC is reduced to period

already undergone. Sentence of fine awarded under Section 325/34 of IPC

to petitioners is enhanced from Rs.500/- each to Rs.3,000/- each, in

default each of the petitioners shall undergo SI for 30 days. On deposit of

balance of fine amount ie Rs.2,500/- each, the same shall be paid to

complainant Bhagwan Singh as compensation after due verification by trial

Court.

Sd/-

(Parth Prateem Sahu) Judge

J/-