Shobha Ram Kashyap vs State Of Chhattisgarh
2022 Latest Caselaw 6123 Chatt

                                                           CRA-1118-2013 & CRA-1217-2013

                                           Page 1 of 13

                                                                                                AFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                   Judgment Reserved on                     :       25.08.2022
                   Judgment Pronounced on                   :       30.09.2022

[Arising out of judgment dated 31.08.2013 passed in Sessions Trial No.19 of
2012 (State of Chhattisgarh vs. Shobha Kashyap and 7 others) by the Court
         of Additional Sessions Judge, Mungeli, District Bilaspur (C.G.)]

                             Criminal Appeal No. 1118 of 2013

Shobha Ram Kashyap, Son of Kashi Ram Kashyap, aged about 33 years,
Resident of Village Piparkhunta, Police Station Lalpur, District Bilaspur,
Present District Mungeli (Chhattisgarh), Civil District Mungeli & Revenue
District Bilaspur (Chhattisgarh)
                                                                                    ---- Appellant
                                              Versus
State of Chhattisgarh, through Police Station Lalpur, District Bilaspur,
Present District Mungeli (Chhattisgarh)
                                                                                ---- Respondent
------------------------------------------------------------------------------------------------------

For Appellant                    :       Mr. Anil S. Pandey, Advocate
For Respondent-State :                   Ms. Ruchi Nagar, Dy. Government Advocate

------------------------------------------------------------------------------------------------------

WITH Criminal Appeal No. 1217 of 2013

Swarath, Son of Dujram Kashyap, aged about 44 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur, (Chhattisgarh)

---- Appellant Versus

1. Shobha Kashyap, S/o Kashiram Kashyap, aged about 33 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

2. Panchram, S/o Khorbahra Kashyap, aged about 40 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, CRA-1118-2013 & CRA-1217-2013

Civil District Bilaspur (Chhattisgarh)

3. Gore Kashyap, S/o Bhuneshwar Kashyap, aged about 42 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

4. Bhagwani, S/o Rajaram Kashyap, aged about 42 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

5. Moujiram, S/o Cholaram Kashyap, aged about 56 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

6. Santosh, S/o Khorbahra Kashyap, aged about 42 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

7. Kejaram, S/o Milan Kashyap, aged about 48 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

8. Patiram, S/o Cholaram Kashyap, aged about 70 years, Resident of Village Piparkhunta, Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur (Chhattisgarh)

9. State of Chhattisgarh, through Police Station Lalpur, Revenue District Mungeli, Civil District Bilaspur, (Chhattisgarh)

---- Respondents

------------------------------------------------------------------------------------------------------ For Appellant : Mr. Rajesh Jain & Ms. Kiran Jain, Adv.

For Respondents No.1 to 8 : Mr. Anil S. Pandey, Advocate For Respondent No.9-State : Ms. Ruchi Nagar, Dy. G.A.

------------------------------------------------------------------------------------------------------

Division Bench

Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sachin Singh Rajput, JJ C.A.V. Judgment

Sanjay K. Agrawal, J

(1) Regard being had to the similitude of the questions of fact and law CRA-1118-2013 & CRA-1217-2013

involved; both these appeals are clubbed together being arising out of a

common judgment dated 31.08.2013 passed in Sessions Trial No.19 of 2012

(State of Chhattisgarh vs. Shobha Kashyap and 07 others) by the Court of

learned Additional Sessions Judge, Mungeli, District Bilaspur (C.G.); and on

the joint request of learned counsel for the parties, same are analogously

heard and are decided by this common judgment.

(2) Criminal Appeal No. 1118/2013 have been filed by the accused-

appellant, namely, Shobha Ram Kashyap (A-1) under Section 374(2) of

Cr.P.C. questioning the impugned judgment of conviction and order of

sentence dated 31.08.2013 passed by the learned trial Court, whereby he

has been convicted and sentenced to undergo as under:

      Conviction                                 Sentence
U/s. 147 of IPC             Fine of Rs.500/- and, in default of fine,
                            additional R.I. for 01 month.
U/s. 323/149 of IPC         Fine of Rs.500/- and, in default of fine,
(for causing injury to      additional R.I. for 1 month.
Amarnath)
U/s. 323/149 of IPC         Fine of Rs.500/- and, in default of fine,
(for causing injury to      additional R.I. for 1 month.
Jagdish)
U/s. 323/149 of IPC         Fine of Rs.500/- and, in default of fine,
(for causing injury to      additional R.I. for 1 month.
Swarath)
U/s. 323/149 of IPC         Fine of Rs.500/- and, in default of fine,
(for causing injury to      additional R.I. for 1 month.
Ramnath)

(3) Criminal No.1217 of 2013 has been filed by the injured- Swarath under

proviso to Section 372 of Cr.P.C. feeling aggrieved by impugned judgment

dated 31.08.2013 passed by the learned trial Court, whereby though the

accused-respondents No.01 to 08 herein have been convicted for offence

under Sections 147 or 148 and 323/149 (04 counts) of IPC respectively, but CRA-1118-2013 & CRA-1217-2013

only fine sentence have of Rs.500/- for each offence has been imposed upon

them. Thus, praying enhancement of the sentence imposed upon each

accused-respondent No.01 to 08 herein this appeal has been preferred by

injured-appellant- Swarath.

(4) The case of the prosecution, in brief, is that on 29.08.2011, at about

11:00 AM, at Village Piparkhuta within the ambit of Police Station Lalpur, the

accused persons, namely, Gore Kashyap, Bhagwani, Shobha Kashyap,

Panchram, Moujiram, Santosh, Kejaram & Patiram alongwith others have

abused Amarnath (PW-01) in public place with filthily/obscene words,

threatened him to kill and constituted unlawful assembly with a common

object to commit 'marpeet' and, in furtherance of said common object, they

all were armed with deadly weapons and caused voluntary hurt/injuries to

Amarnath (PW-01), Swarath (PW-06), Ramnath (PW-05) and Jagdish (PW-

02) and, thereby, committed offence under Sections 147, 148, 294, 506-B &

323/149 (4 counts).

(5) The further case of the prosecution, in nutshell, is that complainant-

Amarnath Kashyap lodged a report at Police Station Lormi stating that: on

29.08.2011, at about 11:00, complainant- Amarnath (PW-01) alongwith

Jagdish (PW-02) and Uttara Kashyap (not examined) were going to give

appearance in Court at Lormi, but when they reached near the 'Dabri' Pond

of the village, at that juncture, accused- persons, namely, Shobaram,

Panchram, Rajwa, Gore, Anantram, Bhagwani, all armed with 'lathi', met

them and, thereafter, the said accused persons stopped them and started

abusing them with filthily words and further ensued a dispute with regard to

previous (08 months) dispute of abusing them and, in furtherance thereof,

the said persons threatened them and with the intention to kill, all the CRA-1118-2013 & CRA-1217-2013

accused persons present over there committed 'marpeet' with them by

means of 'lathi', hand and fist (punches), due to which Amarnath (PW-01)

and Jagdish (PW-02) sustained injuries. The said incident is witnessed by

Kaleshwar and Shatruhan. Thereafter, on the report so lodged by the

complainant- Amarnath (PW-01), the police of Police Station Lormi registered

FIR (Ex.P/08). Spot map was prepared vide Ex.P/12. The injured persons,

namely, Amarnath (PW-01), Swarath (PW-06), Ramnath (PW-05) and

Jagdish (PW-02) were medically examined vide Ex.P/07 to P/09, P/10 & P/11

respectively and their MLC reports are Ex.P/07-A to P/09-A, P/10-A & P/11-A

respectively. Thereafter, accused persons, namely, Shoba Kashyap,

Panchram, Gore, Bhagwani, Moujiram, Santosh, Kejaram & Patiram were

arrested vide Ex.P/4. Thereafter, seizure memos (Ex.P/01 to P/03) were

affected, whereby accused persons, namely, Bhagwani, Gore Kashyap &

Panchram handed over 'lathi' (wooden sticks) respectively to the police. But,

the said seized wooden sticks were not subjected to the FSL examination for

the reason best known to the prosecution. Thereafter, statement of witnesses

were recorded and after due investigation, the police filed charge-sheet in the

Court of Judicial Magistrate First Class, Lormi (CG), whereby accused

persons, namely, Gore Kashyap and Bhagwani were charged with offence

under Sections 148, 294, 506-B & 323/149 (on 04 counts) of IPC, whereas

accused persons namely, Shobha Kashyap, Panchram, Moujiram, Santosh,

Kejaram and Patiram were charged for offence under Sections 147, 294,

506-B & 323/149 (on 04 counts). Thereafter, the case was committed to the

Court of Sessions. The accused persons abjured their guilt and entered into

defence.

(6) The prosecution in order to prove its case examined as many as 12 CRA-1118-2013 & CRA-1217-2013

witnesses and exhibited 12 documents whereas, on the other hand, accused

persons only examined Shobharam (DW-01) and Bhushanpuri (DW-02) in

support of their defence.

(7) The learned trial Court after appreciating the oral and documentary

evidence available on record proceeded to convict: accused persons,

namely, Bhagwani and Gorelal for offence under Sections 148 & 323/149 (on

04 counts) of IPC and imposed only fine sentence of Rs.500/- for each

offence (total Rs.2,500/-) on them and accused persons, namely, Shobha

Kashyap, Panchram, Moujiram, Santosh, Kejaram and Patiram for offence

under Sections 147 & 323/149 (on 04 counts) of IPC and imposed only fine

sentence of Rs.500/- for each offence (total Rs.2,500/-) on them, against

which these 02 criminal appeals have been preferred questioning the

common impugned judgment dated 31.08.2013, one by the accused-

appellants- Shobha Ram Kashyap (A-1) feeling aggrieved by his conviction

and another by the injured- Swarath (PW-06) seeking enhancement of

sentence awarded to all the accused persons, namely, Shobha Kashyap (A-

01), Panchram (A-02), Gore Kashyap (A-03), Bhagwani (A-04), Moujiram (A-

05), Santosh (A-06), Kejaram (A-07) & Patiram (A-08) by the learned trial

Court.

(8) Mr. Anil S. Pandey, learned counsel appearing for the accused-

appellant Shobha Ram Kashyap (A-01) in CRA-1118-2013 submits that the

learned trial Court has committed grave legal error in convicting accused-

appellant- Shobharam for offence under Section 147, 323/149 (on 04 counts)

of IPC and awarding fine sentence of Rs.500/- for each offence (total

Rs.2,500/-) as there is no evidence available on record to show that

accused-appellant Shobharam has caused injuries to any of the injured CRA-1118-2013 & CRA-1217-2013

persons, namely, Amarnath (PW-01), Swarath (PW-06), Ramnath (PW-05)

and Jagdish (PW-02). He has been falsely implicated in the instant case, as

there is previous enmity and political rivalry between the other accused

persons and the complainant party. It is urged that nothing incriminating has

been seized from the possession of accused-appellant Shobharam. There

are major contradictions and omissions in the statements of prosecution

witnesses and, even otherwise, no specific overt act has been alleged

against this accused-appellant- Shobharam and, as such, his conviction

under Sections 147, 323/149 (on 04 counts) is liable to be set aside.

(9) Mr. Rajesh Jain and Ms. Kiran Jain, learned counsel appearing for the

injured- Swarath (PW-06) in CRA-1217/2013 submits that the learned trial

Court, on the one hand, held the accused persons, namely, Shobha Kashyap

(A-01), Panchram (A-02), Gore Kashyap (A-03), Bhagwani (A-04), Moujiram

(A-05), Santosh (A-06), Kejaram (A-07) & Patiram (A-08) guilty for offence

under Section 147 or 148 and 323/149 (on 04 counts) of IPC, but on the

other hand committed illegality in just awarding fine sentence of Rs.500/- on

each accused persons, for each offence and on each count (i.e. total

Rs.2,500/-) by misinterpretating the evidence available on record and by

recording findings which is perverse and contrary to the record. The injured

persons in the instant case have sustained grievous injuries and there is

ample evidence available on record to hold accused persons guilty for the

said offences and to award jail sentence to all the accused persons alongwith

fine, but they have been wrongly awarded only fine sentence, thus, it is

prayed that the fine sentence imposed upon each accused person by the

learned trial Court may be enhanced to jail sentence alongwith fine for each

offence.

CRA-1118-2013 & CRA-1217-2013

(10) Per-contra, Ms. Ruchi Nagar, learned State counsel supported the

impugned judgment dated 31.08.2013 and submits that the prosecution has

proved the offence beyond reasonable doubt by leading evidence of

clinching nature. She further submits that constitution of unlawful assembly

and common object amongst the accused-appellants have also been

established by the prosecution which is supported by evidence available on

record. The learned trial Court has rightly convicted the accused persons for

the offence mentioned herein above, thus, the present criminal appeals filed

by the accused persons deserve to be dismissed.

(11) We have heard learned counsel for the parties, considered their rival

submissions made herein-above and went through the records with utmost

circumspection.

(12) In the instant case, the learned trial Court in Para-08 of its judgment,

after considering the statements of four injured witnesses, namely, Amarnath

(PW-01), Swarath (PW-06), Ramnath (PW-05) and Jagdish (PW-02) coupled

with other evidence available on record, came to the conclusion that on the

date of incident the accused persons have neither abused the complainant-

injured persons nor they have threatened them to kill at public place. But, the

learned trial Court in impugned judgment after considering the testimonies of

Amarnath (PW-01), Jagdiesh (PW-02), Ramnath (PW-05), Swarath (PW-06),

Shatruhan (PW-07) and that of Investigating Officer, namely, K.K. Sahu (PW-

10) and Akhilesh Pandey (PW-08) came to the the conclusion that on the

date of incident the accused persons, namely, Shobha Kashyap (A-01),

Panchram (A-02), Gore Kashyap (A-03), Bhagwani (A-04), Moujiram (A-05),

Santosh (A-06), Kejaram (A-07) & Patiram (A-08) constituted unlawful

assembly with a common object/intention to commit rioting and to inflict hurt CRA-1118-2013 & CRA-1217-2013

to the injured persons/complainant party and, in furtherance of said common

object, they were armed with weapons and committed 'marpeet' with four

injured witnesses, namely, Amarnath (PW-01), Swarath (PW-06), Ramnath

(PW-05) and Jagdish (PW-02) and caused hurt/injuries to them. The said

finding recorded by the learned trial Court holding the constitution of unlawful

assembly by the appellant- Shobharam (A-01) and other convicted accused

persons, namely, Panchram (A-02), Gore Kashyap (A-03), Bhagwani (A-04),

Moujiram (A-05), Santosh (A-06), Kejaram (A-07) & Patiram (A-08) is finding

of fact based on evidence available on record. It is neither perverse nor

contrary to the record.

(13) With regard to injuries sustained by the four injured persons, the

learned trial Court relied on the testimonies of Dr. R.S. Ayam (PW-11), who

has medically examined injured persons- Swarath (PW-06), Ramnath (PW-

05) and Jagdish (PW-02) and that of Dr. Ajay Pathak (PW-12), who has

medically examined injured person- Amarnath (PW-01) and found voluntary

hurt/injuries on the body of these four injured persons. Further, it is evidence

available on record that by way of seizure memos (Ex.P/01 to P/03),

accused persons, namely, Bhagwani, Gore Kashyap & Panchram handed

over 'lathi' (wooden sticks) to the police which they have used in the incident.

Moreover, the MLC reports (Ex.P/07-A to P/09-A, P/10-A & P/11-A) of four

injured persons, namely, Amarnath (PW-01), Swarath (PW-06), Ramnath

(PW-05) and Jagdish (PW-02) are also available on record, whereby it is

apparent that injuries such as lacerated wound, contusion and swelling have

been caused to the four injured persons, thus, the learned trial Court

convicted accused persons, namely, Bhagwani and Gorelal for offence under

Sections 148 & 323/149 (on 04 counts) of IPC and accused persons, namely, CRA-1118-2013 & CRA-1217-2013

Shobha Kashyap, Panchram, Moujiram, Santosh, Kejaram and Patiram for

offence under Sections 147 & 323/149 (on 04 counts) of IPC and imposed

only fine sentence of Rs.500/- for each offence (total Rs.2,500/-) on each

accused person. The said finding of the learned trial Court holding that

appellant- Shobharam (A-01) and other convicted accused persons, namely,

Panchram (A-02), Gore Kashyap (A-03), Bhagwani (A-04), Moujiram (A-05),

Santosh (A-06), Kejaram (A-07) & Patiram (A-08) inflicted simple hurt to the

injured persons, namely, Amarnath (PW-01), Swarath (PW-06), Ramnath

(PW-05) and Jagdish (PW-02) is finding of fact based on evidence available

on record. It is neither perverse nor contrary to the record.

(14) The respondents have been convicted for offence punishable under

Section 323 of IPC and have been only sentenced to fine, which has been

called in question by the appellant stating that jail sentence ought to have

been imposed by the trial Court upon the respondents.

(15) In order to judge the correctness of the submission, it would be

appropriate to notice Section 323 of IPC which provides as under :-

"323. Punishment for voluntarily causing hurt - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, of with both."

From a careful perusal of Section 323 of IPC, it would appear that the

offence of voluntarily causing hurt is punishable with imprisonment or fine or

with both.

(16) In Principle of Statutory Interpretation by Justice G.P. Singh (14 th

Edition), the disjunctive word "or" used in Section 323 of IPC has been held

by learned author as under :-

CRA-1118-2013 & CRA-1217-2013

"The word 'or' is normally disjunctive and 'and' is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. As stated by SCRUTTON, L.J.: "You do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. And as pointed out by LORD HALSBURY the reading of 'or' as 'and' is not to be resorted to, "unless some other part of the same statute or the clear intention of it requires that to be done.""

(17) The Supreme Court in the matter of Union of India v. Ind-Swift

Laboratories Ltd.1 has held that where provision is clear and unambigous

the word 'or' cannot be read as 'and' by applying the principle of reading

down.

(18) Similarly, in the matter of Union of India v. Rabinder Singh2, with

regard to Section 52(f) of the Army Act, 1950, which provides that any person

subject to the Act, who 'does any other thing with intent to defraud, or to

cause wrongful gain to one person or wrongful loss to another person',

commits an offence in respect of property, their Lordships of the Supreme

Court have held that the two parts of Section 52(f) are disjunctive, which can

be seen from the use of a comma and the word 'or' between the two parts of

the clause, and that if the Legislature had intended both the parts to be read

together, it would have used the word 'and'. Hence, it was held that it is

possible to charge someone under section 52(f) only for acting with 'intent to

defraud', and it is not necessary to refer to the second part of the clause viz.

causing wrongful gain or wrongful loss, in the charge.

(19) In the matter of State of Maharashtra v. Jugmander Lal 3 the Supreme

Court has held that expression 'shall be punishable for imprisonment and

1 (2011) 4 SCC 635 2 (2012) 12 SCC 787 3 AIR 1966 SC 940 CRA-1118-2013 & CRA-1217-2013

also for the fine', means that the court is bound to award a sentence

comprising both imprisonment and fine and the word "punishable" does not

mean anything different from "shall be punished", punishment being

obligatory in either case in following words :-

"The plain meaning of the words "shall, on conviction, be punishable for the first offence with imprisonment for a term which may extend to six months and with fine which may extend to rupees one thousand" would be that the Court convicting a person of an offence under the Act was bound to award a sentence consisting both of imprisonment and fine. The words "may extend" preceding "six months" and "rupees one thousand" respectively merely give discretion to the Court is so far as the extent of imprisonment or fine to be awarded is concerned and nothing more. It is obvious that the Legislature replaced the original "or" which gave an option to the Magistrate by "and" to make its intention clear."

(20) Furthermore, their Lordships of the Supreme Court in a decision

reported in Assistant Commissioner, Assessment - II, Bangalore and

others v. Velliapa Textiles Ltd. And another4 has held in paragraph 35 as

under :-

"35 ..... Where the legislature has granted discretion to the court in the matter of sentencing, it is open to the court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the court to impose only a part of the sentence prescribed by the legislature, for that would amount to rewriting the provisions of the statute. "

(21) Thus, on the basis of the aforesaid analysis, it is quite vivid that once the

Court, after full-fledged trial in accordance with prescribed procedure comes

to the finding of guilt and convicts the offender, the court is bound to

sentence the offender with the punishment prescribed in particular penal

provision as in the instant case Section 323 IPC which prescribes imposition

of sentence consisting of imprisonment or fine or both.

(22) In the instant case, learned trial Court, after due deliberation and after

4 2003 (11) SCC 405 CRA-1118-2013 & CRA-1217-2013

considering the gravity of the offence and considering the cross-case

registered against the complainant also, decided to impose only fine

sentence upon the respondents in view of the provision contained under

Section 323 of IPC as it is not mandatory for the sentencing court to award

jail sentence particularly in the offence where the word 'or' has been used

between jail sentence and fine, as such, learned trial Court is absolutely

justified in imposing only fine sentence upon the respondents.

(23) In that view of the matter, we do not see any illegality and perversity in

the findings recorded by the learned trial Court, as the same are correct

findings of fact based on evidence available on record. In our opinion, the

learned trial Court has rightly convicted all the accused persons in the instant

case for the aforesaid offence and, under the facts and circumstances of the

present case, the learned trial Court is justified in imposing only fine

sentence upon each of the accused person. Hence, both these appeals, one

filed by the accused-appellants- Shobha Ram Kashyap (A-1) feeling

aggrieved by his conviction and order of sentence and another by the

injured- Swarath (PW-06) seeking enhancement of sentence awarded to all

the accused persons, are liable to be dismissed.

(24) Consequently, both the criminal appeals are dismissed.

                   Sd/-                                               Sd/-
            (Sanjay K. Agrawal)                                (Sachin Singh Rajput)
                  Judge                                               Judge
[email protected]