Chattisgarh High Court
Bhagatram And Ors vs The State Of M.P on 15 February, 2023
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 2960 of 1998
Judgment reserved on 04/01/2023
Judgment Delivered on 15/02/2023
1. Bhagat Ram S/o. Tiharu, Aged about 70 years,
2. Daua S/o. Tiharu, Aged about 45 years,
3. Genarayan S/o. Ramdayal, Aged about 32 years,
4. Ramprasad S/o. Bhagatram, Aged about 35 years,
5. Chandrabhan @ Bhuru S/o. Ramdayal, Aged about 25 years,
6. Faguram S/o. Daua, Aged about 30 years,
7. Ram Sarkar S/o. Daua, Aged about 30 years,
8. Ramnarayan S/o. Daua, Aged about 35 years,
All are residents of village Markadih, Dhurkot, Police Station and
Tahsil- Janjgir, District Bilaspur (MP) (now Chhattisgarh)
---------Appellants
VERSUS
State of Madhya Pradesh through, Police Station- Janjgir, Tahsil
Janjgir, District Bilaspur (MP) (now Chhattisgarh)
---------Respondent
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For the Appellants : Mr. Rahil Arun Kochar, Advocate For the Respondent : Mr. Himanshu Sharma, PL
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This criminal appeal preferred by the appellants under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 03.12.1998, passed by Additional Sessions Judge, Janjgir District Bilaspur (C.G.) in Sessions Trial No. 83 of 1995, 2 whereby appellants have been convicted for offences punishable under Sections 148, 452,325 read with section 149 IPC and sentenced to undergo rigorous imprisonment for 1 year under Section 148 IPC, rigorous imprisonment for 1 year and to pay fine of Rs. 500/- each of the appellants under Section 452 IPC, rigorous imprisonment for 1 year and to pay fine of Rs. 500/- each of the appellants under Section 325 read with section 149 IPC plus default stipulations with a direction to run the sentences concurrently.
2. Case of the prosecution, in brief, is that on 01.07.1994 at about 10.05 AM, complainant Lachhanbai (PW-1) lodged the FIR (Ex.P-1) in Police Station Janjgir, alleging that last evening at about 6-7 o'clock, his brother-in-law namely Rama called a meeting in his house for partition of property where her husband was also present and she was alone in her house. It is also alleged that Ramayan Kurmi, Daua Kurmi, Ramsagar, Rama, Bhagat Kurmi, Devnarayan, Bhuru and Fagu with common intention have committed house trespass and entered into the house of victim, abused and committed marpit with hands and fists to the complainant. It is also alleged that appellant No.1 caused grievous injuries to the victim with umbrella, as result of which, she sustained injuries on her back, right ear and twisted her left hand and she was too feeling pain and fell down there thereafter the appellants left her and fled away from there. Lachhan Bai along with Gokul (PW-3) and her husband came to police station and lodged FIR (Ex.P-1) against the appellants on the basis of which the police has registered the offence punishable under Sections 148, 459, 325 and read with section 149 IPC. During investigation, Police seized broken pieces of bangles from the spot vide Ex.P-1, umbrella (Ex.P-11) was seized from Bhagat Ram, Map (Ex.P-12) and thereafter arrested the appellants on 01.07.1994, vide arrest memo (Ex.P-13). Statements of witnesses were recorded under Section 161 of CrPC and after due investigation, the police filed 3 charge-sheet against the appellants in the Court of Judicial Magistrate, First Class Janjgir, thereafter, the case was committed to the Court of Additional Sessions Janjgir for trial in accordance with law. The appellants/accused persons abjured their guilt and entered into defence stating that they have not committed the offence and have been falsely implicated in the case.
3. To bring home the guilt of the appellants, the prosecution examined as many as 7 witnesses. Victim Lachhan Bai (PW-1), Ramdayal (PW-2), Gokul (PW-3), Dr. U.C. Sharma (PW-4), Sub Inspector B.C. Singh (PW-
5), Kanhaiya (PW-6) and M.L. Sandilya (PW-7) and exhibited documents FIR (Ex.P-1), seizure memo (Ex.P-2), Statement of Gokul (Ex.P-3), Medical examination of victim (Ex.P-4) ), Medical report (Ex.P-
5), Examination of umbrella (Ex.P-6), Report of Medical Examination (Ex.P-7), Query report (Ex.P-8), Reply of query (Ex.P-9), X-ray (Ex.P-
10), seizure memo (Ex.P-11), Map (Ex.P-12) and Seizure Memo (Ex.P-
13). In support of their defence, the appellants have also examined one defence witness namely Ramlal (DW-1) The statements of the appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the guilt, pleaded innocence and false implication in crime in question. After hearing counsel for the parties and considering the material available on record, the trial Court by the impugned judgment, convicted & sentenced the accused/appellants as described above. Hence, this appeal.
4. During pendency of the appeal, Appellant No. 1 and victim have died, their death certificates were also been brought on record. Thus, the appeal so far as, appellant No.1 and victim stand abated.
5. The trial Court on the basis of evidence, material on record has recorded a finding of guilt that the appellants have committed illegal house tress pass in the house of the victim when she was alone, assaulted her and caused grievous injuries.
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6. Learned counsel for the appellants would submit that from bare perusal of evidence of the witnesses the main allegation of assault is on the appellant No.1 who is no more and from the evidence it clear that appellant No.1 attacked the victim with an umbrella which is not a deadly weapon as such the other appellants cannot be prosecuted for commission of offence under Section 325 IPC and the conviction of the accused appellants is based on merely on the evidence of the interested witnesses, therefore, the same is not liable to be sustained. He would submit that the injuries suffered by the victim were simple in nature though the harsh punishment was given by the trial Court. Alternatively, he submits that looking to the totality of the facts and circumstances of the case, the sentence awarded to the appellants may kindly be reduced to the period already undergone by enhancing the fine amount. In order to buttress his submission he would place on record that the offence was committed in the year 1994 and since then the appellants are still facing the prosecution. According to the counsel for the appellants, the appellants have not misused their liberty of suspension of sentence and that looking to the fact that 28 years have passed by since the commission of offence, some leniency may be shown to the appellants. He would further submit that after that incident, the appellants are not involved in any of the offence, therefore, they may be given benefit of section 4 of the Probation of Offenders Act, 1958 and also leniency can be considered while imposing punishment upon the appellants.
7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that considering the weapon of offence umbrella used by appellant No.1, the nature of injuries sustained by the victim, the manner in which the appellants assaulted the victim, conviction of the appellants is strictly in accordance with law and the sentence imposed thereunder is also just and proper warranting no 5 interference by this Court.
8. Heard counsel for the respective parties and perused the material on record.
9. Lachhan Bai (PW-1) was examined before the Court below wherein she has narrated the incident that the appellants have forcefully entered in to her house in absence of her husband and appellant No.1 had attacked her with the umbrella and rest of the appellants assaulted her with hands and fists. In the cross-examination, the victim has reiterated the same averment with regard to incident which took place. Ramdayal (PW-2) and Gokul (PW-3) have supported the case of the prosecution.
10. Dr. U.C. Sharma (PW-4) was examined before the Court below who had stated that the victim had suffered linear contusions in the size of 15x2 cm, 18x2 cm, 20x2cm, 15x2 cm,10x2 cm, 12x2cm above the back side which was caused by hard and blunt object. He further deposed that the victim was complaining pain on her body and blood was oozing from her right ear. But on the inquiry, no injuries were found and he sent victim Champa Hospital for X-ray where simple fracture was found on the 9th rib. In the query report Ex.P-8 and Ex.P-9, the doctor stated that the injuries were sustained by the victim were grievous in nature and if the treatment is not provided in time then it was dangerous to her life. In the cross-examination, he has stated that if the rib is broken and enter into any sensitive part of body like liver and lungs it may cause death. He deposed that the victim has suffered simple injuries and after giving treatment she was normal.
11. On the above factual matrix, this Court has to examine whether the injuries sustained by the victim were grievous or not and whether the weapon of assault used by the appellant No.1 was dangerous weapon or not.
12. For better understanding of provision of section 325 IPC it is expedient for this Court to extract below:-
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Section 325. Punishment for voluntarily causing grievous hurt. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
13. Grievous hurt has been defined in Section 320 IPC which reads as under:-
First. --Emasculation.
Secondly. --Permanent privation of the sight of either eye.
Thirdly. --Permanent privation of the hearing of either ear.
Fourthly. --Privation of any member or joint.
Fifthly. --Destruction or permanent impairing of the powers of
any member or joint.
Sixthly. --Permanent disfiguration of the head or face.
Seventhly. --Fracture or dislocation of a bone or tooth.
Eighthly. --Any hurt which endangers life or which causes the
sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
14. From perusal of section 320 IPC, it is quite vivid, that if any fracture or dislocation of a bone or tooth is being done by any action of the appellant No.1 then it will fall within the ambit of grievous hurt. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits will also fall within the ambit of grievous hurt.
15. From the evidence of Dr. U.C. Sharma (PW-4), it is quite vivid that Dr. U.C. Sharma (PW-4) has categorically stated that 9th rib of the victim was fractured and rest of the injuries suffered by the victim were simple in nature. It is not in dispute that rib is a curved bone and supported protection for the entire body. The word fracture has come up for consideration before the Hon'ble Supreme Court in the case of Hori Lal And Anr vs State Of U.P reported in 1970 (1) SCC (8) wherein the Hon'ble Supreme Court has held in paragraph-7 as under:-
"It is true that fracture has not been defined in the penal code. It is sometimes thought as in the case of Po Yi Maung v. Ma E Tin(1) that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that 7 the crack must extend from the. outer surface of the skull to the inter surface. In Mutukdhar Singh vs. Emperor (2) it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the: surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of s. 320 of the Panel Code.
16. Thus the finding recorded by the learned trial Court that the appellants have caused grievous hurt to the victim is legal justified and rightly convicted them under Section 325 read with section 149 IPC.
17. Now this Court has to consider whether in the given facts and circumstances of the case benefit of Probation of Offenders Act, 1958 can be extended to the appellant or not. Learned counsel for the State would submit that the appellants were above 21 years age, therefore, they cannot be granted benefit of Offenders Act and the appeal may kindly be dismissed.
18. For considering this issue it is expedient for this Court to extract section 4 of the Probation of Offenders Act and Section 360 of CrPC as under :-
Section 4 Power of court to release certain offenders on probation of good conduct.--
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the 8 offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
19. Section 360. Order to release on probation of good conduct or after admonition.
(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called 9 upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. 10
(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
20. Sections 4 and 360 CrPC has come up for consideration before the Hon'ble Supreme Court in the case of Ratan Lal vs. State of Punjab 1965 (1) Criminal Law Jeneral 360, wherein the Hon'ble Supreme Court has held in paragraph-4 as under:-
This Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. The Act distinguishes offenders below 21 years of age and those 677 above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, in the case of offenders below the age of 21 11 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under SS 3 and 4 of the Act.
21. The Hon'ble Supreme Court considering the provision of Section 4 of the Probation of Offenders Act and Section 360 CrPC in the case of Ved Prakash vs. State of Haryana 1981(1) SCC 447 has held as under;-
We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of suck materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislations which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act. In the present case, the offender is a young person and his antecedents have no blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are stabilizing factors in life. A long period of litigation and the little period of imprisonment suffered? will surely serve as a deterrent. We are mindful of the fact that a fire-arm has been used by the appellant and we cannot sleep over the gravity of the 12 offence. Nevertheless, the report of the Probation officer states that the appellant is not given to any bad habits or stresses of poverty. A land dispute led to the crime and that does not survive any longer.
22. Again the Hon'ble Supreme Court in the case of State of Maharastra vs. Jagmohan Singh Kuldeep Singh and other 2004(7) SCC 659 has held in paragraph-27 as under:-
The learned counsel appearing for the accused submitted that the incident is of the year 1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that benefit of Probation of Offenders Act, 958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The incident is more than 10 years old. The dispute was between the neighbours over a trivial issue of cleaning of drainage. The incident took place in a fit of anger. All the parties are educated and also distantly related. The incident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on Probation by directing them to execute a bond of one year for good behaviour.
23. The appellants were also charged for commission of offence under Sections 148, 149 and 452 IPC who have entered in the house of the victim and have assaulted her with a mob.
24. Now the issue whether the appellants have committed the offence under Section 148 IPC or not.
25. For examining this issue it is expedient for this Court to extract sections 146, 147, 148 and 149 IPC which is as under:-
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.
147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a 13 term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
26. From perusal of section 148 and 149 IPC, it is quite vivid, that whoever is guilty of rioting, should armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, in this case the appellant No.1 had attacked the victim with umbrella. The umbrella cannot be termed a deadly weapon, therefore, ingredients of Section 148 IPC are missing but the offence under Section 149 IPC is clearly made out against the appellants as they have used force or violence on the victim by forming unlawful assembly and every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence, it is quite vivid, that all the appellants with a common object have assaulted the victim and have committed the riots, therefore, they have been convicted for commission of offence punishable under Sections 149 IPC only and acquitted from the charges under Section 148 IPC.
27. As discussed above and on the basis of evidence, material on record, I am of the considered view, that the learned trial Court has not committed any error in convicting the appellants, therefore, the impugned judgment so far as it relates to the conviction is hereby affirmed.
28. However, this Court has to examine whether the appellants in given facts and circumstances of the case can be extended the benefit of section 4 of Probation of offender Act and section 360 CrPC. From the record, it is not in dispute that the incident took place in the year 1994 14 and since then they have been facing the trial i.e. for last 28 years and regularly appearing before the trial Court and even after granting bail by this Court, the appellants are aged about 62 to 65 years of age, no past criminal antecedents against them is brought on record by the prosecution during pendency of the appeal also, therefore, instead of sending the appellants to the jail, they shall get the benefit of section 4 of Probation of offender Act and section 360 CrPC. Appellants shall file one surety to the tune of Rs. 25,000/- each coupled with personal bond to the effect within three months from the date of order, they shall not commit any offence and shall observe good behavious and shall maintain peace during the period of one year, if there is breach of any of the conditions, they will be subjected themselves to undergo sentence before the Court below.
29. The victim has suffered injuries though she expired during pendency of the appeal, therefore, each appellants shall pay compensation of Rs. 3000/- to the legal heirs of the victim as per the provision of Section 357 CrPC within 3 months by depositing the same in the trial Court. The compensation shall be released to the legal heirs of the injured Lachhan Bai after due verification by trial Court.
30. Accordingly, the appeal is partly allowed.
Sd/-
(Narendra Kumar Vyas) Judge Santosh