Chattisgarh High Court
(Died) Shivlal vs State Of Chhattisgarh on 16 January, 2024
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 07.11.2023
Judgment Delivered on : 16.01.2024.
Criminal Appeal No. 95 of 2005
1 - (Died) Shivlal As Per Hon'ble Court Order Dated 30/10/2023
2 - Heeralal S/o Late Dukalu Aged About 38 Years (In Jail) R/o Village
Bhathanpali, P.S. Pussaur,, District : Raigarh, Chhattisgarh
3 - (Died) Dukalu As Per Hon'ble Court Order Dated 30/10/2023
4 - (Died) Panch Ram As Per Hon'ble Court Order Dated 06/04/2015
5 - Jailal S/o Late Dukalu Aged About 21 Years (In Jail) R/o Village
Bhathanpali, P.S. Pussaur,, District : Raigarh, Chhattisgarh
---- Appellants
Versus
State Of Chhattisgarh through The District Magistrate, Raigarh,
District : Raigarh, Chhattisgarh
---- Respondent
For Appellants : Mr. Rajendra Tripathi, Advocate For Respondent/State : Mr. Adil Minhaz, Govt. Advocate S.B.: Hon'ble Shri Justice Ravindra Kumar Agrawal CAV Judgment
1. The present appeal arises out of the judgment of conviction and sentence dated 25/01/2005 passed by the learned Second Additional Sessions Judge, Raigarh, in Sessions Case No. 34 of 2004 whereby the appellants have been convicted for the offences 2 under Sections 147, 353 & 333 read with Section 149 of IPC & sentenced for R.I. for 02 years to each appellants under Section 147 of IPC , R.I. for 03 years and fine of Rs. 500/- to each appellants respectively. In default of payment of fine further R.I. for 06-06 months to each appellants. No separate sentence for the offence under Section 353 of IPC was awarded. It is directed that all the sentences shall run concurrently.
2. During pendency of the appeal, the Appellant No. 4 Panch Ram, S/o Dukalu, has died on 29/08/2010 and appeal against the Appellant No. 4 Panchram has been abated vide order dated 06.04.2015 passed by this Court. The Appellant No. 1 Shivlal, S/o Dukalu and Appellant No. 3 Dukalu, S/o Jagatram have also died and appeal against them has also been abated vide order dated 28.07.2023 passed by this Court and thus the appeal survives only for the Appellant No. 2 Heeralal, S/o Dukalu and Appellant No. 5 Jailal, S/o Dukalu.
3. Brief facts of the case are that on 29.06.2003, the complainant Fakirchand Panigrahi, who was the Head Constable at Police Station Pussaur, had lodged report against the accused persons/appellants at Police Station Pussaur with the effect that on 29.06.2003 when he went to Village- Bhatanpali along with Constable Devnandan Sahu for investigation in Crime No. 92/2003 and asked the accused Jailal to furnish bail bond, at that time the accused Jailal has abused him and said that who are you to arrest him and called his brothers and father and then the accused 3 Heeralal, Panch Ram, Shivlal and Dukalu came along with Rod, Lathi and Danda and all the accused persons assaulted them by the said Rod, Lathi and Danda. By the assault made by the accused persons, the complainant Fakirchand Panigrahi (Head Constable) and his companion Devnandan Sahu (Constable) were received injuries over their head, hands and legs. During the assault, the accused Jailal Sahu looted his bag by broke open the lock of the Dikki of the motor cycle in which the case diaries of various Crime Nos. were in the bag along with some cash amount. It is also reported that if they will not flew away from the place then the accused persons will kill them. The incident was witnessed by Kartik Ram Sahu, Anand Ram Sahu, Munkulal, Suman and Shatrughan Pradhan.
4. On the report made by the complainant, the Police has registered the offence against the accused persons/ appellants for the offences under Sections 147, 148, 149, 294, 506 B, 332, 186, 307, 395, 333 of IPC. The complainant Fakirchand Panigrahi and Devnandan Sahu were sent for their medial examination to CHC Pussaur where Dr. R. N. Mandavi (PW-11) has examined them and found the following injuries over the body of the complainant Fakirchand Panigrahi :-
1. Lecerated wound on left orbit, size 2.5 cm X 1/4 cm X 1/4 cm with little bleeding, swelling on lower orbit.
2. Swelly dorsal surface of left palm of hand, size 5 cm X 3 cm, unable to move, red in color.4
3. Bruise right calf region of leg, size 5 cm X ½ cm, red in color.
4. Bruise on right scapular region, size 3 cm X 2 cm, red in color.
Doctor has opined that the above mentioned injuries is caused by hard & blunt object. Above mentioned injuries is grievous in nature. Patient is advised for X-Ray of his left palm, admit at CHC, Pussaur and his report is Ex-P/11.
Devnandan Sahu has also received injuries, who was also examined by Dr. R.N. Mandavi (PW/11) who found the following injuries over his body:-
1. Bruise on right cheek, size 2 Inch X 1 Inch, red in color.
2. Bruise in left cheek obliquely, size 2.5 Inch X 1.5 cm, red in color.
3. Bruise on left post auricular region, size 1 Inch X 1 cm, red in color.
4. Bruise on back across mid, size 6 Inch X 1.5 cm.
5. Bruise on left thigh, size 3 Inch X 1.5 cm.
6. Bruise on left ankle, size 2 Inch X 1 cm.
Doctor has opined that the above mentioned injuries is caused by hard & blunt object and is simple in nature. The patient might be alright in five days if complication not arose, and his report is Ex-P/12.
5. The complainant Fakirchand Panigrahi received fracture of 4th metacarpal bone of left palm and his X-Ray report is Ex-P/13 and he was admitted at CHC Pussaur from 30.06.2003 to 22.07.2003. 5
6. The Spot Map (Ex-P/14) was prepared by the Police. The memorandum Ex-P/5 of the accused Shivlal was recorded on 30.06.2003 and on the basis of memorandum the Police has seized the green color old bag containing with the case diaries of various Crime Nos, cash amount and other documents vide Ex-P/4 from the filed of one Fakir Kolta.
7. On 23.10.2003, a Danda was seized from the accused Panch Ram vide Ex-P/9. On 23.12.2003, the complainant has made a written complaint to the learned Judicial Magistrate First Class, Raigarh which is Ex-P/2. On 22.12.2003. Another Lathi was seized from the accused Dukalu vide Ex-P/24. The queries was being made from the Doctor vide Ex-P/15 and P/16 as to whether the injuries received by the complainant Fakirchand Panigrahi and his companion Devnandan Sahu could be caused by the said Lathi or not. In reply to the queries, the Doctor has opined that whatever the injury received by the complainant Fakirchand Panigrahi and his companion Devnandan Sahu may be due to the said Lathi and the query reports are Ex-P/15 and P/16 respectively. Another query was being made by the Police from the Doctor as to whether the injuries received by the complainant Fakirchand Panigrahi was fatal or not and in absence of any treatment in time whether the injuries received by him is fatal to life or not. In reply to this query the Doctor has replied that whatever the injury received by complainant Fakirchand Panigrahi may be fatal and death may be possible if treatment not done at proper time and their query report is Ex-P/17. 6 Certificate with respect to complainant being the Public Servant has been obtained by the Police vide Ex-P/22 and P/23. The accused persons have been arrested on 30.06.2003, 02.12.2003, 22.12.2003 & 23.10.2003 respectively. The statements of the witnesses under Section 161 of Cr.P.C. were recorded and after completion of investigation charge-sheet was filed before the learned JMFC, Raigarh for the offences under Sections 147, 148, 149, 294, 506 B, 332, 333, 186, 353, 307, 395 of IPC. The case was committed to the Court of learned Sessions Judge, Raigarh from where the same was transferred to the Court of learned Second Additional Sessions Judge, Raigarh for its trial.
8. On 21.07.2004, the charges under Sections 148, 333 read with Section 149, 307 read with Section 149 and Section 353 of IPC were framed against the accused Shivlal, the charges under Sections 148, 333 read with Section 149, 307 read with Section 149, 353 & Section 392 of IPC framed against the accused Jailal and the charges under Sections 148, 333 read with Section 149, 307 read with Section 149 and 353 of IPC were framed against other accused persons. The accused persons abjured their guilt and plead innocence and claimed trial.
9. In order to bring whom the charge, the prosecution has examined as many as 14 witnesses.
10. The statement of the accused persons under Section 313 of Cr.P.C.
were recorded in which they plead innocence and submitted that they are falsely implicated in the offence.
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11. After considering documentary as well as oral evidence available on record, the learned Trial Court has convicted and sentenced the appellants as mentioned in Para 1 of this judgment. Hence this appeal.
12. Learned counsel for the appellants has argued that the appellants are innocent and have been falsely implicated in the offence. No offences are made out against the appellants as alleged. There are material, omission and contractions in the evidence of prosecution witnesses. On the same set of evidence, the learned Trial Court has acquitted the appellants from the charges under Sections 148, 307 read with Section 149 and 392 of IPC but has convicted for the other offences. The appellant Jailal was being taken to the Police Station by the complainant and his companion by motor cycle and on the way their motor cycle got turned down and thereby the complainant and his companion have received injuries. Therefore the appellants are entitled for their acquittal.
13. On the other hand, the learned counsel for the State has vehemently opposed the argument advanced by the learned counsel for the appellants and have submitted that the injured complainant Fakirchand Panigrahi himself has lodged the report to the Police Station and as per his medical examination report as well as from the evidence of Doctor, injuries were found on the body of the complainant and his companion which was caused by the accused persons by means of rod and club. The complainant was remained hospitalized for about 22 days and as 8 per the query report of the Doctor, the injuries received by him is fatal to life. Since the complainant went to Village- Bhathanpali to investigate the matter in Crime No. 92/2003 and discharging his duty, he was being obstructed by the accused persons. The complainant being the public servant and obstructed by the accused persons from discharging his duty and assaulting him by Rod and Lathi would clearly spells out that they voluntarily causing grievous hurt to deter public servant from his duty which has been clearly established by the prosecution witnesses and therefore the accused persons are not entitled for any leniency and their conviction and sentences are liable to be maintained.
14. I have heard the learned counsel for the parties and perused the record.
15. The PW-1 Fakirchand Panigrahi who is the complainant, have stated in his deposition that he is the Head Constable posted at Police Station Pussaur from 1998 to December, 2003. On 29.06.2003 at about 8.30 in the night, they went to Village Bhatanpali for investigation of the Crime No. 92/2003 of Police Station Pussaur in which the complainant was Munkuram. On being investigation, he prima facie found that the offence was being committed by the accused Jailal and since the same was bailable offence, he asked Jailal to furnish his bail bond. The accused Jailal has taken them near his house. At that time, the Constable Devnandan Sahu was also accompanied with the complainant. Near the house of accused Jailal, he called his brother and father 9 and then the accused Heeralal, Panch Ram, Shivlal & Dukalu came there, armed with Lathi and Rod and assaulted the complainant. Heeralal assaulted by Rod by which he received injuries on his forehead. Jailal assaulted by Chappal and Lathi on the left palm. Punch Ram assaulted by Lathi on Right leg and Shivlal assaulted by Lathi on forehead. His companion Devnandan Sahu was also assaulted by Chappal and Lathi by the accused persons. The accused Jailal has also assaulted him on his left palm by which he received fracture of his bone. Devnandan Sahu, the Constable went towards the vicinity and called Shatrughan, Kartikram, Anandram, Munkuram and others and when the persons of the vicinity came there, the accused persons fled away. He has also deposed that the accused Jailal has broke open the lock of the Dikki of his motor cycle and the case diaries of various Crime Nos. which was kept in a bag including the case of Rs. 200/- were looted by him. The incident was witnessed by Samaru and Saudagar. If the witnesses were not come, the accused persons were kill them. On the same night, he came to the Police Station and lodged the report and from there he was being sent for medical treatment and he remained hospitalize for about 20-22 days. He has moved an application Ex- P/2 to the learned Judicial Magistrate First Class, Raigarh. In his detailed cross-examination, the defence could not elicited any material fact which would make the deposition of the complainant doubtful. The complainant Fakirchand Panigrahi remained firm in his cross-examination as to the injuries caused by the accused persons upon him and obstructed in discharging the duty of the 10 public servant. But for minor ommission or contractions, nothing could be brought on record by the defence so as to hold that the complainant is not telling truth before the Court.
16. PW-2 Devnandan Sahu who is also injured in the incident and companion to the complainant have stated in his deposition that he was posted as Constable at Police Station Pussaur. On 29.06.2003 when he went to Village- Bhathanpali for investigation along with Head Constable Fakirchand Panigrahi in Crime No. 92/2003 and asked the accused Jailal to furnish the bail bond, he has taken them nearby his house and called his brother and father and then the accused persons Heeralal, Shivlal, Panch Ram and Dukalu came there, armed with Rod and Danda and started assaulting him and the complainant Fakirchand Panigrahi. By the assault made by the accused persons, both of them have received injuries over their body and when he went towards vicinity and called the persons from there and then the accused persons fled away. He too have stated that the Dikki of the motor cycle was broke open by the accused persons and the case diaries and cash of Rs. 200/- were looted by the accused persons. Thereafter, they returned back to the Police Station where the Head Constable Fakirchand Panigrahi has lodged the report and they were sent for their medical examination. In cross-examination, these witnesses has also remained firm, but for minor omission and contraction nothing could be elicited so as to disbelieve the evidence of these witnesses.
17. PW-3 Saudagar Chauhan has stated in his deposition that on 11 29.06.2003 when he was returning back from Village- Aamapali at about 8-8.30 in the night, he reached on Village Bhatanpali and saw that the Head Constable Fakirchand Panigrahi and Devnandan Sahu has taken the accused Jailal in motor cycle and near the house of one Sukhdev, Jailal has jumped from the motor cycle and called his brother and father. On being called by accused Jailal, his brother and father came there, armed with Rod and Lathi and assaulted the complainant Fakirchand Panigrahi and Devnandan Sahu. He has further stated that Shivlal has given memorandum statement, based on which the bag contained with the documents and 200 rupees cash was seized and the documents of the same is Ex-P/4 and P/5, in which his signature is there. This witness have remained firm in his detailed cross-examination by the accused persons on the point of assault made by the accused persons upon the complainant Fakirchand Panigrahi and Devnandan Sahu. Though, This witness could not specified as to who assaulted whom and on which part of the body they have assaulted but has proved that the accused persons have assaulted the complainant and his companion.
18. PW-4 Samaru came on the spot after the incident and he was being called one Girdhari. He is the witness of seizure memo Ex-P/4 memorandum Ex-P/5 and proved his signature over the said documents. PW-5 Shatrughan is also the witness of incident and have stated that on 29.06.2003, the Police persons came to the village for investigation and after inquiry when they were taking the 12 accused Jailal on his motor cycle, on the distance of half Kilo-Meter from the village, Jailal jumped from the motor cycle and called his family members. Thereafter, the Constable Devnandan Sahu has called the villagers and when they went on the spot, he saw that the blood was oozing out from head of the Constable Fakirchand Panigrahi and thereafter they made the telephonic call to the Police. In cross-examination, he has stated that on the date of incident, the Police persons were taking the accused Jailal to Police Station Pussaur by their motor cycle but he could not see what was happened on the spot. PW-6 Suman and PW-7 Munkuram have not given any substantive evidence in support of the prosecution, though, they have stated that on 29.06.2023 he came into knowledge that the accused persons are assaulting the complainant and when he saw the complainant, blood was ozzing out from his head.
19. PW-8 Manohar Lal Sahu, who is the Patwari and prepared the Spot Map Ex-P/8, PW-9 Tejram is witness of seizure of a Lathi from Panch Ram vide Ex-P/9, PW-10 T.R. Chauhan Assistant Sub Inspector is witness of arrest memo Ex-P/10 by which the accused Panch Ram was arrested.
20. PW-11 Dr. R.N. Mandavi has stated in his deposition that on 30.06.2003 at about 1.15 AM, the Head Constable Fakirchand Panigrahi was being taken to the hospital in injured codition and he examined him and found the injuries as mentioned in his MLC report Ex-P/11. He opined that the injuries could have been caused 13 within six hours from the examination which could have been caused by hard and blunt object and grievous in nature.
21. Considering of the nature of the injuries, he was referred to Pussaur Hospital and advised for X-Ray of his left palm. His MLC report is Ex-P/11. He further stated that on the same day the Constable Devnandan Sahu was also brought before him in injured condition. He examined him also and found the injuries as mentioned in his MLC report Ex-P/12. He opined that the injuries could have been caused by hard and blunt object which was simple in nature and the injuries could be heald after treatment of five days. After examination of the X-Ray report of complainant Fakirchand Panigrahi, he found the fracture on 4th metacarpal of left palm of the complainant and his X-Ray report is Ex-P/13. The complainant was admitted at Pussaur hospital and as per the record he was admitted from 30.06.2003 to 22.07.2003 and his bed head ticket is Ex-P/14. He has further stated that the Lathi which were seized from the accused persons were also brought before him for its examination and he gave the report Ex-P/15 & P/16 that the injuries could have been caused by the said Lathi. He has also proved a query report Ex-P/17.
22. In cross-examination, the Doctor has reiterated the injuries found on the body of the complainant and other injured and denied that the injuries found over the body of the complainant was not grievous and was not fatal to life. PW-12 G.R. Bareth, PW-13 G.S. Kurwanshi and PW-14 H.L. Niranjan are the investigating officers 14 have conducted part of the investigation.
23. Close scrutiny of the evidence makes it clear that on 29.06.2003 when the complainant Fakirchand Panigrahi went to village Bhatanpali for investigation of Crime No. 92/2003 and asked the accused Jailal to furnish his bail bond, the accused Jailal called his brothers and father, who came there, armed with Rod and Lathi and assaulted the complainant Fakirchand Panigrahi and his companion Devnandan Sahu by which both of them have received injuries over their body and thereby they obstructed the public servant from discharging their duty. Therefore, the learned Trial Court has rightly convicted the accused persons for the offence under Sections 147, 353, 333 read with Section 149 of IPC. For rioting and assaulting the complainant and his companion to deter public servant for discharge of his duty by making the unlawful assembly and therefore their conviction are liable to be maintained.
24. As regard to the sentence part, while dealing with the said question in the matter of Mohammad Giasuddin Vs. State of Andra Pradesh, reported in (1977) 3 SCC 287, it has been observed by the Hon'ble Supreme Court as under :-
" 9. Western jurisprudes and sociologists from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : " The laws of England are written in blood". Alfieri has suggested : ' society prepares the crime, the criminal commits it'. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 15 'crime is the result of the lack of the right kind of education'. It is thus plain that crime is a pathological aberration that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. Since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : ' If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences."
25. In the case in hand, the record shows the appellants have remained in jail for about 1 year 02 months and 22 days out of total maximum sentence of 03 years imposed upon the appellants. The incident is occurred in the year 2003 and almost 20 years have been passed 16 since then. There is no minimum sentence prescribed for the offence, for which the appellants have been held guilty. Thus, in the totality of the circumstances, this court is of the considered opinion is that, no useful purpose would be served in again sending the appellants to the jail after such a long lapse of time and thereby disturbing their settled family life. Accordingly, the conviction of the appellants under Sections 147, 353 & 333 read with Section 149 of I.P.C. are maintained, however, keeping in mind, the judgment of Hon'ble Supreme Court referred to above, the sentence imposed on the appellants are reduced to the period already undergone by them. By enhancing the fine amount from Rs. 500/- each to 7000/- each. Out of the total find amount of Rs. 14,000/-, Rs. 10,000/- (5000-5000 to each victim) be paid to both the victims as compensation as provided under Section 357 of Cr.P.C.
26. The appellants are on Bail. Their bail bonds are continued for the period of six months as prescribed in Section 437-A.
27. For the fore going reasons, the appeal is partly allowed.
28. The Lower Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal) Judge Sagrika