Sahal Ram @ Sahal vs State Of Chhattisgarh

Appellants have preferred this appeal challenging impugned judgment of conviction dated 19.11.2001, passed by the First Additional Sessions Judge, Ambikapur, District-Surguja in ST-362 of 1996, whereby learned trial Court convicted appellants and sentenced them as mentioned below:

CONVICTION

SENTENCE

Under Section 147 of IPC

RI for one year and fine of Rs.100/- to each. In default of fine, additional RI for one month

Under Section 323 rw 149 IPC (for causing injury to Tejanram PW2)

RI for one year and fine of Rs.300/- to each. In default of fine, additional RI for three months

Under Section 325 rw 149 IPC (for causing injury to Ratan PW3)

RI for three years and fine of Rs.500/- to each. In default of fine, additional RI for six months

Under Section 323 rw 149 IPC (for causing injury to Tilsai PW4)

RI for one year and fine of Rs.300/- to each. In default of fine, additional RI for three months

Under Section 323 rw 149 IPC (for causing injury to Sundari Bai PW5)

RI for one year and fine of Rs.300/- to each. In default of fine, additional RI for three months (All sentences to run concurrently)

Cra 1157 of 2001

2

CONVICTION SENTENCE

Under Section 147 of IPC RI for one year and fine of Rs.100/- to each. In default of fine, additional RI for one month

Under Section 323 rw 149 IPC (for causing injury to Tejanram PW2)

Under Section 325 rw 149 IPC (for causing injury to Ratan PW3)

RI for one year and fine of Rs.300/- to each. In default of fine, additional RI for three months

RI for three years and fine of Rs.500/- to each. In default of fine, additional RI for six months

Under Section 323 rw 149 IPC RI for one year and fine of Rs.300/- to each. In

(for causing injury to Tilsai PW4) default of fine, additional RI for three months

Under Section 323 rw 149 IPC RI for one year and fine of Rs.300/- to each. In

(for causing injury to Sundari Bai default of fine, additional RI for three months (All

PW5) sentences to run concurrently)

Facts necessary for disposal of this appeal are that on 24.10.94, PW2 Tejanram lodged report to concerned Police Station stating therein that in half portion of disputed land of his grandmother (dadi), he sowed “Ganga Prasad” paddy seeds. On the date of incident, appellants started harvesting crops sowed by him. He went to the agricultural field along with Tilsai, Ratan and Tejanram went there, asked appellants to stop harvesting his crop. They became aggressive and assaulted Tejanram, Ratan and Tilsai by means of Club, and all three suffered injuries over their person. Based on their report, FIR was registered against five persons, Namely, Sahal Ram @ Sahal, Shobhnath, Nanuha, Rame @ Ramesh (son of Chamru) and son-in-law of Chamru. Injured persons were sent to medical examination. After completion of investigation, Police submitted charge-sheet against Dharampal, Kewalsai, Shobhnath, Rame @ Ramesh, Ram, Sahal Ram @ Sahal, Nanhua and Gopal.

Learned trial Court on the basis of material available in charge-sheet, framed charges against appellants for offenses punishable under Sections 147, 307 rw 149, and Section 323 of IPC. Charges levelled against appellants were denied by them and they were put to trial.

During trial, prosecution exhibited 24 documents and examined 11 witnesses to bring home guilt of appellants.

Learned trial Court recorded statement of appellants, wherein they stated that there was land dispute and they have been falsely implicated in the case. Learned trial Court upon appreciation of documentary and oral evidence brought on record by prosecution, as also considering statement of accused persons, held that appellants have committed offence under Sections 147, 325 rw 149 for causing injuries to Ratan, 323 rw 149 for causing injuries to Tejanram, Tilsai and Sundari Bai and they have been sentenced for the period and fined as mentioned above.

Shri Ashok Kumar Shukla, learned counsel for the appellants would submit that finding recorded by learned trial Court holding appellants guilty of commission of offence under Sections 147, 325 and 323 with the aid of 149 of IPC is perverse. He contended that there is no evidence available on record that appellants formed an unlawful assembly and thereafter, assaulted complainant party. Prosecution failed to prove ingredients of forming unlawful assembly as defined under Section 141 of IPC. It is the case of complainant party that they are members of same family, different branches of same tree and there was some property dispute on account of partition of property. Property on which appellants were harvesting crops fell in their share. In partition proceedings, property came in share of Sahal Ram @ Sahal, recorded in his name in revenue records, which is also apparent from revenue documents available on record, marked as Ex.P24. After losing the case before SDM, complainant party has also filed Civil Suit which was decided in favour of appellant Sahal Ram @ Sahal. This evidence available on record clearly shows that appellants were harvesting crop on the land recorded in their name and possession. It is the complainant party, who, after knowing that appellants were harvesting crops, came there from their home and started quarreling. They were aggressors, according to the facts available on record and as narrated by complainant themselves. In the said facts of the case, it cannot be said that appellants formed unlawful assembly with common object. He next contended hat allegation of assault by means of Club, made by complainant PW2 Tejanram, was also not properly appreciated by trial Court, as PW2 in his evidence admitted that due to fracture injury suffered by him earlier on his leg, he could not able to walk properly and when he reached to agricultural field, due to imbalance, he fell down and suffered injuries on head. At one place of his evidence in examination-in-chief, he stated name of Shobhnath, who assaulted him by means of Club and other persons have not been specifically stated, as to, who assaulted them and by what means. Learned counsel also submits that Ratan suffered fracture injury over right metacarpal bone and during examination, doctor opined that said injury can be received due to his falling on ground. There is no other independent witness to incident. Finding recorded by learned trial Court convicting appellants under Sections 147, 323 and 325 rw Section 149 of IPC, in view of evidence of prosecution witnesses, is not sustainable. In alternate, he also submits that Shobhnath has already undergone two yeas and 3 months of their jail sentence, whereas other appellants have underwent 4 months and 19 days of their jail sentence. He contended that as Rame @ Ramesh has not been specifically named by any of injured persons, of assaulting any of injured persons, or his active participation, and hence, even if this Court comes to the conclusion that prosecution proved charges, and he being government servant, there is no any other crime registered against him, looking to his good conduct, benefit of Section 4 of the Probation of Offenders Act may be granted to him.

In support of his contention learned counsel for the appellants places reliance upon decisions of Hon’ble Supreme Court in cases of Mariadasan and others Vs State of Tamilnadu reported in AIR 1980 SC 573, Ananta Kathos Pawar Vs State of Maharashtra reported in (1997) 11 SCC 564, State of UP Vs Jodha Singh and others reported in AIR 1989 SC 1822, and Maiku and others Vs State of UP reported in 1989 Suppl (1) SCC 25, to support his contention that in the facts of the case, provisions of Section 141 IPC would not be attracted.

For his alternate prayer, he places reliance upon State of UP Vs Tribhuwan and others reported in (2018) 1 SCC 90, Ghasiram and another Vs State of CG reported in 2011 (3) CGLJ SN 32, Mohd Hashim Vs State of UP and others reported in (2017 ) 2 SCC 198,Sukhnandan Vs State of MP reported in CGLJ 2002 (1) 82, and Sitaram Paswan and another Vs State of Bihar reported in 2005 AIR SCW 4713.

Shri Rishabh Singh Dev Samant, learned State counsel opposing submissions made by learned counsel for the appellants, would submit that in the evidence, it has come that complainant party was in possession of part of property through their grandmother. It is PW2 Tejanram/complainant, who sowed “paddy crop to which appellants were forcefully harvesting and when complainant party went to spot, tried to stop appellants from harvesting their crop, they have assaulted complainant party by means of club, hands and fists. Prosecution examined complainant as PW2, injured Ratan as PW3, injured Tilsai as PW4 and injured Sundari as PW5. Prosecution produced MLC report of injured persons as Ex.P16, Ex.P17 and Ex.P18, which were proved by Dr Ashok Jaiswal PW8, MK Jaiswal, PW9, and they proved corresponding injuries over complainant party. Finding recorded by trial Court is on appreciation of evidence available on record, hence, it does not call for any interference.

I have heard learned counsel for the parties.

Prosecution exhibited 24 documents, which are X-ray report of Tilsai (Ex.P1), application for X-ray examination (Ex.P7), X-ray report of Ratan (Ex.P2), application for his X-ray examination (Ex.P8), FIR (Ex.P3), Seizure memo (Ex.P4 and Ex.P5), application for medical examination of Sundari Bai (Ex.P6), its report (Ex.P-6A), query report (Ex.P9), medical examination report of Tilsai (Ex.P19), request for supply of information of immovable property of accused (Ex.P10), arrest memo of accused (Ex.P11, Ex.P-12, Ex.P13, Ex.P14, Ex.P15), application for medical examination of Tilsai (Ex.P16A), his medical report (Ex.P16), application for medical examination of Ratan (Ex.P17A), his medical report (Ex.P17), application for medical examination of Tejanram (Ex.P18A), medical report (Ex.P18), Spot map (Ex.P20), Panchnama (Ex.P21), Map (Ex.P22), Khasara Panchssala (Ex.P23) and Revenue document Form B1 (Ex.P24).

Prosecution examined 11 witnesses. Dr MK Jain as PW1, who proved x-ray report; Tejanram as PW2 (complainant); Ratan as PW3 (injured); Tildas as PW4 (injured), Sundari Bai as PW5 (injured), Lundru as PW6, (witness to seizure of Club); Ram Charan Verma as PW7 (Investigating Officer); Dr Ashok Kumar Jaiswal as PW8 (who examined injured Sundari Bai); Dr MK Jain as PW9 (who examined Tilsai, Tejanram, and Ratan); Shashikant Dubey as PW10 (concerned Halka Patwari); and DK Sharma as PW11 (who recorded FIR).

Perusal of FIR would show that PW2 Tejanram reported the incident mentioning that when he came to know that appellants were harvesting crops sowed by him, he along with other persons reached on the spot and thereafter, quarrel took place. Appellants assaulted him. In his evidence, PW2 stated that in the morning at about 7-8 am, they stopped appellants from harvesting crops. Appellant Shobhnath assaulted him by means of Club on his head due to which, he fell down and he was not aware as to who other persons assaulted him. Tilsai and Ratan were also assaulted by Police. In para 12 of his cross-examination, he admitted that appellant Sahal Ram @ Sahal by way of filing application in Tehsil office, got the disputed land partitioned in his own name. Thereafter, for the same piece of land, Sahal Ram @ Sahal filed an application under Section 145 CrPC before SDM, where complainant-Tejanram and his father lost the case. Thereafter, they filed Civil suit, where also they lost the case and appeal is pending before the First Appellate Court. PW3 Ratan in para-9 of his deposition admitted that Sahal Ram @ Sahal got the disputed land partitioned in his name and he wanted four shares to be done of said land. He also admitted that after getting the land in partition, appellant Sahal Ram @ Sahal was refusing to make four parts of the land received by him in partition, which is the cause of dispute. He admitted in para-11 of his deposition that from Civil Court, there was decree in favour of Sahal Ram @ Sahal. PW4 Tilsai (injured) also admitted that disputed land for which quarrel took place was fallen in share of Sahal Ram @ Sahal in partition. Complainant party was making demand of making four portions of disputed land to which appellants refused and this is the cause of dispute.

From the aforementioned facts what is appearing is, appellants were harvesting crops in land which was received by Sahal Ram @ Sahal in partition through proceedings before Tehsildar. Section 145 IPC proceedings before the SDM culminated in favour of appellants. Civil Suit filed with respect to same land by the complainant party, was decided in favour of appellant Sahal Ram @ Sahal and it was recorded in his name in revenue records which is also evident from Ex.P23 and Ex.P24.

Shashikant Dubey, Halka Patwari, PW10 in para 5 of his evidence stated that as per revenue record, name of Sahal Ram @ Sahal is entered in Ex.P23 Ex.P22 and Ex.P24. They are revenue documents in name of Sahal Ram @ Sahal, which were supplied by him, during the course of investigation and on demand of Police. He also stated that when he reached to the spot to prepare spot map, he was told by witnesses that complainant party ploughed the land of appellant Sahal Ram @Sahal.

In the aforementioned facts of the case, submission of learned counsel for the appellants it is to be considered whether appellants have formed unlawful assembly as defined in Section 141 IPC. From evidence available on record, it is not proved that appellants have constituted unlawful assembly with common object for any of five reasons as provided under Section 141 IPC. Section 141 of IPC is extracted below for ready reference:

“Section 141 Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—

First— To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

Second — To resist the execution of any law, or of any legal process; or

Third — To commit any mischief or criminal trespass, or other offence; or

Fourth — By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth — By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

In the facts of the case, relevant consideration would be 3rd and 4th reasons of forming unlawful assembly. Prosecution could not able to prove that there was criminal trespass, mischief or other offense, committed by appellants while harvesting the field recorded in name of appellant Sahal Ram @ Sahal. It is also not the case of prosecution that complainant party was in possession of disputed land, where appellants started harvesting crops, but evidence available on record speaks otherwise. It is the case where appellants since morning, were harvesting crops and complainant party reached there to obstruct them or to stop them from harvesting crops.

In case of Maridasan(supra), Hon’ble Supreme Court while considering the appeal against conviction under Section 302, 304 Part-1 and 2, 149, 148, 147 of IPC, has held as under : para-4

“4…...no overt act was ascribed to A5, Reading the evidence of PWl as also the allegations made in the FIR we are satisfied that there was no satisfactory evidence to prove the formation of any unlawful assembly at any time with the common object of assaulting or killing either the deceased Francis or PW1. The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the individual acts committed by them. For these reasons, therefore, we agree with Mr. Singh that there is no evidence to support the conviction of rioting under Secs 149, 148 or 147 IPC as recorded by the High Court.”

In case of Ananta Kathos(supra), Hon’ble Supreme Court has held as under:

“5. In our considered view, with the above observations and findings, the trial Court was not at all justified in convicting the appellants for rioting or for the other offences with the aid of Section 149 I.P.C. Equally untenable is the High Court's affirmation of the above convictions for the evidence on record clearly establishes the findings recorded by the trial Court. Once the trial Court found that there was a sudden and free fight between the two groups in which members of both the groups sustained injuries, the trial Court should have held that there was no scope for convicting members of one of those groups under Sections 147 or 1481 I.P.C. and for that matter for substantive offences with the aid of Section 149 I.P.C. In such a case, the accused persons would be liable for their individual acts and would not be liable vicariously. In the instant case, we are unable to convict the appellants for their individual acts also as no specific evidence was led by the prosecution in that regard.”

In case of Jodha Singh (supra), Hon’ble Supreme Court has held thus:

On the question whether all the accused or only some of them should be convicted for the injuries caused to the deceased and PW-1, we must, say even at the outset that the accused cannot be convicted for the offence of rioting because the attack on the victims had taken place in the course of a sudden quarrel. The accused had not formed themselves into an unlawful assembly in order to commit the offence of rioting. Hence none of the accused can be convicted under Sections 147 or 148 I.P.C. In so far as the injuries caused to the deceased and PW-1 are concerned, we find that though A-1 was armed with a lathi and A-7 was armed with a tamancha, they had not made use of them on the deceased or PW-1. Therefore, A-1 and A-7 cannot be convicted for the injuries caused to the deceased and PW-1 and their acquittal has to be sustained, though for different reasons. As regards A-2 to A-4 and A-6, they were armed with tamanchas and they had caused injuries to PW-1 besides causing fatal injuries to the deceased. A-5 was armed with a lathi and he had used the same against the victims. The evidence does not establishes to who among the assailants caused the fatal injuries to the two deceased, Consequently A-2 to A-6 merit conviction under Section 302 Part II I.P.C. read with Section 34 I.P.C. As regards the attack on PW-1 it cannot be said that A-2 to A-6 had attempted to murder him because the injuries had been caused in the course of a sudden quarrel. They can therefore be convicted only under Section 326 read with Section 34 I.P.C. and not under Section 307 read with Section 34 I.P.C, Accordingly we convict A-2 to A-6 under Section 304 Part II I.P.C. read with Section 34 I.P.C. (two counts) and under Section 326 read with Section 34 I.P.C.

If in light of aforementioned rulings of Hon’ble Supreme Court, facts of the case at hand are considered, it would show that appellant-1 is recorded owner of land in dispute on which they were harvesting crops. Appellant-1 got land in partition proceeding before Tahsildar (Revenue Officer), complainant party lost case before Sub-Division Officer (Revenue), as also Civil Court and decree of Civil Court was challenged by them. Complainant party, about 4-5 in number, came to the spot and on their obstruction in harvesting of crops by appellants party, dispute took place.

In the aforementioned facts of the case, it cannot be said that appellants have formed unlawful assembly, committed offence of riot. More so, when it is not the case of prosecution that they were armed with deadly weapons and have also caused injuries by those weapons. Allegation of assault by club in the facts of the case would also be not said that they were armed with club only to cause injuries to the complainant party, but it is an instrument which most of the villagers took with them when they go to agricultural fields.

For the foregoing discussion, I am of the considered view that prosecution failed to prove allegation and commission of offence against appellants under Section 147, and 149 of IPC, and hence, conviction under Section 147 and 149 is set aside. Appellants will be guilty of commission of any offence as alleged against them in their personal capacity.

In FIR Ex.P3 lodged by PW2 Tejanram, injured, in his evidence has not made specific allegation as to who assaulted them by means of club. PW2 in his evidence before the Court has stated that appellant-Shobhnath assaulted him by means of club over his head and thereafter, he fell down and he is not aware as to who are the other persons assaulted him. PW3 Ratan, another injured has made general allegation against all the persons present, to have assaulted by means of club. PW4 Tilsai, another injured, has also not named any of the appellants specifically, who assaulted him and stated that all the persons had assaulted.

In the aforementioned evidence of injured prosecution witnesses and nature of dispute, that too property dispute between two branches of the family, it cannot be lost sight of implication even though when there was no contribution or participation of other members. Specific allegation of assault by means of club is levelled by PW2 Tejanram against appellant-Shobhnath only. Only one club was seized from possession of Sahal (appellant-1) vide Ex/P5. As allegation of assault by means of club is specifically against appellant-Shobhnath for causing injuries, I am of the view that appellant-Shobhnath is involved in committing the offence under Section 325 and 323 of IPC.

Appellant-1 Sahalram from whom alleged seizure of club was made, died during the pendency of appeal. One seizure of instrument known as Bahanya of wood was seized from appellant-Nanuaram and therefore, in the facts of the case, evidence available on record, I am of the view that he also participated in commission of offence under Section 325 and 323 of IPC.

PW5 Sundari Bai in her evidence before Court has not made any statement of causing assault to her.

For the foregoing discussions, conviction of appellants Kawalsai, Dharampal, Rame @ Ramesh, Ram and Gopal recorded by trial Court is not sustainable and their conviction is set aside. They are acquitted from the charges under Sections 147, 323 rw 149, 325 rw 149 of IPC. Appellants Shobhnath and Nanuaram are convicted under Section 323 and 325 of IPC.

As per details of period of sentence, during trial as mentioned in the impugned order, it would show that Shobhnath has already served jail sentence from 25.10.1994 till 27.01.1997, and further about 20 days from judgment passed by trial Court, till suspension of his sentence by this Court.

Judgment of conviction was passed on 19.11.2001, and order suspension of sentence was passed on 08.12.2001, thereby after conviction, the appellants remained in jail for about 20 days.

Nanuaram served the jail sentence initially from 25.10.1994 to 13.02.1995 about three months and 18 days pre-trial and thereafter, about 20 days after judgment of conviction till the order passed in appeal by high Court suspending his jail sentence. He already served the total period of four months and eight days of imprisonment.

Taking note of nature of dispute, relationship between the parties, and the date of offence which is about 23 years ago, I am of the view that ends of justice will serve if the appellants Shobhnath and Nanuha are sentenced for the period already undergone by them. Hence, impugned judgment of conviction so far as it relates to Shobhnath and Nanuaram is modified for their conviction under Sections 325 and 323 of IPC to the period already undergone by them.

Accordingly, appeal is allowed in part.