Siyamber @ Chamar Sai vs State Of Chhattisgarh

In this revision, petitioners have assailed the judgment dated 29.12.2010 passed in Criminal Appeal No. 136/2010 whereby learned 4th Additional Sessions Judge (F.T.C.), Ambikapur Distt. Surguja, Chhattisgarh, while dismissing the appeal, upheld the judgment of conviction and modified the sentence of petitioners awarded by trial Court.

Facts relevant for disposal of this revision are that one Kalyanram lodged report on 23.11.2004 at about 06:30 P.M. making allegations that on 23.11.2004 at about 05:00 P.M. when he was returning from his agricultural fields to his house, on the way, petitioners stopped him, abused and assaulted him by means of brick due to which he suffered grievous injuries, became unconscious and was taken to hospital. Based on the report made by injured Kalyanram, initially offence under Section 294, 506, 34 and 323 of IPC was registered against petitioners. After completion of investigation, based on the MLC report and x-ray report, police submitted final report before the Court of judicial Magistrate, 1st Class, Ambikapur for offence defined under Sections 294, 506, 325/34 of IPC. Learned trial Court framed charges for commission of aforementioned offence against petitioners to which they denied and thereafter they were put to trial. Prosecution examined as many as 10 witnesses namely Kalyanram as PW-1; Jatanram as PW-2; Ramnarayan as PW-3; Munesh as PW-4; Rambai as PW-5; Dr. P.S. Kerketta as PW-6; Patago as PW-7; Balasay as PW-8; B.P. Yadav as PW-9; Dr. M.K. Jain as PW-10 and exhibited eight documents ie., F.I.R. as Ext. P-1; spot map as Ext. P-2; reports of doctor as Ext. P-3 & 4; seizure memo as Ext. P-5 & 6 and report of doctor as Ext. P-8 in its support. Statement of accused persons were recorded under Section 313 of CrPC and the petitioners/ accused persons have examined two defence witnesses as DW-1, Ishwar and DW-2, Charan (the then Sarpanch of village panchayat). Learned trial Court on appreciation of evidence brought on record by respective parties recorded finding that the petitioners have assaulted complainant/ injured Kalyanram (PW-1), convicted them for offence defined under Section 325/34 of IPC and have acquitted all the petitioners from charges under Section 294, 506 Pt.-II. Trial Court convicted petitioners for 2-years rigorous imprisonment and Rs. 500 fine to each of petitioner/ accused. Petitioners aggrieved by the judgment of conviction and sentence passed by the trial Court preferred an appeal under Section 374 of CrPC. Learned Appellate Court considering the grounds of appeal, arguments raised therein and upon appreciation of evidence upheld the judgment of conviction passed by trial Court, but while considering the punishment reduced jail sentence from 2-year rigorous imprisonment to 1-year rigorous imprisonment and maintained the sentence of fine ordered by ld. Trial Court by impugned judgment.

Mr. Neeraj Mehta, learned counsel for the petitioners would submit that the finding recorded by both the Courts below holding petitioners guilty for commission of offence under Sections 325/34 of IPC is per se illegal and perverse to the evidence available on record. It is further contended that Dr. P.S. Kerketta (PW-6), who examined injured Kalyanram, in his cross-examination, stated that the injuries suffered by Kalyanram may be caused if the person fell down while running. Nature of injuries suffered by injured would not be by hitting the person throwing brick upon him. This evidence of doctor was not considered by the Courts below in appropriate manner. In alternate, he would submit that even if this Court comes to the conclusion that the finding recorded by the Courts below of assault upon complainant Kalyanram by petitioners then also in the facts and circumstances of the case, the manner in which the incident took place, the punishment imposed upon petitioner is on higher side. Petitioner during the period of the appeal remained in jail for about 25 days and therefore the conviction imposed by the appellate court be modified and reduced to the period already undergone. The fine amount has already been deposited by petitioners. With respect to his alternate prayer, counsel for petitioners placed reliance upon the judgment passed by Hon’ble Supreme Court in case of Mathai vs. State of Kerala reported in (2005) 3 SCC 260 and Ghasiram and another vs. State of Chhattisgarh reported in (2011) 3 CGLJ SN 32 (CG).

On the other hand, Mr. Gagan Tiwari, learned State counsel opposing the submissions of counsel for petitioners would submit that the Courts below upon appreciation of documentary and oral evidence brought on record have rightly arrived at a finding that the petitioners have committed offence as alleged against them. He contended that not only injured Kalyanram, PW-1, had specifically stated in his evidence about the act of assault committed by petitioner but there are three eye witnesses to the incident ie. PW-2 - Jatan Ram, PW-3 – Ramnarayan and PW-5 – Rambai. He also submitted that as per the MLC report, Ext. P-3 and Ext. P-4, complainant Kalyanram received four injuries out of which two injuries were lacerated wound; bruise and swelling. In Ext. P-8 doctor found fracture of left fibula bone. Medical examination of Kalyanram was immediate and report was lodged promptly, hence, the submission of learned counsel for petitioner that the finding recorded by Court below are perverse is not correct. He would submit that looking to the nature of crime, impugned judgment passed by appellate court does to call for any interference.

I have heard learned counsel for the parties and also perused the record of trial Court as well as appellate court.

Sofar as, the first ground raised by learned counsel for petitioners that the findings recorded by Courts below of committing an offence under Section 325/34 of IPC by the petitioners are perverse, perusal of F.I.R., Ext. P-1 would show that the report was lodged on the same day of incident within one and a half hours ie., date and time of incident was 23.11.2004 at about 05:00 PM and report was lodged on same day at about 06:30 PM. In the F.I.R. there is allegation that when complainant (injured) was returning from his agricultural field, all the three persons stopped him, abused him and assaulted him by means of brick. Kalyanram, injured and complainant, was examined as PW-1, in his evidence he stood with the allegations made in the F.I.R. against petitioners. Jatanram (PW-2) stated that while he was returning from agricultural field along with Kalyanram, on the way petitioners stopped him and petitioner No. 3 caught hold of Kalyanram and thereafter all the three accused persons/ petitioners assaulted him by means of brick. In cross-examination, though he stated that when the accused persons came running towards Kalyanram, he ran away but looking to the MLC report and evidence of doctor, his evidence could not be disbelieved in its entirety. Ramnarayan was examined as PW-3 who is also son of Kalyanram (injured), he also deposed that upon hearing scream of his sister he reached to the place of incident, saw the petitioners assaulting his father by means of brick/ stone. Similar is evidence of Rambai, PW-5, that she saw petitioners assaulting Kalyanram by means of brick. Dr. P.S. Kerketta was examined as PW-6, he deposed that, he examined injured Kalyanram on 23.11.2004 and found four injuries. Though in the deposition sheets injuries No. 1 and 2 are mentioned to be incised wound but in the MLC report, it is mentioned to be only lacerated wound and not incised wound. Dr. M.K. Jain, Radiologist, was examined as PW-10, in his evidence stated that x-ray of injured was done on 27.11.2004, he found fracture of fibula bone, mentioned in Ext. P-8

In view of the aforementioned facts of the case, that the matter was reported immediately after incident. Injured was examined on same day by doctor and diagnosed four injuries including two lacerated wound and in view of evidence of three eye-witnesses to the incident, submission made by learned counsel for petitioners that finding recorded by both the Courts below of commission of offence under Section 325/34 of IPC to be perverse is not sustainable and it is hereby repelled. The judgment of conviction passed by both the Courts below under Section 325/34 of IPC against petitioners is affirmed.

Now this court will consider the alternate prayer made by learned counsel for petitioner with respect to award of punishment for commission of offence under Section 325/34 of IPC to be reduced to petitioners’ already undergone. Perusal of evidence of PW-1, Kalyanram (injured and complainant) would show that he admitted that petitioner No. 1 is his brother, petitioner No. 3 is wife of his brother. In F.I.R., Ext. P-1, it is mentioned that there was some dispute with petitioner No. 1 regarding wages. Complainant/ injured had got dig one well at his agricultural field where his brother also worked as labourer. DW-2, Charan, in his statement in paragraph-1 stated that he was sarpanch of village Kewra. Complainant and the Petitioner No. 1 are real brothers and Petitioner No. 3 is his sister-in-law. Petitioner No. 1 and complainant have dig a well with their unanimous decision but later on complainant restrained petitioner No. 1 to use the well of taking water from it. Complainant has not even paid the amount demanded by petitioner No. 1. He also stated that with regard to money and water dispute there was panchayat meeting. From the aforementioned evidence of sarpanch of village Kewra where the complainant and petitioners are residing, it is appearing that petitioners No. 1 and 3 are the near relatives of complainant being his brother and sister-in-law. There was dispute with regard to taking water from the well and further complainant not paying wages/ money of digging well to petitioner No. 1. It is not the case of prosecution that petitioners came their armed with any kind of weapon but it appears that the dispute took place suddenly on road. As per allegation, the assault is by means of brick which might be lying at the place nearby, hence, it cannot be said that the offence even if committed by petitioners is with pre-planned and unity of mind. The incident is of the year 2004, petitioners suffered mental agony for about 18 years of facing criminal case. As submitted by counsel for petitioners that they were on bail during trial, and were arrested after judgment of appellate court passed on 29.12.2010 and their substantive jail sentence was suspended by this Court on 20.01.2011 and granted bail to them. After passing of the order, petitioners might not have released from the jail immediately it might have taken couple of days, hence, the submission made by learned counsel for petitioners that the petitioners have already suffered jail sentence of 25 days cannot be discarded.

Considering the relationship between complainant and petitioners No. 1 and 3, cause of dispute, the manner in which incident took place, nature of weapon used, date of incident and the period of 18 years of continuance of criminal case against petitioners, I am of the view that jail sentence for commission of offence defined under Section 325 read with Section 34 of IPC is reduced to the period already undergone by petitioners.

For the foregoing discussion, revision is allowed in part and jail sentence awarded to petitioners of year R.I. is modified to the period already undergone.

Resultantly, revision is allowed in part.

Certified copy as per rules.