Partly allowed

Hariram and Ors. v. State of Chhattisgarh

Chhattisgarh HC13 Jan 2017CRA/50/2001

Case brief

AI extract

What is this about?

Chhattisgarh High Court allowed criminal appeal partly, quashing conviction under sections 147 and 149 IPC for lack of unlawful assembly. Acquitted four appellants on oath and partially convicted two, modifying sentence to time already undergone due to family nature and minor injuries.

What did the court decide?

Conviction under 147/149 IPC quashed. Appellants acquitted except Nos. 2 & 3. Sentence for Nos. 2 & 3 reduced to time already undergone under Section 324 IPC.

Hariram and Ors. Vs State of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2017)

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NWFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL N0.50 OF 2001

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Hariram, S/o Sukaru, aged about 69 years. 2. Bhagvat Prasad, S/o Hariram, aged about 45 years. 3. Sumitra Bai, W/o Renaram, aged about 39 years. 4. . Yuvraj Sahu, S/o Hariram, aged about 34 years. 5. Labhshankar, S/o Hariram, aged about 36 years. — 6. Toshanlal, S/o Hariram, aged about39 years. 7. Madanlal, S/o Hariram, age3 about 41 years. All R/o Village Bandh Charonda, P.S. Mahasamund, Tehsil and District Mahasamund. - (• .„,!'!'.'•% ;3"^ ;'s': ' -.tel&usttfflFSi• - •1'1:' 1&«9 ;(»^gyi'„.. State of Chhaffiisg^riTitfftrough P.S. Tumga&n, DisfficdKhasarnund.

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^ For For Rgspondent-State

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%:..s;:;.,Respondent

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^Ms.^{SharmilaSinghaI,^H|i/ocate.} c^gtlr.^{AshokSwarnakar,';PHnelLawyer.}

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Hon'bleSI'irii.ItiiSIWeI'R.Sam Koshy

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Juctcimentcfn Board

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t. The present appeal ur[dec.^e:Gti,EtRy4(2) of Cr'PC.has been fl!ed by the Appellants, assailing the judgment dated 4.1.2001 passed by the Second Additional Sessions Judge, Mahasamund in Sessions Trial No. 296 of 1995, whereby each of the Appe-llants stands convicfed and sentenced to undergo R.l. for 6 months under Section 147 of IPC anci to undergo R.!. for 2 years under Section 324 read with Section 149 of IPC. Both the sentences were directed to run concurrently.

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Brief facts of the case are that, on the intervenjng night of 22nd & 23rd of December, 1994, the Appellants in the instant case is said to have caught hold the^'injured victim, Rajendra Kumar Sahu (F'W-1)^and attacked him with burning sticks wjiich were being burnt at ihe place of incident to cope with the winter, and in the resu!t of vi/hich Rajendra -Kumar Sahu sustained burn injuries on the face and other parts of his

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body. As per the allegations, the attack was made by the Appellants for the reason which is alleged is that the injured Rajendra Kumar Sahu was under the influence of an evil spirit.

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The prosecution made seven persons as accused in the instant case and all of them have been found guilty. Initially, offence under Sections 147 and 307 read with Section 149 of IPC was registered against the accused persons. However, after conclusion ofthe trial, the Court below found that the nature -of ifljuriea do.es not make out a case under Ss.S a ,s»

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•.^:' '^''^ g illf If .ffS .&

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Section 3(^7 @|J'|@,%i.itthe C;»urrbeT6I/|6)|^J|g'act on the part of the /Sff^

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.^"s^

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ApResy,arSg t6 be one under Sections 147 and 324 i"|yl,gwth Section ' 149 ^ !

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•fe^"®^ %£''.&

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Altpipand on convicting tRe.myor.jhe said offence," sertfgBeed them to ""-s^i'K

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..SSss..''1 ' /^ KSS^'&^a.

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.a.'Wtdergo the sentences'as^Ti'arj'aiEgy in the first paragilgph, of. this judgment, leading to the.Sm^^WHfpresent appeal,

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Pendency of the appeaf, Appeilant No.l, Hariram, died. The present appeal therefore nowsurvivgs^nl^sp far as Appellants No,2 to 7 are •.^:..^.^^^

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concerned.

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Counsel for the Appellants submits that if we take into consideration the entire case of the prosecution, it would clearly show that except for Appellant Nos. 1, 2 & 3 there has been no specific overt-act on the part ofthe other Appellants. Counsel forthe Appellants further submits that in all the prosecution adduced as many as 21 witnesses. The materia! witnesses who have supported the case of the prosecution are oniy PW-1 Rajendra Kumar Sahu, tl-ie injured witness, PW-16 Lachhu Bai, who -is the wife of the PW-1, and PVV-3 Dr. Rakesh Pardal & PW-21 Dr. Ajay Tiwari, who are the Doctors who had treated the injured PW-l. PW-4 Bharatlal, PW-5 Suresh;Ktimar, PW-9 T.R. Sahu,,PW-10 C.P. Mishra, PW-15 D.N. Singl Bisen, PW-19 R.S. Dhruv and!PW-20 D.P.

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''••Mishra'are.departmenSlwitnesses proving the investigation part. PW-6

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~:if

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'-^. "<•... ?3;e»'B«'a.. B is y k.-^'.ty

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Piluram, PW-7 Shyamlal, PW-8 Jagdish, PW-11 Jethuram, PW-12 Lokesh, PW-13 Naval Kishore, PW-14 Ketki Bai and PW-17 Yavatram are independent witnesses, who are neighbours and other relatives in the familywho had assembled atthe place of incident immediately after the incident, but none of these witnesses in their court statement have supported the prosecution story and have been declared hostile. Thus, according to the Counsel for the Appellants, in the given facts and circumstances of the case and also the fact that the two witnesses PW<i: ;'»S ;? „.. 1 Rajendra "Kumar.Sahu and'" PW-ffiyLl^gcl^Bai being interested witnesses. their statements cannot be relied upon .Be^vjly for conviciing tW^accused persons. In addition, the Counsel also suBnai'Eied that frorn "^hfi evidencewhich havecorae:o:njTg@ord it'does not reflect.any specific ;^ct to have been played.by m5Sf'Q^the accused persons except for the allegation of assault bein(3-made byAppellant Nos. 2 and 3.

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Counsel for the Appellarits further'submits that it also rnust be borne in mind that all the Appellants are members of the same family inasmuch as Appellant Nos. 2, 4, 5, 6 & 7 are in fact the sons or deceasea Appellant No.l Hariram and therefore it appears a case where the entire family members have been falsely implicated in the instant case without there being any specific allegation against each of the Appellants except for a bald statement of all the accused persons involved in the commission of the offence. The Counsel next submits that the offence under Sections 147 and 149 of IPC is not made out at all, for the simple reason that the accused persons are ail-members oi' the same family and that there was no evidence whatsoever of riotinc; or for that matter having an unlawful assembly in the evidence which have come on record. That, since the place of incident was also at the ::. heus.e of Appellanf No.2, the accused persons all belong to'the same

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family, the accused were not armed with any weapon for the assaulc and the instrument of attack is burning sticks which cannot be construed as a weapon of assault, as admittedly there was a religious function going on in the family, dinner was also arranged for all the people who were gathered there, dinner was prepared in the open area. Since it was winter season, the people were also burning firewood to keep the surrounding warm.

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According to the CouhseJ for the Appellants all the independen; ;«t':; &V e: witnesses wl^l? avg,''beenie><^friinei^)^r|Q|lgs|^'.. " "•• 'w PW-6, PW-7, PW-8: PW^lf,'%wSl2, PW-13, PW-14 and PW-17 hate .rflluKfed hostile ancl l|||ig,Tiot supporfed'the caseMf the prosecution. Tff&s'taly evidence ^fe '<Bf fich can to some ea^ril^Be^SEtEcl y@ have supported th'e^ase of the 'prosecution is the evidencg-oTWea1njured PW-1 and his wife P./i/-16. In the ahsence of any independ.enfwitness itwould not be propsr to reach to the conclusion that tt'e'Ease-Qf the prosecution stands proved ana established, The beriefits-^of^lTiE'll should be given to the accused persons,

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Learned Counsel for the Appellants lastly contended that the nature of the assault made and the injuries sustained also does not seem to be of very serious in nature and that the injured PW-I was not hospitalized neither did he underwent prolonged treatment for recovery of his wound, thus the case would not have been made out under Section 324 ofthe IPC.

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Learned Counsel for the State however opposing theAppeal submils that it is the case where all the accused persons have been specifically named in the FIR as also in the Court statement of the injured wiiness. therefore the case of the prosecution stands estab!ished beyond alr

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::.: reasonable .doubts, It was also contended by the State Counsel thai

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the statement of the injured witness further stands corroborated from the evidence of eye witness PW-16, wife of the injured, who has a!so specifically narrated the entire incident. Learned State Counsel further submitted that there was not much of contradiction, omission in.t'ne tvvc statements made by the PW-1 and PW-16 i.e. the one recorded at the timeof investigation with that of the statement made before the Coun during the evidence.

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Further the State Counsel-tefers to-the evidence of the Doctor who '^ V3 S »sfs was show^fte'-tr-fjunes that were inTli6tlsd®l,|grinjured•—v^}1^ PW-1. From the.iglgpQaition of the Doctor it clearly reflects that!^^t|ffi injuries were M^"'VS^""'I~"''~ Bliffjtmjuries ~' received ~ ~ ~''' '^.'''^'^^^r'^-^' fFomrttl^byrFung sticks "" with "•••• --••--•• which(t3@?ii;njured ^.^••^ was 'ss^sy? ^^ ^^•^^^'y^'y^^ . .. '^^r.y' ^~83Saulted and thus th:e..S]:ate'](Sjeyia:RJgeil'prays for rejection oPthe appeal. According to the State C'oi.iitseHh'e^ourt has imposed very reasonable period of imprisonment aitd:it does'notwarrant any interference.

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Having considered the r;iyal;cQnte:rttiBns putforth on.either side and on perusal of the record if we 'l;ook;-:into the deposition of PW-1 what i£ reflected is the fact that it was initially Bhagwat Prasad v/ho had started assaulting. Later on Sumitra Bai joined him and also started assaultina and other accused persons namely Yuvraj, Labhshankar, Hariram anc Toshanlal is alleged to have caught hold of PW-1 while Bhagwat Prasaa and Sumitra Bai were assaulting. Meanwhile, from the deposition ii also reflects that when PW-16, Wife of PW-l injured, came to his rescue Toshanlal and Sumitra Bai caught hold of her and threw her oui. of that area. This clearly suggest that Toshanlal had taken PVV-16 away .from the incident and as such he was not involved in the assault made ! on'the injured PW-1. Though there is allegation of other accuseQ persons other than Bhagwat Prasad and Sumitra Bai to have assaul'iec.

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t'i' ^''S'K-S<Q'fi Sh ^ %^/

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with fist and kick but there is no such injuries found other than burn injuries on the body ofthe injured.

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From the deposition of PW-1 name of Madanlal does not appear to have assaulted the injured. The only reference of Madanlal is that of reaching the spot when PW-1 had raised an alarm, along with wife or PW-1.

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13; So far as the deposition of PW-16 is concerned from her deposition i[ reveals that there is no.specific.aver.ment of individual overt act made -,;.;^, 1,'^ ^c1' ^ *j:} illll I? .jg'fe. •by each gA.fflg^iape'liants exc^pt tffiWi^^fafel by Bhagwat F'rasati ancygum|trct Bai and so far as others are concern^cyitMias an omnibus tillRs-general averraent n'iadiei^ of all the accused [sggEins having ^J'Sssaulted^{withfistanyikickMnotQgfiMspectwhichisrevealgclfcoir,Ihe} deposition of PW-16 i^t|'!at;it '!ii;&mily memters of PW-16 like her mother and brothers were'also'present at the place'or incident aiid th£r; she also in her cross examtnat[@'Fi;;i |3aragraph 14 stqtes that while PW1 was being assaulted •she'wentM'hside a room, which itself sugQests that she does not know what happened thereafter. From the deposition of PW-1 and PW-16 it reveals that PW-1 was being assaulted on the ground that he was under the.influence of sorne evil spirit and '.hereforE' the family got together to drive the evil spirit away and had assaulted PW-1.' The averments of PW-1 and PW-16 clearly reflects that excepi for the specific overt act by Bhagwat prasad and, Sumitra Bai the allegation so far as all the other Appellants are concerned are omnibus and general. The deposition ofthe two witnesses also reveals that there i was a large number of gathering of more than 25-30 persons stiil there when the incident occurred. Yet tMere is not a single witness who hac come.forward and supported the case of the prosecution. IAII the eye :. Witnesses' h.ave infact turned hostile and have not supported the case

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was no any unlawful assembly nor were they assembled vvith ar. intention of rioting, thus the offence under Sections 147 and 149 oi theIPC is not made out in the factual matrix of the case. The convictiori"oi the Appellants/under said provision of law is thus bad in law anc' accordingly quashed.

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So far as the offence under Section 324 IPC is concerned sin.ce ther& is specific averment against only Bhagwat Prasad and Surnitra Bai.i.e Appellants No. 2 and 3, from the factual matrix of the case and the »). iition ofc.R%-ESnd^PW-tg,'.;thji'' '" ^ ,Iy4g>Si;s^fiffSWSS the 'opinion that the "'' vs9.ew ^ convicff©pd&ttie Appellants No. 2 & 3 is propet? !%@%and justified and t^ssSne does not warrant-^any^.interference. Accordiri|sl%.lafc conviclior, *».saii? ..:"":^S^h'f"i\ °K? .-,. -Slgthese two personsggta^^sgWmaLey. So far as AppellaiTEs^No. 4^,5,6 ij%':sassSnd 1 namely Yuvraj Satia, •[-alsBgBankar, Toshanlal and M'adanlai are concerned, their convictio'n'yrider Seetion 324 of the IPC is uncalied for bad in law and is not p:i'o.pe^aad.;ite order of conviction againsi tnern therefore stands quashedr'^Kteffhey stand acquitted rrom all the charges levelled againstfhem.

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Taking into consideration the fact that. the~ incident being of [he yea, 1994 i.e. almost more than 22 years and the judgment of conviction also being more than 16 years, in addition nature of the injury sustaineQ by PW-1 being simple in nature and superficial, further t.he Appelianis and the injured being of the sam'e family, in the opinion of this Coun ends of justice would meet if sentence part is reduced to the penoc already undergone by Appellants No. 2 & 3 keeping in view that [he

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I Appellant No.2 has undergone the sentence period of 4 rnonrr,:, anc Appellant No. 3 has undergoneserttence of almost 2 months.

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Thus the conviction ofAppellants No. 4, 5, 6 & 7 is setaside / quahseo feH'-all the'offences levelled against them. So far as.Appellants :\o. ^

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and 3 are concerned, they stand convicted for the offence under Section 324 of the IPC alone and their convictiQn under Sections 147 and 149 of the IPC is set aside, however sentence part unaer Section 324 of the IPC stands modified'to the extent of the period of custody already undergone.

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With the aforesaid observations1* • the Appeal stands. allowed• ' in^ part.

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The appellants are on bail. Their bail bonds shall remain operative for

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a period of 6 months in vievy of the provisions contained in Section 437Aofthe Cr.PsCreS 1j% ••".•: ':-^ i"l'i

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Hariram and Ors. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Hariram and Ors. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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