Partly allowed

Dhansai and Another v. State of Chhattisgarh

Chhattisgarh HC8 Sept 2022CRR/121/2011

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition challenging a conviction for voluntarily causing hurt. Upholding the conviction and finding evidence sufficient, the Court reduced the jail sentence to the period already undergone and enhanced the fine for both petitioners.

What did the court decide?

Jail sentence under Section 325/34 IPC reduced to 12 days already undergone. Fine under Section 325/34 IPC enhanced to Rs. 3,000 each.

Dhansai and Another Vs State of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2022)

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NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 121 of 2011

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Judgment reserved on 17.06.2022 Judgment delivered on 08.09.2022

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Dhansai S/o late Bhagbali, aged about 54 years.

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Mansukh alias Mansukha S/o Dasrath Suryawanshi, aged about 30 years. Both are R/o of village Matiyari, PS -Seepat, District Bilaspur, Chhattisgarh.

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---- Petitioners

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Versus

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State of Chhattisgarh, through the Police Station -Seepat, District -Bilaspur, Chhattisgarh.

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--- Respondent

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For Petitioners : Mr. Somnath Verma, Advocate. For State : Mr. Ashish Gupta, PL.

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Hon'ble Shri Justice Parth Prateem Sahu

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C.A.V. Order

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Heard.

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Petitioners have challenged correctness and sustainability of impugned judgment passed by learned Second Additional Session Judge, Bilaspur in Criminal Appeal No.37/2011, whereby learned Appellate Court while affirming judgment of conviction passed by Judicial Magistrate First Class, Bilaspur for commission of offence punishable under Sections 323/34 & 325/34 of Indian Penal Code, modified the sentence awarded to the petitioners under Section 325/34 of IPC, reduced the substantive jail sentence of 6 months Rigorous Imprisonment (RI) to 3 months RI.

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Facts relevant for disposal of this revision are that on 24.03.2005 at about 01:30 pm (afternoon), one Chintaram (S/o Dhansai/petitioner No.1) thrown stone on roof of house of complainant Bhagwan Singh, upon which complainant scolded him. Subsequently, on account of scolding of Chintaram by complainant, dispute took place between Rajesh (brother

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of complainant) and appellants near shop of Patiram. When complainant reached on spot to intervene, petitioners alongwith others assaulted him and his brother Rajesh by means of club, hands and fist. In the said incident, they suffered grievous injuries. It was reported to the concerned Police Station, complainant and his brother Rajesh were sent for medical examination to the hospital. Petitioners were arrested and after investigation, submitted final report against the petitioners for commission of offence punishable under Sections 325/34 of IPC. The learned trial Court framed charges against the petitioners for offences under Sections 323/34 & 325/34 of IPC, which were denied by them and they were put to trial. During trail prosecution examined complainant Bhagwan Singh as PW/1, brother of complainant Rajesh Singh as PW/2, Patiram as PW/3, Narayan Prasad (eye-witness) as PW/4, Sitaram as PW/5, Kuwar Gadhewal as PW/6, Dr. Rajesh Kumar (Medical Officer) as PW/7, Dr. George M. Khakha (Radiologist) as PW/8, Shyam Ratlal (Investigating Officer) as PW/9 and also proved Ex.P-1 statement of PW-3/Patiram, Ex.P-2 & P-3 (seizure memo), Ex.P-4 & Ex.P-5 (MLC report of PW/1 & PW/2), Ex.P-6 (x-ray report of PW/1), Ex.P-8 (spot map), Ex.P-9 & Ex.P10 (arrest/court surrender memo). After trial learned JMFC convicted the petitioners for commission of offences under Section 323/34 of IPC and sentence them for fine of Rs.500/- each and Section 325/34 of IPC sentence each of them for RI for 6 months and fine of Rs.500/- each. The judgment of conviction passed by JMFC vide order dated 25.11.2009 was put to challenge by the petitioners in an appeal under Section 374 of Cr.PC before the learned Session Judge. The learned Appellate Court upon considering the submissions, appreciation of documentary and oral evidence available on record, upheld the

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judgment of conviction under challenge, but have modified the sentence awarded to them for the offence under Section 325/34 of IPC and sentence them to undergo RI for 3 months with fine of Rs.500/- each and also maintained the conviction under Section 323/34 of IPC and sentence of fine of Rs.500/- each.

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Shri Somnath Verma, learned counsel for petitioners submits that learned Courts below failed to consider the fact that prosecution failed to prove commission of offence by the petitioners under Section 323/34 of IPC & Section 325/34 of IPC beyond reasonable doubt. He submits that as per allegations, there were about 5 persons including the petitioners who assaulted the complainant Bhagwan Singh but the Police overlooking the allegations, submitted charge-sheet against petitioners only. Referring to deposition of PW-1/complainant, particularly para 1 of his examination-inchief, he submits that there is no specific evidence of complainant (injured) that who assaulted him by means of club, hands and fist. Dr. Rajesh Kumar was examined as PW-7 and in his evidence he made specific statement that at the time of medical examination of injured (complainant) smell of alcohol was coming out from his mouth, which shows that at the time of incident complainant himself was under the influence of liquor. Referring to the evidence of PW-2/Rajesh Singh (brother of complainant), he submitted that oral dispute initially took place between Rajesh and petitioners, complainant reached on spot later and after his intervention, dispute aggravated, which also shows that there was active participation of complainant in the dispute/quarrel, hence, it cannot be overlooked that complainant might be the aggressor. PW-2 has made specific statement that at the time of incident, Narayan Prasad, Narmada and Patiram were present on the spot. Narmada was not

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examined before trial Court by prosecution as witness whereas Narayan Prasad has not supported the case of prosecution but for making statement that on the date of incident there was some dispute between complainant Bhagwan Singh and petitioners, he also not made specific statement with regard to assault by the petitioners with club, hands and fist. In view of above submission, he submits that prosecution failed to prove the case beyond reasonable doubt that it is the petitioners who have assaulted the complainant and caused grievous injuries. In alternate, he submits that as per case of prosecution quarrel started on trivial dispute of stone pelting by Chintaram (son of petitioner No.1/Dhansai). Incident is of the year 2005 and after the said incident, there was no further report/complaint of any nature of dispute /quarrel between complainant and petitioners family. Hence, if this Court come to the conclusion that prosecution proved the case of committing the aforesaid offences by the petitioners, then period of sentence may be reduced to the period already undergone by the petitioners. He submits that fine amount imposed by the Court below have already been deposited.

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Per contra, Shri Ashish Gupta, learned State Counsel opposes the submission of counsel for petitioners and submits that learned trial Court on appreciation of documentary and oral evidence available on record passed judgment of conviction and learned Appellate Court affirmed the same. The occurrence of quarrel/dispute as complaint by complainant Bhagwan Singh is corroborated by evidence of Narayana/PW-4. Doctor found corresponding injuries over the person of complainant, hence, judgment of conviction passed by Court below is based on evidence available on record and it does not call for any interference.

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Heard counsel for the parties and perused the records of Courts below.

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Perusal of record would show that incident is dated 24.03.2005 at about 01:30 pm and after incident report was lodged promptly. Injured complainant and his brother Rajesh were sent for medical examination to the hospital, based upon their MLC report, offence under Section 325/34 of IPC was registered against the petitioners. MLC report of complainant is filed as Ex-P/4 wherein the Doctor mentioned five injuries including lacerated wound, suspected fracture over the forearm (left), split wound over left parietal region of head. Injuries Nos.1, 2 & 4 are shown to be simple in nature. For injury No.3 referred to Orthopedicion for opinion. In Ex.P-6/x-ray report of PW-1/Bhagwan Singh, doctor opined fracture of mid-shaft of left radius. PW-2/Rajesh Singh suffered three injuries as reported by the doctor in his MLC report which is filed as Ex-P/5.

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PW-1/complainant in his evidence stated that when he reached at the place of incident where oral quarrel/dispute was going on between the petitioners with his younger brother Rajesh, he was assaulted by the petitioners alongwith Devi Prasad, Chinta and Dashrath by means of club. Due to assault of club, he suffered injuries on his head and fracture injury on left hand. In para 1 of his examination-in-chief, PW-2/Rajesh stated that after coming of PW-1/Bhagwan Singh at the place of incident, dispute aggravated and the petitioners came armed with club from their house, assaulted them due to which his brother Bhagwan Singh suffered fracture injuries over his hand and also suffered head injuries.

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Dr. Rajesh Kumar, Medical Officer of the Primary Health Centre, Seepat, was examined as PW-7. In his evidence, he proved Ex-P-4/MLC report of Bhgwan Singh and stated that there was 'lacerated wound on occipital region, swelling over forearm, suspected fracture and split injuries over

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the parietal region on the person of complainant. He further stated that PW-2/Rajesh suffered three injuries.

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Eye witness Narayan Prasad was examined as PW-4, though he did not support case of prosecution as recorded in his statement under Section 161 of Cr.PC, but from the evidence of injured PW/1 & PW/2 it is proved that petitioners assaulted them. Further doctor/PW-7 proved the corresponding injuries mentioned in MLC report. As per MLC report ExP/4 & Ex-P/5, complainant Bhagwan Singh and his brother Rajesh Singh were examined on the date of incident at about 10:40 pm.

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Dr. George M. Khakha (Radiologist) was examined as PW-8, who proved Ex-P-6/x-ray report of Bhagwan Sing showing fracture injury on left radius bone. The Investigating Officer (Shyam Ratlal)/PW-9 in his evidence stated that he received 'Rojnamcha Sanha dated 24.03.2005' for investigation.

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From the aforementioned evidence available on record, it is evident that the petitioners had assaulted complainant Bhagwan Singh and his brother Rajesh by means of club, due to which complainant suffered grievous injuries over his person. In view of evidence available on record, submission of counsel for petitioners that prosecution failed to prove charges against petitioners beyond reasonable doubt is not sustainable.

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So far as submission made by counsel for petitioners that sentence awarded to petitioners is excessive and hence it may be modified to the extent of period already undergone is concerned, perusal of record would show that the dispute arose on the trivial issue of throwing stone on the house of Bhagwan Singh by son of petitioner No.1, one-two days earlier to incident. Incident was of 24.03.2005. Petitioners have already faced mental agony of facing criminal case since 2005. They are villagers, not

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having any criminal back ground as submitted by counsel for petitioners. The weapon used was club. Hon'ble Supreme Court in case of George Pon Paul vs Kanagalet & Ors reported in 2009 (13) SCC 478. Considering the appeal filed by the accused persons against the order of High Court, wherein the High Court allowed the revision petition of complainant and enhanced the jail sentence from 'Till rising of Court' to undergo 2 years R.I under Section 326 of IPC taking note of the period already lapsed in pursuing the criminal case restricted the period of sentence already undergone. In case of Pancham vs State of Chhattisgarh, Criminal Revision No.620 of 2003 decided on 22.07.2016, High Court considering the period of incident 16 years ago reduced the sentence of RI of 6 months to the period already undergone ie of 16 days for conviction under Section 326 of IPC by enhancing the fine amount of Rs.3,000/- to Rs.8,000/- with a further direction to pay sum of Rs.5,000/- of the said amount to the victim as compensation.

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In the case at hand, petitioners and complainants are resident of same village, cause of incident is throwing stone on house of complainant about 1-2 days prior to the incident, date of incident is about 17 years back, the petitioners were on bail during trial, appeal and also during pendency of this revision. As on date petitioner No.1 is about 67 years and Petitioner No.2 is about 44 years of age and hence considering the aforesaid judgment in case of George Pon Paul (supra) and order passed in Criminal Revision No.620/2003 by Co-ordinate Bench of this Court, this Court is of the opinion that no fruit full purpose will be served in sending the petitioners back to jail at this stage and it will meet the ends of justice if the petitioners are sentenced for period already undergone by them ie 12 days for offence under Sections 325/34 of IPC while enhancing the fine

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amount. The petitioners have already deposited amount of fine imposed upon them.

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Accordingly, the revision petition is allowed in part. Conviction of the petitioners under Sections 323/34 & 325/34 of IPC are upheld. Jail sentence awarded under Section 325/34 of IPC is reduced to period already undergone. Sentence of fine awarded under Section 325/34 of IPC to petitioners is enhanced from Rs.500/- each to Rs.3,000/- each, in default each of the petitioners shall undergo SI for 30 days. On deposit of balance of fine amount ie Rs. 2,500/- each, the same shall be paid to complainant Bhagwan Singh as compensation after due verification by trial Court.

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Sd/(Parth Prateem Sahu) Judge

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J/-

Dhansai and Another v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dhansai and Another v. State of Chhattisgarh

Case brief

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What did the court decide?

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