Partly allowed

Jogiram Cherwa (Abated) v. State of Madhya Pradesh

Chhattisgarh HC14 Feb 2023CRA/1832/1999

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh affirmed the conviction of three appellants for offences under Sections 147, 323, and 436 IPC. Due to the efflux of time and age, the sentences for Sections 147 and 323 were reduced to the period already undergone. The fine under Section 436 was enhanced from Rs. 200 to Rs. 5000.

What did the court decide?

Conviction affirmed; sentence for Sections 147 and 323 reduced to period undergone; fine under Section 436 enhanced to Rs. 5000 each.

Jogiram Cherwa (Abated) Vs State of Madhya Pradesh — Property and Title | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1832 of 1999

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Jogiram Cherwa (Abated) As Per Honble Court Order Dt. 08-10-2002

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Jagdev Cherwa S/o Sagwat Aged About 53 Years Agriculturist, R/o Village Karamha, Police Station Chirpur, District : Surguja (Ambikapur), Chhattisgarh

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Jeetram Cherwa (Abated) As Per Honble Court Order Dt. 04-11-2022

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Nanhuram Cherwa S/o Sagwat Cherwa Aged About 38 Years Agriculturist, R/o Village Karamha, Police Station Chirpur, District : Surguja (Ambikapur), Chhattisgarh

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Ujitram S/o Jagdev Cherwa Aged About 23 Years Agriculturist, R/o Village Karamha, Police Station Chirpur, District : Surguja (Ambikapur), Chhattisgarh

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Sahatram Cherwa (Abated) As Per Honble Court Dated 03-08-2018

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---- Appellants

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Versus

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1. State Of Madhya Pradesh Now Chhattisgarh, Chhattisgarh ---- Respondent

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For Appellants	: Mr. Shakti Raj Sinha, Advocate.
For State	: Mr. Himanshu Sharma, P.L.
	Hon'ble Shri Justice P. Sam Koshy
	Order on Board

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1 4/02/2023

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Initially, the present Criminal Appeal was filed on behalf of 6 Appellants. Pending the Appeal, the Appellant No. 1 Jogiram Cherwa, Appellant No. 3 Jeetram Cherwa and Appellant No. 6 Sahatram Cherwa have died. The present Criminal Appeal inrespect-of these three persons has been ordered to have abated vide orders dated 08.10.2002, 03.08.2018 & 04.11.2022. The appeal now is being prosecuted on behalf of the remaining three Appellants namely, Jagdev Cherwa, Nanhuram Cherwa and Ujitram Cherwa.

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The instant Appeal has been filed assailing the Judgment of conviction dated 25.06.1999 passed in Session case No. 152/1996 passed by the Second Additional Sessions Judge, Ambikapur, Surguja. Vide the said Judgment of conviction, the Trial Court had found the appellants guilty for the offences punishable under

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Sections 147, 342, 323, of IPC and for all three said offences, the Appellants have been sentenced to undergo R.I. for 6 months each. The Appellants also stand convicted for the offence punishable under Section 436 of IPC and for which they have been sentenced to undergo R.I. for five years each and with fine of Rs. 200 each with default stipulation of additional R.I. for 6 months on the non-payment of the fine amount.

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The case of the prosecution in brief is that on 05.02.1996 between 12:30 AM to 3 AM all the accused persons is said to have illegally assembled at the house of the complainant and set the house on fire destroying the same and in the course, they have assaulted with Lathi and injured Shankar lal Cherwa. It is said that the deceased Appellant No. 1 Jogi Ram was having a property dispute with the complainant Majhino (PW-1). It was this property dispute which led to the accused persons committing the said offences.

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After the incident, Majhino (PW-1) is said to have lodged an FIR at Police Station Dheerpur and an offence was registered in Crime No. 15/1996 and the accused persons were prosecuted for the offences punishable under Sections 147, 342, 436 & 323 of IPC. The matter was thereafter put to trial before the Second Additional Session Judge, Ambikapur where the case was registered as Session Case No. 152/1996. The prosecution in all examined 12 witnesses and there was no witness examined in defence. After conclusion of recording of the evidences, the Trial Court vide Judgment dated, found the Appellants Guilty for the offences under Section 147, 342, & 323 of the IPC for which they were sentenced to undergo R.I. for 6 months. The Appellants were also found guilty for the offence punishable under Section 436 of IPC and for which they were

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sentenced to undergo R.I. for five years each and with fine of Rs. 200/- each with default stipulation. It is this judgment which is under challenge in the present Writ Petition .

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At the outset, Counsel for the Appellants submits that from the admitted factual matrix of the case, the whole dispute arose on account of the property dispute between the Appellant No. 1 Jogi Ram Cherwa and Majihno (PW-1) and the said Jogi Ram has already expired wayback. It was also the contention of the counsel for the Appellants that the incident in the instant case took place on 05.02.1996 i.e. around 27 years ago. Considering the efflux of time that has passed, all the disputes between the family must have patched up and under the circumstances the matter may be closed at this juncture without the Appellants being subjected to any further incarceration.

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It was also the contention of the Appellants that from the nature of evidence that has been collected by the prosecution, it would also revealed that the ingredients required for making out an offence under Section 436 was not available, nor was it adduced during the trial. In the absence of which the conviction of the Appellants for the said offences deserve to be set aside. It was also the contention of the counsel for the Appellant that taking into consideration the entire prosecution case as it is, there is hardly any material available to show the role played by each of the appellants in the commission of the offences for which they have been charged and there is also no material available to show the individual overtact on the part of each of the appellants contesting the appeal as on date i.e. the Appellant No. 2, 4 & 5 namely, Jagdev, Nanhuram and Ujitram.

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It was the further contention of the counsel for the Appellants that by efflux of time since three of the main accused have already expired, there is no strong material available with the prosecution or that which was extracted during the course of the trial so as to implicate the remaining three appellants in the present appeal. Moreover, the Appellant No. 2 Jagdev was aged around 53 years in 1999 when the Appeal was preferred and by efflux of time, as on date he must have been more than 75 years of age. Likewise, the Appellant No. 4 Nanhuram as on date has also become a senior citizen aged more than 61 years of age by efflux of time and the Appellant No. 6 Ujitram also having well crossed over the youth time and is now in the middle age around 45 years of age. The lenient approach needs to be taken in the case of the Appellants.

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Learned Counsel for the Appellants further contended that Majhino Bai (PW-1) the prime witness was not one who had seen the incident but she was only a hearsay evidence as would be evident from her statement before the Court below wherein she had admitted the fact that whatever statement that she has made so far as the incident that transpired on the night at her house, was only on the basis of the information provided to her by her brothers. In her statement she had also stated that it was Jeet Ram who had set the house of the complainant on fire.

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Counsel for the Appellants further relied upon the Statement of PW-9 the husband of Majhino who had also in his evidence stated that it was Jeetram who had set their house on fire that the others had only accompanied. According to the Counsel for the Appellants, Jeet Ram has also since expired.

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10. It was also the contention of the learned counsel for Appellants that there is no concrete evidence as regards the individual role played by each of the present Appellants. In the absence of individual overtact on the part of each of the Appellants reflected or substantiated from the evidence, the conviction of the Appellants for the said offences would not be sustainable.

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11. The State Counsel however opposing the Appeal submits that from the statement of all the material witnesses examined, it is clearly reflected that each of the Appellants had played their respective play in commission of the offences and the prosecution by way of the evidences of the 12 witnesses have clearly proved the allegations and the charges levelled against each of the appellants. Thus the Judgment of conviction passed by the Session Court does not warrant any interference.

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12. The State Counsel relied upon the statement of PW-1 majihno bai and other prime witnesses PW-2 Jagnath and PW-3 Ramnath contending that from the statement of these two witnesses, the case of the prosecution stands well established. It was also the contention of the State counsel that these witnesses have narrated the entire factual matrix that transpired on the date of incident. It would clearly establish the presence of the Appellants along with other appellants who have since deceased and having played an active role in the commission of the offence.

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13. Having heard the contention put forth on either side and on perusal of the records from the evidence that have been recorded by the prosecution in the course of the trial, one fact which has been undisputed is that Majihno (PW-1) the lodger of the FIR was not infact an eye witness to the incident except for the fact that her

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statement establishes the fact that the Appellants had assembled at the house of PW-1 at around 10:00 PM and were threatening PW-1 of dire consequences and also that of setting her house on fire.

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14. It further establishes from her statement that she had immediately left the place and had sent her brothers in place to protect her house, all other evidences of hers is hearsay evidence.

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15. From the statements of Jagarnath (PW-2), Ramnath (PW-3) and Jaylalram (PW-4), all of whom had stated that they had seen the accused persons at the place of incident and all the witnesses who have been examined are all near relatives of PW-1. Secondly, what is also revealed is that none of the witnesses have been able to state the individual overtact on each of the Appellants. All the allegations made are all collective in nature and whatever direct allegation is made was only against Jeetram who is stated to have set the house on fire.

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16. As regards the injured Shankar lal (PW-8) from his statement also it reveals that it was only one thakur and one sahat who had assaulted him. There was no allegation against the present three appellants Jagdev, Nanhu and Ujitram of having assaulted Shankarlal. The other witnesses examined also have not made any specific allegations against the three aforenamed appellants so far as their roles in setting the house of PW-1 on fire. Though, their presence at the scene of occurrence is established and it is also established that they were in company of the other main accused persons Jogi Ram, Sehat Ram and Jeet ram.

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17. From the records, it is evidently clear that the three appellants herein have already undergone custody about 5 to 6 months. Thus, the Appellants so far as the offences under Section 147, 342, 323 of the

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IPC are concerned, have already undergone the entire sentence. As regards the offence under Section 436, though the presence of the Appellants stand established at the scene of occurrence but there is only a collective allegation made without there being any specific averment of the individual overtact on the part of three Appellants herein Jagdev, Nanu, Ujit ram.

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18. In the absence of any specific overtact against the aforesaid three Appellants, this Court is of the opinion that to the extent of the role played by the Appellants in committing of the offences, also considering the fact that the incident took place more than 27 years ago and that the Appeal also being about 25 years old, it is a fit case where the conviction of the Appellants can be affirmed but in the given factual back drop the sentence awarded can be reduced to the period already undergone. However, the fine amount of Rs. 200/each as imposed by the Trial Court deserves to be enhanced to Rs. 5000/- each with default stipulation that which has been imposed by the Trial Court. The fine amount can be paid to the Victim.

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19. The Appeal thus stands partly allowed. The Judgment of conviction of the Appellants Jagdev, Nanhu and Ujitram stands affirmed. However, the sentence part stands modified to the extent of the period undergone.

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Sd/-

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(P. Sam Koshy) Judge

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Jyoti

Jogiram Cherwa (Abated) v. State of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

Jogiram Cherwa (Abated) v. State of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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