Partly allowed

Kondaram and Ors. v. the State of Madhya Pradesh

Chhattisgarh HC15 Feb 2023CRA/2889/1999

Case brief

AI extract

What is this about?

High Court allowed appeal partly. Court modified sentence to time already undergone for 'other' IPC offences but enhanced fine for Section 458 IPC. Charging under Section 149 IPC deleted after acquittal of co-accused.

What did the court decide?

Sentence modified to period undergone. Fine for Section 458 IPC enhanced to Rs. 5000/- payable within two months. Charge under Section 149 IPC excluded.

Kondaram and Ors. Vs the State of Madhya Pradesh — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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cCRA No. 2889 of 1999

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Kondaram aged about 43 years S/o Shri Faguwa, R/o village Nayapara, Rajim, Police Station Gobra, Nayapara, District Raipur M.P.

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Meghnath aged about 36 years S/o Shri Sadaram Sahu R/o village Nayapara, Rajim, Police Station Gobra, Nayapara, District Raipur M.P.

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----Appellants

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Versus

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1. State Of Madhya Pradesh, Police Station Gobra Nayapara, District Magistrate Raipur, Madhya Pradesh. ---- Respondent

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For Appellants : Mr. Praveen Shrivastava along with Mr. Sushil Sah, Advocates For State : Mr. Ajay Kumrani, P.L.

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Hon'ble Shri Justice P. Sam Koshy Order on Board

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15/02/2023

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Present Appeal was filed assailing the judgment of conviction dated 18.09.1999 passed by 7^th Additional Sessions Judge, Raipur in Session Case No. 156/98.

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Vide the impugned Judgment, the Trial Court has found the Appellants guilty for the offence punishable under Section 147 of IPC (for 6 months R.I.), further for the offence punishable under Seciton 458 of IPC, (for 2 years R.I. and fine of Rs. 1000/- with default stipulation of further R.I. of 3 months) for the offence under Section 427 of IPC, (for 6 months R.I.), and for the offence punishable under Section 323/149 of IPC, (for 1 year R.I.)

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The Appellant No. 1 namely Kondaram at the time of incident was 43 years. Today down the line, he is aged more than 66 years. Likewise, the Appellant No. 2 namely Meghnath at the time of incident was aged around 35 years and by now, he is around 59-60 years of age.

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The present Appeal is of the year 1999 i.e. about 24 years old. The Appellant No. 1 is said to have remained in custody for a period of eight months and 24 days, whereas the Appellant No. 2 had remained in custody for a period of 27 days in all.

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As per the prosecution case, it is said that the two Appellants herein along with a group of 10-15 other accused persons, had attacked a liquor shop at Nayapara Raipur on 20.10.1997 at around 1.00 A.M. In the course of the attack, the two Appellants and other accused persons are also said to have assaulted the inmates of the said liquor shop. Five persons sustained injuries, namely (i)Gurmeet Singh, (ii)Kashinath, (iii)Amrunath, (iv)Narayan and (v)Shyam Sunder. An FIR was lodged immediately at Police Station Nayapara by Gurmeet Singh (PW-8). After investigation, the charge-sheet was filed on 02.01.1998. When the charge-sheet was filed, there were nine accused persons who were subjected to trial for the offences punishable under Section 147, 148, 458, 427 and 323/149 of the IPC. The prosecution in the course of evidence, had examined 10 witnesses and the defence also examined as many as three witnesses. Of the ten witnesses examined by the prosecution, three witnesses PW-4 Shyam Sunder, PW-5 Amrunath and PW8 Gurmeet Singh were said to be the injured eye witnesses to the entire incident.

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It is said that in the course of seizure being made, one Lathi was recovered from the Appellant No. 1 and no seizure as such was made from the Appellant No. 2. The two seizure witnesses were Lakhanlal (PW-9) and Kashinath (not examined before the Trial Court). After the conclusion of the Trial, learned Court below, vide impugned judgment dated 18.09.1999 acquitted all the accused persons except for the two

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Appellants herein namely Kondaram and Meghnath. These two appellants had been convicted mainly relying upon the evidence of Shyam Sunder (PW-4) as all other injured eye witnesses had either been non-examined or had turned hostile and had not supported the the case of the prosecution. Of the five injured witnesses, only three were examined i.e. Gurmeet Singh (PW-8), Amrunath(PW-5) and Shyam Sunder(PW-4). Kashinath and Narayan, two other injured persons were not examined at all. Gurmeet Singh (PW-8) the lodger of the FIR/complainant and the Amrunath (PW-5) and other injured witnesses had turned hostile and had not supported the case of the prosecution. It is only Shyam Sunder (PW-4) one of the injured persons whose evidence had heavily been relied upon by the Trial Court while convicting the Appellants.

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Learned counsel for the Appellants at this juncture submits that from the plain reading of the deposition of Shyam Sunder (PW-4) the injured witness, it is difficult to ascertain as to the overtact on the part of the two Appellants herein. It is the contention of the Counsel for Appellants that though there was an allegation on the two Appellants herein attacking the shop as also assaulting the injured persons but the statement is as vague as it could be, without giving any specific details as to the nature of the assault made by the two Appellants herein, whether they had assaulted by a Lathi, whether they had assaulted by hits or kicks or in any other manner.

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Counsel for the Appellants further submits that from the entire evidence adduced by the prosecution, it stands admitted that there was a large group which had assembled in the liquor shop and the attack & assault was made by the aforesaid large group with no specific details of the

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role played by the two Appellants herein and therefore, the finding of the Trial Court so far as holding the Appellants guilty of the offences under Section 147, 458, 427 & 323/149 of IPC is not made out and the same deserves to be accordingly set aside.

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The learned Counsel for the Appellants also submits that in the event if this Court reaches to the conclusion that the statement of Shyam Sunder (PW-4) was sufficient enough for conviction of the Appellants for the aforementioned offences, considering the period lapsed from the date of incident till now and also taking into consideration the age at which the two Appellants have now reached, the sentence part may be reduced to the period already undergone.

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10. The State Counsel on the other hand opposing the appeal contended that the plain reading of the Statement of Shyam Sunder (PW-4) and the injured eye witnesses, both the statement under Section 161 as also the Statement recorded before the Court, would clearly indicate that in both the statements, the injured witness (PW-4) Shyam Sunder was consistent on his stand so far as two Appellants herein are concerned. The PW-4 had specifically named the two Appellants herein first when the Appellants had gone to the shop asking for providing liquor free of cost and thereafter leaving the shop threatening to come back. Secondly, again when the group of persons came back to the place of incident and attacked the shop and assaulted the inmates therein. PW-4 had again identified the two Appellants herein of leading the attack and also in the course causing injuries to him. The Injuries sustained by PW-4 is reflected from Exhibit- P/5 which has been proved by the Doctor PW-1 Dr. C.B. Gupta. Under the circumstances, the

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impugned judgment does not warrant interference and the appeal be accordingly rejected.

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11. Having heard the contention put forth on either side and on perusal of records, admittedly the names of the two Appellants are reflected in the FIR. The names of the Appellants also stand reflected in 161 statement of PW-4 and their names were also taken by the injured witness Shyam Sunder PW-4 in his Court’s statement. There is no inconsistency as such in the stand of PW-4 so far as the incident that occurred on the night of 20.10.1997. There is no contradiction or any strong omission so far as the involvement of the two Appellants herein in the entire incident. The other fact which stands admitted from the evidence and the documents attached to the case diary is that there was a large group which had assembled and which was led by the two Appellants herein.

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12. The Appellants in the instant appeal had not been able to produce any convincing argument so as to disbelieve the Statement of PW-4 or to reach to a different conclusion than that has been arrived at by the Trial Court so far as the involvement of the Appellants in commission of the said offence is concerned. The only thing which is reflected on the reading of the Statement of PW-4 is that though the PW-4 has taken the names of the two Appellants herein in commission of the offence but there is no specific details of the overtact made by each of the Appellants and the nature of attack and assault made by them. The evidence also does not reveal as to which injury suffered by PW-4 was on account of the said assault and attack made by any of the Appellants herein. Nonetheless, their involvement in the attack and assault is not in dispute.

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13. In the aforegiven factual matrix of the case, particularly the Appeal being about 24 years old, the Incident is of the year 1997 i.e. about 2526 years ago, the two Appellants in the course of pendency of the Appeal have become quite old and though the prosecution has been able to adduce evidence sufficient enough to hold the Appellants guilty for the offences punishable under Section 147, 458, 427, 323/149, however, this Court does not find it to be proper and justifiable at this juncture for sending the Appellants for further jail sentence inaddition to the jail sentence that they have already undergone.

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14. This Court would like to clarify that since seven out of the total nine accused stood acquitted, the charges levelled against the Appellants so far as offence under Section 323/149 is concerned, the offence would stand established without the add of Section 149 after the acquittal of the seven accused persons. The ingredient required to make out an offence under Section 149 no-longer exists. Thus Appellants would stands convicted only under Section 323 without the add of Section 149.

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15. Accordingly, the Appeal is partly allowed. The judgment of conviction is sustained. However, the sentence imposed by the Trial Court stands modified to the period already undergone. However, the fine amount imposed for the offence under Section 458 stands enhanced to Rs. 5000/- upon each of the Appellants. The difference of the fine amount be paid within a period of two months, failing which the default stipulation as ordered by the Trial Court would continue.

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16. Accordingly, the Appeal stands party allowed.

Kondaram and Ors. v. the State of Madhya Pradesh

Case brief

What is this about?

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Kondaram and Ors. v. the State of Madhya Pradesh

Case brief

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What did the court decide?

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