Bhavesh Chouhan @ Bhavish Vs State of Chhattisgarh

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2025:CGHC:10151

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPU

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CRA No. 557 of 2018

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1 - Bhavesh Chouhan @ Bhavish S/o Devraj Chouhan Aged About 24 Years R/o- H.No. 175, Kashiram Nagar, P.S. Telibandha, Raipur, District- Raipur, Chhattisgarh.

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2 - Mohammad Abid @ Raja @ Aalu S/o Mohammad Aqir Aged About 24 Years R/o- Near Char Nal, Kashiram Nagar, P.S. Telibandha, Raipur, DistrictRaipur, Chhattisgarh.

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--- Appellant

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versus

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1 - State Of Chhattisgarh Through- The District Magistrate, Raipur, DistrictRaipur, Chhattisgarh.

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--- Respondent

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CRA No. 647 of 2018

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1 - Sanju Maratha @ Sanjay S/o Late Shri Madhukar Rao Maratha @ Lallu Aged About 29 Years R/o Kaashiram Nagar, Near Sulabh, House No. 510, P. S. Telibandha, District Raipur Chhattisgarh.

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through P. S. Telibandha, District Raipur Chhattisgarh.

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2

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--- Respondent

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CRA No. 1734 of 2018

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1 - Syed Nadim @ Monu S/o Syed Hanif Aged About 19 Years R/o Kashi Ram Nagar ,near Dipesh Kirana Store Police Station Telibhandha Raipur District Raipur Chhattisgarh.

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--- appellant

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Versus

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1 - State Of Chhattisgarh Through Police Station Telibandha District Raipur Chhattisgarh., District : Raipur, Chhattisgarh.

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	---Respondent
For Appellants	: Mr. M. P.S. Bhatia,Advocate (in CRA No. 557 of 2018) Mr. Shikhar Sharma, Advocate (in CRA No. 1734 of 2018) Mr. Vinayak Sharma, Advocate (in CRA No. 647 of 2018)
For Res./State	: Mr. Jitendra Shrivastava, Government Advocate
For	: Mr. Sudhir Bajpai, Advocate
Res./Complainant

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Hon’ble Shri Justice Ravindra Kumar Agrawal

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Judgment on Board

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28.02.2025

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1. Although the matters have been listed at motion hearing stage, but with the consent of learned counsel appearing for the parties, these matters have been heard finally.

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2. Since aforesaid three criminal appeals have been preferred against the impugned judgment dated 02.04.2018 passed by the Special/ Upper Sessions Judge, Raipur, District Raipur (C.G.) in Sessions Case

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No. 214/2014, therefore, they are heard analogously and are being decided by this common judgment.

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3. For the sake of convenience, Cr.A. No. 557 of 2018 would be taken-up as lead case.

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4. The appellants have filed these three criminal appeals under Section 374(2) of the CrPC questioning the impugned judgment dated 02.04.2018 passed by learned Special / Upper Sessions Judge, Raipur (C.G.) in Sessions Case No. 214/2014, whereby the appellants have been convicted and sentenced in following manner:

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CR.A. No. 557 of 2018

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Conviction	Sente	nce
Under Section 307 read with Section 34 of the IPC	R.I. for Rs.1,000/-	5 years & fine of to each of the
	appellants,	in default of payment
	of fine,	to further undergo
	additional	imprisonment of two
	months to	each of the appellants.

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CR.A. No. 647 of 2018

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Conviction	Sentenc	e
Under Section 307 read	R.I. for 5	years & fine of
with Section 34 of the IPC	Rs.1,000/-, in	default of payment
	of fine, to	further undergo
	additional R.I.	of two months.

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And

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CR.A. No. 1734 of 2018

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Conviction	Sentenc	e
Under Section 307 of the IPC	R.I. for 5 Rs.1,000/-, in	years & fine of default of payment
	of fine, to	further undergo
	additional R.I.	of two months.

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5. Case of the prosecution, in brief, is that on 25.06.2014, at about 7.00 pm an engagement function of daughter of one Jeevan Sona was going on in his house. The persons and relative were present in the said engagement function, where they were enjoying dance in the function, at that moment, altercation started between the persons, who were enjoying dance, which converted into the scuffle between them. The present appellants were also the part of the function and when the scuffling and quarrelling started, the present appellants started assaulting injured namely- Pawan Bagh and at that very moment, appellant- Sanju Maratha (in CRA No. 647 of 2018) took out a knife and gave knife blow on the back side of the injured Pawan Bagh, by which, he received incised wound on his back. He immediately rushed to Police-Station, Telibandha, Raipur where he lodged the report Ex. P/7 against appellants Sanju Maratha and others accused persons and in pursuance thereto, offence under Section 307 read with 34 of IPC was registered against them. Thereafter, he was immediately taken to District Hospital, Raipur for his treatment where he was given primary treatment by Dr. G. P. Dewangan (PW05), who found cut wound having bleeding from the injuries having size of 31cm x 0.2cm, superficially which was inflicted on right scapular region L4-5 from upward to downward caused by sharp and hard object. After giving primary treatment to him, he referred to Dr. Bheem Rao Ambedaker, Hospital, Raipur for further treatment. His MLC report is Ex. P/11. The injured was immediately taken to Dr. Bheemrao Ambedakar Hospital where Dr. Sandeep Chandrakar (PW12) has treated him as in-patient but from 26.06.2014 he was not found on his bed, which has also been informed to the police by the said doctor and his bed head ticket is Ex. P/ 32. There is no other

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injury report or treatment papers of the injured filed by the prosecution in the case. Dr. Sandeep Chandrakar (PW12) has found the stab injury on his back and the same was simple in nature. The blood stained T-shirt , Baniyan and lower have been seized vide seizure memo vide Ex. P/3. Blood stained and plain soil from the spot has also been seized vide seizure memo Ex. P/4. Spot map Ex. P/8 was prepared by the Police and Spot Map Ex. P/19 was prepared by the Patwari . Appellant Sanju Maratha @ Sanjay Maratha was arrested on 27.08.2014 and his memorandum statement Ex. P/2 was recorded. On the basis of his memorandum statement, one paper cutting knife has been seized from him vide seizure memo Ex. P/5. Appellant namely - Syed Nadim @ Monu was arrested on 01.08.2014 and his memorandum statement (Ex. P/14) was also recorded. Appellant namely Mod. Abid @ Raja and Bhavesh Chouhan @ Bhavish were also arrested on 01.08.2014. The alleged knife was seized from appellant Sanjay Maratha, clothes of the injured Pawan Bagh and blood stained and plain soil seized from the spot were sent for its chemical examination to State Chemical Examination Centre, Raipur and from where report Ex. P/31 received and according to the FSL report the clothes of the injured were found to be stained with A-group of human blood and no blood has been found on the knife and blood stained and plain soil.

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6. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the injured persons under Section 164 of Cr.P.C. have also been recorded.

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7. After completion of usual investigation, charge sheet was filed against the appellants for the offence under Section 307 / 34 of IPC before the learned Chief Judicial Magistrate, Raipur from where the same has been committed to the Court of learned sessions judge, Raipur for its trial. The

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learned trial Court has framed charge against the appellants for the offence under Section 307 read with Section 34 of Indian Penal Code. The accused persons denied the charges and claimed trial.

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8. In order to establish the charges against the accused persons, the prosecution has examined as many as 12 witnesses. The statement of the present appellants were also recorded under section 313 of Cr.P.C. in which they denied the circumstances appearing against them, plead innocence and stated that they are innocent and has been falsely implicated in the case.

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9. After appreciation of oral & documentary evidence available on record, the learned trial court has convicted and sentenced the appellants, as mentioned in the earlier part of this judgment. Hence, this appeal.

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10. Mr. M. P. S. Bhatia, learned counsel appearing for the appellant Bhavesh Chouhan @ Bhavish and Moh. Abid @ Raja (in CRA No. 557 of 2018) would argue that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts. The present appellants have not been named in the FIR as well as in the statement of the injured persons recorded under Section 164 of Cr.P.C and there is no identification parade has been conducted in the case. Therefore, the identification of the appellants itself is doubtful. There is no allegation that the present appellants have caused injury to the injured and there is no allegation that any weapon has been used by them also. He would further submit that it was an engagement function, in which, some dispute arose between the persons, who enjoying the dance and by pushing the respective parties to each other, the injured fell down on the ground and received injuries on his back, but the present appellants have also been involved in the offence in question. The evidence came on record is not sufficient to hold them guilty. Therefore, they are entitled for their acquittal.

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In alternative, he would also submit that the complainant and appellant Bhavesh Chouhan @ Bhavish have entered into compromise outside the court, therefore, the appellant Bhavesh Chouhan @ Bhavish may be acquitted from the alleged offence.

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11. Mr. Shikhar Sharma, learned counsel appearing for Syed Nadim @ Monu (in CRA No. 1734 of 2018) would submit that appellant Syed Nadim @ Monu has also not been named in the FIR as well as in the statement of the injured recorded under Section 164 of Cr. P.C. He too has submitted that no Test Identification Parade was conducted by the prosecution to identify the accused persons. A numbers of persons were enjoying the dance in an engagement function, hence, it cannot be said that who caused the injuries and who assaulted the injured even by hand and fist or scuffling between whom was going on. It is only an accident by which, he fell down on the ground and received cut injuries on his back. He would also submit that had the intention was there to commit murder of the injured, the knife blow should have been made on his abdomen and not on his back. No any weapon of offence has been seized from him also and the evidence produced by the prosecution is not sufficient to hold him guilty and he too is entitled for his acquittal. He would further submit that even if the evidence is taken as it is the offence, if any, does not travel beyond the scope of Section 324 of IPC, as the treating doctors themselves have stated that the injured has received simple injuries on his back, therefore, by altering their conviction from 307 IPC to Section 324 of IPC, their undergone period may be considered to be sufficient sentence for the alleged offence.

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12. Mr. Vinayak Sharma, learned counsel appearing for the appellant- Sanju Maratha @ Sanjay Maratha (in CRA No 647 of 2018) would also submit that in the engagement function, when the persons were enjoying the

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dance the injured fell down on the ground and from the iron nail, which was used in the stage of dance function, he received incised wound on his back it is only when the altercation took place between the Sanju Maratha and Pawan Bagh he lodged the report against him that he caused the injuries by knife. He would further submit that the appellant Sanju Maratha has already completed the entire jail sentence awarded to him and has been released after completion of his sentence.

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13. Per contra, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant, contended that except minor contradictions and omissions, the prosecution has proved its case beyond reasonable doubt. From the evidence of injured Pawan Bagh (PW02) the involvement of the present appellants in crime in question is duly been proved. Although knife blow was given by the appellant Sanju Maratha @Sanjay but the allegation against other three accused persons are that they have caught hold the injured when Sanju Maratha given knife blow on him. He would further submit that although the name of the other accused persons are not there in the FIR as well as in the 164 of Cr.P.C. Statement of the injured but the injured has clearly stated in his 161 Cr.P.C. statement that he identified the accused persons by face but he did not know their names. The accused persons had caught hold him when the appellant Sanju maratha gave blow. Although the doctor has said that the injuries are simple in nature but the manner in which the injuries have been caused that too by knife it cannot be said that the accused persons were not intended to cause his murder and only simple injuries have been caused to him. Therefore, there is sufficient evidence against the accused persons for which they have been rightly convicted by the learned trial Court for the offence under Section 307, 34

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of IPC and there is no merit in the appeals and the same are liable to be dismissed.

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14. Mr. Sudhir Bajpai, learned counsel appearing for the complainant pawan Bagh would also have submitted that with respect to the appellant Bhavesh Chauhan @ Bhivish, he entered into compromise with him and filed his affidavit today itself in support of compromise with Bhavesh Chauhan and submitted that he is having no objection if the appeal against the Bhavesh Chauhan is allowed and he be acquitted however, he would submit that he has not entered into compromise with other accused persons.

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15. I have heard the counsel for the parties and perused the material available on record.

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16. Pawan Bagh, the injured (PW02) has stated in his evidence that he is acquainted with the accused persons. On the date of incident an engagement function was going on in the house of one Jeevan Sona, the groom party had come from Kashiram Nagar and they were enjoying the dance. During the dance some scuffling started between the persons, who were enjoying dance and the accused persons have assaulted him . He was being assaulted by appellant Sanju Maratha and three other accused persons had caught hold him. He was being assaulted by knife like weapon on his back. Thereafter, he went to the police station where he lodged the report. In cross-examination he stated that the accused persons were regularly come to take bath in the pond therefore, he knows them by their names. The police has recorded his statement after two-three days after the incident. He denied that the appellant Sanju was not present at the place of incident, at the time when the incident occurred. He further stated that on the next day, he returned back from the hospital. He denied that he received injuries by falling on a stone but he admitted that small pieces of stone was there on the ground. In further cross-examination, he admitted

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that a number of persons were enjoying the dance in the engagement function. He could know the names of Monu, Sanju, Alok and Bhavesh and could not know the names of other persons. He admitted that he has identified the accused persons in the police station. From the crossexamination of this witness, involvement of the appellants could not be rebutted by the defence that they were not involved in the offence of marpeet with injured Pawan Bagh.

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17. Pratap (PW01) is also present in the said engagement ceremony. He too have stated that during the enjoyment of dance pawan Bagh was received knife injuries on his back, but he did not ask him, who caused injury to him.

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18. Padman Baghel (PW03) and Suraj Naik (PW04), who are also present in the engagement ceremony but they have turned hostile and not supported the case of the prosecution.

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19. Sagar Naik (PW06) who is also one of the injured but he too has turned hostile and not supported the prosecution’s case.

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20. Kailash Bagh (PW08) who is the father of the injured Pawan Bagh has stated in his evidence that on the date of incident there was an engagement function was going on at village Puraina in the house of one Jeevan Sona. His son was enjoying dance and he was near pond at that time, while the dance, the appellants have caused injuries to his son and he saw them to causing injuries to his son. The appellant chasing his son and blood was oosing out from his back. He took him to the police station Telibhandha from where he was sent to the hospital. His son has not disclosed as to who is the person who caused the injuries. Though he has been declared hostile but in his cross-examination he firmed by saying that he saw the incident and denied the suggestion that he is not the witness to the incident. He saw the appellant chasing his son

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21. Permanand Chura (PW09) who is one of the eyewitness who also has not supported the prosecution’s case and has turned hostile.

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22. So far as the injuries on the injured Pawan Bagh is concerned, he was first treated by Dr. G. P. Dewangan (PW05) at District Hospital, Raipur. He stated in his evidence that on 25.06.2014 at about 8.05 pm, the injured Pawan Bagh was brought before him. He was having incised wound in the size of 31”x 02” cm which was in an oval shape on his back on right scapular region to lumber region. After giving him the primary treatment, he referred him to Government B. R. Ambedakar Medical College, Raipur and his report is Ex. P/ 11 and OPD ticket is Ex. P/12. He also given the query report of the clothes of the injured Pawan Bagh and knife seized from the appellant Sanju Maratha which is Ex. P/ 13. In cross-examination he stated that he did not tell as to nature of injuries and he referred him to the specialist.

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23. Dr. Sandeep Chandrakar (PW12) is another doctor, who has treated him at Dr. B. R. Ambedekar Medical Hospital, Raipur has stated that on 25.06.2014 at about 8.55 pm he has treated the injured, he was having 22.Cm long incised wound on his back which is deep up to subcutaneous tissue which obliquely placed on his back. The bed head ticket of the injured Pawan Bagh is Ex. P/32. On 26.06.2014 he was missing from his bed and it was informed to the police. Injuries received by the injured was simple in nature. In cross-examination he stated that if the injured was not being treated, the death might be possible due to the infection on the injuries and if he being treated in time death could not be possible.

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24. From theses evidences it is quite clear that on the date of incident when the engagement function was going on in the house of one Jeevan Sona and the persons present in the function were enjoying the dance, some

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dispute arose between the persons who were enjoying the dance and in that moment one of the accused persons Sanju Maratha @ sanjay gave a knife blow on the back of the injured by which he received incised wound on his back and as per the evidence of the doctor it was simple in nature. The involvement of the appellants have further been found proved that they caused injuries to the injured. In his 161 of Cr.P.C. statement Ex. D/1 he stated that the other three accused persons were caught hold him and the appellant Sanju Maratha gave him a knife blow and he identified the accused persons by their faces and could not know their names and in Court statement. He stated that he identified the accused persons at police station. There is nothing in his crossexamination to dis-believed that he neither identified the accused persons nor he saw the accused persons at police station and they have not involved in the offence in question therefore, the involvement of the appellants have duly been proved by the injured Pawan Bagh that they caused injuries to him.

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25. So far the offence under Section 307 of IPC is concerned, considering the fact that the doctor has opined that the injury found on the back of the injured is simple in nature. The incident occurred in heat of passion when the persons in the party enjoying dance in the house of one Jeevan Sona. During the enjoyment of dance some argument started which culminated into scuffling and knife blow was given by the appellant Sanju Maratha. It is not a case where the accused persons have intentionally or gathered there to cause injuries to the injured. Furthermore, if they had any intention to commit murder of the deceased the blow would have been made on his abdomen and not on his back. That to by assaulting by the four persons to one person, the injuries must

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have been more than one or any repeated blow would have been given by them on his body.

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26. All these peculiar facts of the case would clearly demonstrate that the accused persons were not intended to commit murder of the injured. Although the nature of injury is not relevant for commission of the offence under Section 307 of IPC and only intention coupled with some relevant factors yet in the facts and circumstances of the present case, the starting point of the quarrel with them, the nature of injuries and the part of the body chosen to assault by the accused persons are the relevant factor which can be considered for imposing the liability upon the accused persons. From the evidence of the witness as well as the doctors the offence against the appellant would be made out only under section 324 of IPC and not under Section 307 of IPC. Therefore, this Court is of the considered opinion that the appellants are liable to be convicted under Section 324/34 of IPC instead of Section 307/34 of IPC.

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27. It is further submitted by learned counsel for the appellant as well as by the complainant that complainant has entered into a compromise with one appellant Bhavesh Chauhan @ Bhavish and he does not want to prosecute his complaint further with respect to the appellant Bhavesh Chauhan and affidavit to that effect has also been filed today itself alonwith an application under section 359(2) read with Section 438 of the Bhartiya Nagrik Surkasha Sanhita (BNSS), 2023 and that duly supported by their affidavit.

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28. So far as the sentence part under Section 324 of IPC is concerned, the incident is alleged to be occurred in the year 2014 the appellants were age group of 20 to 30 years and presently they might have their numerous family responsibilities.

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29. With regard to the sentence part, while dealing with the said question in the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, it has been observed by the Hon’ble Supreme Court as under:

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“9. Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man

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retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'

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30. Considering the facts and circumstances of the case, nature of injuries found on the body of the injured, the age and length of the criminal lis of about 10 years and further that the complainant has entered into compromise with Bhavesh Chauhan @Bhavish, this Court deem fit to convict the appellants under Section 324 of IPC and sentenced them RI for three months and fine of Rs. 1000/- and in default of payment of fine, further RI for 15 days.

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31. With this modification of conviction and sentence, all theses appeals are partly allowed. The appellant namely- Bhavesh Chouhan @ Bhavish and Moh. Abid @ Raja (in CRA No. 57 of 2018) and Syed Nadim @ Monu (in CRA No. 1734 of 2018) and Sanju Maratha @ Sanjay are acquitted from the offence under Section 307 read with 34 of IPC instead of they are convicted for the offence under Section 324 of IPC and they have been sentenced for the said offence for the period already undergone by them with fine of Rs. 1000/-. The fine amount already deposited by the appellants, if any, shall be adjusted in the total fine amount imposed by this Court. However, the appellant Sanju Maratha @ Sanjay (in CRA No. 647 of 2018) is reported to have been completed his entire sentence, he is not required to surrender before the learned trial Court and other accused persons are reported to be on bail their bail bond shall continue for the further period of six months as per Section 481 of BNSS, 2023.

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32. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/(Ravindra Kumar Agrawal) Judge

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amita

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Digitally signed by AMITA DUBEY Date: 2025.04.05 10:52:03 +0530

Bhavesh Chouhan @ Bhavish v. State of Chhattisgarh

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Bhavesh Chouhan @ Bhavish v. State of Chhattisgarh

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