Ramcharan Patel Vs State of Chhattisgarh

2 . The present Criminal Revision has been filed against the impugned judgment dated 13.02.2018 passed by the Sessions Judge Janjgir Champa in Criminal Appeal No. 93 of 2017 whereby the Criminal Appeal filed by them was dismissed. The applicants were convicted by the Judicial Magistrate First Class, Pamgarh, District Janjgir Champa, vide judgment of conviction and sentence dated 08.09.2017 passed in Criminal Case No.671 of 2007 and has been convicted for the offence under Section 341 and 326/34 IPC and sentenced for RI for one month

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and six months respectively to both the applicants along with fine sentence and default stipulation. The judgment of conviction and order of sentence was challenged by them before the Sessions Judge, Janjgir, however, their appeal was also dismissed vide judgment dated 13.02.2018 which are under challenge in this revision.

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3 . Brief facts of the case are that, on 23.06.1997 an FIR Ex.P/1 was registered on the complaint made by the complainant Jagdish Kashyap, PW-1, against the applicants for the offence under Sections 341, 294, 506-B, 323/34 IPC alleging that on 22.06.1997 when he was returning to his home after demarcation of his land, on the way, the applicants have abused and assaulted him by Axe and Lathi by which he received grievous injuries on his body. They also threatened him not to disclose the incident to anyone otherwise they will kill him. The complainant was sent for his medical examination to Govt. Hospital, Shivrinarayan and he was being medically treated by the doctor. The applicants were arrested. Axe and Lathi were seized from applicant No.2-Mahavir Patel vide seizure memo Ex.P/3.

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4 . Statement of witnesses were recorded and after completion of investigation charge sheet was filed against the applicants before the Chief Judicial Magistrate, Janjgir for the offence under Sections 341, 294, 506-B, 325/34 and 326 IPC. The trial court framed charge for the offence under Sections 341, 294, 326/34 and 506-B IPC IPC against the applicants. The applicants denied the charge and claimed trial.

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5 . In order to prove the offence against the applicants, the prosecution has examined as many as 11 witnesses. Statement of applicants under Section 313 CrPC was also recorded in which they denied the

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circumstances appears against them, plead innocence and submitted that they have been falsely implicated in the offence.

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6 . After appreciation of oral as well as documentary evidence led by the prosecution, the Trial Court has convicted and sentenced the applicants for the offence under Sections 341 and 326 IPC and sentenced them as mentioned in the earlier part of this judgment. The judgment of conviction and sentence passed against the applicants were challenged before the Sessions Judge, Janjgir champa by filing appeal which has also been dismissed vide judgment dated 13.02.2018. The said judgment of conviction and sentence and the judgment of appeal are under challenge in this Revision.

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7 . Learned counsel for the applicants would submit that the applicants are innocent and they have been falsely implicated in the offence. In the present case though injuries were on the body of complainant, however, MLC report has not been proved by examining any doctor and therefore the nature of injuries have not been proved, yet the trial court has convicted the applicants for the offence under Sections 341 and 326 IPC. In absence of examination of doctor, even if injuries were found on body of victim and involvement of the applicants in the offence in question is proved, the offence, if any, does not travel beyond Section 324 IPC as grievousness of the offence has not been proved. The applicants have remained in jail for about 22 days and offence of Section 324 IPC does not provide any minimum sentence, therefore their sentence may be reduced for the period already undergone by enhancing the fine amount suitably.

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8 . On the other hand, the counsel for the State opposes the prayer made by the counsel for the applicants and would submit that looking to the nature of injuries and the manner in which the complainant was being assaulted, the applicants are not entitled for any leniency. Even if the doctor has not been examined in the case, the guilt of the applicants have been proved by other corroborative evidence. It is not disputed that the complainant received grievous injuries on account of assault made by the applicants by Axe and Lathi. There is sufficient evidence to the effect that the applicants are guilty for the offence under Section 326 IPC. Therefore, there is no merit in the revision and the same is liable to be dismissed.

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9 . I have heard the counsel for the parties and perused the record of the trial court.

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10. PW-1 is the complainant who stated in his evidence that on 22.06.1997 when he was returning to his house, on the way, the applicants assaulted him by Axe and Lathi on his right Knee by which he received injuries. He lodged report to the police Ex.P/1 and he was taken to hospital. He remain hospitalized for about 15 days and iron rods were implanted in his left hand and leg. In cross examination, he admits that he was having property dispute with one Bal Krishna, however, he denied that some other person have assaulted him. He remain firm in saying that applicants have assaulted him. Nothing could be extracted from his evidence to disbelieve that applicants have not assaulted him by Axe and Lathi.

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11. The other witnesses, PW-2, Bhagwan Prasad Tiwari, PW-3, Khemlal, PW4, Keshav, PW-5, Kushal, PW-6 Ramesh Kumar Tiwari, PW-7,

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Ramswaroop, PW8, Gowardhan Yadav, PW-9, Raj Kumar Sahu and PW-10, Raj Kumar Dwivedi are hearsay witnesses who subsequently came into knowledge about the incident. The only evidence against the applicants are that of PW-1, Jagdish Kashyap who is complainant in the case. He being victim of the offence and his evidence does not suffer any perversity, his evidence is not required to be corroborated by any other evidence when he specifically stated about involvement of the applicants in the offence in question and causing injuries to him by Axe and Lathi.

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12. From perusal of judgment passed by the trial court as well as appellate court it transpires that involvement of applicants with the offence in question has rightly been considered by the courts below and no infirmity or perversity is found by this court on the same.

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13. So far as nature of offence is concerned, it transpires from order sheet

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of the trial court that the doctor who medically examined the complainant have not been examined. For the reasons best known to the prosecution, he could not produce the doctor to prove that complaint received grievous injuries caused by dangerous weapon. Merely saying by the complainant that he received fracture would not be sufficient to hold that injury received by him was grievous particularly in absence of any medical evidence proved by the doctor. The injury report or X-ray report have not been exhibited in evidence. Had the doctor been produced by the prosecution, the applicants had opportunity to cross examine the doctor to rebut the presumption or to dilute the nature of injury as stated by the complainant. Therefore, in

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absence of any medical evidence it cannot be said that the complainant received grievous injuries by dangerous weapon.

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14. From the evidence led by the prosecution and from the consideration of trial court as well as appellate court, this court does not find any perversity in the conviction of the applicants for the offence under Section 341 IPC, however, this court is of the opinion that instead of Section 326 IPC, the act of the applicants come under the definition of Section 324 IPC and thereby their conviction for the offence under Section 326/34 is modified to the offence under Section 324/34 IPC.

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15. So far as sentence awarded to the applicants are concerned, the submission of counsel for the applicants is that presently the applicants are aged about 81 & 55 years respectively and having innumerable family responsibilities, the incident was occurred in the year 1997 and thereby they have already faced criminal lis for about 28 years, they have already remained in jail for about 22 days, the offence under Section 324/34 IPC does not provide any minimum sentence, therefore the submissions of the applicants that their undergone period may be considered to be sufficient sentence, is appealing to this court.

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16. In Mohammad Giasuddin Vs. State of Andhra Pradesh, 1977 (3) SCC 287 in paragraph 9 of its judgment, it was held 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

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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 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.' In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion : "Circuit Judge Christmas Humphreys told the BBC reporter recently that a judge looks 'at the man in the dock in a different way : not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself.' In the context of karuna and punishment for karma the same Judge said : 'The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him; that is what compassion means."

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17. Considering the submissions made by the parties; the overall facts and circumstances of the case, the manner in which the incident occurred, the nature of injuries found on the body of victim and also in view of judgment passed by the Supreme Court in the matter of Giasuddin (Supra), this court is of the opinion that for the offence under Sections 341 and 324 IPC, the applicants may be sentenced for the period already undergone by them by enhancing the fine amount.

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18. Consequently, the conviction and sentence of the applicants for the offence under Section 341 IPC is maintained and his sentence is reduced for the period already undergone by him and fine sentence for that offence shall remain intact. The conviction of the applicants for the offence under Section 326/34 IPC is modified to one under Section 324/34 IPC and the applicants are sentenced for the period already undergone by them with fine of Rs.10,000/- to each of the applicants

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which shall be payable by the applicants within two months from today. In failure of deposit of fine amount, the applicants shall undergo further RI for one month. The fine amount so deposited by the applicants, an amount of Rs.18,000/- shall be paid to the complainant PW-1-Jagdish Kashyap as compensation as provided under Section 395 of BNSS, 2023. The applicants are reported to be on bail. Their bail bond shall continue for a further period of six months in view of provisions contained in Section 481 of BNSS, 2023.

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19. With the aforesaid modification, the revision is partly allowed .

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20. The trial court record be send back forthwith along with copy of this order for necessary compliance.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Ramcharan Patel v. State of Chhattisgarh

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Ramcharan Patel v. State of Chhattisgarh

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