Kuldeep Chandrakar vs State Of Chhattisgarh

This appeal is arising out of impugned judgment of conviction and order of sentence dated 11/08/2006 passed by the learned Sessions Judge, Raipur, District – Raipur in Sessions Trial No.135/06 by which the appellants have been convicted and sentenced as under -

Conviction

Sentence

U/s 333/34 of IPC

R.I. for 3 years and fine of Rs.3000/- (in default of payment of fine, additional R.I. of 9 months)

The prosecution case in brief is that on 11/01/2006 at village – Kukra, a cultural programme performed by Panchram Mirdha and Kulwantin Bai was organised. In order to maintain the law and order, Assistant Sub-Inspector–Kanhaiyalal Daharia (PW4) and Head Constable – Amoliram Sahu (PW5) went there. In the night around 2 hrs, some boys were creating disturbance in the programme. At that point of time, ASI Kanhaiyalal Daharia (PW4) and Amoliram Sahu (PW5) tried to pacify them. At that time, all of them, with common intention, started abusing Kanhaiyalal Daharia and started beating him with hands and fists as a result of which, one teeth of ASI – Kanhaiyalal Daharia (PW4) was broken. Mohan Sahu and Ramji Sahu who were present at the spot tried to intervene and informed that Kuldeep and his friends have assaulted and thereby deterred the public servant from his duty.Kanhaiyalal Daharia (PW4) lodged FIR (Ex.P/4) at police station– Mandirhasoud. He was sent for medical examination. Dr. Kripashankar Rai (PW3) gave medical report (Ex.P/3). Assistant Sub-Inspector-R.N.Pandey (PW6) prepared spot map in Ex.P/6. Statement of the witnesses were recorded. The appellants were arrested and after due investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Raipur which was registered as Criminal Case No.582/2006 and vide committal order dated 28/03/2006, the case was committed to the Sessions Court. The appellants were charged as aforesaid. They abjured their guilt and claimed to be tried.

Prosecution, in order to bring home the guilt of the appellants, examined as many as 7 witnesses i.e. Jagdish Prasad Sahu (PW1), Ramji Sahu (PW2), Dr. Kripashankar Rai (PW3), Assistant Sub-Inspector– Kanhaiyalal Daharia (PW4), Head Constable-Amoliram (PW5), A.S.I. R.N.Pandey (PW6) and Head Constable-Vijaylal Sahu (PW7) and exhibited as many as 9 documents.Learned trial Court after appreciation of evidence, oral and documentary, found the appellants guilty, convicted and sentenced them as stated above by the impugned judgment which is under challenge before this Court.

Shri Hemant Kesharwani, learned counsel for the appellants vehemently argued that the findings recorded by the learned trial Court convicting the appellants is patently erroneous, contrary to the evidence on record and is bad in law. He further submits that the identity of the appellants particularly appellant No.1 - Kuldeep Chandrakar was not known to the victim (PW4) and it has come in evidence that Mohan Sahu and Ramji Sahu informed about identity of the appellants but Mohan Sahu was not examined for the reason best known to the prosecution and Ramji Sahu who was examined as PW2 has not supported the case of the prosecution. He further submits that when the appellants were not known to the victim (PW4), it was necessary for the prosecution to connect their identity or make known to the victim by cogent and prudent evidence which is not available in the case in hand. Apart from this, no test identification parade was conducted to ascertain the identity of the appellants as it is a case of the prosecution itself that the alleged incident occurred where number of people gathered and as alleged, some of them were making disturbance in the cultural programme. He further submits that though Amoliram Sahu (PW5) has stated that the victim was assaulted by appellant no.1-Kuldeep Chandrakar by snatching the stick of victim (PW4) and assaulted, but the victim (PW4) has not stated the same. Therefore, their statement does not inspire confidence and the involvement of the appellants cannot be established beyond reasonable doubt. Apart from this, he submits that the name of appellant No.1–Kuldeep Chandrakar was mentioned in the Court statement of victim - Kanhaiyalal Daharia (PW4) and Amoliram (PW5) and there is nothing on record to suggest that appellant No.2 and 3 acted in furtherance with common intention to commit the offence. Inviting attention to the statement of Dr. Kripashankar Rai (PW3) and the MLC of the victim (Ex.P/3), Shri Kesharwani submits that it is not established on record that the injuries sustained by the victim (PW4) is grievous in nature. Alternatively he submits that the offence cannot go beyond Section 332 of IPC and the conviction may be altered. Lastly, it is submitted that the incident occurred in the year 2006. The appellants have faced long drawn trial and they have no criminal records and they have been released on bail by this Court and never misused the liberty. Being the first offender, the sentence imposed may be reduced to the period already undergone by enhancing the fine amount. He places reliance on the judgment of this Court in the cases of Ram Bagas and ors. v. State of Madhya Pradesh, (2015) 3 CGLJ 112 and Phoolchand @ Bhikhu v. State of Madhya Pradesh (now Chhattisgarh) passed in Criminal Appeal No.2279/1999.

Per contra, Shri Anurag Verma, learned State counsel vehemently argued that the victim (PW4) has categorically stated that he know the appellants and it is the appellants who have assaulted him. This testimony is also corroborated by the statement of Amoliram Sahu (PW5). Even though Mohan Sahu was not examined and Ramji Sahu (PW2) did not support the case of the prosecution, which is not fatal to the prosecution as under DOC identification, the appellants were identified by the victim as well as by Amoliram Sahu (PW5). He further submits that Dr. Kripashankar Rai (PW3) in his report (Ex.P/3) has categorically examined the injuries to be grievous in nature. Therefore, conviction of the appellant under Section 333 read with Section 34 of IPC is well merited and the finding recorded by the learned trial Court does not require any interference and the appeal deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions and perused the records.

Learned trial Court relied upon the statement of Kanhaiyalal Daharia (PW4) and also Amoliram Sahu (PW5) and Dr. Kripashankar Rai (PW3). Jagdish Prasad Sahu (PW1) was examined who has stated that in the cultural programme, he had called the police personnel but he was unable to state as to who were the police personnel. He was declared hostile and did not support the case of the prosecution. Ramji Sahu (PW2) was examined and also stated that the police personnel had come to the cultural programme but he showed ignorance to the quarrel. He has also stated that he is not aware as to how much assault was given to Kanhaiyalal Daharia (PW4). He has also not supported the case of the prosecution. Dr. Kripashankar Rai (PW3) had medically examined Kanhaiyalal Daharia (PW4) and found following injuries in his body -

“1. मुंह में दाहिना उपरी इन्साईजर दांत उखडा हुआ था। जांच उपरांत मैंने उसमें ब्लडक्लार्क सूजन तथा उपरी आठ के अंदरूनी भाग में सूजन पाया।’’

He gave an opinion that the said injuries can be caused by hard and blunt object within a time span of 12 hrs. of examination. He directed the victim to consult the dental department of Dr. Ambedkar Hospital. His report is Ex.P/3 and admits his signature on A to A part and B to B part. Though in his cross-examination, he has stated that if someone fells on his face, the said injuries can be caused and he cannot say as to whether the injuries are grievous in nature or not.

Much emphasis has been given by the learned trial Court on the statement of Kanhaiyalal Daharia (PW4). He has vividly described the happening of the incident. He has categorically stated that he knows the appellants and the incident had occurred on 12/01/2006. He had gone on duty in a cultural programme at village – Kukra and he reached there at about 11:30 PM. At about 2 AM, some boys were creating nuisance and he along with Head Constable Amoliram Sahu (PW5) went there and asked them not to create nuisance. One of the boys abused him using filthy language and 4 boys assaulted him, due to which, his upper teeth got broken and he was assaulted by hands and fists. Mohan Sahu and two other persons intercepted and they told that appellant -Kuldeep Chandrakar and his associates have assaulted him.He has categorically stated that the appellants present in the Court have assaulted him. He stated that he has lodged report (Ex.P/4) and admits his signature from A to A part. In his cross examination, nothing incriminating has been found. His statement is also corroborated by the statement of Amoliram Sahu (PW5). He has also stated that he along with Kanhaiyalal Daharia (PW4) were on duty in the cultural programme held at village–Kukra. The appellants were making nuisance and they tried to pacify but the appellants did not accede to it and abused them with filthy language and assaulted with hands and fists. He further stated that Kanhaiyalal Daharia was assaulted by them on his face by stick as a result of which, he lost his teeth. Thereafter, they came back to police station. This witness had gone through lengthy cross examination, nothing incriminating was found.

R.N.Pandey (PW6) is a witness to the investigation who has prepared spot map (Ex.P/6) and recorded statement of the witnesses and arrested the accused–Hiraram Sahu, Kuldeep Chandrakar and Chandrashekhar and arrest memo was prepared vide Ex.P/7 to Ex.P/9 and he admits his signature from A to A part. Vijaylal Sahu (PW7) has recorded FIR in Ex.P/4. Though Mohan Sahu has stated that appellant – Kuldeep Chandrakar was not examined, however, Kanhaiyalal (PW4) has categorically identified the appellants before the Court.

Though learned counsel for the appellant tried to persuade that the independent witness–Jagdish Prasad Sahu (PW1) and Ramji Sahu (PW2) have not supported the case, however, in view of the glaring evidence of Kanhaiyalal Sahu (PW4) and Amoliram Sahu (PW5) coupled with corroboration of injuries sustained by Kanhaiyalal Sahu (PW4) from the evidence of Dr.Kripashankar Rai (PW3), the case against the appellant is proved beyond reasonable doubt. Hence, the finding so recorded by the learned trial Court cannot be said to be perverse and contrary to the evidence. Therefore, conviction of the appellant under Section 333 read with Section 34 of IPC is hereby affirmed.

This leads to the second submission with regard to quantum of punishment. In the case of Ram Bagas (supra), the appellants / accused were convicted for the offences under Section 333/34 of IPC and Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to rigorous imprisonment for two years and R.I. for 6 months, fine of Rs.200/-, in default of payment of fine, additional R.I. for 15 days and additional R.I. for 15 days on both counts. The coordinate Bench of this Court while maintaining the conviction, looking to the fact that the incident occurred 18 years back and the appellants had no criminal history held in paragraph 12 as follows -

‘12. So far as sentence for the offence committed by the appellants are concerned, it goes to show that the incident is about 18 years old. The appellants are the first offender with no previous criminal history for any offence. Out of them two are women. There were dispute regarding not committing demarcation properly, also there was allegation regarding giving benefited with the act of the complainant. There was serious issue for the demarcation. The appellants are for the present more than 58 years, 56 years and 63 years of age and as submitted the appellants also not involved themselves in any other criminal activity after this incident. Only one linear fracture in the 8th rib was noticed, no other complication reported by the doctors. The linear fracture may be caused on account of any pressure or other activities. Looking to the entire facts and circumstances, as the appellants remained in jail and has served a part of sentence during trial from 31/07/97 to 05/08/97 (6 days), they also deposited the fine amount, it would be appropriate to give them an opportunity so that in future, they may not involve in any other offence. For last 18 years, the appellants are facing trial and contesting this appeal and also are waiting for final outcome of the appeal filed by them. Looking to the entire facts and circumstances the period already undergone by them would meet the ends of justice. Consequently, the appeal filed by the appellants are partly allowed.The appellants are acquitted from the charge under Section 3(1)(x) of the Act, 1989. Their conviction under Section 333/34 is hereby affirmed. Sentence for conviction under Section 333/34 awarded by the trial Court to the appellants is hereby reduced to the period already undergone by them along with fine of Rs.400/- to each of the appellants. The fine amount already deposited by the appellants shall be adjusted in the fine imposed today by this Court. It is reported that the appellants are on bail. They be released forthwith. Their bail bond shall continue for a further period of 6 months as per requirement of Section 437A of the Code.’

Likewise, in the case of Phoolchand @ Bhikhu (supra), the appellant was convicted for the offences punishable under Section 333 of IPC and sentenced to undergo R.I. for 5 years and fine of Rs.200/- with further default stipulations. In paragraph 8, it was held as below -

‘8. The appellant has suffered jail sentence from 10.08.1999 to 10.09.1999 i.e. for 1 month. Considering the facts and circumstances of the case, this Court is of the opinion that the ends of justice would be met if the appellant is sentenced to the jail sentence of the period already undergone by him. Accordingly, his sentence is reduced to the period already undergone by him. However, the fine amount imposed by the trial Court shall remain intact.’

Adverting to the facts of this case, the incident is said to have occurred on 11/01/2006. The appellants were young boys aged about 26 yrs, 22 years and 23 years respectively. They have remained in jail for about 11 days and they were granted bail by this Court on 22/08/2006. Since then, they are regularly appearing before this Court and it is not brought before this Court that they had any criminal history or they have misused the liberty or their presence in the society is detrimental and possibility of their reform cannot be ruled out and also placing reliance upon the judgment in the case of Ram Bagas (supra) and Phoolchand (supra), this Court feels that ends of justice would be served if the appellants are sentenced to the period already undergone by them.

Accordingly, the sentence imposed upon the appellants is reduced to the period already undergone by them. The fine amount imposed by the trial Court and default sentence shall remain intact. The appellants are on bail. Their bail bonds shall remain in operation for a period of 6 months in view of Section 437A of CrPC.

Thus the appeal is allowed in part.