State of Chhattisgarh vs Pawan

Ramesh Sinha, CJ

Heard Mr. Awadh Tripathi, learned counsel for the accused appellant – Bhagwat in CRA No. 833 of 2019 as well as Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the State/appellant in ACQA No. 409 of 2010 and for State/ respondent in CRA No. 833 of 2009.

Though the ACQA No. 409 of 2010 has been admitted by the Co-ordinate Bench of this Court way back on 05.08.2010, but State has not taken steps for service of notice on respondents and as the present appeal is connected with the CRA No. 833 of 2019, which was filed by Mr. Awadh Tripathi, learned counsel on behalf of the appellant Bhagwat, who is the father of the respondent Nos.1 and 2 Pawan and Chetan in ACQA No. 409 of 2010, the Court made a query to Mr. Tripathi whether he take notice on behalf of the said accused/respondents and to file power on their behalf, to which, Mr. Tripathi accepted and submitted that he will the power on their behalf during course of the day itself.

Since both the Criminal Appeal filed on behalf of the accused/appellant as well as Acquittal Appeal filed on behalf of the State arise out of same judgment, they are clubbed and heard together and are being disposed of by this common order.

Acquittal Appeal No. 409 of 2010 has been filed on behalf of the State, challenging the legality, validity and propriety of judgment dated 11.11.2009 passed by the learned Additional Sessions Judge, Dhamtari (C.G.) in Sessions Trial No. 61/2008, whereby the learned Sessions Judge has acquitted the accused/respondent – Pawan and Chetan from the charges under Sections 450 and 307 read with Section 34 of the Indian Penal Code ( for short ‘the IPC’), holding that the prosecution has failed to prove its case beyond reasonable doubt against these accused persons.

Criminal Appeal No. 833 of 2009 has been filed by the appellant - Bhagwat challenging the legality, validity and propriety of very same judgment dated 11.11.2009 passed by the learned Additional Sessions Judge, Dhamtari (C.G.) in Sessions Trial No. 61/2008, whereby the learned trial Court has convicted accused/appellant Bhagwat under Section 307 of IPC and sentenced him to undergo RI for 04 years to pay fine of Rs.500/-for causing harm to injured Bhagoli and further convicted him under Section 324 of IPC and sentenced to undergo RI for six months for causing harm to Vimla Bai and in default of payment of fine amount, additional RI for 01 month with a direction to run both the sentences concurrently.

The prosecution case, in brief, is that the fields of the complainant Bhagoli and the accused are connected and after the complainant’s field water goes to accused Bhagwat’s field. Accused Bhagwat had opened the mouth of the complainant’s field due to which the water of his field dried up. When he went to see the field on 14.09.2008, he got angry due to lack of water in the field and shouted who has broken the water of the field, which was heard by accused Bhagwat. On 14.09.08 at 09.00 pm, accused Bhagwat, his sons Pawan and Chetan came to the complainant’s house regarding this matter and accused Bhagwat hit complainant Bhagoli on the head with the sharp part of the tangia in his hand, due to which he fell on the ground. When complainant Bhagoli's wife Vimala tried to intervene, accused Bhagwat also hit her near her waist with the sharp part of the tangia. When Vimla screamed for help, neighbors Balaram Satnami, Duleshwar Satnami, Bhagwat son of Sayaram, and Anklaha Ram came and intervened, but the accused, Bhagwat, Pawan, and Chetan, fled with the tangia. The complainant, Bhagoliram, filed a report of the incident at Kurud police station the same night. A medical form was filled out for the complainant, Bhagoliram, and his wife, Vimla Bai, and they were sent to the Government Hospital, Kurud. Bhagoliram and his wife, Vimla Bai, were subsequently taken to MMI Hospital, Raipur, for treatment. During the investigation, the investigator visited the scene and prepared a site map and also had the local Patwari prepare a site map. Blood stains and plain soil were seized from the scene, and accused Bhagwat's statement was recorded under Section 27 of the Evidence Act. The tangia was recovered from his home and a seizure was made. The blood stained clothes, towel, lungi and vest of the complainant Bhagoliram were seized and he recorded the statements of witnesses Ankalharam, Bhagwat son of Sayaram, Balaram, Duleshwar, Sahiba, Kumari Radhika, Vimala Bai, Bhagoliram, Puniya Bai, Uttari Bai, Manibai, Govind, Kumari Mamta and sent the seized mud pot and clothes to FSL Raipur for chemical test.

After completion of investigation, charge sheet under sections 307, 456 read with 34 of IPC was presented against the accused in the Court of Judicial Magistrate First Class Kurud, from where the case was transferred to the Sessions Court Dhamtari for trial. From the Sessions Court, the said case was transferred to the Court of Additional Sessions Judge, Dhamtari, wherein when the accused Bhagwat, Pawan and Chetan were charged under Section 450 read with 34 of the IPC and Section 307 read with 34 of the IPC for attempting to murder Bhagoli and Section 307 read with 34 of the IPC for attempting to murder Vimla Bai, the accused denied the charges. In the statement taken under Section 313 of the Code of Criminal Procedure, they claimed to be innocent and that they were being falsely implicated.

In order to prove the above charges against the accused, a total of 21 witnesses have been examined by the prosecution and 27 documents have been exhibited, contrary to which, on behalf of the defence, two defence witnesses have been examined.

The learned Additional Sessions Judge after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment while acquitting the accused/respondents – Pawan and Chetan, has convicted and sentenced the accused / appellant - Bhagwat as aforementioned. Against which, aforesaid Criminal Appeal has been filed by the accused/appellant - Bhagwat as well as Acquittal Appeal has been filed by the State.

Mr. Awadh Tripath, learned counsel for appellant would submit that he is not pressing this criminal appeal filed on behalf of accused/appellant - Bhagwat as far as it relates to conviction part of impugned judgment and is confining his argument to the quantum of sentence only. He submits that incident had taken place on 14.09.2008, there was no pre-meditation and on the spur of moment incident had taken place, it was first offence of appellant and thereafter he had not indulged himself in any other criminal activity. He would further submit that the learned trial Court has sentenced the appellant for four years rigorous imprisonment and as during trial the appellant was in jail since 16.09.2008 till 09.03.2009 and after conviction he was again in jail since 11.11.2009 till 22.01.2010 as such, he has already suffered jail sentence near about 8 months and 04 days and has already deposited the fine amount of Rs.500/- imposed by the trial Court and presently, the appellant is aged about 61 years of age, therefore, the sentence already undergone by him may be suffice to meet the ends of justice by enhancing the fine amount imposed upon him, which shall not amount to enhancement of sentence. He also submits that learned trial Court, considering the evidence available of record, has rightly acquitted the accused/respondents Pawan and Chetan and as such, the acquittal appeal filed by the State deserves to be dismissed.

On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the fact that the appellant has assaulted the complainant Bhagoli on his head by sharp edged tangia and also caused injury over the waist of complainant’s wife Vimla Bai by the said tangia, hence leniency should not be shown to appellant herein. He further submitted that the learned trial Court while acquitting the accused/ respondents Pawan and Chetan has committed grave illegality as there is sufficient material on record against them.

We have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment.

Though learned counsel for appellant has not challenged conviction of appellant - Bhagwat and confined his prayer only with regard to reduction of sentence as undergone, but still this Court deems it appropriate to examine the impugned judgment of the trial Court. This Court has meticulously perused impugned judgment and evidence on record.

Perusal of impugned judgment reveals that the trial Court, after elaborately considering evidence of each individual material witness including the injured witness PW-1 Bhagoli Ram, has observed that prosecution has proved its case beyond reasonable doubt against appellant Bhagwat and that being the position, this Court is the opinion that the trial Court has not committed any mistake in arriving at a conclusion that appellant Bhagwat is guilty for offence punishable under Sections 307 and 324 of IPC.

As regards quantum of sentence, considering the fact that the incident took place way back on 14.09.2008 and during trial the appellant was in jail since 16.09.2008 till 09.03.2009 and after his conviction he was again in jail since 11.11.2009 till 22.01.2010 as such, he has already suffered jail sentence near about 8 months and 04 days and has already deposited fine amount of Rs.500/-imposed by the trial Court and further considering the fact that presently the appellant is aged about 61 years of age, there would be no useful purpose to send the appellant again in jail as he has already suffered undergone sentence and also agony of criminal trial for so many years. So this Court finds it appropriate to reduce the sentence from RI for four years under Section 307 of the IPC to the period already undergone by the appellant i.e. 08 months and 04 days of jail sentence, however, the Court deem it proper to enhance the fine amount imposed by the trial Court from Rs.500/- to Rs.50,000/- upon the appellant – Bhagwat, out of which Rs.40,000/-shall be paid to complainant Bhagoli and Rs.10,000/- be paid to complainant’s wife Vimla Bai if they are alive or to their legal heirs in equal proportion if they are more than one. Conviction and sentence under Section 324 of the IPC are hereby affirmed. It is evident from the record that the appellant has already paid Rs.500/- imposed by the trial Court. If the enhanced fine amount is not deposited by the appellant - Bhagwat within a period of two months from today, he shall be taken into custody to serve out the sentence as has been ordered by the learned trial court. Ordered accordingly.

In the result, the CRA No. 833 of 2019 is partly allowed to the extent indicated herein above.

So far as consideration of ACQA No. 409 of 2010 is concerned. Upon careful and close scrutiny of the entire evidence available on record, this Court finds no compelling reason to take a view different from that taken by learned trial Court. The trial Court, after due appreciation of the evidence, acquitted the accused/respondents Pawan and Chetan by its judgment dated 11.11.2009. The incident in question pertains to 14.09.2008, and the petition seeking leave to appeal against acquittal was filed 11.02.2010. Subsequently, the appeal was admitted on 05.08.2010.

Given the fact that more than 17 years have elapsed since the date of the incident, and taking into consideration the protracted nature of the proceedings, as well as the findings recorded by the trial Court which do not appear to suffer from perversity or manifest illegality, this Court finds no merit in interfering with the acquittal.

Accordingly, ACQA No. 409 of 2010, being devoid of substance, deserves to be dismissed and is hereby dismissed.

Let a copy of this judgment and the original record be transmitted to the trial Court concerned for necessary information and compliance forthwith.