^ HI©HCOURT OF CHHA1TIS6ARH. BILASPUR APPELLANT5: (Accusead) RE5PONDENT: APPELLANT: RE5PONDENT5: CnmLnal Appeal No. 616 of 2001 Dilip Kumar and others Versus The 5tate of ChhattiSQarh AND Criminal AoDeaS No. 831 of 2001 The State of Chhattisgarh Versus Ashwoni Kumarand others ^ Post for proriouncement of judament on ^^ 5@pt@mb®r.2008 Sd/- T.P. Sharma Judge ^" -— /f's^\ 1 4 H1W COURT OF CHHATriSeARH. BILASPUR APPELLANTS/: (Accused). RE5PONDENT: CnmJndApDeaJ N0,616 of 2001 l* Dilip Kumar, S/o M<snik Lodhi, aged 32 years, 2. Ashwani Kumar, S/o . Uttam Singh, Lodhl, aged 29 years. 3. Santu, S/o Latel Qand, aged.34 years. 4. Manik, S/o Jhanhar Lodhl, aged 52 years. 5. Dau Singh, S/o Jharihar Lodhi, aged 49 years. A II residents of Villaae Souri, Poiice Station Khamharia, Distt, Durg, Versus The 5tate of Chhattisgorh, through the District Magistrate, Durg, Distt, uurg. (Criminai appeai under Sec, 374 (2) of the Code of Crlmina1 Procedure, 1973) AND APPELLANT: RESPONDENTS: /^ Criminal AQWQJ No. 831 @f 2001 The Stcxte of Chhattisaarh Versus L Ashwani Kumar, aged about 22 years, S/o Utram Singh Lodhi. 2. Diiip, aged about 23 vears, S/o ManiR Lodhi. 3. 5antu, aged about 27 years, 5/o Late! 6orsd. 4, Manik, a9@d about 45 years, S/o Jharshr Lodhi. 5. Dau Sinah, aged about 42 years, S/o JhGriharLodhi, AJI residents of Vijl^e 5ortl, P.S- Khamharia, Distr. Durg, Chhattisgarh. (Crimina! appeal under Section 377 of the Code of Crimsnal Procedure, 1973) ^-.^^^ >^:^- ^£^ ^. s ^ present: Cr.A.No.616/2001 Mr. 5udhir Verma/counsel for the accused/appeilGnts. Mr. Rakesh Jha, Deputy ©ovt.Advocate for the State/respondent. Cr.A.No.831/2001 Mr. Rakesh Jha, Deputy ©ovt.Advocate for the State/appeibnt. Mr. Sudhlr Verma, counsel for the accused/respondents, SinQJe Bench: Hors'ble Mr. T.P. ShGrma- J JUD&MENT (Dellvered on ^'v' September, 2008) 1. Cr.A.No,616/2001 flled on behalf of accysed/oppeilants Dillp Kumar & four ofhers and Cr.A.No.831/2001 filed on behaif of 1ti% State of Chhattisaarh agalnst the appeSlants In Cr<.A,No.616/2001 have been preferred against the common judgment dated 30-6-2001 passed by ths 2 AdditionGl Sessions Judge (F.T.C,), Bemetara, Durg, in Sessions Triat No.195/93, therefore, they are belng disposed of by tEiis common Judament. 2. Cr.A.No.616/2001 has been preferred by -rtie accused/appelSants aoainst the Judgment of conviction and order of sentence dated.30-6-2001 passed by the 2"d .Addltions! Sessions Judge (F.T.C.). BemetarG, Dur9, •n Sesslons Triol No.195/93, whereby leQrned Additiona! 5essions Jud9e after hoiding the accused/appelbnts gultt/ for com^ission of offence under Sections 147, 323 read with Section 149, 323 read with Sectlon 149, 323 read with 5&ction 149 & 325 read with 5ection 149 of the I.P.C., sentenced each of them to pay Q fine of Rs.500/-, in defauJt of payment of fine to undergo RJ. for two months under Sections 147, 323 read with 5ection 149, 323 read with Section 149 <& 323 read with Section 149 of the I.P.C. and to undergo R.I. for six months & pay a fjne of Rs.1,000/-, in default of payment of flne to further underao R.I. for four months under Section 325 read with Section 149 of the I.P.C. ..^^^ ..^ ^-3%^ ^i"^ 1 ^^ ^^^-^ ^ .^ 3. Cr.A.No.831/2001 has been flled by the 5tate of Chhattisgarh under Section 377 of the CrP.C. for enhancement of the sentences imposed upon the respondents, 4. Case of the prosecution, in brief, is that on 2-10-92 at about 7.30 p.m. at Village Souri, Police Station Khamaria, Distt. Durg, injured witnesses Sitaram (compSainant), Thanwar, Radhey, Ha9aru & Bhelu were goina towards thelr viiiaae. The accused/aDpellants inciudin9 appeliant No.4 Dau Singh, (since deceased) came in Matador alona wsth other co-accused persons who were in all 12 in number. Accused/appeliant No.5 Dau Sinah (slnce deceased) stQtioned his Matador, olt the accused came down from the Matador, they were armed wil'h c!ub and they assaulted injured witnesses Sitaram (PW-i) - complainant, Thanwar Singh @ Kally Singh (PW-2), Radhey (PW-3) & Hagaru (PW-4). Appeltant No.5 Dau Singh was having 9un< Sitaram (PW-1) lodaed the FJ.R- vide ExP-1 on the same day< Injured persons Kailu @ Thanwar, Radhey, Haaaru & Bhelu were sent for medical examination and they were exomined by Dr. R.P. 5harma (PW-8), Vide ExP-5 he noticed 24 snjuries over the body of Kailu © Thaneshwar resulted into fracture of left scapubr bone, fibuta bone of rsght leg, teft tibia bone and the injyred was admitted In the hospltai. Radhey WGS also exarnined vide ExP~6 and three inj.urles were found over his body, Ha9aru was examined yide ExP-8 and one Injyry was found over his scapuiar reaion. So-me accused person.s inclyding Dau Slnah were olso examined by the doctor. Gne shlrt was recovered from Thanwar Singh @ Kallu Sinah vide Ex?-2. Matador was recovered from Day Ssngh vide ExP-1. 12 bore gun along with cartridges and iscense were seized yide ExP-4< Club was seized from Santu vide Exs.P-7 and GJSO from other accused persons vide Exs.P-8 to P-ll. Bed head ticket ExP-13 of Kallu was selzed vide ExP-12. 5. Stotements were r&corded under Section 161 of the Cr.P.C. oind after completing the investiaation, chorae sheet was filed before the Court of Additlona! Chief Judlcio! Magistrate, Bemetara, who in turn committed the case to the Court of Sessions Judgs, Durg, from where leorned 2 •^^ ^r ^ S! ! i ^^i3^\ . I I "%?!SS||, .J v^y .-.-<• Additlona! Sesslons Jud^e (F<T.C.), Bemetara, received the case on transfer for trial. 6, In order to establish the auilt of the accused persons, the prosecution has exomined as many as 13 witnesses. Statements of the accused persons were recorded under Section 313 of the CrP.C. in which they denied the circumstances appearlrsg against them, pieaded 'innocence and false smplicatlon» The accysed persons have adduced the evidence of defence witnesses Dauram (DW-1) & Bharat (DW-2), who have stated that at the time of incident, the complainant party (Kallu) was hidden along with other persons in the fiejd of paddy and when the accused party was crossin9 near the field, the compiaincxnt party assaulted the accu^^d persons and caused injuries, The accused persons haye not assaulted or caused any \ injury to the compblnant party. The accused persons have also lodaed FJ.R. aaalnst the complainant party and they were also examined by the doctor vide Exs,D-5 to D-7, On th.e report of the accused party, the complainant party was tried for offence punishable under Sections 147, 148. 307 & 325 r@ad with Section 149 of ths I.P.C. but finaliy they have bean acquitted of the sald charges. 7. After affordin9 opportynity of hearlna to 'ri^e pGrt-ies, leamed trial Court has convicted and sentenced the appeJlants sn the aforesaid manner. 8. The 5tate of ChhattiS9Grh has also preferr&d Cr.A.No.831/2001 for enhancement of the sentences imposed on the accused/appelbnts under Section 377 of the CrP.C. m whsch the judgment ss chaJlenged on the Qround of inadsquacy of sentences. In the said appeal preferred by the State it has been aJJeged that a Jenient yiew has been taken by the Court below without there being any mitigating clrcumstances and, therefore, maximum .punlshment be awarded to the accused persons. 9. Durin9 the psndency of the opp®Gl,Dau 5in9h, accused/appeifant No.5, has expired and as a result of the death of Dau Singh the appeal as st reiates to appellant No.5 Dau Ssngh abates. 10.1 have heard learned counsel for the parties and perused the impu9ned judgment as also the record of the trial Court. 1L In this case, it is not dlsputed that counter case SXNo.76/97 was tried and decided aaainst the complainants in which they were acquitted of the char9es under Sections 147, 148, 307 &. 325 recd with 5ection 149 of the IP.C, The accused party also receiyed iniuries during the incident and same have nsot been explasrsed by the prosecution, althouah the injuries received by the accused party are not Qrieyous or substontial, 12, Conviction of the accused/appeJjartts rests on the ocular and rpedical evidence. In order to connect the accused/appelbnts with the crime in question, the prosecutaon has examined the compialnant/injured witnesses namely, Sltaram. (PW-1) - complainant, Thanwar Sinah @ KalJu Sinah (PW- 2), Radhey (PW-3) & Hagaru (PW-4). 13. SitarGm (PW-l), who hos Sod9ed the report, has stated in his evidence that when h®was comin9 from his villag®with Kaliu and reached near Khati canal, accused/QppelJant Dcu Slngh (since deceased) came in AAatador, he stationed his MatGdor, the accused persons got down from the Matador, fhey were holdina clubs in their hands, they saw the accused persons in fhe iight of the Matador, they trled to hsde themselves in 1tse paddy field, but the accused persons come to 1fiat field. Dau Ssngh (since deceGsed) assauited Hagru with stick/cSub, 1+iereafter, the accused persons started assaulting Thonwar and caused muitiple injuries. This witness has further stated that when he was trying to escape from the piace bf incident, the accused persons assaulted over his Seg, and he fell down, At'thct time, Dau Singh was standina with gun. Thanwar became unconscious. The accused persons olso assaulted this witness (PW-1) and uStimately. he went to the Police Station and lodaed the F.I.R. vsde Ex.P-1. The Police took him to Khamanya hospital. 14. Thanwar Singh @ Kailu Sinoh (PW-2), main injured witness, has stated in his evidence that white they were coming to 1+ieir village, the accused persons who w@re 20 in nuwber', have assaulted him & other compiainant ^l bl—^ pGrty, at that time they were assaulted with club- Viilagers of Viltage Khati took him to Police Statlon Khamariya and thereQfter, she was shifted to Durg hospitaJ, where he was admitted for 15 days. He has further stated that shirt was seized from h.im vide ExP-2. 15»Radhey (PW-3), who ss also injured witness, has supported the verslon of Thanwar Sinah @ Kailu Sinah (PW-2) and stated in his evidence thot the accused persos^s assaulted him & Kal!u. He has also stated that accused 5antu assaulted him with c!ub, th.ereafter1, he ran away\ 16. Hagaru (PW-4) has stated m his evidence that accused/QppeliGnt Dau 5ingh (since deceased), Dilip, Ashwini, Jogl, along with four other persons came, Dau 5in9h assauited hlm, thereafter, alS the occused persons Qssaulted KaiSu, Radhey & Sltaram, whereupon they lodged the report. He has also stated that they were assaulted on the ground of engaging one Raut (servant). 17. AIJ the Injured witnesses were examined by Dr. R.P. Sharma (PW-8), who has stated In h is evldence fhat on examlnatson of Kallu vide Ex?-5, he noticed 24 Injuries on his person and Kaliu was admitted in Duro hospital, He has also excmined Radhey vide ExP-6 and Haaaru vide Ex.P-7. 18. Sltaram (PW-1) has adrriltted in hls cross-exanfiinatjon that there was a counter case against him and his party persons. He has been cross- examlned at length. He has contradicted with his previous statement Ex<D-l recorded under Sectlon 161 of the Cr,P<.C. 19. Thanwar 5inah © KaSlu Slnah (PW-2) has aSso admitted the fact of counter case and he has speciflcalSy odmitted that he has identified the assaiicxnts, He has admitted in para 7 thot they were tried for offence punishable under Sections 147, 148, 307 & 325 read with Section 149 of the I.P.C. Radhey (PW-3) & Hagaru (PW-4) have also admitted the same thing substantially, 20,It appears from the evidence of these four witnesses that both the parties have assaulted each other and caused injuries to opposite parties >^^ •'^^"""•'"^ ^^-^^ and they have been tried for the offence of causing injuries, ultimately, the complainant party was acquitted of aii the charges and the trial Court has convicted & sentenced the accused/appelbnts as aforementioned. Presence of the accused/appellants at the time of incident has not been dssputed substantia!iy« 21. While appreciQting the eyidence, learned trial Court has arrived at a findjna that both the parties have assauited each other, but the appellants were aggressors and they hove assaulted the complainant party on which the compbinant party assaulted the appeiiants/accused persons in exerclse of their right of private defence. 22.0n perusai of the evidence, it is evident that when the compiainant party were aoing towards their vllSaQe on foot, the accused persons/Qippellants came to the piace of incident holding ciubs in their hands by Matador and appellant Dau Sin9h (since deceased) was havina 12 bore gun. This shows that the appeilants reached th@ pbce of incident with preparation to cause injurles to the complainant party and they caused injuries to the compJGinant party. Both the parties were in inimical terms and they assaulted each other on a petty matter of appointment/engaQement of one Raut (seryant) for domestic work. Complainant party has exercised their right of private defence oind while exercising their right they have caused simple injuries to the accused persons. 23.After minute and meticulous scrutiny, learned trial Court hos convicted & sentenced the appellonts in the aforesaid manner. Their conviction is based on the evidence avallable on record. The appelbnts have caused 24 injuries to KaSSu, thereby they caused fracture of tibia, fibula <& scapula bones.. 24,.After takino into consideration the entire circumstances in whlch the inciclent took place, learned trial Court has convicted & sentenced the aDDeliants. This is not a case in which more 1tian one accused has assauited one person and injured Kaliu or any other person of the comploinant party was alone at tiie time of incident. The compiainant party were also more '.—^ x than one in number and they were in a position to assault or answer the accused/appeiJants who were armed with club and even gun, which shows fhe gravity of the act frQm both the sides. In this case, injured Kailu recelved 24 injuries out of which three were grievous in nature, but the prosecution witnesses have not specificaiiy stated as to who were the persons who have actuaily caused ail these injuries to Kallu, by which weapon and on which part 1+ie sajd injuries were caused. Out of 24 injuries, injury Nos.3,4, 5, 6,7^ 10 were smail in size. The trial Court has convicted the appellants with the aid of Sectlon 149 of the1P£. 25. After corssidering the entire facts, iearned trial Court has sentenced the appeilants, Taking into consideration the mcnner in which both the pQrties were found In the place of incident with c!ub, the injuries sustained by both the parties and presence of number of persons on the spot from both the sides, the sentences imposed upon the appellants are neither excessive nor unjust, there cannot be a strGitjacket formula forimposing sentence, 26.Tlie prosecution/appelbnt in Cr.A.No,831/2001 has not been able to show any substantial ground for enhancement of sentences imposed upon the occused persons, Consequently, the sentences Imposed upon the appellants are neither excess-ive nor unjust and no Interference is caJled for. 27.In the result, Cr.A.No.616/2001 flled on behalf of the accused/appeilGnts and Cr,,.A.No.831/200l filed on behalf of 1+»e State of Chhattisaarh for enhanceinent of sentences, are Jiable to be dlsmissed and they are hereby dismissed, SomQ Sd/- T.P. Sharma Judge \