Chattisgarh High CourtSita Ram (Died) And Others vs State Of Chhattisgarh on 28 November, 2022Author:Narendra Kumar VyasBench:Narendra Kumar VyasPage 1 of 7\n\n\n\n                                                                     NAFR\n         HIGH COURT OF CHHATTISGARH, BILASPUR\n                            CRA No. 628 of 2003\n   1. Sita Ram (Died)\n   2. Sukhi Ram S/o Sumer Singh R/o Anokala P/s Patna Tah. Baikunthpur\n      Distt Koriya (C.G.)\n                                                             ---- Appellant\n                                  Versus\n    State Of Chhattisgarh, Through Police Station Patna, District Koriya\n     (C.G.)\n                                                         ---- RespondentFor Appellant      : Shri Ashok Kumar Shukla, Advocate\nFor State          : Shri B.L. Sahu, Panel Lawyer\n\n\n             Hon'ble Shri Justice Narendra Kumar Vyas\n                             Order on Board\n\n\n28.11.20221. Right at the threshold, it has been brought to the notice of this\n\n      Court by the learned counsel for the appellants that the appellant\n\n      No. 1 Sita Ram died on 09.07.2008 during pendency of this\n\n      appeal.    In this regard copy of the death certificate is also\n\n      annexed which is taken on record.2. In view of the above, since appellant No.1 has died during the\n\n      pendency of this appeal, the appeal stands abated so far as\n\n      appellant No. 1 is concerned.3. By filing this criminal appeal the appellants have challenged the\n\n      judgment of conviction and order of sentence dated 13.05.2003\n\n      passed by the Additional Sessions Judge, Baikunthpur in\n\n      Sessions Case No. 355/2002 whereby and whereunder thePage 2 of 7appellants have been convicted for the offence punishableu/s\n\n   323of the Indian Penal Code (hereafter called as 'IPC') and\n\n   sentenced them to undergo RI for 6 months with fine of Rs. 500/-\n\n   in default, R.I. for one month.4. In brief, case of the prosecution is that on the fateful day on\n\n   22.03.2002 at 5 pm at village Anjokala the appellants came to\n\n   the place of incident, caused injury to the victim and appellant\n\n   No. 2 committed rape on her. After completing the investigation a\n\n   charge sheet was filed against them for the offence punishable\n\n   underSections 376,323/34of IPC. After conclusion of the trial,\n\n   Trial Court acquitted from the charges underSections 376/34IPC and convicted them as aforesaid.5. In order to prove its case the prosecution has examined the\n\n   victim (PW/1), Rameshwari (PW/2). Kamta Prasad (PW/3),\n\n   Amarjit (PW/4), Bhaiyalal (PW/5), Prakash (PW/6), Sudarshan\n\n   (PW/7), Dr. A.K. Sharma (PW/8), Tarun Jaiswal (PW/9), Dr.\n\n   Smt. Neelam Tirki who has examined the victim (PW/10), Dr.\n\n   Ashish Karan who has examined the appellants (PW/11), S.L.\n\n   Sharma, Assistant Sub Inspector (PW/12), Salim Tigga, Sub-\n\n   Inspector, Police line Baikunthpur (PW/13).        The accused\n\n   recorded their statements underSection 313Cr.P.C. wherein\n\n   they have stated that they have not committed any offence and\n\n   examined Pannalal (DW/1), Dambilsiya Bai (DW/2),6. The victim (PW/1) was examined before the trial Court who in\n\n   examination in chief has stated that when appellant No. 2 wasPage 3 of 7holding her hand, Rameshwari came to the place of incident and\n\n  made loud noise, thereafter, appellants fled away from the place\n\n  of incident and also Prakash, Sudarshan and village Sarpanch\n\n  came to the place of incident. The victim was examined by Dr.\n\n  Neelam Tirki wherein she has mentioned that there was redness\n\n  of size 2x2 cm on left shoulder, mark of injury of size 5x3 cm on\n\n  right shoulder, mark of injury of size 3x2 cm on the right side of\n\n  waist, red injury mark of size 10x3 cm on left hip. The injuries\n\n  were simple in nature. She has further stated that there was no\n\n  sign of recent sexual intercourse. Learned trial Court after\n\n  appreciating the evidence and materials on record acquitted the\n\n  appellants from the charges of offence underSection 376/34IPC\n\n  and convicted them for the offence underSection 323of the\n\n  IPC.7. From the evidence brought on record it is quite vivid that\n\n  prosecution has proved its case by adducing cogent evidence.\n\n  The prosecution has proved the guilt of the appellants underSection 323of the IPC and already examined the witnesses and\n\n  evidence of the victim,     remained unshaken, therefore, the\n\n  judgment passed by the learned trial Court convicting the\n\n  appellants underSection 323IPC does not warrant any\n\n  interference.8. Learned counsel for the appellants would submit that he is not\n\n  challenging the conviction of the appellant rather he is\n\n  challenging only the aforesaid period of sentence of RI for 6Page 4 of 7months awardedu/s 323IPC. He would further submit that\n\n       during the trial appellant No. 2 remained in jail from 13.04.2002\n\n       to 24.04.2002 for 12 days and after conviction on 13.05.2003 he\n\n       has been released on bail by this Court on 16.06.2003 as such,\n\n       he has undergone one month and three days of imprisonment\n\n       after conviction. The appellant has already deposited the fine\n\n       amount. The incident took place in the year 2002, already 20\n\n       years have lapsed. He has already suffered mental agony and\n\n       tourture by appearing before the trial Court in given dates. No\n\n       material has been placed on record that he has misused the bail\n\n       granted to him. This was his first offence. He is not involved in\n\n       any other crime. The appellant has already undergone sentence\n\n       of 45 days out of 180 days. At the time of offence the appellant\n\n       was aged about 45 years and now he is 65 years old, therefore,\n\n       a lenient view may be considered and the period of RI for 6\n\n       months may be reduced to the period already undergone by him.9. Learned counsel for the appellants in support of his submission\n\n       would draw attention of this Court towards the judgment of\n\n       Hon'ble Supreme Court in case ofSitaram Paswan and Anr\n\n       vs. State of Bihar1 and referred to paragraphs 9 and 10 which\n\n       read as under :-9. The fact as emerged in this case. It is apparent that the\n              incident occurred at the spur of the moment and is\n              traverse in nature. There is no material on record to\n              indicate that the appellants have any previous conviction.In the absence of such evidence, we treat appellants as\n              first offenders. A-1, namely, Sitaram Paswan has made the\n              assault using Danda and the fists and caused simple\n\n1   AIR 2005 SCW 3534Page 5 of 7injuries to Krishna Devi, Paltoo Paswan and Vijay Kumar,\n              PW-2, PW-5 and PW-4 respectively. He has been\n              convicted with the aid ofSection 34, underSection 324and underSection 323I.P.C. whereas the case of A-2 Raj\n              Kumar is different. He has caused injuries to Paltoo\n              Paswan and Vijay Kumar using the sword. Injury found on\n              Paltoo Paswan is sharp cuts on left side of the head and\n              on Vijay Kumar, cut injury on the left side of the head.10. Having regard to the aforesaid circumstances and taking\n              the overall view of the matter, we feel that the accused-\n              appellant Sitaram Paswan is entitled for the benefit underSection 4of the Probation of Offenders Act. Therefore,\n              while confirming his conviction, we direct that he be\n              released on probation on his entering into a bond for\n              Rs.10,000/- within the period of three weeks from today\n              before the Court of S.D.J.M. (Sadar), Sitamarhi, for\n              keeping peace and good behaviour. The appeal of the Raj\n              Kumar is dismissed and he would surrender forthwith.10. Learned counsel for the appellants in support of his submission\n\n       would further draw attention of this Court towards the judgment\n\n       of this Court in case ofBansingh and Others vs. State of\n\n       M.P.2, relevant paragraphs thereof are extracted below :-7. So far as question of awarding jail sentences are\n              concerned, it is important to keep in mind the "doctrine of\n              just desert" which is foundation of a criminal sentence\n              which is to be awarded for a punishment. What one really\n              deserves for punishment for having committed a crime is\n              the underlying principle. The punishment must not be\n              disproportionately great is a corollary of "just desert" which\n              is governed by the same principle which says that there\n              cannot be a punishment without guilt and the basic\n              element behind the principle is the proportion between\n              crime and punishment. However, the determination of the\n              quantum of punishment would always depend upon the\n              ancillary factors which further would be subject to the\n              statutory obligations specifically provided by law in force.In the present case, the incident occurred on 9.11.94 when\n              a quarrel took place between the two groups regarding\n              harvesting of the paddy crops, on which both the groups\n              were claiming their rights. A Civil Suit for declaration of title\n              was also filed and the decree was passed in favour of the\n              applicants. The applicants were on bail during the\n              pendency of the criminal case and also during the\n              pendency of the criminal appeal. Further their sentences\n\n2   2012 CGLJ 102Page 6 of 7were suspended by this Court in the year 1999 and since\n                then they are on bail. The applicants, thus, have already\n                undergone for a period of more than one month in this\n                matter. Looking to the entire facts and circumstances of\n                the case and in the background of the above factual\n                scenario of land dispute between the parties, and further\n                that the applicants were throughout on bail since the year\n                1999, I do not deem it appropriate to send them jail once\n                again. I am of the view that the period already undergone\n                by the applicants (more than one month) is sufficient for\n                the offenceu/s 323/149IPC.8. For the foregoing reasons, the revision is partly allowed.\n               The conviction and sentences awarded to the applicants\n               u/s 147IPCare confirmed. Their convictionu/s 323/149IPC is also confirmed. However, the jail sentences\n               awarded to them are reduced to the period already\n               undergone. The fine sentences awardedu/s 323/149IPC\n               are maintained.11. He would further draw attention of this Court towards the\n\n        judgment of this Court in case ofHarichandra vs State of\n\n        Madhya Pradesh3 relevant paragraph, thereof is extracted\n\n        below:-"8. THUS the act of the accused/appellant in voluntarily\n               causing tooth-bite injury on the delicate part of his body i.e.\n               "penis" with an instrument of cutting i.e. "tooth" squarely\n               falls within the provisions ofSection 324of the Indian\n               Penal Code and that being so the findings recorded by the\n               Court below convicting him under the said section are\n               strictly in accordance with law. This Court approbates the\n               same.As regards sentence part of the judgment impugned,Section 324IPC does not speak about the jail sentence as\n               mandatory. Moreover, keeping in mind the fact that the\n               accused/appellant herein has already remained in jail for\n               11 days, that the incident had taken place about 16 years\n               back and that by now he must have become a grown-up\n               man of 44 years reeling under the family responsibilities,\n               this Court deems it proper to reduce the sentence to the\n               period already undergone by him by awarding some\n               reasonable compensation in terms ofSection 357of the\n               Code of Criminal Procedure. Accordingly, as the appellant\n               has already remained in detention for 11 days, his jail\n               sentence is reduced to the period already undergone by\n               him. He however shall deposit Rs. 4000 in the Court below\n\n3   2011 CJ (Chh) 654Page 7 of 7to be paid to the victim as compensation within a period of\n                   seven months. If the said amount is not deposited in the\n                   Court below within this period, the accused/appellant shall\n                   be liable for imprisonment for two months."12. On the other hand learned State counsel would submit that the\n\n             sentence awarded by the learned trial Court is just and proper\n\n             and does not call for any interference.13. Considering the lawlaid down bythe Hon'ble Supreme Court\n\n             and also considering the facts and circumstances of the case\n\n             that the appellant has remained in jail for 45 days, considering\n\n             the offence underSection 323of the IPC, considering pendency\n\n             of the case for about 20 years, considering the present age of\n\n             the appellant who is 65 years old, I am of the opinion, the ends\n\n             of justice would be served if the sentence of six months imposed\n\n             upon the appellants by the trial Court is reduced to the period\n\n             already undergone by him.14. Accordingly, the appeal is partly allowed. The sentence of RI for\n\n             6 months awarded to the appellant is reduced to the period\n\n             already undergone by him.15. The appellant is reported to be on bail. His bail bonds stand\n\n             canceled in view of the provisions contained in Section 437-A,\n\n             Cr.P.C.Sd-(Narendra Kumar Vyas)\n                                                              Judge\nkishore