1 2025:CGHC:2221 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 661 of 2005 1 - Deepak Kosariya, aged about 22 years, S/o Late Shri Lileshwar Prasad Kosariya, R/o Lakhagarh, Police Station Pithoura, presently residing at Near House of Anand Kukreja, Gurudwara Road, Shyamnagar, Police Station Telibandha, Raipur (C.G.) Appellant versus 1 - State Of Chhattisgarh Respondent For Appellant : Mr. Shashi Bhushan, Advocate For Respondent(s) : Ms. Nand Kumari Kashyap, PL Hon’ble Smt. Justice Rajani Dubey Order on Board 14/01/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 01.08.2005 passed by the learned Session Judge, Raipur in Session Trial No.78/2005, whereby the appellant has been convicted under Section 333 of IPC and sentenced to undergo RI for 2 years with default stipulations. Digitally signed by RAMAKANT NIRALA 2 2. The prosecution case, in brief, is that on 19.01.2005, , when the complainant Jaikishore and Constable Vishwanath were on duty at Police Station Civil Lines, then they received in information on telephone that a quarrel is taking place at Bear Bar, Katora Talab, thereafter both went at the spot, where the appellant was abusing the, upon which the Jaikishore tried to stop him, but he thrown him, as a result of which Jaikishore sustained fracture in knee, thereafter he was treated and a case was registered against the appellant. After completion of investigation, the charge sheet was filed before the Magistrate concerned. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. Learned Trial Court committed serious illegality in not drawing adverse inference for not examining any independent witnesses. The learned Trial Court has committed an illegality in overlooking the statement of PW-1 & PW-2 and has also not considered this fact that the complainant was not on duty at the time of incident, as such the finding recorded by the learned Trial Court is not sustainable and the appellant deserves to be acquitted. Alternatively, he submits that the incident took place in the year 2005 and at that time, the appellant was young boy, aged about 22 years and this appeal is pending since 2005 and 3 now the appellant is a middle aged person and he has remained in jail for 5 days and has not misused the liberty granted by this Court, therefore, he may be sentenced to the period already undergone by him. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 294, 184, 333 & 353 of IPC against the accused and after appreciation of oral and documentary evidence available on record, the learned Trial Court acquitted the appellant under Section 294 of IPC and convicted him under Sections 186, 353 & 333 of IPC and sentenced him to grievous offence under Section 333 of IPC. 7. It is not disputed in this case that as per prosecution, Jaikishore is police constable and on the date of incident, he was posted at Police Station Civil Lines, Raipur. PW-1 Vishwanath stated that on the date of incident, Jaikishore (PW-4) went to Katora Talab near Bear Bar, where the accused abused him in filthy languages and when he stopped him, the accused thrown him. PW-4 Jai 4 Kishore stated that on the date of incident, he received information of quarrel, then he went at the place of occurrence, where the appellant was abusing him in filthy languages and when he stopped him from doing so, he thrown him, as a result of which he sustained injuries in his knee. In the cross-examination, he admitted that on the date of incident, his duty was not in Rajkumar College and also admitted that on the date of incident, he was in civil uniform. He denied this suggestion that the was in drunken condition and himself quarreled with the accused. Dr. Rohit Mishra (PW-3) stated that he examined Jaikishore on 19.01.2005 and advised for x-ray (Ex-P/3). Dr. Chandrika Sahu (PW-8) stated that on 20.01.2005, x-ray was taken of Jaikishore and found fracture in left knee and gave his report (Ex-P/5), whereas x-ray report is Ex-P/5-A. Thus it is clear from the statement of complainant Jaikishore and both the doctors that on the date of incident, Jaikishore sustained grievous injuries, but prosecution did not file any duty certificate of Jaikishore and he also admitted this suggestion that at the time of incident, he was in civil dress and he was not on duty on that day. 8. Sections 186, 353 & 333 of IPC reads as under:- “186. Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 353 Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that 5 such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.” 333. Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 9. The other witness Vishwanath also admitted this suggestion that at the time of incident, Jaikishore was not in police uniform so the prosecution has failed to prove this fact that at the time of incident, the complainant was on duty and at the time of discharging his duty, the appellant obstructed him and assaulted him. It is also not proved that the appellant voluntarily caused grievous hurt to deter the public servant from his duty, but the prosecution has proved this fact beyond reasonable doubt that on the date of incident, some scuffle took place and Jaikishore sustained grievous injuries, as such the conviction of the appellant is altered from Section 333 of IPC into Section 325 of IPC. 10. As regards sentence, it is clear that the incident took place in the year 2005, the appeal is pending since 2005, the appellant was aged about 22 years of age at the time of incident and presently he is aged about 42 years, he has remained in jail for 5 days and 6 has not misused the liberty granted by this Court to him, therefore, ends of justice would be served if he is sentenced to the period already undergone by him. Accordingly, the appellant is sentenced to the period already undergone by him. 11. The appeal is partly allowed. 12. The appellant is on bail. His bail bonds shall remain operative for a period of 6 weeks from today. 13. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Rajani Dubey Judge Nirala