1 2025:CGHC:9973 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 49 of 2016 1 - Dhansingh And Ors. S/o Dayaram Rathiya Aged About 47 Years R/o Village Kurra, Police Station Lailunga, District Raigarh, Chhattisgarh., Chhattisgarh 2 - Sahdev S/o Dayaram Rathiya Aged About 45 Years R/o Village Kurra, Police Station Lailunga, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh 3 - Suberam Rathiya S/o Dayaram Rathiya Aged About 37 Years R/o Village Kurra, Police Station Lailunga, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh 4 - Gandarai S/o Dokraram Rathiya Aged About 65 Years R/o Village Kurra, Police Station Lailunga, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh 5 - Sewal Rathiya S/o Gandarai Aged About 40 Years R/o Village Kurra, Police Station Lailunga, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ... Petitioner(s) versus 1 - State of Chhattisgarh Through District Magistrate, Raigarh, District Raigarh, Chhattisgarh., Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Manish Kumar Sahu, on behalf of Smt. Indira Tripathi, Advocate. For Respondent(s) : Mr. Atanu Ghosh, Dy. Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 27/02/2025 1. The present appeal has been filed by the appellants against the judgment of conviction and sentence dated 11.01.2016 passed by Learned Second ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.09.01 18:56:20 +0530 2 Additional Sessions Judge, Raigarh, Dist- Raigarh in Sessions Case No. 191/2014, whereby the appellants have been convicted and sentenced in the following manner: Offence Sentence U/s 147 of IPC R.I. for 06 months and fine of Rs. 500/- in default of payment of fine amount three months R.I. U/s 148 of IPC R. I. For one year and fine of Rs. 1000/- in default of payment of fine amount six months R. I. U/s 452/149 of IPC R. I. For one year and fine of Rs. 1000/- in default of payment of fine amount one month R. I. U/s 342/149 of IPC R. I. Three months. U/s 307/149 of IPC R. I. For five years and fine of Rs. 2000/- in default of payment of fine amount one year R. I. (Fine amount has already been paid of the appellants) All the sentences will be run concurrently. 2. Brief facts of the case are that on 24.04.2014 at about 08:30 p.m. the appellants formed unlawful assembly in order to commit marpeet with the victim Mohitram PW-9 and in furtherance thereof, committed rioting and after trespassing the house of the victim, attempt to commit his murder and assaulted him by lathi, danda and axe. The FIR Ex.P/12 was lodged by Smt. Ramkuwar, PW-8, who is the wife of the victim, on which the offence under Section 307/34 of IPC was registered against the appellants. The victim Mohitram was sent for his treatment to Community Health Centre, Lailunga, where PW-7 Dr. Rajkumar Gupta medically examined him and gave his report Ex. P/9. While medically examined the victim the doctor has noticed lacerated wound on frontal aspect of right side of head, margin irregular and bone deep, which was caused by hard and blunt object. The doctor has 3 referred him to higher Centre for CT of scalp and opined that opinion can be given after x-ray of skull and CT scan of scalp. In the query report Ex.P/10, the doctor has opined that since the patient is admitted in Community Health Centre, Lailunga and advised for x-ray of skull and CT scan of scalp regarding his injuries, no exact definite opinion can be given for 72 hours. The patient should kept in observation, but if not treated, patient condition can be serious. In the NCCT of head, linear slite depressed fracture of frontal bone of right side was found and the report is Ex.P/15. Another query was raised by the Investigating Officer from the radiologist, K.G. Hospital, Raigarh vide document Ex.P/16 and in reply to that, the doctor has opined that normal study of brain soft tissue swelling in frontal region and minor fracture in frontal region it can be ruled out. In special investigation and advised for MRI to rule out the fracture. 3. The spot map Ex.P/1 was prepared by the police. The accused persons have been arrested on 31.05.2014, 04.06.2014 and 22.08.2014 respectively. From the possession of the appellant Shahdev Rathiya one lathi has been seized vide seizure memo Ex.P/2, from the appellant Dhansingh one lathi has been seized vide seizure memo Ex.P/3, from appellant Suberam Rathiya one lathi has been seized vide seizure memo Ex.P/6, from appellant Sewal Rathiya one axe has been seized vide seizure memo Ex.P/14. 4. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed in the Court of Learned Chief Judicial Magistrate, Gharghoda, District Raigarh for the offence under Section 307, 452, 342, 147 and 148 of IPC. 5. The case was committed to the Court of learned Sessions Judge, Raigarh from where the same has been transferred to the learned trial Court for its trial. 4 6. Learned trial Court has framed charge against the appellants and for the offence under Section 147, 148, 152/149, 342/149, 307/149 of IPC vide order dated 28.10.2014. The appellants denied the charge and claimed trial. 7. The prosecution has examined as many as 13 witnesses in support of the prosecution case. Statement of the appellants under Section 313 of Cr.P.C. have been recorded in which the appellants denied the circumstance that appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. One defence witness Maangmati DW- 1 has been examined by the accused persons. Vide order dated 06.01.2016 the learned trial Court has amended the contents of the charge and opportunity to re-examine or re-cross-examine of the witnesses have been provided to the parties but they disclosed that they did not want to re- examine or re-cross-examine the witnesses. 8. After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has convicted and sentenced them as mentioned in the earlier part of the judgment. Hence, this appeal. 9. Learned counsel for the appellant would submit that the prosecution has failed to prove it case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis for their conviction. He would further submits that the complainant party were aggressor and there was a counter case registered against the complainant party, in that altercation the victim Mohitram PW-9 had received injuries. There are material discrepancies with respect to the assault made by appellant Sewal Rathiya to the victim Mohitram and their evidence are not corroborative. Though the injuries have been found on the head of the victim Mohitram but it cannot be established by the prosecution as to who cause the injuries. All the persons of accused party and complainant party were having lathis and no injury from axe have been caused to the victim. He would also submits that the victim PW-9 himself 5 admitted about free fight between the appellant party and complainant party and the prosecution has failed to prove the case against the appellants beyond reasonable doubt. In the facts and circumstance of the case as well as evidenced led by the prosecution. The appellants are entitled at least for benefit of doubt and for acquittal. 10. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable. The victim Mohitram PW-9 has duly supported the prosecution case that the accused persons were the aggressor and appellants Sewal Rathiya caused injury on his head by axe and other accused persons have assaulted him by lathi. The evidence of PW-9 was supported by the evidence of PW-8 who is the wife of the victim and also by other eye-witnesses. The medical report of the victim Mohitram PW-9 have duly corroborated with the allegation of assault and the evidence of doctor who treated him, and thus, there is no merit in the appeal filed by the appellants and the same is liable to be dismissed. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. From the FIR Ex.P/12, lodged by PW-8 Smt. Ramkuwar, who is the wife of the victim and eye-witness to the incident, have named the appellants in the FIR as assailants. She disclosed in the FIR that on account of old dispute, all the accused persons came together in the house of Gendiram Rathiya and assaulted her husband by lathi, danda and axe by which her husband received injuries on his head, she along with her family members took the victim to the hospital. In her deposition she stated that on the date of incident at about 08:00 p.m. all the accused persons came to her house and they started altercation with her husband. By the assault made by the accused 6 persons her husband received injuries on his head and she lodged the report to the police. Leading question was being asked from her and then she stated that she lodged the report Ex.P/12 to the police. 13. In cross-examination she stated that Gendiram called her husband to his house. She admitted that Gendiram has collected wood in his house. She further admitted that the accused persons have not called her husband. She also admitted that at the time of incident she was in her house. She further admitted that when her husband could not return, she sent her son Shrawan to search him. She further stated that while giving police statement, she disclosed that she also had seen the assault and if it is not there in her police statement Ex.P/13, she could not tell the reason. She further admitted the a criminal case is pending against her husband Mohitram at Gharghoda Court. She shown her ignorance that by the assault made by her husband by tumbler to Mangmati, she received injury on her head. She further admitted that a report has been lodged by Prem Ranjan Rathiya against her husband, with respect to causing injury to Maangmati. She denied the suggestion that after lodging of the report by Prem Ranjan Rathiya they lodged a false report against the appellants. 14. From perusal of the FIR as well as evidence of this witnesses, it appears that though she claimed that she is the eye-witness to the incident, but she did not disclosed that the appellant Sewal Rathiya had caused injury on the head of her husband by axe or lathi, and omnibus allegation of assault made by accused persons have been levelled by this witness. From the admission made by this witnesses that a report has been lodbed by Prem Ranjan Rathiya against her husband with respect to the assault made by him to Mangmati would be relevant consideration in the present case to determine as to who were the aggressor and who caused injury to the victim Mohitram. 15. PW-9, Mohitram is the victim who stated in his evidence that on the date of incident they had gone to enjoy the drama in the village. Even after some 7 time, when drama was not started, they started to return back to their houses. On the half of the way, Gendilal requested them to take dinner in his house and thereafter they had gone to the house of Gendilal. After taking dinner in the house of Gendilal, the accused persons started quarrel with them and when Gendilal asked them that he took Mohitram to his house and why they are quarreling, at that time the appellant Sewal Rathiya gave a lathi blow to Shiv Prasad by which he fell down, and Sewal Rathiya made an axe blow on his head, and the other accused persons have assaulted him by hand and fist and thereafter they fled away. He was being taken to hospital by his family members. In cross-examination he admitted that when he had gone to the house of Gendilal, the other villagers were also present in the house of Gendilal, he too have admitted that the accused persons have not called him from his house. He admitted that at the time of assembly election he is in support of a particular party and one Hriday Ram Rathiya was ex- MLA from a particular party. He too have admitted that he is facing criminal trial at Gharghoda Court, but he did not know what are the allegations against him. He also admitted that against him and other 15 accused persons criminal case under Section 307 of IPC is pending for committing marpeet with one Mahesh. He further admitted that the persons to whom Gendilal called to his house for dinner, he provided them liquor also for drinking and there was some nuisance created by the persons. Maangmati tried to stop the miscreants from creating nuisance there. Though she denied that when Maangmati received injuries by tumbler, they fled away from the place. He voluntarily stated that he too have received injuries and was lying there. From the evidence of this witness, it is clear that there were two parties in the house of Gendilal who took dinner and consumed liquor, altercation took place there, and Mangmati and Mohitram received injuries from respective sides. 8 16. PW-1, Gendilal, in whose house the incident taken place have stated in his evidence that on the date of incident he called 7 – 8 labourers to his house and he gave them dinner and when the dinner fall short, he against started cooking dinner for them. At that time appellant Sewal Rathiya came to his house and he assaulted Shivprasad by danda he could not see as to who assaulted Mohitram PW-9. This witness has declared hostile and then he stated that Mohitram was also came to his house for labourer work and he received injury on his head. In cross-examination he stated that after bringing wooden log from jungle, he gave the labourers dinner and liquor also. Mohitram was also there with them and he too have consumed liquor and intoxicated. Mohitram assaulted his sister-in-law Maangmati by tumbler by which she received injuries and the other labourers fled away. With respect to assault made by Mohitram to Maangmati, a criminal case is pending before the Gharghoda Court and Mohitram and Shiv Prasad are the accused persons in that criminal case. He also admitted that it was the time of assembly election and he provided chicken and liquor to the persons, and due to their influence of liquor, they were creating nuisance there. There were persons of rival political parties. He also admitted that Mohitram was also an accused for offence under Section 307 of IPC for causing injury to Mahesh. 17. From the evidence of this witness also it transpires that there were two groups of persons who were taking dinner and consuming liquor in the house of Gendilal, PW-1, and some altercation took place in which the victim. Mohitram assaulted Maangmati by tumbler and she received injuries. The criminal case was also pending for the same in which Mohitram (victim) is an accused. 18. PW-4 Shrawan Kumar, is the sone of the victim Mohitram but he reached on the spot when his mother is called him. 9 19. PW-5 Nand Kumar who was also eye-witness have turned hostile and not supported the prosecution case. 20. PW-6, Malik Ram is another eye-witness who stated in his evidence that on the date of incident he heard the noise of quarrel and when he reached on the place he saw that the appellant Sewal Rathiya, the victim Mohitram by axe and other accused persons assaulted him by lathi and hand and fist when the accused persons chased him he fled away from the place. This witness have also declared hostile on the point of memorandum and seizure. 21. In cross-examination he admitted that he too had gone to jungle to brought to wooden log for Gendiram. After coming from jungle, they took dinner and consumed liquor. Due to the influence of liquor, they were hurling abuses and creating nuisance there. He too have admitted that when Maangmati received injuries on his head, the other persons are running here and there. He also admitted that Maangmati was rescued and then report have been lodged against the Mohitram, Shiv Prasad and Gendilal. He also admitted that after lodging of the report against the Mohitram, they lodging report against the present appellants. He also admitted that he belongs to particular political party and the accused persons are belonging to rival political party. Member of the both parties were contesting the elections. He further stated that he saw the injury on the Mohitram and since the assailants have chased him he fled away from the place. From the evidence of this witness also it transpires that there was two groups and they consumed liquor in the house of Gendilal and created nuisance to which Maangmati objected and tried to pacify them, but Mohitram assaulted her by tumbler, and then the persons present there started running here and there. 22. From the evidence of these witnesses there is no clinching and corroborative evidence comes against the appellants that they are aggressor and caused injury to the victim Mohitram PW-9 in furtherance of their common object. They were present in the house of Gendiram, taking dinner and consuming 10 liquor, it was day of assembly elections and during the dinner and consuming liquor, some altercation took place. When Maangmati tried to stop them from creating nuisance, the victim Mohitram assaulted Maangmati by tumbler by which she received injuries and thereafter quarrel took place between the two parties. In such circumstance, it cannot be said that the appellants were pre-meditated or shared the common object to commit marpeet with Mohitram or wrongfully restrained him. 23. Though from the evidence of PW-7 Dr. Rajkumar Gupta injury was found on the head of the victim Mohitram and linear depressed fracture was also found but there is no report of the doctor about the nature of injuries that it was grievous or death might be possible from the injuries. From the evidence of PW-9 Mohitram who is the victim, and PW-6 Malikram, the allegation of assault upon the victim Mohitram is reflected that it was caused by the appellant Sewal Rathiya. 24. From the appellant Sewal Rathiya the axe has been seized vide seizure memo Ex.P/14. In the query report Ex.P/11 the injury found on the head of the victim Mohitram could have been caused by the said axe reported by the doctor. Under the facts and circumstance of the evidence of the case, the appellant Sewal Rathiya can only be hold liable to cause injury to the victim Mohitram individually. The other appellants cannot be said to be shared common object with the other co-accused Sewal Rathiya. 25. Further the quarrel between the two groups have been proved by DW-1 Maangmati who was the injured on the assault made by Mohitram and from her evidence also it appears that it was the free fight between the two rival parties at the time of assembly elections. 26. From the above aforesaid evidence, there is no sufficient and clinching evidence against the appellant No. 1 Dhansingh, No. 2 Sahdev, No.3 Suberam and No. 4 Gandarai that they shared common object, trespassed and tried to commit murder of the victim Mohitram. The evidence led by the 11 prosecution are not sufficient to hold their conviction for the alleged offence. Accordingly these four appellants Dhansingh, Sahdev, Suberam and Gandarai are acquitted from all the offences by giving them benefit of doubt. 27. Since there was no unlawful assembly and no trespassing of the house of Gendilal or Mohitram and there is no wrongly restrainment, appellant No. 5 Sewal Rathiya is acquitted from the offence of Section 147, 148, 452/149, 342/149 of IPC. However, for causing injury to victim Mohitram, and looking to the nature of injury, his conviction can be altered from the offence of Section 307 IPC to Section 324 of IPC and thereby his conviction for the offence under Section 307/149 of IPC is set-aside and instead thereof, he is being convicted for the offence under Section 324 of IPC. The appellant No. 5 Sewal Rathiya is reported to be undergone the sentence from 22.08.2014 to 23.08.2014 (one day) during trial and from 11.01.2016 (date of judgment) till 26.02.2016 (one month and 15 days) no minimum sentence provided for the offence of Section 324 of IPC. The offence is of the year 2014 of the appellant presently appears to be aged about 50 years. He faced criminal lis for about 10 years and having numerous responsibilities of his family. Therefore, looking to the peculiar facts and circumstances of the present case, he is sentenced for the offence of Section 324 of IPC for the period already undergone by him, with fine of Rs. 2,000/-, in default of payment of fine, further R.I. for 01 month. The fine amount earlier paid by the appellant No. 5 Sewal Rathiya, if any, shall be adjusted to the fine amount awarded by this Court. 28. With the aforesaid modification/alteration, the appeal of the appellant No. 1 to 4 are allowed and they are acquitted of the alleged offences. The appeal of the appellant No. 5 is partly allowed to the extent indicated above. The appellants are reported to be on bail. Their bail bond shall continue for the further period of 06 months as provided under Section 481 of BNSS, 2023. 12 29. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Alok