Chattisgarh High Court
Sanjay Gupta And Anr vs State Of Chhattisgarh on 22 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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AMIT
PATEL
Digitally signed
by AMIT PATEL 2025:CGHC:3989
Date: 2025.01.22
NAFR
16:49:38 +0530
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 754 of 2005
Judgment Reserved on - 27.11.2024
Judgment Delivered on - 22.01.2025
1. Sanjay Gupta S/o Shri Rajkumar Gupta, aged about 27 years,
Occupation- Agriculturist, R/o. Ramanujganj, Police Station-
Ramanujganj, District- Surguja (C.G.)
2. Omprakash Gupta, S/o Shri Rajkumar Gupta, aged about 27 years,
Occupation- Agriculturist, R/o. Ramanujganj, Police Station-
Ramanujganj, District- Surguja (C.G.)
---- Appellants
Versus
State of Chhattisgarh through - Police Station- A.JA.K, Ambikapur ,
District- Surguja (C.G.)
----Respondent/State
_____________________________________________________________
For Appellants : Mr. A. N. Bhakta, Advocate.
For State/Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer.
_____________________________________________________________
Hon’ble Smt. Justice Rajani Dubey
C A V Judgement
1. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the judgment dated 10.08.2005 passed by
learned Special Sessions Judge (SC & ST Act), Ambikapur, District-
Surguja (C.G.) in Special Sessions Trial No. 07/2003, whereby the said
Court convicted the appellants and sentenced them as under:-
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Conviction Sentence
Under Section 341 of IPC Fine of Rs. 200/- each, in default, to
undergo rigorous imprisonment for
15 days each.
Under Section 294 of IPC Fine of Rs. 100/- each, in default, to
undergo rigorous imprisonment for
15 days each.
Under Section 352 of IPC Fine of Rs. 700/- each, in default, to
undergo rigorous imprisonment for
01 month each.
(All the sentences are directed to run concurrently)
Prosecution Story:-
2. Case of the prosecution is that the complainant- Brahaspati Singh
Khairwar (PW-04) had lodged the written report at Police Station-
Ramanujganj that when he was going to Village- Gamaharia,
Ramanujganj by his vehicle, at that time on the way accused persons
had overtaken the complainant’s party by Marshal Jeep, meanwhile,
when they overtook by taking a side near Village- Auradamar, they
started abusing the complainant for taking the side and stopped his
vehicle and when the complainant scolded them, accused persons
started abusing him on his caste and thereby they pulled the sleeves of
his Kurta’s from the waist side, then his gunman intervened between
them to save the complainant. Thereafter, both the accused persons
were caught hold by the gunman and the matter was reported to the
Police Station and the report was registered against the accused
persons. Initially, the offence was registered as Crime No. 0/2001 at
Police Station- Ramanujganj by S.I.- A. K. Joshi (PW-10) and thereafter
the matter was referred to the Special Police for investigation, wherein
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the case was registered as Crime No. 92/2001 and the case was
investigated by DSP- B.P. Rajbhanoo (PW-11). During the investigation,
he seized white coloured torn shirt of the complainant before the
witnesses vide Ex. P/9 and as per statement of the complainant and
other witnesses, spot map of the incident was prepared vide Ex. P/7.
Statements of the witnesses were recorded, the accused/appellants
were arrested vide Exs. P/10 & P/11. After completion of due and
necessary investigation, prosecution led the charge-sheet before the
Court of Chief Judicial Magistrate- Ambikapur, thereafter matter was
committed to the Court of learned Special Judge (SC & ST Act),
Ambikapur and the case was registered as Special Sessions Trial No.
07/2003 and the appellants were put to trial for offence punishable
under Sections 341, 294, 506, 352 of I.P.C. and Section 3 (1) (x) of SC
& ST (Prevention of Atrocities) Act, 1989 against the appellants.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 12 witnesses. Statement of the accused/
appellants were also recorded under Section 313 of Cr.P.C., in which
they denied all the incriminating charges leveled against them and
pleaded their innocence that they have been falsely implicated in this
case. The appellants also examined 02 defence witnesses to
substantiate its case.
4. Learned trial Court after hearing the counsel for the respective parties
and considered the material available on record has convicted and
sentenced the accused/appellants as mentioned in para 1 of this
judgment. Hence, this present appeal.
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Submission of the parties:-
5. Learned counsel for the appellants submits that the impugned judgment
of conviction is as against the facts, materials, evidence available on
record, which is bad-in-law and is liable to be set aside, learned Trial
Court has committed an error of law in not marshaling the cross-
examination version of prosecution witnesses, which is available on
record and also learned Trial Court has committed error of law that
there is a counter case registered against the complainant’s party under
Sections 341, 94, 147, 323, 342 & 365 of IPC. During the course of
trial, learned Special Court had directed to call for the records of the
counter case for trial together. He further submits that despite that the
impugned judgment of conviction was passed in hasty manner without
passing any judgment regarding offence against the complainant’s
party. Learned Trial Court did not appreciate the defence version and it
is clear that PW-02, PW-03, PW-07 & PW-08 have not supported the
prosecution case and the learned Trial Court relied upon only the
interested witnesses and thereby convicted the appellants for the said
offence. Thus, the impugned judgment of conviction and order of
sentence is liable to be set aside
6. Ex adverso, learned counsel for the respondent/State supporting the
impugned judgment submits that learned Trial Court was fully justified
in convicting and sentencing the appellants as mentioned in opening
paragraph. Learned Trial Court minutely appreciated the oral and
documentary evidence available on record to hold the appellants guilty
of the said offence. So, the judgment passed by the learned Trial Court
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is well merited and there is no scope for interference by this Court.
Thus, the appeal filed by the appellants be dismissed.
7. I have heard learned counsel for the parties, considered their rival
submissions, made here-in-above and perused the records minutely.
Discussion & Analysis:-
8. It is clear from record of learned Trial Court that charges under Sections
341, 294 of IPC read with Section 3 (1)(x) of SC & ST (Prevention of
Atrocities) Act, 1989 and Sections 506 & 352 of IPC were framed
against the accused/appellants and after appreciating the oral and
documentary evidence, learned Trial Court acquitted the accused/
appellants of the charges under Section 506 of IPC and Section 3 (1)(x)
of SC & ST (Prevention of Atrocities) Act, 1989, but convicted them for
offence punishable under Sections 341, 294, & 352 of IPC. It is also
clear from record of learned Trial Court that the prosecution has
examined as many as 12 witnesses to prove its case against the
accused/appellants.
9. Complainant- Brahaspati Singh (PW-04) has stated in his deposition
that on the date of incident, he was going to his village- Gamaharia
from Ramanujganj by his vehicle, at that time the accused persons
overtook his vehicle by their Marshal Jeep, at that time his vehicle
stooped and when he asked for stopping the vehicle, the accused
persons abused him on his caste, thereafter the dispute arose between
the parties, however, the complainant was with his Gunman and he
suggested to his Gunman to catch the appellants and take them to
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Police Station to lodge the report. The complainant lodged the written
report at Police Station- Ramanujganj vide Ex. P/2 and admitted his
signature on A to A part and on the basis of said written report, Police of
Police Station- Ramanujganj registered the FIR vide Ex. P/3 against the
accused persons. In his cross-examination, he stated that at the time of
incident he was President of Chhattisgarh Rajya Krishi Sahkari Bhumi
Vikas Bank, Raipur. In para 15, he stated that on the date of incident,
he was going to his Village- Gamaharia and in para 22, he admitted this
fact that he came to know that accused persons has also lodged the
report against him and his acquaintance. However, he denied the
suggestions that he took the accused persons/appellants to his house
and locked them in the room.
10. Prithvinath Singh (PW-05) stated in his deposition that on the date of
incident, he was with Brahaspati Singh (PW-04) and we were going to
village- Gamaharia by his Marshal jeep and at that time on the way of
Auradamar, the accused persons were going by their Marshal jeep in
front of them, and the dispute arose between the complainant’s party
and the accused persons with regard to not giving the side to pass their
vehicle.
11. Mohammad Mikhayil (PW-06) has supported the statement of the
complainant (PW-04) in his deposition and he stated that he did not
know that any report lodged against him and the complainant’s party
with regard to the kidnapping of the accused persons at Police Station-
Ramanujganj or other police stations, but he admitted this fact that he
arrested by the Police of Police Station- Ramanujganj, however, he did
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not know in which case he was arrested.
12. Ismile (PW-02), Devsai (PW-03), Nasrulla (PW-07), Ataullah (PW-08) &
Kalyan Singh Thakur (PW-12) have not supported the prosecution
case, however, they denied the suggestions given by the prosecution in
their cross-examination, though the prosecution declared them hostile.
13. Learned Trial Court convicted the appellants under Sections 341, 294 &
352 of IPC. It is pertinent here to mention offence under Section 352 of
IPC for ready reference hereinbelow as under:-
‘ Section 352 of IPC:-
352. Punishment for assault or criminal force
otherwise than on grave provocation.–
Whoever assaults or uses criminal force to any person otherwise
than on grave and sudden provocation given by that person, 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.”
14. It is vivid from order-sheets dated 16.06.2003, 17.06.2003 &
06.12.2004 that accused persons had informed about the counter case
and learned Trial Court had also directed to the prosecution to file the
case diary of the counter case, but after some time, learned Trial Court
overlooked this fact and passed the judgment. It is quite vivid from
cross-examinations of some witnesses that they admitted this fact that
the counter case is also pending against the complainant’s party.
15. Mastak (DW-01) & Ganesh (DW-02) have stated that on the date of the
incident, some dispute arose between both parties, and the
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complainant- Brahaspati Singh (PW-04), assaulted the accused
persons and took them to the village- Gamahariya by his vehicle. But,
learned Trial Court did not appreciate all these facts and only relied
upon the statement of complainant- Brahaspati Singh (PW-04).
16. It is well settled principle of law that in criminal cases prosecution must
prove the guilt of an accused beyond reasonable doubt, the standard of
proof so as to prove a defence on the part of an accused is
“preponderance of probabilities”
17. The Hon’ble Apex observed in the case of Basalingappa Vs.
Mudibasappa, reported in 2019 (5) SCC 418 held in para 16, which
state as under:-
“16. This Court in M.S. Narayana Menon case 5 held that what is needed
is to raise a probable defence, for which it is not necessary for the
accused to disprove the existence of consideration by way of direct
evidence and even the evidence adduced on behalf of the complainant
can be relied upon. Dealing with standard of poof, the following was
observed in para 32:(SCC p. 51)” 32. The standard of proof evidently is preponderance of
probabilities. Inference of preponderance of probabilities can be drawn
not only from the materials on record but also by reference to the
circumstances upon which he relies.”
18. In this case, it is clear that the complainant, prosecution witnesses, and
other witnesses admitted the suggestions that on the same day of the
incident, the criminal case was also registered against the
complainant’s party and also the learned Trial court did not take any
steps to conclude the trial of both the pending counter cases together
that were registered against the complainant’s party and the appellants.
19. Sub-Inspector A.K. Joshi (PW-10) has also admitted this fact in para 4
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that report was lodged by the appellants’ brother for offence punishable
under Sections 341, 294, 147 and 323 of IPC and registered as Crime
No. 193/2001 at Police Station- Ramanujganj.
20. Hence, it is clear from the statement of complainant- Brahaspati Singh
(PW-04) and other witnesses that they are not reliable, independent
witnesses have not supported the prosecution case and have turned
hostile. It is clear that prosecution has utterly failed to prove its case
beyond all reasonable doubts and the findings recorded by learned Trial
Court being perverse are not sustainable in the eye of law.
21. In view of the aforesaid discussion and considering the overall facts and
circumstances of the case, this appeal is allowed. The impugned
judgment dated 10.08.2005 is set aside, appellants are acquitted of the
charges of offence under Sections 341, 294 & 352 of IPC.
22. The Trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
JUDGE
AMIT PATEL
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