Birbal B.Chouhan & Anr. Etc vs State Of Chhattisgarh Etc

Birbal B. Chouhan & Anr. etc.etc. ...Appellants

Versus

State of Chhattisgarh etc. etc. ...Respondents

J U D G M E N T

T.S. THAKUR, J.

1. The appellants in these appeals were tried by the Second

Additional Session Judge, Raipur for offences punishable under

Sections 399 and 402 of the Indian Penal Code, 1860 in

Sessions Trial No.103/92, convicted and sentenced to undergo

rigorous imprisonment for a period of five years on both

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counts. Criminal Appeals No.603/1993, 634/1993, 881/1993,

1172/1993, 1173/1993 and 1174/1993 filed by the appellants

having been dismissed by the High Court of Chhattisgarh,

Bilaspur by its order dated 9th July, 2010, the present appeals

have been filed to assail the correctness of the said judgment

and order.

2. Briefly stated, the prosecution case against the appellants

was that on 10th February, 1992, (PW1) Lokesh Agarwal was

travelling from Pusaur to Raigarh on a motorbike with his friend

Rashid late in the evening when he saw eight to ten persons at

Kota Tarai near airport holding sticks in their hands. They tried

to stop and then chase the duo who fled from the spot and

went straight to Raigarh Police to report about the incident.

Sub-Inspector A.K. Khan (PW5) recorded the report and

informed Stations Incharge at Kotwali Raigarh and Pusaur with

a request to them to reach the spot. The police constituted four

smaller groups to approach the place where the appellants

were said to be sitting under a tree with lethal weapons in their

hands. The appellants were surrounded and asked to surrender

whereupon they tried to escape from the spot but the police

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party apprehended the appellants along with the arms they

were carrying besides eatables and liquor. Some of those

assembled on the spot, made their escape good under the

cover of darkness.

3. On completion of investigation into the case a charge

sheet was filed against eleven persons for offences punishable

under Sections 399 and 402 IPC. The jurisdictional Magistrate

soon thereafter committed the appellants to stand trial before

the Sessions Judge, Raigarh, who made over the case to the

Second Additional Sessions Judge, Raigarh.

4. Before the trial Court, the prosecution examined nine

witnesses while five witnesses were examined in defence. The

prosecution also relied upon the seizure of weapons like a

Sword, Daggers, a betel axe and sticks from the appellants

including a torch, bottle of liquor, some eatables and a candle.

The trial Court eventually found the appellants guilty of the

offences with which they were charged and sentenced them to

undergo imprisonment for five years on each count as already

mentioned above. Four of the accused persons namely,

Jageshwar, Shani Rawat, Palu Ram and Hiravan @ Ahiravan

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were, however, given the benefit of doubt and acquitted by the

trial Court. The trial Court held that the accused persons had

gathered at a desolate place, at the dead of night tried to stop

Lokesh Agarwal (PW1) and being armed with lethal weapons

were preparing to commit offences which act was punishable

under Sections 399 and 402 of the IPC.

5. The High Court in appeal reappraised the evidence

adduced by the prosecution and defence and affirmed the

findings recorded by the trial Court holding that the appellants

before the High Court who were residents of different villages

had gathered with lethal arms at an unearthly hour in a

desolate place under a tree with no explanation for their

conduct whatsoever much less an acceptable one. The High

Court was of the view that the evidence adduced by the

prosecution was cogent and acceptable leaving no room for

interference with the order of conviction and sentence recorded

by the Trial Court. The present appeals assail the correctness

of the above judgment of the High Court as noticed earlier.

6. Along with the Special Leave Petitions the appellants

made a prayer for exemption from surrender by them which

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was declined by the Judge-in-Chamber by order dated 8th

November, 2011. Eight of the convicts then surrendered while

Paharia @ Goverdhan and Goverdhan Khasia, petitioners in SLP

No.21927 and 21929 did not. Special Leave Petitions filed by

the said two convicts were, therefore, dismissed by an order of

this Court dated 10th February, 2011.

7. We have heard learned counsel for the parties for the

remaining eight appellants and perused the orders under

challenge. Learned counsel for the appellants has not been

able to point out any error of fact or law in the order passed by

the Courts below. Even otherwise the orders under challenge

do not suffer from any legal infirmity nor do they suffer from

any perversity in the appreciation of evidence adduced by the

parties. In that view, therefore, we have no hesitation in

holding that the Courts below were justified in recording an

order of conviction against the appellants. We, however, feel

that in the facts and circumstance of the case the sentence

imposed upon the appellants is somewhat harsh and needs to

be suitably reduced. We accordingly modify the sentence

recorded by the trial Court as affirmed by the High Court to the

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extent that instead of five years the appellants shall stand

sentenced to undergo rigorous imprisonment for a period of

three years only on both counts. Sentences awarded shall run

concurrently.

8. Appeals are disposed of with the above modification.

......................................J.

(DR. B.S. CHAUHAN)

......................................J.

New Delhi (T.S. THAKUR)

November 14, 2011

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