BIRBAL B.CHOUHAN & ANR. ETC. Vs STATE OF CHHATTISGARH ETC.
Bench: B.S. CHAUHAN,T.S. THAKUR
Case number: Crl.A. No.-002025-002028 / 2011
Diary number: 32950 / 2010
Advocates: GARVESH KABRA Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2025-2028 OF 2011
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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