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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