Chattisgarh High Court
Jageshwar vs State Of Chhattisgarh on 16 April, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2026:CGHC:17450
NAFR
Digitally
HIGH COURT OF CHHATTISGARH AT BILASPUR
signed by
SANTOSH
CRA No. 614 of 2005
SANTOSH KUMAR
KUMAR SHARMA
SHARMA Date:
2026.04.17
10:38:52
+0530
Judgment reserved on 20.03.2026
Judgment delivered on 16 .04.2026
1. Jageshwar S/o. Amar Sai, Aged about 28 years,
2. Bindeshwar S/o. Amar Sai, Aged about 26 years,
Both are R/o. Village Agastpur, P.S. Surajpur, District Surguja (CG)
... Appellants (s)
versus
State Of Chhattisgarh Through Station House Officer, Police Station -
Surajpur, District Surguja (CG)
... Respondent(s)
For Appellant (s) : Mr. Ajay Kumar Pandey, Advocate
For Respondent(s) : Ms.Prachi Singh, Panel Lawyer
Hon’ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. This criminal appeal under Section 374 (4) of Cr.P.C. has been filed
against the judgment dated 19.07.2005 passed by 1 st Additional
Sessions Judge, Surajpur, District Surguja in Sessions Trial No. 190 of
1999, whereby the appellants have been convicted and sentenced in
the following manner:-
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Conviction Sentence
U/s. 326/34 of the IPC RI for 3 years and fine of Rs.
500/-in default of payment of fine
to further undergo additional RI
for 2 months.
U/s. 325/34 of the IPC RI for 1 year and fine of Rs. 500/-
in default of payment of fine to
further undergo additional RI for 2
months.
U/s. 325/34 of the IPC RI for 1 year and fine of Rs. 500/-
in default of payment of fine to
further undergo additional RI for 2
months.
U/s. 323/34 of the IPC To pay fine of Rs. 500/-in default
of payment of fine to further
undergo additional RI for 2
months.
(Fine amount has already been deposited. All sentences are
directed to run concurrently).
2. Case of the prosecution in brief, is that the complainant purchased land
from the relative of Appellant No.1. On 27.01.1999 in the morning, the
victims went to the field which has been purchased by them where the
accused were doing agriculture work and when the victim prevented
them then accused Jageshwar, wife, mother Kaushaliya and brother
Bindeshwar started creating dispute and thereafter Appellant No.1
assaulted on the head of complainant with axe. Appellant
No.2/Bindeshwar also caused injury to Ramaavatar then he fell there.
When Kishmatbai intervened in the scuffle then the Appellant No.1 and
2 committed marpit with her. Moharsai and Sobhnath were also
assaulted by the appellants and thereafter they fled from there. Injured
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were sent to hospital for medical examination. On the basis of report,
FIR (Ex.P-3) under Section 307/34 IPC was registered against them
before Police Station Lakhanpur District Surajpur. Statements of the
witnesses were recorded. Spot map Ex.P-12 was prepared. Dying
declaration of the injured (Ex.P-22) was registered. Appellants were
arrested by arrest memo (Ex.P-32 to P-36).
3. After completion of the investigation, charge sheet was filed before the
Court of Chief Judicial Magistrate Surajpur, who in turn committed the
case to the Court of Additional Sessions Judge, Surajpur which was
registered as Sessions Case No. 190 of 1999.
4. The prosecution in order to prove the guilt of the appellants examined
15 witnesses Kanhaiyalal (PW-1), Ramavatar (PW-2), Mohar (PW-3),
Kishmat Bai (PW-4), Shobhnath (PW-5), Patwari Ramgopal Sahu (PW-
6), Pawansai (PW-7), Vishwanath (PW-8), Dr. I.D. Gupta (PW-9),
Medical Officer Dr. K.N. Sharma (PW-10), Ramprashad (PW-11),
Tahsildar Shivkumar Tiwari (PW-12), Dr. K.C. Jain (PW-13), Sub
Inspector H.R. Chandra (PW-15) and exhibited the documents from
Ex.P-1 to Ex.P-36. Statements of the accused/appellants were
recorded under Section 313 CRPC in which they denied the allegations
made against them and pleaded their innocence and false implication in
the case on account of old enmity. The appellants examined Feku Ram
(DW-1) and Gahbar Ram (DW-2) in their support and exhibited
documents from (Ex.D-1 to Ex.D-2).
5. After hearing the parties, learned Sessions Judge on the basis of
material on record and upon considering the statements of the
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witnesses has passed the judgment of conviction and order of sentence
against the appellants as mentioned above. Being aggrieved with the
judgment of conviction and order of sentence, the appellants preferred
this Criminal Appeal. The record of the case would demonstrate that
during trial the appellants were remained in jail from 28.01.1999 to
14.05.1999 i.e. 3 months 18 days. This Court vide order dated
01.08.2005 has released the appellants on bail.
6. Complainant Ramavatar (PW-02), in his statement has stated that the
land was purchased by him at Rs. 8000/- from father of Dakhal and the
land was being cultivated by the appellants then he told them as to why
they were cultivating the said field as he has already purchased it then
Jageshwar assaulted on his head with axe and he fell down there. He
has further stated that in the said incident his wife and son have
sustained injuries as their hand got fractured. This witness in his cross-
examination remained affirmed and has denied that he was having axe
with him or Moharsai has kept spade, Kishmat Bai and Sobhnath were
keeping lathi with them and also denied that he has assaulted
Jogeshwar. This witness has further stated that earlier a case was also
registered against them regarding same incident.
7. Moharsai (PW-3) in his statement has stated that appellant Jageshwar,
with mother, wife and brother Bindeshwar have assaulted his father with
danda and axe, as such his father and he himself have received injuries
on their bodies and blood was oozing. This witness has further stated
that the assault was started near nala. This witness has stated that his
father Ramavatar has admitted in the hospital about one week. He
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further stated that his mother and brother Shobhnath have received
injuries. Mother and wife of accused Jageshwar committed marpit with
his mother and she sustained fracture on her hand and feet. Both were
admitted in the hospital about 15 days. In the cross-examination by the
defense nothing has been brought on record to rebut the said evidence.
8. Kishmat Bai (PW-4) has stated in her statement that Somarsai assaulted
his husband with axe and Jageshwar with lathi. She has stated that
when she reached the spot then Jogeshwar committed marpit with lathi
and she received injuries on her hand and foot. Bindeshwar assaulted
with lathi. Bindeshwar assaulted Bhobhnath with axe. In the cross-
examination by the defense nothing has been brought on record to
rebut the said evidence.
9. Sobhnath (PW-5) has stated that accused Bindeshwar assaulted him
with axe as a result of which he sustained fracture on his left hand.
Moharsai assaulted his father with axe. This witness has supported the
case of the prosecution and reiterated the stand taken by Ramavtar and
Kishmat Bai (PW-2 and PW-4). In the cross-examination by the defense
nothing has been brought on record to rebut the said evidence.
10. Dr. I.D. Gupta (PW-9) examined injured Moharsai (PW-3), Ramavtar
(PW-2), Kishmat Bai (PW-4) and Sobhnath (PW-5) and on medical
examination following injuries were found on the bodies of the injured
which are as under:-
Injured Moharsai (PW-3):-
(i) Bruise in the size of 1½x1x inch plus hematoma 6 x 4 cm on left
forearm advised x-ray of left forearm.
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(ii) Bruise ½ x ½ on left scapula bone.
(iii) Hematoma 2 x 2 inch on left parietal bone behind left ear. He
advised for x-ray. Injury was caused by hard and blunt object within six
hours of his examination (Ex.P-15).
Injured Ramavtar (PW-2)
(i) Lacerated wound in the size of 3 ½ x ½ x 5cm deep on head at left
parietal bone. Advised for x-ray of skull. Injury caused at head is
grievous and he is in comma which was dangerous to life. Injury was
caused by hard and blunt object within six hours of his examination
(Ex.P-11).
Injured Kismat Bai (PW- 4)
(I) Lacerated wound in the size of ½ x ¼ x 1/5 right elbow joint
(ii) Hematoma 8 inch x 4 inch on left forearm plus fracture at radius ulna
bone advised for x-ray left fore arm.
(iii) Hematoma 3 inch x 2 inch on right upper arm.
(iv) Hematoma 6 inch x 4 inch on right thigh
(v) Hematoma 3 inch x 2 inch on right anklet
(vi) Hematoma 6 inch x 4 inch cm on right scapular part.
(vii) Hematoma 3 inch x 3 inch on below right scapula bone on right
scale of back.
(viii) Hematoma 5 inch x 3 inch on left scapular tooth. Injury No.2 was
grievous in nature and rest of the injuries are simple in nature. The
injuries were caused by hard and blunt object (Ex.P-14).
Injured Sobhnath (PW-5)
(I) Bruise 2 inch x 1 inch on orcid line forehead.
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(ii) Hematoma 4 inch x 3 ½ inch on left elbow joint. Advised x-ray of left
elbow joint.
(iii) Hematoma 4 inch x 3 inch on left shoulder joint. Injuries were simple
in nature (Ex.P-16).
11.Dr. K. N. Sharma (PW-10) has done x-ray of injured Moharsai and after
x-ray he has not seen fracture and submitted his report (Ex.P-20). But
he has found fracture on the upper part of right hand of Ramavatar and
exhibited his report (Ex.P-14). This witness examined injured Kishmat
Bai wherein he has seen two fractures on ulna bone which are grievous
in nature and exhibited his report (Ex.P-19). Shobhnath was advised for
x-ray, wherein fracture at lower part of humerus bone was detected vide
Ex.P-16.
12. Learned counsel for the appellants would submit that the appellants
had also suffered injuries and to substantiate the injuries sustained by
them he has exhibited D/1 and D/2 statement of accused which has not
been considered by the trial Court. He would further submit that learned
trial Court has also not taken into consideration the statement of
defense witness Faku Prasad (DW-1) and Gahbarram (DW-2) who
have deposed before the trial Court that Somarsai was not in the place
of occurrence and other witness Gahbarram (DW-2) has deposed that
the victims have come with lathi and axe and Ramavatar assaulted
Jageshwar with axe and when Jageshwar prevented Ramavatar then
he has caused injury to him with stick, thus the trial Court’s finding is
perverse, contrary to the evidence and material on record by the
defense. He would further submit that there is doubt over initiation of
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incident or assault or use of weapon for commission of offence,
therefore, the appellants are entitled to get benefit of doubt.
13. Learned counsel for the appellants would further submit that even the
prosecution was unable to establish the offence under Section 326 IPC
as there are so many contradictions and omissions in the statements of
the prosecution witnesses which are not reliable, therefore, the trial
Court has erred in analyzing the evidence produced before it. He would
further submit that the prosecution is unable to prove the essential
ingredients of offence under Section 326 IPC i.e. the intention or
knowledge of the appellants to commit such offence and all the injuries
are simple in nature and not grievous hurt. He would further submit that
the incident pertains to the year 1999 and more than 27 years have
elapsed since then. The appellant No.1 remained in custody for three
months from 28.01.1999 to 14.05.1999 and the Appellant No.2
remained in custody for one month from 28.01.1999 to 14.05.1999,
therefore, he would pray for reducing the sentence already undergone
by them.
14.Per contra, learned counsel for the State would submit that according to
the prosecution case, the appellants had suspicion that the complainant
intended to occupy their land, therefore, without any personal grievance
against the complainant, they assaulted them, causing various injuries
including the fracture at radius ulna bone of Kishmat Bai and fracture on
the left hand of Sobhnath, therefore, the trial Court has not committed
any mistake in awarding the rigorous imprisonment of three years to the
appellants. He would further submit that the trial court after appreciating
9
the evidence and material on record has convicted and sentenced the
appellants which does not suffer from perversity or illegality. He would
further submit that the prosecution has proved its case beyond
reasonable doubt and there is no material available on record to set
aside the well reasoned finding recorded by the trial court warranting
any interference by this court and would pray for dismissal of appeal.
15.I have heard learned counsel for the parties and perused the records of
the trial Court.
16.From the submissions made by the parties the point emerged for
determination is whether conviction of the appellants for commission of
offence under Section 326/34, 325/34, 323/34 is legal and justified or
not ?.
17.To appreciate the point emerged for determination, it is expedient for this
Court to extract Sections 320 and 326 IPC.
Section 320 IPC defines grievance hurt. The following kinds of hurt only
are designated as “grievous”;-
“First.–Emasculation.
Secondly.–Permanent privation of the sight of either eye.
Thirdly.–Permanent privation of the hearing of either ear.
Fourthly.–Privation of any member or joint.
Fifthly.–Destruction or permanent impairing of the powers of any
member or joint.
Sixthly.–Permanent disfiguration of the head or face.
Seventhly.–Fracture or dislocation of a bone or tooth.
Eighthly.–Any hurt which endangers life or which causes the sufferer to
be during the space of twenty days in severe bodily pain, or unable to
follow his ordinary pursuits.”
Section 326 IPC;- Voluntarily causing grievous hurt by dangerous
weapons or means.– Whoever, except in the case provided for by
section 335, voluntarily causes grievous hurt by means of any
instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by
means of fire or any heated substance or by means of any poison
10
or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blood,
or by means of any animal, shall be punished with imprisonment
for life, or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.”
18. On a close scrutiny of the evidence of the injured witnesses, it is found
that the witnesses have not only named the appellants but also
enumerated the specific role played by them in the incident. The
evidence of injured Ramavtar (PW-2) would demonstrate that the land
purchased by him was cultivated by the appellants then he objected as
to why they were cultivating the said field, on this the appellants being
armed with axe and lathis came there and after assaulting them, fled
away from the place of occurrence. Jageshwar and Bindeshwar were
having axes and other appellants were having lathis in their hands. All
the injured witnesses made the same statement and corroborated to
each other. They were cross-examined at length, but nothing could be
elicited to discredit their testimonies. On further appreciation of the
evidence available on record, it is quite vivid, that four persons became
injured in the incident. The evidence in this regard is well corroborated
by the ocular evidence. The evidence of the injured witnesses Kishmat
Bai (PW-4) and Sobhnath (PW-5) is well corroborated by the medical
evidence of Dr. I.D. Gupta (PW-9) as well as x-ray reports (Ex.P-18 to
Ex.P-21). From seizure memo (Ex.P-1) weapon of assault axe was
seized from place of occurrence and there is no dispute about the place
of occurrence.
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19. From appreciation of evidence and from above discussion, it is quite
vivid, that the appellants have assaulted the victims by axe and lathis
caused grievous hurt to all the victims. Thus the prosecution has proved
the case beyond reasonable doubt for commission of offence by the
appellants under Section 326/34 IPC. Learned trial Court on
appreciation of evidence has rightly recorded in paragraph-22 that the
assault was not committed with intention or knowledge to commit
murder and on sudden provocation the injuries have been caused, as
such the appellants have not committed the offence under Section 307
IPC but have committed the offence under Section 326/34 IPC,
therefore, the finding recorded by the learned trial Court that since the
injuries sustained by the victim are grievous in nature as enumerated in
Section 320 IPC, which are supported by medical evidence on sudden
provocation, therefore, offence under Section 307 IPC has not been
made out but offence under Section 326 IPC is made out which cannot
be held to suffer from perversity or illegality.
20. It is equally well settled legal position of law that before conviction
under Section 326 of IPC can be passed, one of the injuries in Section
320 of IPC must be strictly proved as held by Hon’ble Supreme Court in
the case of Mathai v. State of Kerala (2005) 3 SCC 260 wherein the
Hon’ble Supreme Court has held that If the hurt that has been caused
falls outside any of the categories mentioned in Section 320 of IPC, it
can only be a simple hurt as defined in Section 319 of IPC, punishable
under Section 323 not under Section 324 or 326 IPC. If the evidence
bought on record by the prosecution is examined in terms of parameter
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laid down by the Hon’ble Suprmne Court in the case of Mathai (supra) it
is quite vivid that injuries sustained by injured Kishmat Bai and injured
Shobhnath were grievance in nature which were caused by hard and
blunt object, thus it falls within the category of clause seventhly of
Section 320 IPC and it has been caused by hard and blunt object i.e.
axe. Thus, the ingredients as defined in Section 320 IPC are fulfilled,
therefore, conviction of the appellants under Section 326 /34 IPC
cannot be found faulty or suffers from perversity. The Hon’ble Supreme
Court in the case of Mathai (supra) has held as under:-
16. The expression “any instrument which used as a weapon of
offence is likely to cause death” has to be gauged taking note
of the heading of the Section. What would constitute a
‘dangerous weapon’ would depend upon the facts of each case
and no generalization can be made.
17. The heading of the Section provides some insight into the
factors to be considered. The essential ingredients to attract
Section 326 are : (1) voluntarily causing a hurt; (2) hurt caused
must be a grievous hurt; and (3) the grievous hurt must have
been caused by dangerous weapons or means. As was noted
by this Court in State of UP v. Indrajeet Alias Sukhatha (2000
(7) SCC 249) there is no such thing as a regular or earmarked
weapon for committing murder or for that matter a hurt.
Whether a particular article can per se cause any serious
wound or grievous hurt or injury has to be determined factually.
As noted above the evidence of Doctor (PW 5) clearly shows
that the hurt or the injury that was caused was covered under
the expression ‘grievous hurt’ as defined under Section 320
IPC. The inevitable conclusion is that a grievous hurt was
caused. It is not that in every case a stone would constitute a
dangerous weapon. It would depend upon the facts of the case.
At this juncture, it would be relevant to note that in some
provisions e.g. Section 324 and 326 expression “dangerous
weapon” is used. In some other more serious offences the
expression used is “deadly weapon” (e.g. Section 397 and
398). The facts involved in a particular case, depending upon
various factors like size, sharpness, would throw light on the
question whether the weapon was a dangerous or deadly
weapon or not. That would determine whether in the case
Section 325 and 326 would be applicable.
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21.It is pertinent to mention here that Axe is used for causing grievous hurt
which qualifies that by its use it is likely to cause death, therefore, the
prosecution need not further requires to establish that such axe is likely
to cause death and from its very nature one could reasonably predict
that by its use as a weapon of offence, death would be probable. It is
well settled legal position of law that the expression “any instrument,
which used as weapon of offence, is likely to cause death” should be
construed with reference to the nature of the instrument and not the
manner of its use as held by the Hon’ble Supreme Court in the case of
Anwarul Haq v. State of U.P., (2005) 10 SCC 581 wherein the Hon’ble
Supreme Court has held in paragraph-12 as under:-
12. Section 325 provides that “Whoever except in the case
provided for by Section 334, voluntarily causes hurt by means
of any instrument for shooting, stabbing or cutting, or any
instrument which, used as weapon of offence, is likely to
cause death, or by means of fire or any heated substance, or
by means of any poison or any corrosive substance, or by
means of any explosive substance, or by means of any
substance which is deleterious to the human body to inhale, to
swallow or to receive into the blood, or by means of any
animal” can be convicted in terms of Section 324. The
expression “an instrument, which used as a weapon of
offence, is likely to cause death” should be construed with
reference to the nature of the instrument and not the manner
of its use. What has to be established by the prosecution is
that the accused voluntarily caused hurt and that such hurt
was caused by means of an instrument referred to in this
Section.
22. From perusal of the record, it is quite vivid that learned trial Court, on
the basis of evidence and material on record, particularly the statement
of the victim and also opinion of the Doctor which clearly suggests that
the injuries must have been caused by axe, are grievous in nature and
injuries sustained by Kishmat Bai and injured Shobhnath are grievous
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in nature and the injuries sustained by other injured are simple in
nature, therefore, the learned trial Court has rightly convicted the
appellants under Section 326/34, 325/34 and 323/34 IPC.
23. Even it is well settled position of law that an accused can be convicted
on the basis of the sole testimony of the victim, provided the Court finds
the testimony to be credible, trustworthy and of sterling quality. The
Hon’ble Supreme Court has examined the evidentiary value of injured
witness in case of Balu Sudam Khalde and Another vs State of
Maharashtra {2023 (13) SCC 365} wherein the Hon’ble Supreme Court
has held as under :-
“26. When the evidence of an injured eye-witness is to be
appreciated, the under- noted legal principles enunciated by
the Courts are required to be kept in mind:-
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must
be believed that an injured witness would not allow the real
culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their statements are
not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions.
(e) If there be any exaggeration or immaterial embellishments
in the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally
creep due to loss of memory with passage of time should be
discarded.”
24. From the evidence of the victims Ramavatr (PW-2), Sobhnath (PW-5),
Kismat Bai (PW-4) and Moharsai (PW-3), it is manifest that the accused
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persons, acting in furtherance of their common intention, assaulted the
victims. Presence of all the accused at the scene substantially
facilitated the successful commission of the offence. The act was
carried out pursuant to a pre-arranged plan, and the commission of the
offence would not have been possible without the aid and participation
of the other accused. It is well settled that for fastening liability with the
aid of Section 34 of the IPC, each accused must participate in the
commission of the offence in some manner, which stands duly
established in the present case. Consequently, the submission
advanced by the learned counsel for the appellants that all the accused
cannot be convicted with the aid of Section 34 of the IPC is
misconceived and is liable to be rejected.
25. It is well settled position of law that element of participation in the
commission of offence, is the chief feature that distinguishes Section 34
of the IPC from Section 149 of the IPC and other Sections. The Hon’ble
Supreme Court in case of Vasant @ Girish Akbarasab Sanavale and
Another vs. The State of Karnataka {2025 INSC 221} has examined
the provisions of Section 34 of the IPC as under:-
“86. It is true that to convict any particular accused
constructively under Section 34 of an offence, say of
murder, it is not necessary to find that he actually struck
the fatal blow, or any blow, but there must be clear
evidence of some action or conduct on his part to show
that he shared in the common intention of committing
murder”, (pp. 457-458).
87. The net result of the above discussion is that although
Section 34 deals with a criminal act which is joint and an
intention which is common, it cannot be said that it
completely ignores or eliminates the element of personal
contribution of the individual offender in both these
respects.
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88. On the other hand, it is a condition precedent of
Section 34, IPC, that the individual offender must have
participated in the offence in both these respects. He
must have done something, however slight, or conduct
himself in some manner, however nebulous whether by
doing an act or by omitting to do an act so as to indicate
that he was a participant in the offence and a guilty
associate in it. He must also be individually a party to an
intention which he must share in common with others.
89. In other words, he must be a sharer both in the
‘criminal act’ as well as in the ‘common intention’ which
are the twin aspects of Section 34, IPC. In view of the
above position, it is difficult for the accused to legitimately
urge before the Court that owing to the mention of
Section 34, IPC, in the charge, he was misled or
prejudiced in his defence by being persuaded to presume
that all consideration of his individual liability was
completely shut out as a result thereof. He would be
presumed to know the law on the point and if, in spite of
it, he deluded himself into any such belief, he would be
doing so at his own peril. [See: Om Prakash(supra)]
90. As held by this Court in Suresh Sakharam Nangare v.
The State of Maharashtra, 2012 (9) Judgements Today
116, if common intention is proved but no overt act is
attributed to the individual accused, Section 34 of the
code will be attracted as essentially it involves vicarious
liability but if participation of the accused in the crime is
proved and common intention is absent Section 34
cannot be invoked. In other words, it requires a pre-
arranged plan and pre supposes prior concert therefore
there must be meeting of mind.”
26. So far as conviction of the appellants under Section 325/34 and 323/34
is legal, justified and does not suffer from perversity or illegality as
appellants have caused grievance injuries by dangerous weapon axe
as defined in Section 325 IPC to the victim Kishmatbai by causing
fracture at ulna bone as supported by medical evidence also. Thus the
conviction of the appellants for offence under Section 325/34 IPC is
affirmed.
27. So far as conviction of the appellants under Section 323/34 IPC is
concerned, the prosecution has proved its case beyond reasonable
17
doubt that the injuries caused to Moharsai are simple in nature which
are supported by medical evidence, therefore, conviction of the
appellants under Section 323/34 IPC cannot be found faulty or suffers
from perversity or illegality which does not warrant interference by this
Court.
28.The evidence of the victims has not been shaken at any stage, nor the
accused have been able to rebut the stand of the victims by leading
cogent evidence, therefore, the finding of the learned trial Court holding
the accused guilty for the offences punishable under Sections
323/34,325/34, 326/34 of the IPC does not suffer from any perversity or
illegality warranting interference by this Court. As such, the impugned
judgment of conviction passed by the learned Sessions Judge, Surajpur
in Sessions Trial No. 190/1999 is hereby affirmed.
29.Further submission of the counsel for the appellants is that the appellant
No. 1 remained in custody for three months from 28.01.1999 to
14.05.1999 and the Appellant No.2 remained in custody for one month
from 28.01.1999 to 14.05.1999 and since the incident pertains to 1999
and more than 27 years have already been lapsed, as such, the
sentence may be reduced to the period already undergone by the
appellants is being considered by this Court.
30.Before adverting to the submissions, it is expedient for this Court to
examine and consider what are the facts and circumstances, and the
gravity of the offence to apply the principle of already undergone is
being examined in terms of law laid down by the Hon’ble Supreme
Court in the case of Parameshwari vs. The State of Tamilnadu and
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others, reported in 2026 INSC 164 wherein the Hon’ble Supreme
Court has examined about mitigating factors and held in paragraphs 22
and 34 as under:
“22. The objective of punishment is to create an
effective deterrence so that the same crime/actions are
prevented and mitigated in future. The consideration to
be kept in mind while awarding punishment is to ensure
that the punishment should not be too harsh, but at the
same time, it should also not be too lenient so as to
undermine its deterrent effect.
34. The misplaced understanding of various courts in
treating compensation as a substitute of sentence is
both a matter of concern and a practice which should be
condemned. We have observed a trend amongst
various High Courts wherein the sentences awarded to
the accused persons by the Trial Court are reduced
capriciously and mechanically, without any visible
application of judicial mind. Considering the gravity of
the situation as thus, we have culled out certain basic
factors, which are to be kept in mind by the courts while
dealing with imposition of sentence, in line with the view
taken by this Court in the aforementioned cases. The
said factors are enunciated as below:
A. Proportionality: Adherence to the principle of “just
deserts” ought to be the primary duty of the courts.
There should be proportionality between the crime
committed and the punishment awarded, keeping in
consideration the gravity of the offence.
B. Consideration to Facts and Circumstances:
Due consideration must be given to the facts and
circumstances of the case, including the allegations,
evidence and the findings of the trial court.
C. Impact on Society: While imposing sentences, the
courts shall bear in mind that crimes essentially impair
the social fabric of the society (of which the victim(s)
is/are an indispensable part) and erodes public trust.
The sentence should be adequate to maintain the
public trust in law and administration, however, caution
should also be taken, and the Court shall not be
swayed by the outrage or emotions of the public and
must decide the question independently.
D. Aggravating and Mitigating Factors: The courts,
while deciding the sentence or modifying the sentence,
19must weigh the circumstances in which the crime was
committed, and while doing so, the court must strike a
fair balance between the aggravating and the mitigating
factors.”
31. From the above stated legal position, it is quite vivid that this Court has
to consider the gravity of the offence and the manner in which offence
has been committed. From the facts, it is quite vivid, that the victims
sustained injuries which are grievous in nature. However, looking to the
fact that incident pertains to year 1999 and more than 27 years have
already been lapsed, and the appellants are not having any past
criminal antecedents, they have not misused the liberty of bail granted
to them during the trial and even during pendency of the appeal,
therefore, I am of the view that the sentence can be reduced to 09
months instead of 3 years for offence under Section 326/34 IPC and 06
months each for offence under Section 325/34 IPC and 03 months each
for offence under Section 323/34 IPC, all sentences are directed to run
concurrently with enhancement of fine amount from Rs. 500/- to Rs.
5,000/- for the offence under Section 326/34 of IPC and from Rs. 5,00/-
to Rs. 3,000/- for the offence under Section 325/34 of IPC and Rs.
5,00/- to Rs. 2,000/- for the offence under Section 323/34 of IPC. The
difference amount of fine shall be deposited by the appellants before
the trial Court within two months from the date of receipt of copy of this
order and the same shall be payable by the trial Court to the victims as
per Section 357(3) of the Cr.P.C. as compensation within further one
month from the date of deposit of fine amount by the appellants.
20
32. Accordingly, the appeal is allowed in part. The appellants are on bail.
Their bail bonds and surety bonds are cancelled. They are directed to
surrender before the trial Court within two months from the date of
judgment passed by this Court to serve out the remaining part of jail
sentence as reduced by this Court. The appellants are entitled to get
set off, of the period of sentence already undergone by them as per
provision of Section 428 CrPC/468 of BNSS. In case, the appellants fail
to surrender within time period as given by this Court, the trial court will
proceed against them in accordance with law and send compliance
report to this Court.
33. Let a copy of this judgment and the original record be transmitted to the
trial court concerned forthwith for compliance.
Sd/-
(Narendra Kumar Vyas)
Judge
santosh