BIRBAL B. CHOUHAN & ANR. ETC. ETC.versusSTATE OF CHHATTISGARH ETC. ETC.

              [2011] 13 (ADDL.) s.c.R: 151


        BIRBAL B. CHOUHAN & ANR. ETC. ETC.                  A
                            v.
         STATE OF CHHATIISGARH ETC. ETC.
        (Criminal Appeal Nos. 2025-2028 of 2011)
                  NOVEMBER 14, 2011
                                                            B
     [DR. B.S. CHAUHAN AND T.S. THAKUR, JJ.]

    PENAL CODE, 1860:

      ss. 399 and 402 - Accused-appellants found guilty of c
assembling and preparing for committing dacoity -
Conviction and sentence of 5 years RI imposed by trial court,
affirmed by High Court - Held: The orders under challenge
do not suffer from any legal infirmity nor do they suffer from
any perversity in appreciation of evidence on record - 0
However, in the facts and circumstances of the case, the
sentence is reduced to 3 years RI under both the counts -
Sentence/Sentencing.
     The appellants along with six others were
prosecuted for commission of offences punishable ulss E
399 and 402 IPC. The prosecution case was that on
10.2.1992, when PW1 along with his friend was going on
a motorbike late in the evening, they saw 8-10 persons
holding sticks, who tried to stop and then chased the
duo. However, they escaped and went straight to the F
police station and reported the incident. PW 5, the Sup-
Inspector of Police, recorded the report and informed the
Kotwali. The appellants and others were apprehended
along with arms, eatables and liquor. Some of the
miscreants escaped. The trial court convicted the G
appellants and two others of the offences charged and
sentenced each of them to under rigorous imprisonment
for five years under each of the two counts. The other four
accused were acquitted on benefit of doubt. The High
                           151                               H
    152     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Court declined to interfere. Aggrieved, the convicts
  approached the Supreme Court. Two of them did not
  surrender and their special leave petitions were
  dismissed.
          Disposing of the appeals, the Court
B
       HELD: 1.1 The High Court in appeal reappraised the
  evidence adduced by the prosecution and the defence
  and affirmed the findings recorded by the trial court
  holding that the appellants who were residents of
c 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
0 acceptable leaving no room for interference with the order
  of conviction and sentence recorded by the trial court.
  [Para 5] [154-F-G]
       1.2 No error of fact or law has been pointed out in
  the orders passed by the courts below. Even otherwise,
E 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, the courts below were justified in
  recording an order of conviction against the appellants.
F However, in the facts and circumstance of the case, the
  sentence imposed upon the appellants is somewhat
  harsh and needs to be suitably reduced. Accordingly, the
  sentence of 5 years RI awarded by the trial court as
  affirmed by the High Court, is reduced to rigorous
G imprisonment for a period of three years only on both
  counts. [Para 7] [155-C-E]
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2025-2028 of 2011.

H         From the Judgment & Order dated 09.07.2010 of the High
     BIRBAL 8. CHOUHAN & ANR. v. STATE OF                   153
                 CHHATTISGARH
Court of Chhattisgarh, Bilaspur in Criminal Appeal Nos. 603,        A
634, 881, 1172, 1173 & 1174 of 1993.

      Garvesh Kabra, Nikita Kabra, Pooja Kabra, Abhishek Jaju
for the Appellant.

    The Judgment of the Court was delivered by                      B

     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         c
sentenced to undergo rigorous imprisonment for a period of five
years on both 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       D
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        E
with his friend Rashid late in the evening when he saw eight to
ten persons at Kola 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         F
and informed Stations lncharge 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        G
whereupon they tried to escape from the spot but the police
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.                                                 H
    154    SUPREME COUR i REPORTS [2011] 13 (ADDL.) S.C.R


A      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
B 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
C 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,
D Jageshwar, Shani Rawat, Palu Ram and Hiravan @ Ahiravan
  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 !ht. dead of night tried to stop
  Lokesh Agarwal (PW1) and being armed with lethal weapons
E 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
F 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
G 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.

H       6. Along with the Special Leave Petitions the appellants
       BIRBAL B. CHOUHAN & ANR. v. STATE OF                155
           CHHATTISGARH [T.S. THAKUR, J.]
made a prayer for exemption from surrender by them which          A
was declined by the Judge-in-Chamber by order dated 8th
November, 2011. Eight of the convicts then surrendered while
Paharia @ Goverdhan and ~verdhan Khasia, petitioners in
SLP No.21927 and 21929 did not. Special Leave Petitions
filed by the said two convicts were, therefore, dismissed by an   B
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 C
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 D
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 extent that E
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.
                                                                  F
R.P.                                    Appeals disposed of.



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