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2026:CGHC:22725

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24.04.2026 14.05.2026 -- 14.05.2026

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on: 24.04.2026

Judgment delivered on: 14.05.2026

CRA No. 368 of 2008

1 – Kaushal, S/o Negi Prasad Rathore, Aged About 25 Years, R/o

Dharashiv, Police Station- Pamgarh, District- Janjgir Champa (C.G.).

--- Appellant

versus

1 - State of Chhattisgarh, through the Police Station Pamgarh, District-

Janjgir-Champa (C.G.).

--- Respondent(s)

with

CRA No. 369 of 2008

2

1 – Bailisthar, S/o Kedarnath Rathore, Aged About 53 Years, R/o

Dharashiv, Police Station- Pamgarh, District- Janjgir Champa (C.G.).

---Appellant

Versus

1 - State of Chhattisgarh, through the Police Station Pamgarh, District-

Janjgir-Champa (C.G.).

--- Respondent(s)

with

CRA No. 371 of 2008

1.Kamta Prasad, S/o Negi Prasad, Aged About 22 Years,

2.Negiram, S/o Adhar Singh Rathore, Aged about 54 years,

3.Dinesh Kumar, S/o Radhe Lal Rathore, Aged about 22 years,

4.Suneel Kumar, S/o Balisthar Rathore, Aged about 21 years,

5.Babla @ Tankeshwar, S/o Jagdish Gir Goswami, Aged about 28

years,

6.Jugunu alias Motilal, S/o Itwari Prasad Patel, Aged about 27

years,

7.Dilip, S/o Radheshyam Rathore, Aged about 27 years,

8.Banwasi, S/o Gopal Prasad Rathore, Aged about 24 years,

9.Anil, S/o Ghanshyam Prasad Pandey, Aged about 27 years,

All are R/o Dharashiv, Police Station- Pamgarh, District- Janjgir

Champa (C.G.).

--- Appellants

Versus

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1 - State of Chhattisgarh, through the Police Station Pamgarh, District-

Janjgir-Champa (C.G.).

--- Respondent(s)

For Appellants : Mr. Rajeev Shrivastava, Sr. Advocate

along with Ms. Anu Mishra, Advocate

For Respondent(s)/State : Ms. Shubha Shrivastava, P.L.

Hon'ble Smt. Justice Rajani Dubey

CAV Judgment

1.Since all these appeals arise from the same impugned judgment,

they were heard together and are being decided by this common

judgment.

2.These appeals, preferred under Section 374(2) of the Code of

Criminal Procedure, 1973, have been filed by the appellants

assailing the judgment of conviction and order of sentence dated

17.03.2008 passed by the learned Additional Sessions Judge,

Janjgir, District- Janjgir- Champa in Sessions Trial No. 127/2006,

whereby the trial Court convicted the appellants and sentenced

them as follows:-

Conviction Sentence

Under Section 147 of IPC R.I. for 1 year

Under Section 148 of IPC R.I. for 1 year

Under Section 326/149 of IPCR.I. for 3 years and to pay fine

of Rs. 500/- and in default of

payment of fine to undergo R.I.

for 2 months

Under Section 325/149 of IPCR.I. for 2 years and to pay fine

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of Rs. 500/- and in default of

payment of fine to undergo R.I.

for 2 months

Under Section 324/149 of IPC

(two counts)

R.I. for 1 year and to pay fine of

Rs. 500/- and in default of

payment of fine to undergo R.I.

for 2 months

Under Section 323/149 of IPC R.I. for 6 months

3. The prosecution case, in brief, is that on 07.07.2005, an annual

ceremonial feast (Bhoj) in memory of the grandmother of

complainant party member Vishnu Prasad namely Harabai, was

organized at his residence. Relatives and villagers had

assembled there. On 07.07.2005 at about 2:00 PM, Shravan

Rathore, who was engaged in agricultural work for the

complainant party, informed them that accused Negiram had

remarked that he was acting as a sycophant of Vishnu Prasad.

Thereafter, at about 7:30–8:00 PM, Vishnu Negi was questioned

as to why he had referred to Shravan Kumar as a sycophant

despite the fact that he was employed by them for agricultural

purposes. Upon being so questioned, he returned from the spot.

Thereafter, during the night, when Vishnu Prasad, Maharathi,

Vinod and Santosh had gone to a paan stall for purchasing betel

leaves, several persons from the village arrived there and started

abusing Vishnu Prasad. Upon receiving information regarding the

quarrel, Radhabai, Hirabai, Uttara Bai and Kamalabai also

reached the spot. The prosecution further alleges that all the

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accused persons formed an unlawful assembly and, in

furtherance of their common object, assaulted Vishnu Prasad,

Maharathi and Vinod with deadly weapons such as lathis, swords,

axes and knives. The accused persons, namely Kamta Rathore,

Kauyshal, Negiram, Sunil, Dinesh, Babla, Bailisthar, Dilip,

Banvasi, Anil Pandey, Lali Chouhan, Jugunu and others, allegedly

participated in the assault. It is further alleged that accused

Harishankar instigated the co-accused by exhorting them to

assault the victims.

4. At the said time, Babla was armed with a Farsa, Anil was

carrying a Tabbal, Sunil was holding an iron rod, and the other

persons accompanying them were armed with lathis/sticks. When

local residents attempted to intervene and rescue the victims,

they too were allegedly assaulted by the accused persons. In the

incident, Radhabai, Hirabai, Uttara Bai and Kamalabai sustained

injuries. During the course of assault, Vishnu Prasad fell to the

ground and, presuming him to be dead, the accused persons fled

from the spot. Thereafter, the injured persons were taken to their

homes and information regarding the incident was communicated

telephonically to the police station at Pamgarh, as well as to the

Janjgir police. Police personnel subsequently reached the village

and shifted the injured persons to the hospital for medical

treatment. Some of the injured persons were later referred to

SIMS Hospital, Bilaspur, for further treatment. X-ray examinations

were conducted and grievous injuries, including fracture injuries

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sustained by Kamal Rathore and Vinod were detected.

5. On the basis of information furnished by Santosh Rathore, son

of Bhagirathi, a merg/intimation was initially recorded and

thereafter, on 08.07.2005, the formal First Information Report was

registered. During investigation, the police prepared the spot

map, recorded statements of witnesses under Section 161 CrPC,

seized weapons such as lathis, tabbal and axe allegedly used in

the commission of offence, arrested the accused persons and,

upon completion of investigation, filed the charge-sheet before

the competent Court. The learned Trial Court framed charges

against the appellants for the offence punishable under Sections

147, 148, 307/149, 326/149, 325/149 and 323/149 of the Indian

Penal Code, to which appellants abjured their guilt and claimed to

be tried.

6. In order to substantiate the charges levelled against the

accused/appellants, the prosecution examined as many as 23

witnesses. Thereafter, the statements of the accused/appellants

were recorded under Section 313 of the Code of Criminal

Procedure, 1973, wherein all incriminating circumstances

appearing in the prosecution evidence were put to them for

explanation. The accused/appellants denied the said

circumstances in toto, pleaded innocence and asserted that he

has been falsely implicated in the present case. In their defence,

appellants examined 6 witnesses.

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7.The learned trial Court, upon appreciation of the entire oral as

well as documentary evidence available on record, found the

prosecution case to be credible and trustworthy. Accordingly, vide

judgment dated 17.03.2008, the trial Court convicted and

sentenced the accused/appellants as detailed in para 1 of the

said judgment. Hence, this appeal.

8.Learned counsel for the appellants submits that the judgment of

conviction passed by the learned trial Court is based on surmises

and conjectures and is contrary to the evidence available on

record. It is further submitted that there is no specific allegation

against the present appellants regarding participation in the

assault and he has been falsely implicated by the complainant

due to previous enmity. Learned counsel submits that the trial

Court itself recorded a finding that there was insufficient light at

the place of occurrence for proper identification of the assailants,

yet, merely on the basis that the complainant and the appellants

belonged to the same village and were previously acquainted, the

Court presumed the presence of the appellants at the spot, which

is legally unsustainable.

It is submitted that all the prosecution witnesses are

interested witnesses and, therefore, their evidence required

careful scrutiny, which has not been properly undertaken by the

trial Court. Learned counsel further submits that the prosecution

failed to prove the First Information Report in accordance with

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law. As per the prosecution case itself, the Janjgir Police first

reached the spot and shifted the injured persons to the hospital,

whereas the Pamgarh Police reached later. Therefore, the Dehati

Nalishi (Ex.P-1) recorded subsequently by the Pamgarh Police

could not have been treated as the FIR, rendering the

prosecution story doubtful. It is further contended that the

Investigating Officer, Shri B.S. Khutiya (PW-22), admitted that on

the report lodged by the appellants and other co-accused

persons, a counter case bearing Crime No.247/2005 was also

registered against the complainant party, however, the

prosecution failed to disclose the outcome of the said case before

the Court, thereby creating serious doubt regarding the fairness

of the investigation. Learned counsel submits that the trial Court

committed illegality in discarding the defence plea regarding the

counter case merely on the ground that no document relating

thereto was produced by either side, despite the prosecution

being in custody of such records. An adverse inference ought to

have been drawn against the prosecution for withholding the said

documents. It is also submitted that the trial Court failed to

properly appreciate the material contradictions and omissions in

the statements of the prosecution witnesses and ignored the fact

that due to previous enmity there existed a strong motive for false

implication of the appellant.

Learned counsel further submits that although the

prosecution alleged that 10-12 persons had participated in the

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assault, no specific overt act or weapon attributed to the present

appellants has been proved by the prosecution. Despite such

deficiencies, the trial Court illegally convicted the appellants

without proper appreciation of the evidence relating to assault

and seizure of weapons. Lastly, it is submitted that no blood

stains were found on any of the weapons allegedly used in the

incident and none of the seized weapons were sent for chemical

examination. In absence of such corroborative evidence, the

conviction of the appellants is unsustainable in law. Thus, the

impugned judgment is liable to be set aside.

Reliance has been placed on the decisions of Hon’ble

Supreme Court in the matter of Kanbi Nanji Virji and Others Vs.

State of Gujarat; (1970) 3 SCC 103, State of Haryana Vs. Ram

Singh and another connected matter; (2002) 2 SCC 426 & the

decision of Hon’ble High Court of Madhya Pradesh in the matter

of Sewaram and others Vs. State of M.P.; 2024 SCC OnLine

MP 8781.

9.Per contra, learned State counsel opposes the appeal and

submits that the judgment of conviction and sentence passed by

the learned trial Court is well reasoned and based on proper

appreciation of the oral and documentary evidence available on

record. It is further submitted that the prosecution witnesses have

consistently supported the case of the prosecution and their

testimony inspires confidence. Minor contradictions and

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omissions do not affect the core of the prosecution case. The

involvement of the appellants in the incident stands duly proved

beyond reasonable doubt and, therefore, no interference with the

impugned judgment is warranted.

10. Heard counsel for the parties and perused the material

available on record.

11.It is evident from the record of the learned Trial Court that

charges were framed against the appellants for the offences

punishable under Sections 147, 148, 307 read with Section 149,

326 read with Section 149, 325 read with Section 149 and 323

read with Section 149 of the IPC. Upon appreciation of the oral as

well as documentary evidence available on record, the learned

Trial Court acquitted the appellants of the charge under Section

307 IPC, but convicted them for the offences punishable under

Sections 147, 148, 324/149, 326/149, 325/149 and 323 (five

counts) read with Section 149 of the IPC.

12.Vishnu Rathore (P.W.-1) deposed that on the date of the

incident, at about 7:00–7:30 PM, he along with his brothers was

sitting after having betel leaf, when the accused persons, armed

with weapons, arrived at the spot, started abusing them and

thereafter assaulted them with the said weapons.

In para 4 of his cross-examination, the witness admitted that

a counter-case in respect of the same incident had also been

registered against him and his family members and trial in the

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said case is still pending.

The witness further stated that at the relevant time,

Harishankar was serving as the Sarpanch. Prior thereto,

Uttarabai, wife of his brother Maharathi, had held the post of

Sarpanch. He further stated that the Sarpanch election had taken

place approximately 6–7 months prior to the incident and

admitted that his son Sanat had contested the said election. He

further admitted that apart from Harishankar, about 5–6 other

candidates had also contested against Sanat, and Harishankar

had ultimately won the election.

13.Santosh Kumar Rathore (P.W.-2) deposed that on the date of the

incident, at about 9:00 PM, his uncle had gone to consume betel

leaf and at that time he was present on the roof of his house.

Upon hearing noises of abuse, he along with other family

members rushed towards the paan shop and witnessed the

accused persons assaulting his uncles with weapons. He further

stated that when they attempted to intervene, the accused

persons also assaulted them. The witness further stated that he

lodged the First Information Report vide Ex. P/1 and identified his

signatures thereon marked from ‘A to A’.

In his cross-examination, the witness admitted the defence

suggestion that a counter-case in respect of the same incident

had been registered against them. He further admitted that

Harishankar had contested the election for the post of Sarpanch

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and his cousin Sanat Rathore had also participated in the said

election.

14.Maharathi Rathore (P.W.-3) deposed that accused Anil

assaulted him with a hatchet, as a result of which he sustained an

injury on the frontal portion of his head.

During the course of cross-examination, the witness

admitted the defence suggestion that a counter-case arising out

of the same incident had been registered against him and his

family members.

15.Uttara Bai (P.W.-4) stated that all the accused persons assaulted

her and her family members with lathis and axes, thereby causing

injuries to the injured persons.

In her cross-examination, the witness admitted that

Harishankar had contested the election for the post of Sarpanch

and that prior to the said election, she herself had served as the

Sarpanch of the village. However, she denied the defence

suggestion that false allegations were being levelled against the

accused persons on account of political rivalry.

16.Santosh Kumar Rathore (P.W.-5) admitted his signatures on the

seizure memos Ex. P/2 to Ex. P/16; however, he stated that he

was unable to specify which weapon had been seized from which

accused person. The prosecution declared the witness hostile

and subjected him to cross-examination, but he denied all the

suggestions put forth by the prosecution and further denied the

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alleged seizures said to have been effected in his presence.

17.Ram Gir (P.W.-6) admitted his signatures on the seizure memos

Ex. P/2 to Ex. P/8 marked from ‘B to B’. He stated that clubs were

seized from accused Kaushal, Santosh, Bairistor, Negi and

Dinesh. He further stated that an iron rod was seized from Motu

and an axe was seized from Babla.

In his cross-examination, the witness stated that upon being

called by the Inspector, he went to the concerned place and

signed all the documents prepared there.

18.Vinod Kumar (P.W.-7) deposed that on the date of the incident,

all the accused persons, armed with weapons such as rods,

assaulted him as well as Vishnu Rathore and Maharathi Rathore.

During the course of his cross-examination, the witness

admitted that, on the basis of the report lodged by the accused

persons, a counter-case in respect of the same incident was

pending against the complainant party and their family members.

19. Laxman (P.W.-8) stated that on the date of the incident at

about 9:00 PM, a quarrel had taken place; however, he

expressed ignorance regarding the details and circumstances of

the said quarrel.

The prosecution declared the said witness hostile and

cross-examined him, but he denied all the suggestions put to him

by the prosecution.

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20.Radhabai (P.W.-9), Santkumar Rathore (P.W.-10), Kamla Bai

(P.W.-11) and Heera Bai (P.W.-12) deposed that all the accused

persons, armed with weapons, assaulted their family members

and, as a consequence of the said assault, the injured persons

sustained injuries.

21.Shravan Kumar Rathore (P.W.-13), Rajendra Puri (P.W.-14) and

Milan Chouhan (P.W.-15) did not support the case of the

prosecution and were accordingly treated as hostile witnesses.

22.In the matter of Sewaram (supra), Hon’ble High Court of Madhya

Pradesh held in paras 16, 17 and 18 as under:-

“16. These facts reveal that there was a free fight amongst

the rival party. Law in relation to free fight is crystal clear.

Supreme Court in Kanbi Nanji Virji v. State of Gujrat ((1970)

3 SCC 103 : AIR 1970 SC 219), held that in case of a free

fight, there are two groups of persons. Injuries sustained by

the persons of both groups in course of such fight where

death of two persons also takes place, then only those

persons who are proved to have caused injuries or death,

can be held guilty for the offence individually committed by

them.

17. Similarly, in case of Munir Khan v. State of Uttar

Pradesh ((1970) 3 SCC 191 : AIR 1971 SC 335), Supreme

Court held that in a mutual fight, there is no common object

and none of the accused can be convicted by having

recourse to Section 149 IPC. Same is the ratio of law laid

down by Supreme Court in State of Uttar Pradesh v. Jodha

Singh ((1989) 3 SCC 465: AIR 1989 SC 1822).

18. In Mangalsingh v. State of Madhya Pradesh [1996 Cri LJ

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1908 (MP)], it is held that there was wordy dual and

clashing of arm by parties resulting into free fight in which

both sides suffered injuries. It is held that it cannot be said

that it was an unlawful assembly. Hence, conviction of

accused under Section 302/149 IPC was altered to one

under Section 304, 325 and 148 IPC.”

23.In the present case, all the complainant and injured witnesses

have admitted that a counter-case arising out of the same

incident is also pending against them. Thus, it is apparent that

members of both parties had assaulted each other during the

course of the incident. In such circumstances, the prosecution

has failed to establish that the appellants were members of an

unlawful assembly.

24.Purushottam Banjare (D.W.-1), who was working as a teacher in

the Primary School, deposed that Anil Pandey was posted as the

teacher in the said school during the period from 15.06.2005 to

30.04.2006. He further stated that on 07.07.2005, Anil Pandey

remained present in the school along with him from 10:00 AM to

4:30 PM, in support whereof he produced the attendance register

marked as Ex. D/8. The witness further stated that thereafter Anil

Pandey stayed with him on the same day and during the night

both of them shared the same room. According to the witness, on

07.07.2005, Anil Pandey did not leave village Jhumkidih. He

further stated that the Sarpanch had appointed Anil Kumar

Pandey as a guest teacher and a copy of the said appointment

order had been forwarded to the school. The said appointment

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order was exhibited as Ex. D/9.

25.It is evident from the First Information Report (Ex. P/23) that the

alleged incident took place on 07.07.2005 at about 11:30 PM,

whereas the FIR came to be lodged on 08.07.2005 at about 6:30

PM. The reason assigned for the delay in lodging the FIR is

stated to be heavy rainfall during the night.

26.Dr. Amritlal Soni (P.W.-18) deposed that on 08.07.2005, he

medically examined Vishnu Prasad Rathore and found 3 simple

injuries on his body. The witness further stated that he advised X-

ray examination in respect of Injury Nos. 1 and 2 and prepared

the medical examination report, which was exhibited as Ex. P/26.

The witness further deposed that he examined Maharathi,

advised him to undergo X-ray examination and prepared the

corresponding medical report, which was exhibited as Ex. P/27.

He also examined Vinod Kumar and found 4 injuries on his

body. He advised X-ray examination and prepared his medical

report, which was marked as Ex. P/28.

The witness further stated that he examined Santaram,

advised him for X-ray examination and issued the medical report

vide Ex. P/29.

On the same day, he medically examined Santosh and

found simple injuries on his body. He prepared the medical

examination report in this regard, which was exhibited as Ex.

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P/30.

The witness further deposed that he examined Radhabai,

advised her to undergo X-ray examination and prepared the

medical report, which was exhibited as Ex. P/31.

On the same day, he also examined Kamla and issued the

medical examination report, which was exhibited as Ex. P/32.

The witness further stated that upon examination of Uttara,

he found 4 injuries on her body and prepared the medical report

vide Ex. P/33. He also examined Heerabai, found simple injuries

on her body and issued the corresponding medical report, which

was exhibited as Ex. P/34.

27.Dr. R.K. Das deposed that he advised X-ray examination of

Kamla and, upon examination of the X-ray report, found a fracture

in her right arm. In this regard, he prepared and issued the X-ray

report, which was exhibited as Ex. P/44.

28.The learned Trial Court observed that no blood stains were

detected on the seized weapons and that the prosecution had

failed to place on record any FSL report in support of its case.

Taking the said deficiencies into consideration, the learned Trial

Court acquitted the accused persons of the charge punishable

under Section 307 of the IPC; however, it convicted them for the

remaining offences by invoking the principle of common object

under Section 149 IPC. It is apparent that the prosecution failed

to establish, by cogent and reliable evidence, that the injuries

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sustained by the injured persons were caused by the weapons

allegedly seized during the investigation.

29.It is evident from the statements of the prosecution witnesses

that members of both parties had assaulted each other during the

incident in question. The said accused examined a witness in his

favour. According to Vishnu Rathore (P.W.-1), accused Anil had

assaulted the injured persons with an axe. Similarly, Maharathi

Rathore (P.W.-3) also deposed that he was assaulted by Anil with

an axe. However, it is apparent from the seizure memos available

on record that no weapon was seized from the possession of Anil.

The learned Trial Court has also recorded a finding that the

prosecution failed to establish that the injuries sustained by the

injured persons were caused by the weapons allegedly seized

during investigation.

30.Furthermore, the defence evidence adduced on behalf of Anil

creates a serious doubt regarding his presence at the place of

occurrence at the relevant point of time. In such circumstances,

the participation of Anil in the alleged incident becomes doubtful

and he is entitled to the benefit of doubt.

31.Accordingly, Criminal Appeal No. 371 of 2008 preferred by

appellant Anil deserves to be and is hereby allowed. The

conviction and sentence imposed upon the appellant by the

impugned judgment in respect of the alleged offences are hereby

set aside and he is acquitted of all the charges levelled against

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him.

32.The appellant- Anil is reported to be on bail. Keeping in view the

provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the

appellant is directed to forthwith furnish a personal bond in terms

of Form No. 45 prescribed in the Code of Criminal Procedure of

sum of Rs.25,000/- with one surety in the like amount before the

Court concerned which shall be effective for a period of six

months along with an undertaking that in the event of filing of

Special Leave Petition against the instant judgment or for grant of

leave, the aforesaid appellant on receipt of notice thereof shall

appear before the Hon’ble Supreme Court.

33.So far as other appellants are concerned, the learned Trial

Court, upon meticulous appreciation of the statements of the

prosecution witnesses as well as the medical evidence available

on record, rightly held the accused persons guilty for the offences

punishable under Sections 324 (two counts), 326, 325 and 323

(five counts) of the IPC. However, from the evidence adduced in

the case, it is apparent that the incident was a case of free fight

between both the parties and, therefore, the essential ingredients

constituting an unlawful assembly and the existence of a common

object have not been satisfactorily established by the prosecution.

Consequently, the conviction of the appellants under Sections

147 and 148 IPC cannot be sustained.

34.Further, as the prosecution failed to prove that the injuries

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sustained by the injured persons were caused by the weapons

allegedly seized during the course of investigation, the conviction

of the appellants under Section 326 IPC is also not sustainable in

law and is accordingly altered to one under Section 325 IPC.

However, the conviction of the appellants for the offences

punishable under Sections 324 (two counts), 325 and 323 (five

counts) of the IPC is hereby affirmed.

35.So far as the question of sentence is concerned, considering the

fact that the incident in question pertains to the year 2005 and

that the present appeal has remained pending since the year

2008, coupled with the circumstance that the appellants have

already undergone more than one month of incarceration, this

Court is inclined to take a lenient view in the matter. It is also

noteworthy that during the pendency of the trial, the appellants

remained on bail and there is nothing on record to indicate that

they ever misused the liberty so granted to them.

36.In view of the aforesaid facts and circumstances, this Court is of

the considered opinion that the ends of justice would be

adequately served if the substantive jail sentence imposed upon

the surviving appellants is reduced to the period already

undergone by them.

37.Consequently, the appeal preferred by the appellants, namely

Kaushal, Bailisthar, Kamta Prasad, Negiram, Dinesh Kumar,

Suneel Kumar, Babla @ Tankeshwar, Jugunu, Dilip and

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Banwasi stands partly allowed. The appellants are acquitted of

the offences punishable under Sections 147 and 148 IPC.

However, their conviction under Sections 324 (two counts), 325

and 323 (five counts) IPC is maintained with modification that the

sentence awarded to them shall stand reduced to the period

already undergone by them. The fine amount, if unpaid, shall be

deposited in accordance with the directions of the learned Trial

Court.

38.The appellants namely Kaushal, Bailisthar, Kamta Prasad,

Negiram, Dinesh Kumar, Suneel Kumar, Babla @ Tankeshwar,

Jugunu, Dilip and Banwasi are reported to be on bail, therefore,

their bail bonds shall remain in operation for a period of six

months as provided under Section 481 of BNSS, 2023.

39.The trial Court record along with a copy of this judgment be sent

back immediately to the trial Court concerned for compliance and

necessary action.

Sd/-

(Rajani Dubey)

JUDGE

Ruchi