AFR HIGH COURT of CHHATTISGARH, BILASPUR Order Reserved on 22.01.2024 Order Delivered on 04.03.2024 CRR No. 230 of 2016 Tirath Prasad Chaudhary S/o Nandlal Chaudhary Aged About 55 Years R/o Pipalamar Police Station And Tahsil Pendra, District Bilaspur Chhattisgarh ---- Applicant Versus State Of Chhattisgarh Through Station House Officer, Police Station Pendra, District Bilaspur Chhattisgarh , Chhattisgarh ---- Respondent For Applicant : Mr. Vimlesh Bajpai, Advocate For Respondent : Ms. Smriti Shrivastava, Panel Lawyer S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order

1. Challenge in this revision is to judgment dated 05.03.2016 passed in Criminal Appeal No. H-21/2015 whereby learned Additional Sessions Judge, Pendraroad, District - Bilaspur (CG) partly allowed the criminal appeal of applicant and while affirming the conviction of the applicant under Section 326 of IPC passed by the Judicial Magistrate First Class, Pendraroad in Criminal Case No.488/2014, modified the sentence of the applicant and ordered to undergo RI for 1 year instead of RI for 2 years, and fine of Rs.1000/-.

2. Case of the prosecution in brief is that on 15.09.2011 at about 7:00 in the evening, complainant- Sagar Prasad Choudhary lodged a report in the concerned police station stating that his agricultural land is located adjacent to the land of his elder brother- Tirath. Due to flow of water from his agricultural land to the land of his elder brother leading to erosion of mud and its deposit in his field, causing damage to the crops, applicant got enraged, abused the complainant and said that he has no right to interfere with whatever he wanted to do in his agricultural field. Applicant threatened to kill the complainant. Thereafter, complainant came back to his house and was discussing issue with the family members. At that time, applicant came to his house in a fit of anger holding an axe and assaulted the complainant near his right elbow due to which blood started oozing. He also assaulted the complainant on his back and forearms, due to which, he suffered injuries. His wife and daughter intervened and informed the incident to village Sarpanch. Thereafter, the incident was reported to the concerned police station, based upon which, FIR was registered against the applicant. After conclusion of investigation, charge sheet was filed against the applicant for commission of offence as alleged against him.

3. Applicant was charged with the offences under Sections 294, 452, 326, 506 Part-II of of IPC. He denied the charges and prayed for trial. To prove its case, prosecution examined as many as 9 witnesses namely Sagarprasad (PW1) the complainant, Ramratiya Bai (PW2) wife of the complainant, Vinod Kumar (PW3), Gangotri Jatav (PW4), Anand Ram (PW5), Makhan (PW6), Dr. J.S. Kanwar (PW7), Mithlesh Marko (PW8), Prakash Sahu (PW9). Statement of applicant was recorded under Section 313 of Cr.P.C. in which he denied all incriminating evidence appearing against him and pleaded innocence and false implication. No witness was examined by the accused-

applicant in defence.

4. Learned trial Court, relying upon the evidence of prosecution, oral and documentary, produced before it, held that the applicant abused and assaulted the complainant, gave threat to life, convicted the applicant under Sections 452, 326 of IPC and sentenced him to undergo 1 year RI, fine of Rs.500/- and 2 years RI and fine of Rs. 1000/- respectively. Order passed by trial Court was challenged in appeal before learned Sessions Court. Sessions Court acquitted the applicant from charge under Section 452 of IPC, upheld conviction under Section 326 of IPC and reduced the jail sentence to 1 year RI with fine of Rs.1000/-.

5. Learned counsel for the applicant argues that learned trial Court and appellate Court had not correctly appreciated the evidence of witnesses. It failed to appreciate the fact that prosecution has not proved the case beyond reasonable doubt. There was land dispute between the parties. T