1 2025:CGHC:16938 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 128 of 2005 1 - Mohit Ram S/o Dharam Sai aged 32 years. 2- Teli Ram S/o Gendi Ram, aged 44 years 3- Amar Singh S/o Ratan, aged 27 years 4-Sahdev S/o Gaya Ram, aged 20 years 5-Salik Ram S/o Dharam Sai, aged 22 years 6-Malik Ram S/o Dharam Sai, aged 30 years All by occupation cultivation, R/o village Kurra, Thana – Lailunga, District – Raigarh (CG) ... Appellant(s) versus 1 - State Of Chhattisgarh through the District Magistrate Raigarh (CG) ... Respondent(s) For Appellant(s) : Smt. Indira Tripathi, Advocate For Respondent/ State : Ms. M. Asha, Panel Lawyer For Complainant’s son : Shri Nikhil Wadhwani, Advocate ({Hon’ble Shri Justice Sachin Singh Rajput }) Judgment on Board 11/04/2025 Challenge in this appeal is to the judgment of conviction and order of sentence dated 10/02/2005 passed by the 4th Additional Sessions Judge (FTC), Raigarh (CG) in Sessions Trial No.215/98. By the impugned judgment, the 2 appellants have been convicted and sentenced in the following manner - Conviction Sentence 1. U/s 147, 148 r/w 149 of IPC R.I. for one year to each of the appellants 2. U/s 307 r/w 149 IPC R.I. for 7 years and fine of Rs.100/- each. In default of fine, additional R.I. for one month to each of the appellants 3. U/s 323 r/w 149 IPC R.I. for 3 months (three times) 4. U/s 507 -II of IPC R.I. for one year to each of the appellants All the sentences to run concurrently 2. Prosecution story in brief is that the name of the complainant / victim is Ganda Rai. According to his report, he is the resident of village–Kurra. On 07/06/1998 in the Sarpanch election of his village, Ghundi Uraon won the election and the appellant–Mohit Ram lost the election. On 08/06/1998, the complainant invited all the villagers on meal. He was preparing meals in the kothhaar of his brother Dukhu Rathiya. At about 1:30, he along with Maheshram, Vijay, Shodhan, Darbar were going to have meals in the larder (kothhar) of Dukhu Rathiya. They all were going through a guide way (pagdandi) and the complainant was leading the way and all others were following him. Then, they heard shouts and screams of Darbar Rathiya asking them to run away. When he turned around, he saw that accused Amarsingh, Salikram, Malikram, Chengtu @ Sahdev Rathiya were assaulting him with laathi. Mohitram, Malikram, Salikram along with Teliram and Amarsingh all were running to assault Rathiya with laathi. Malikram, Salikram and Mohitram also assaulted Maheshram and when he fell down, they started crushing his head with stone and he became unconscious. When he requested not to assault, then Salikram assaulted him below the knee of his right leg with laathi. 3. Further case of the prosecution is that the complainant ran through his farm and went to the larder (kothhaar) of Dukhu. When the villagers reached the spot, they all ran away leaving laathi–stick. When he reached the larder (kothhar), then Vijay, Darbar, Rahas, Sewal, Shodhan, Kundo Bai told him that they were also assaulted by Malikram, Salikram, Mohitram, Amarsingh, Chengtu, Teliram with laathi and telling to kill them by hurling abuses. On the basis of report, crime was 3 registered at police station–Lailunga and the matter was investigated. After due investigation, charge sheet was produced in the Court of Judicial Magistrate, 1st Class, Gharghoda for the offence punishable under Section 147, 148, 149, 341, 294, 323, 506 Part-II and Section 307 of IPC. The case was committed to the Sessions Judge who made over the case to the trial Court. The appellants were examined under Section 313 of the CrPC. They denied the charges and claimed to be tried. 4. Prosecution examined as many as 14 witnesses and exhibited 20 documents. One defence witness was examined. After assessment of evidence, learned trial Court convicted the present appellants as stated above and acquitted the remaining accused. 5. Learned counsel for the appellants submits that the learned trial Court has not appreciated the evidence brought before it in its proper perspective and erroneously convicted the appellants. She submits that the statement of the witnesses does not inspire confidence and there are material contradictions and omissions in the statement of the prosecution witnesses. She further submits that the dispute is with regard to election. Appellant No.1–Mohitram lost in the election, as a result of which a quarrel took place between the complainant party and the accused persons which resulted into the incident. Apart from the other sections, no offence under Section 307 of IPC is made out. Even if the assault was made on the vital part of the body, there was a free fight amongst the complainant party and the accused persons, therefore it cannot be said that the assault was made by appellant–Mohitram with intention to cause death of Maheshram (PW3). She submits that except Maheshram (PW3), others have received simple injuries in the free fight. Improvement has been made in the statements, therefore, their conviction under Section 307 IPC may be altered to one under Section 320 of CrPC. Apart from this, she submits that the incident took place in the year 1998. The victim, other prosecution witnesses and the appellants are residents of same village and they have settled their dispute amicably, therefore, they have filed an application for compounding the offence under Section 322 of IPC. Therefore, she submits that offence under Section 149 IPC is not made out. She submits that the appellants No.1 to 5 remained in jail for about 4 months and 6 days and appellant No.6 remained in jail for about 2 months and 5 days. She prayed that the appeal 4 may be allowed or alternatively, their sentence may be reduced to the period already undergone by them. She places reliance on the judgment of the Supreme Court in the case of Fireman Ghulam Mustafa v. State of Uttaranchal, 2015 (9) SCALE 237 and Panchram v. State of Chhattisgarh (Criminal Appeal No.1078/2023) and judgments of this Court in the case of Ramesh Kumar and anr. v. State of Chhattisgarh (criminal appeal No.711 / 2003) and Padman Patel and ors. v. State of Chhattisgarh (Cr.A.No.513/2005). 6. On the other hand, learned State counsel opposes the above submission and submits that case is made out on the basis of evidence brought by the prosecution. 7. Learned counsel for the complainant/victim submits that the parties have entered into settlement and he has no objection if the appeal is allowed or the sentence awarded to the appellants is reduced. 8. Heard learned counsel for the parties and perused the record. 9. First of all this Court would like to determine whether the appellants have committed the offence or not. In this context, statement of injured Maheshram (PW3) is required to be looked into. In his deposition before the learned trial Court, Maheshram (PW3) has categorically stated in paragraph 2 that Darbar was assaulted by Amar Singh and Chengtu and when he was running away in fear by crossing over the wall, appellant – Mohitram came from behind and assaulted with him laathi on his head due to which he fell down. Thereafter, Salikram Malikram, Teliram and Mohitram started crushing him with stone and he became unconscious. He further deposed that he was treated in the Lailunga Hospital from where he was referred to Raigarh. Thereafter, he was referred to Raipur for better treatment. He was subjected to cross-examination, however, he has denied suggestions regarding non-assault by the appellants. His statement is also corroborated by statement of Dr. S.N.Upadhyaya (PW1) who initially examined the injured victim and found that he had Hematoma in his brain and suspected fracture on left parietal bone. His X-Ray was also conducted which has been duly proved by Dr. M.D.Joshi (PW13) who found a fracture on the Parital Candle region of the scull. Therefore, it is in the considered opinion of this Court that Maheshram (PW3) suffered grievous injuries. The next question is as to whether only Mohitram is responsible 5 or other appellants are also responsible under the provisions of Section 149 of IPC. This issue has been dealt with by the Constitution Bench of the Supreme Court in the matter of Masalti v. State of U.P. reported in AIR 1965 SC 202 wherein it has been held that in order to sustain conviction, every member of unlawful assembly is not required to show any overt act. In the case in hand, from the statement of Maheshram (PW3) involvement of other appellants is also made out who also actively participated in commission of the crime. Therefore, the contention of counsel for the appellants that the other co-accused cannot be convicted with the aid of Section 149 of IPC is also misplaced and liable to be rejected. 10. This leads to the third contention of counsel for the appellants as to whether conviction of the appellants under Section 307 of IPC can be altered to any other section. In order to appreciate this, it is essential to quote the provisions of Section 307 of IPC which is as under - “307. Attempt to murder—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.— [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. (b)A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c)A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the 6 first paragraph of this section. (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section. 11. Injury may not be sine qua non to convict an accused under Section 307 of IPC however, there has to be an intention to cause death. Supreme Court in the cases of Jage Ram and ors. v. State of Haryana & anr. 2015 (11) SCC 366 and State of Madhya Pradesh v. Kanha @ Omprakash, 2019 (3) SCC 605 has observed that grievous or life threatening injuries are not necessary to maintain a conviction under Section 307 of IPC and the intention of the accused can be ascertained from the actual injury if any, as well as from the surrounding circumstances. Among other things, nature of weapon used and similarity of the blow inflicted can be considered to infer an intent. 12. From the evidence on record, it is quite vivid that the incident had occurred on account of some dispute with regard to election and it is also on record that the complainant party also lodged report regarding the same incident. Therefore, on cumulative assessment of the evidence, it cannot be said that the appellants had any intention to cause death to imply Section 307 of IPC but the fact remains that Maheshram (PW3) suffered grievous hurt. Therefore, this Court is inclined to alter the offence from Section 307 of IPC to one under Section 325 of IPC. 13. The last question which comes for determination before this Court as to whether the sentence awarded to the appellants can be reduced or not. On behalf of the complainant/objector’s son, it has been argued that the appellants and the complainants are residents of the same village and by the flux of time, they have settled their dispute and living peacefully. The incident is of the year 1998. The appellants were young at the time of incident and now they are in the ripe age. It is not brought to the notice of this Court about any previous criminal antecedents of the appellants. Nothing adverse is brought before this Court that their premature release would be detrimental to the society. Hon’ble Supreme Court in the case of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in AIR 1977 SC 1926 held as under - 7 “Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alferi has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub- culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re- culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infiction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeofrey Streatfeld : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.” 14. Hon’ble Supreme Court in the matter of Deo Narain Mandal v. State of UP (2004) 7 SCC 257 observed the same in paragraph 8, which is as under: “8. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence 8 awarded should be neither excessively harsh nor ridiculously low. 15. Hon’ble Supreme Court in case of State of MP v. Ghanshyam Singh (2003) 8 SCC 13, held as under:- “13. criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of Callifornia {: 402 US 183 : 28 L.D. 2711} that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula 9 which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” 16. While determining the quantum of punishment various factors needs to be considered. Nature and gravity of offence, penalty provided for the offence, manner of commission of offence, proportionality between crime & punishment, character of the offender, age and sex of the offender, antecedents if any, possibility of reforms, impact of crime on society etc. are some of the relevant consideration in determining the quantum of punishment. Court has to strike a balance between crime and punishment. Possibility of reform is an important mitigating factor while imposing appropriate sentence. Undue sympathy should not be given only because of long drawn pendency of criminal proceedings. 17. The incident had occurred on 08/06/1998 and the appellants were young at that point of time and now they must have matured. They were granted bail by this Court and it is not brought to the notice of this Court that they ever misused the liberty. Nothing adverse was brought to the notice of this Court that their release would be detrimental to the society. The possibility of their reform cannot be ruled out. The appellants have already paid the fine imposed upon them. 18. Considering the mitigating circumstances as stated above, the case laws relied by learned counsel for the appellants as also the fact that appellants-Mohit Ram, Teli Ram, Amar Singh, Sahdev and Salik Ram remained in jail for more than 4 months and 6 days and appellant – Malik Ram remained in jail for about 2 months, this Court is of the view that ends of justice would be served if the sentence imposed upon them is reduced to the period already undergone by them. The relationship between the appellants and victims have turned cordial by flux of time as stated by learned counsel for the complainant’s son. Accordingly, in order to strike balance between the crime and punishment and also placing reliance on the above-stated judgments, the sentence awarded to the appellants is reduced to the period already undergone by them and the fine amount is not disturbed. Default of payment of fine would result into additional R.I. of 15 days. 10 19. Thus, the appeal is allowed in part as indicated above. Appellants are said to be on bail during the pendency of the appeal. Their bail bonds shall be kept alive for six months as per provisions of Section 481 of Bhartiya Nagrik Suraksha Sanhita, 2023. The records of the trial Court with copy of the judgment be sent back for information and compliance. Sd/- (Sachin Singh Rajput) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.04.17 16:50:46 +0530