1 2025:CGHC:25345 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 870 of 2007 Agyan Singh, aged 25 years, son of Jai Singh, Caste – Bhaina, R/o Village – Umarkhohi, Navapara, Police Station – Gourela, Distt. Bilaspur (CG) ... Appellant versus State Of Chhattisgarh through Police Station, Gourela, District Bilaspur (CG) ... Respondent For Appellant : Mr. Wasim Miyan, Advocate For Respondent : Mr. Devesh G. Kela, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey, J Judgment On Board 18/06/2025 The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated 18.7.2007 passed by Additional Sessions Judge, Pendraroad, Distt. 2 Bilaspur (CG) in ST No.349/2006 whereby the appellant stands convicted under Section 304 Part-I of IPC and sentenced to undergo RI for 10 years, pay a fine of Rs.100/- and in default thereof to suffer additional RI for one month. 02. Case of the prosecution, in brief, is that accused Agyan Singh, deceased Dhan Singh and Man Singh are real brothers living in Village-Umarkhohi, Navapara in their respective houses. On 21.6.2006 deceased came to the house of the accused in drunken condition, abused filthily and after breaking open the door entered the house. On this, the accused assaulted Dhan Singh with lathi on his head and leg as a result of which Dhan Singh fell down. Hearing the commotion, brother of the accused Man Singh reached there and thereafter wife of Man Singh Baisakhiya Bai and other villagers reached the spot and saw Dhan Singh lying on the floor in the house of the accused in pool of blood. However, next day when Dhan Singh was being taken to hospital he died on the way. On information being given to the police by Man Singh, Merg Intimation No.45/2006 was registered and after enquiry, FIR (Ex.P/4) under Section 302 of IPC was registered. On the memorandum of the accused (Ex.P/8), lathi was seized vide Ex.P/9. Dead body was sent for postmortem to Community Health Center, Pendra Road and report Ex.P/16 was obtained. Spot map was prepared and statements of the witnesses recorded. After completion of investigation charge sheet under Section 302 of IPC was filed 3 against the accused followed by framing of charge accordingly by learned trial Court. 03. In order to substantiate its case the prosecution examined 11 witnesses. Statement of the accused was recorded u/s 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined his wife Nirmala Bai as DW-1. 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, learned trial Court convicted and sentenced the accused as mentioned in para 1 of this judgment. Hence this appeal. 05. Learned counsel for the appellant submits that the impugned judgment is contrary to law and material available on record. Learned trial Court has failed to see that it is the deceased who in drunken condition came to the house of the accused/appellant with lathi, abused filthily and broke the door of the appellant’s house which raised a reasonable apprehension in the mind of the accused that the deceased is going to cause serious harm to his wife and himself, and therefore, in right of exercise of private defence of himself and his wife, he assaulted on the deceased. Learned trial Court ought to have seen that lathi and stones used by the deceased for breaking the door were neither seized by the prosecution nor produced before the trial Court. He further submits that there is nothing on record to show any previous 4 enmity or motive with the accused to commit this heinous crime. This apart, the alleged weapon of offence lathi seized from the possession of the accused/appellant does not contain any blood, much less human blood as there is no report of the chemical examiner or serologist to support the prosecution case. As such, the memorandum of the accused loses its efficacy. Hence in the facts and circumstances of the case and the manner in which the incident took place, the accused/appellant cannot be at all held guilty and thus the impugned judgment is liable to be set aside. Alternatively, learned counsel for the appellant submits that looking to the manner in which the incident took place where the deceased himself was aggressor, there was no premeditation on the part of the appellant, the incident occurred on the spur of moment, in the heat of passion and the appellant assaulted him in exercise of right of private defence, at the most he can be held guilt under Section 304 Part-II of IPC and considering the fact that the incident took place in the year 2006, the appeal is pending since 2007, he remained in jail for 18 months; at present he is about 45 years of age; during pendency of this appeal he was on bail and did not misuse the liberty, the jail sentence imposed upon the appellant may be reduced to the period already undergone by him. Reliance has been placed on judgment dated 10.2.1999 passed in the matter of Badan Nath Vs. State of Rajasthan, 1999 5 CRILJ 2268 and judgment dated 22.10.2024 of this Court in CRA No.1088/2003 in the matter of Sushil and others Vs. State of CG. 06. On the other hand, learned counsel for the State opposing the contention of the appellant submits that the learned trial Court upon minute appreciation of oral and documentary evidence has rightly convicted and sentenced by the appellant by the impugned judgment which calls for no interference by this Court. Therefore, the present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellant was charged under Section 302 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under Section 304 Part-I of IPC as mentioned above. 09. As regards homicidal death of the deceased, the same is not disputed by learned counsel for the appellant. Even otherwise, from the postmortem report of the deceased which has been duly proved by the autopsy surgeon PW-10 Dr. Smt. Subhadra Paikra wherein she noticed lacerated wound over head and legs with compound fracture and opined that cause of death was shock due to excessive loss of blood and extra cranial and infra cranial hemorrhage and the death was 6 homicidal in nature, it stands proved beyond reasonable doubt that death of Dhan Singh was homicidal. 10. PW-1 Tribhuvan Singh states that on the date of incident while he was at his house, at around 9 pm wife of Man Singh came to his house and at her instance, he went with her to her house where he saw deceased Dhan Singh lying inside the house with injuries over his head and leg. At that time, the accused/appellant reached there and on being asked, the accused told that the deceased entered his house after breaking the door. This witness has turned hostile and not supported the prosecution case. 11. PW-2 Nainsingh stated that on being called by Baisakhiyabai when he went to the house of the accused, he saw Dhan Singh lying there, door of the house was broken and the accused was not present there. He further states that when the accused returned, they enquired from him about the incident, on which he replied that he had gone to inform the Kotwar and confessed that he assaulted Dhan Singh. He states that as they could not arrange vehicle at night, Dhan Singh was taken to hospital next morning. He further states that the accused also confessed his guilt before the police and gave lathi to the police. 12. PW-3 Banwari has also turned hostile and not supported the prosecution case. PW-4 Mahendra Singh states that on being called by Baisakhiyabai, he went to the house of the accused and saw deceased 7 Dhan Singh lying there with injuries over his head and leg and the door of the house was broken. He states that at that time the accused was not in the house. 13. PW-5 Man Singh, brother of the deceased and the accused, states that they all reside at the same place in their respective houses. On the date of incident at around 9-10 pm when he woke up to attend the call of nature, he saw that Dhan Singh was lying in the room of the accused. He reported the matter to the police next day vide merg intimation Ex.P/3 which bears his signature from A to A part. He also admitted his signature on the FIR (Ex.P/4) and inquest (Ex.P/5). This witness was also declared hostile. However, in cross-examination he admits that the deceased entered the house of the accused after breaking the door. 14. PW-6 Baisakhiya Bai, sister-in-law (Bhabhi) of the accused, states that hearing the cry when she went to the house of the accused, she saw Dhan Singh lying inside the house and door of the house was lying broken. At that time the accused was in the verandah. Thereafter, they called other persons who enquired from the accused about the incident but she cannot tell as to what he disclosed to them. She states that next day while being taken to hospital Dhan Singh died. She has also been declared hostile by the prosecution. 8 15. PW-7 Raisingh states that on being called by Man Singh and his wife when he sent to the house of the accused, he saw that door of the house was broken and Dhan Singh was lying inside in pool of blood with injuries over his legs. After some time the accused and his wife came to the house. On being asked by them, the accused confessed that he assaulted Dhan Singh with lathi but did not tell the reason for making assault. 16. PW-8 SP Bhagat, investigating officer, states about the manner in which he recorded merg intimation, FIR, prepared inquest, sent the body for postmortem, recorded statements of the witnesses, memorandum of the accused and effected seizure. He has duly proved the prosecution case. 17. PW-10 Dr. Smt. Subhadra Paikra conducted postmortem on the body of the deceased and found lacerated wound over head and legs with compound fracture and opined that cause of death was shock due to excessive loss of blood and extra cranial and infra cranial hemorrhage and the death was homicidal in nature. In cross- examination she states that even if immediate treatment was given to the deceased, his survival was not possible. She also examined the weapon of offence lathi and opined that the injuries sustained by the deceased could be caused by this weapon vide Ex.P/17. 9 18. Close scrutiny of the evidence makes it clear that there is no eyewitness to the incident and the entire case rests upon circumstantial evidence. From the evidence of the witnesses it is seen that on being called by Man Singh and his wife Baisakhiya Bai, the other witnesses reached the house of the accused, saw the door lying broken and the deceased lying inside the house with injuries over his head and legs. As per PW-5 Man Singh and PW-6 Baisakhiya Bai, after hearing the sound of scream, they woke up and went to the house of the accused whereby they saw the door broken and the deceased lying in injured condition there. They state that at that time the accused was standing the verandah. This apart, PW-2 Nain Singh and PW-7 Rai Singh state that on being asked the accused confessed that as the deceased forcibly entered his house, he assaulted him. The aforesaid evidence of the witnesses remained firm in cross-examination and the defence could not show any enmity or ill-will of these witnesses with the accused to make their evidence doubtful or untrustworthy. On the memorandum of the accused (Ex.P/8), weapon of offence lathi was seized (Ex.P/9) and witnesses to memorandum and seizure namely PW2 Nain Singh and PW-7 Rai Singh have duly supported the prosecution case. PW-10 Dr. Smt. Subhadra Paikra examined the seized lathi and gave opinion that the injuries suffered by the deceased could be caused by this weapon vide Ex.P/17. Thus, in view of the aforesaid circumstantial evidence, conduct of the appellant during the 10 incident and subsequent thereto, his complicity in the crime in question stands proved beyond reasonable doubt. 19. Considering the facts and circumstances of the case, the manner in which the incident took place where the deceased forcibly entered the house of the accused at around 9-10 pm after breaking the door which caused apprehension in the mind of the accused that the deceased has come to outrage modesty of his wife or cause harm to them and then he assaulted him with lathi on his head and legs, the nature and extent of injuries suffered by the deceased, this Court is of the opinion that while making such assault, though the accused may not have intention of causing his death, but certainly he must be having knowledge that infliction of such injuries on his vital part head would result in his death. Being so, the act committed by the accused/appellant makes him liable for conviction u/s 304 Part-II and not 304 Part-I of IPC as has been held by the trial Court. 20. As regards sentence, considering the facts and circumstances of the case, the fact that the incident took place in the year 2006; appeal is pending since 2007; the appellant was on bail during pendency of this appeal and did not misuse the liberty; at the time of incident he was 25 years of age and at present would be around 45 years; he has remained in jail for about 18 months (from 23.6.2006 to 17.7.2007 and thereafter from 18.7.2007 to 12.12.2007); this Court is of the opinion that no fruitful purpose would be served in sending him back to jail at 11 this stage and the ends of justice would be served if he is sentenced to the period already undergone by him. 21. In the result, the appeal is allowed in part. Conviction of the appellant under Section 304 Part-I of IPC is hereby altered to Section 304 Part-II of IPC and he is awarded jail sentence thereunder to the period already undergone by him. He is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 481 of BNSS, 2023. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.06.20 16:48:45 +0530