2025:CGHC:14546-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1000 of 2021 Aayatu Ram Potai S/o Late Ghasiya Ram Potai Aged About 35 Years R/o Village Ghotiya P. S. Badgaon, District-North Bastar, Kanker Chhattisgarh --- Appellant(s) versus State Of Chhattisgarh Through The Station House Officer P. S. Badgaon, District North Bastar Kanker Chhattisgarh --- Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri AN Pandey, Advocate For Respondent/State : Shri Hari Om Rai, PL --------------------------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice & Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 26.03.2025 1. Challenge in this appeal is to the judgment of conviction and sentence dated 13.08.2021, passed by the learned Additional Session Judge, Bhanupratappur, Distt-North Bastar-Kanker, CG, in ST-21 of 2019, whereby the appellant has been convicted for commission of offence punishable under Section 302 of the IPC, and sentenced for life imprisonment with fine of Rs.2,000/- with default stipulation. 2. Brief facts of the case are that complainant-Bisau Ram Darro gave merg intimation Ex.P19 to the Police Station-Siksode to the effect that on Cra 1000 of 2021 2 16.04.2019 when he along with Santlal Darro, present appellant, Ramsu, Yashoda, and Baisakhin (since deceased) were returning to village- Ghotiya from Kapsi, deceased Baisakhin and the complainant took lift on the Motorcycle of Ramsai Kumeti, and came up to Pipli Road, and near Pipli turning, he dropped them and went towards his house. After a short while, appellant also came on his bicycle, and started quarelling with his wife Baisakhin as to why she had come on the Motorcycle with other person, and not with him. He started assaulting her, and when the complainant intervened, he too was assaulted by the appellant. Appellant assaulted his wife, Baisakhin by a stone which was lying there, by which she received injuries on her head and died. Based on the merg intimation given by Bisau Ram Darro, FIR Ex.P20 was registered against the appellant for the offence punishable under Section 302 and 323 of the IPC. Inquest Ex.P10 of dead-body of the deceased was prepared in presence of the witnesses. Dead-body was sent for its postmortem to the Community Health Centre, Pakhanjur, where PW8- Dr Sukhdev Shende conducted postmortem of dead-body of the deceased, and gave report Ex.P18. While conducting postmortem of the dead-body, the doctor has noticed the following injuries: Wound on both side of head on both occipital bone, diameter-2 cm, bleeding mark, head bone pierced into the brain matter Wound on back side of neck in cervical area diameter about 2 cm, fracture of cervical vertebra from 3 to 5, Injury occurred in spinal cord. Cra 1000 of 2021 3 On internal examination, the doctor has found Spinal Cord injury occurred on survical area of neck from 3 to 5, and opined that cause of death is Spinal shock and neurogenic shock due to fracture of neck vertibra and injury to the Spinal cord. Nature of death is homicidal. 3. The injured Bisau Ram Darro was also sent for his medical examination to the Community Health Centre, Pakhanjor, where he too has been examined by PW8- dr Sukhdev Shende, who gave MLC report Ex.P13 and the doctor has noticed pain and swelling on right side of face near right year, which is simple in nature. Spot Map Ex.P21 was prepared by the Police, and Ex.P7 was prepared by the Patwari. Appellant was arrested on 17.04.2019, and his memorandum statement Ex.P2 was recorded and based on his memorandum statement, his bicycle was seized vide seizure memo Ex.P3, and one stone has been seized vide seizure memo Ex.P4. The said stone was sent for its query report to the doctor, who gave his opinion Ex.P15 that the injury on the face and mouth of the deceased can be possible by the stone. The other query reports are Ex.P16, and Ex.P17. 4. Statement of the witnesses under Section 161 of the CrPC, and statement of the complainant- Bisau Ram Darro under Section 164 of the CrPC have been recorded, and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Section 302 and 323 of the IPC before the learned Judicial Magistrate First Class, Pakhanjor. Case was committed to the Court of learned trial Cra 1000 of 2021 4 court for its trial. Learned trial court has framed charge against the appellant for the offence under Section 302 and 323 of the IPC. Appellant abjured his guilt and claimed trial. 5. In order to prove the charges against the appellant, the prosecution has examined as many as 12 witnesses. The statement under Section 313 of Cr.P.C of the appellant was also recorded in which he denied the material appearing against him and pleaded innocence and has submitted that he has been falsely implicated in the offence. 6. After considering and appreciating the oral as well as documentary evidence available on record, the learned Trial Court has convicted the appellant and sentenced him as mentioned in earlier part of this judgment. Hence, this appeal. 7. Learned counsel for the appellant would submit that the appellant is innocent and has falsely been implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict the appellant for the offence in question. The alleged eyewitness is interested witness, and there is inconsistency in his evidence, and in the evidence of prosecution witnesses. The presence of eyewitnesses is doubtful, as he lodged the report against the appellant, saying that he is the injured witness but he himself has not supported the prosecution cse, and the learned trial Court has acquitted Cra 1000 of 2021 5 the appellant for causing injury to the alleged eyewitness/complainant Bisau Ram Darro, and thus his presence on the spot itself is doubtful, and there is no other eyewitness to the incident that the appellant assaulted the deceased. He would further submit that the appellant was not armed with any deadly weapon, and the incident was occurred in a heat of passion, and without taking any undue advantage, suspecting fidelity of the deceased, he assaulted her. The act of the appellant does not satisfy the ingredients of definition of “murder”, and his act, if any, would come under the definition of Section 304 Part-I, or Part-II of the IPC. Appellant remained in jail since 17.04.2019, and therefore, by altering his conviction from 302 to 304 Part-II of the IPC, his sentence may be reduced to the period, already undergone by him. 8. On the other hand, learned counsel for the state opposes the argument advanced by learned counsel for the appellant and submitted that but for minor omissions and contradictions, evidence of prosecution witnesses are fully reliable. Suspecting the fidelity of his wife, when she along with the complainant, was coming back from village Kapsi on the Motorcycle of a villager, by asking lift, who dropped them near Pipli Chowk, at that time, appellant came there, and assaulted the deceased by stone on her head by which she received grievous injuries, and died on the spot. This act of the appellant itself shows his intention to commit murder of his wife, and the incident was witnessed by PW2-Bisau Ram Darro. Even if the appellant is acquitted from the offence punishable under Section 323 of the IPC, that itself is not sufficient to disbelieve Cra 1000 of 2021 6 other evidences available on record, which pointing towards guilt of the appellant that he committed murder of the deceased-Baisakhin, his wife. Therefore, the impugned judgment of conviction and sentence needs no interference by this Court. 9. We have heard the learned counsel for the parties and perused the record carefully. 10. So far as homicidal death of the deceased is concerned, PW8-Dr Sukhdev Shende has proved the postmortem report of dead-body of the deceased, who stated in his evidence that on 17.04.2019, dead-body of the deceased Baisakhin was brought before him, and he conducted its postmortem. While conducting postmortem, he found injuries on her head at occipital region, and fracture of bone was also there. Her 3, 4 and 5 cervical vertebra was fractured, and injury to the Spinal cord, by which she died. He opined cause of death of the deceased is Spinal shock and neurogenic shock due to fracture of neck vertebra and injury to the Spinal cord. Nature of death is homicidal. He also proved the Query Report Ex.P17, and gave the opinion that injuries found on the body of the deceased could have been caused by the said stone sent for its query report. Nothing adverse has come in his cross-examination which makes his evidence doubtful, and he confirmed the finding given in the postmortem report. 11. Homicidal death is supported by the evidence of PW2, Bisau Ram Darro, who stated in his evidence that when they were returning from Cra 1000 of 2021 7 Kapsi, deceased-Baisakhin took lift up to Pipli Road, and near Pipli turning, the villager dropped them, where the appellant assaulted the deceased by stone. He saw the dead-body of the deceased, who received injuries on her neck, and bones were fractured. Further, the witness to the inquest PW1-Dukay Bai Usendi, PW4-Nandu Ram Darro, stated in their evidence that when they saw the dead-body of the deceased, they saw the injuries on her head, by which she died, and thus, learned trial Court has rightly came into conclusion that the prosecution has proved death of the deceased homicidal by leading cogent evidence in which this Court is also in agreement in the finding recorded by the trial court that the deceased died due to homicidal death. 12. So far as involvement of the appellant in the offence in question, the prosecution case is based on the evidence of PW2- Bisau Ram Darro, who is eyewitness to the incident. He stated in his evidence that on the date of incident, they had gone to village-Kapsi, and while returning from there, he along with the deceased-Baisakhin took lift on a Motorcycle of one Guddu, who dropped them at Pipli turning. At that time, appellant came there on his bicycle, and asked him to go to his companions, and he left the place and went to his companions. When he again reached at Pipli turning, he saw that Baisakhin was lying dead, having injury on her head. When he asked from the appellant, he disclosed that he assaulted the deceased by stone. Thereafter, report has been lodged to the Police. At this stage, he has been declared hostile, and cross-examined by the prosecution and then he stated that while they were returning from village Cra 1000 of 2021 8 Kapsi, deceased shown her inability to walk to the village, and then she took lift from a villager on his Motorcycle. Bisau Ram Darro also sat on the Motorcycle with the deceased, and they came up to Pipli turning. He also admitted that the appellant has raised suspicion on the fidelity of the deceased, and started quarrelling with her. He also stated that appellant has slapped him, and when the deceased intervened, she too was being assaulted by the appellant, and thereafter, appellant took a stone which was lying there, and assaulted the appellant with the stone, by which she fell down on the ground, and thereafter, appellant pressed her neck by his leg, and committed murder. Appellant chased him, then, he fled away from the place. He informed the other persons, who are coming from backside, and then, lodged the report. In cross-examination, he stated that on being asked by the appellant to go with his companions, he left them alone at Pipli turning, and came to his companions. He did not see the actual assault made upon the deceased. He admitted that when he again reached on the spot, he saw the dead-body of the deceased but appellant was not there. He reported the incident that the appellant slapped him, and also witnessed the incident. He further stated in his cross-examination that when the appellant slapped him, he came back from there. He further stated that the appellant has not actually assaulted him, he only raised his hand for assaulting him and then he went away from the place. He admitted that his statement under Section 164 of the CrPC was recorded as Ex.P18 Cra 1000 of 2021 9 but in further cross-examination, he stated that on the instance of the Police, he made statement under Section 164 of the CrPC. 13. PW1-Dukay Bai usendi is sister of the appellant. She stated in her evidence that on the date of incident, when they were returning from village Kapsi, Bisau Ram Darro and the deceased took lift from a villager on his Motorcycle, and they were coming by walking. At that time, Bisau Ram Darro rushed to them and informed that Baisakhin died. She turned hostile, and not supported the prosecution case. 14. PW3- Mohan Aanchala and PW4- Nandu Ram Darro are witnesses of memorandum and seizure of stone, weighing 3.5 kg. Though they have not fully supported the prosecution case, but have admitted their signatures on the memorandum and seizure. On the basis of memorandum Ex.P2, stone has been seized from the appellant vide seizure memo Ex.P4, and as per the query report of the doctor, injuries found on the body of the deceased could have been caused by the said stone. Presence of the appellant at the relevant point of time on the spot has been proved by PW2, Bisau Ram Darro. Though he is the injured eyewitness to the incident, but he resile from his statement, and only supported that when he left the place, the deceased and appellant were there together, and after s short moment, when he came back, he found the deceased died and the appellant was not there. From his evidence, presence of the appellant is on the spot is duly proved and immediately thereafter, the deceased was found in injured condition. Cra 1000 of 2021 10 15. PW11 Manay Bai is the sister-in-law of the appellant. She also stated in her evidence that on the date of incident, they were returning from village Kapsi. Bisau Ram Darro, deceased-Baisakhin and the appellant were going ahead of them, and after some time, Bisau Ram Darro came back and informed them that Baisakhin has been assaulted by the appellant, and at that time, appellant and Bisau Ram Darro were there at Pipli turning. When they reached to the spot, they saw the dead- body of Baisakhin, and the appellant fled away from the spot. This witness has also been declared hostile, and thereafter, not supported the prosecution case, except the fact that Bisau Ram Darro has informed them about the incident that the appellant assaulted the deceased. 16. PW12-Yashoda Salam is also witness to the same that when they returning from village Kapsi, appellant, his wife-Baisakhin, and Bisau Ram Darro (PW2), went ahead from them, and after some time, Bisau Ram Darro rushed to them and informed that deceased-Baisakhin has been assaulted by the appellant, and when they reached to the spot, they saw her dead-body here. 17. From the above evidences, prosecution is able to prove the involvement of the appellant in the offence in question that he assaulted the deceased by stone, and fled away from the place. Even he has not explained as to his wife has received injuries on her head when he along with his wife were together at the relevant point of time. Cra 1000 of 2021 11 18. In case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, states as under: "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him.” 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 Cra 1000 of 2021 12 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". 19. In the case of Nagendra Sah v. the State Of Bihar (2021) 10 SCC 725 the Hon’ble Supreme Court in Para 23 has held as under: “23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances.” 20. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants. 21. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 has observed as under:- “21. Keeping in view the facts and circumstances of the Cra 1000 of 2021 13 case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 22. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character Cra 1000 of 2021 14 and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? Cra 1000 of 2021 15 These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 23. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 24. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- Cra 1000 of 2021 16 “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that Cra 1000 of 2021 17 under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender Cra 1000 of 2021 18 has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 25. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 26. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi), (2019) 6 SCC 122 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 27. According to the postmortem report, cause of death is Spinal shock and neurogenic shock due to fracture of neck vertebra and injury to the Spinal cord. Nature of death is homicidal. There is no other injury found Cra 1000 of 2021 19 on the body of the deceased. Appellant’s conduct shows that he did not had the intention to cause the murder of the deceased though in a heat of passion, he would have assaulted the deceased. 28. It is also not the case of the prosecution that the appellant came armed heavily with any deadly weapon like sword or axe. The appellant assaulted the deceased by a stone, which was lying there on the spot. 29. Reverting to the facts of the present case as some dispute arose between the appellant and the deceased suspecting her fidelity, and without there being any premeditation on the part of the appellant to cause death of deceased, the assault was made. As such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. Had the appellant intended to cause murder of his wife, Baisakhin, he would have given more blows with the stone. As such, it could be safely said that the appellant did not had the intention to kill the deceased. 30. In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. Cra 1000 of 2021 20 31. So far as sentence part is concerned, the submissions made by learned counsel for the appellant that the appellant is presently aged about 40 years, the offence is of the year 2019. Appellant has already suffered the lis for about 6 years. He already remained in jail for more than five years 11 months, and considering the nature of allegation, as well as his detention period, appellant may be sentenced for the period already undergone by him, is found to be appropriate in the facts and circumstances of the present case. 32. So far as the sentence part is concerned, Hon’ble Supreme court in the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, it has been observed by the Hon’ble Supreme Court as under: “9. 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". Alfieri 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- Cra 1000 of 2021 21 culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction 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 Jeoffrey Streatfield : '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.” 33. Considering the submissions made by learned counsel for the appellant, facts and circumstances of the present case, and further considering the law laid down in Giasuddin (supra) case, ends of justice would meet if the sentence of the appellant could be reduced to the period already undergone by him. Cra 1000 of 2021 22 34. In the result, the appeal is partly allowed. The conviction of the appellant for the offence of Section 302 of the IPC is set-aside, instead thereof he has been convicted for the offence under Section 304 Part-II of the IPC and sentenced for the period already undergone by him. 35. Appellant is reported to be in jail since 17.04.2019. He be released forthwith if not required in any other case. 36. Keeping in view the provisions of section 481 of the BNSS 2023, the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with one reliable 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. 37. The trial court records along with a copy of this judgment be sent back immediately to the trial court, concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma Digitally signed by V PADMAVATHI Date: 2025.04.15 15:30:13 +0530