1 CRA No. 206 of 2015 2025:CGHC:14769-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 206 of 2015 [Arising out of judgment dated 10.04.2014 passed in Sessions Trial No.19/2012 by the Additional Sessions Judge, Khairagarh,Circuit Court, Dongargarh, District Rajnandgaon, Chhattisgarh]  Harichand S/o Ramdayal Gond, aged about 55 years, R/o Village Tolagaon (Meda) Police Station Dongargarh, District Rajnandgaon C.G., Civil & Revenue District Rajnandgaon , Chhattisgarh ... Appellant versus  State of Chhattisgarh through the Police Station Dongargarh District Rajnandgaon, Chhattisgarh. ... Respondent For Appellant :- Mr. Vidya Bhushan Soni, Advocate. For State-Respondent :- Mr. Sharad Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (27.03.2025) Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.03.29 18:20:02 +0530 2 CRA No. 206 of 2015 impugned judgment of conviction and order of sentence dated 10.04.2014 passed by the learned Additional Sessions Judge, Khairagarh, Circuit Court, Dongargarh, District Rajnandgaon, Chhattisgarh in Sessions Trial No. 19/2012 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life with fine of ₹ 1,000/-; in default of payment of fine appellant has to undergo additional rigorous imprisonment for six months. 2. Case of the prosecution in, nutshell, is that on 23.06.2012 at about 6:00 pm at village Tolagaon (Medha), Police Station Dongargarh, the appellant assaulted Sen Bai by pick axe by which she suffered grievous injuries and died and thereby committed the aforesaid offence. On the report of Mannu (PW-4), husband of the deceased, dehati nalsi and dehati nalsi merg intimation were registered vide Exs.P/7 & P/7A, respectively. Merg intimattion and FIR were registered vide Exs.P/4 & P/5, respectively. Nazri naksha and crime details form were prepared vide Exs.P/1 & P/8, respectively. Inquest proceedings (Ex.P/10) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem 3 CRA No. 206 of 2015 report (Ex.P/17) proved by Dr. S. Choudhary (PW-10), cause of death was due to head injury and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/13), weapon of offence i.e. pick axe was seized. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/19) on the clothes of the deceased and the weapon of offence i.e. pick axe blood was found. 3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 19 documents whereas the defence in support of its case has neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the 4 CRA No. 206 of 2015 opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence. 6. Mr. Vidya Bhushan Soni, learned counsel for the appellant, would submit that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He would also submit that taking the medical evidence (Ex.P/17) proved by Dr S. Choudhary (PW-10) only single injury was found over the head of the deceased, at the most, offence under Section 304 Part-II of the IPC would be made out and the appellant may be awarded the sentence to the period already undegone by him as he is in jail from 24.06.2012 to 03.02.2023, he has completed more than 10 years, and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that 5 CRA No. 206 of 2015 prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of conversion where the conviction of the appellant can be converted for lesser offence, therefore, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report (Ex.P/17) proved by Dr. S. Choudhary, which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 6 CRA No. 206 of 2015 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. Considering the statement of eye witness Lochan (PW-5), son of the deceased, in which he has clearly implicated the appellant in crime in question by stating that he was on the field and saw the appellant assaulting her mother and further pursuant to memorandum statement of appellant (Ex.P/13), pick axe was seized vide Ex.P/15 on which in FSL report (Ex.P/19) blood was found, the trial Court has rightly recorded a finding that it is the appellant who assaulted Sen Bai(deceased) by which she suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. 12. Now, the question is, whether the case of the appellant can be converted / altered to an offence under Section 304 Part-II of IPC from offence under Section 302 of the IPC. 13. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana1 has laid down certain factors which are to be 1 (2009) 15 SCC 635 7 CRA No. 206 of 2015 taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of 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 and not exhaustive. Each case has to be seen from 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 8 CRA No. 206 of 2015 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 ? 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.” 14. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgment, it is quite vivid that there was no premeditation on the part of the appellant to cause death of Sen Bai and as per the statement of PW-5 there was a dispute with regard to agricultural field, between the appellant and the family of the deceased, therefore, on the date of offence, due to that dispute quarrel took place between the appellant and the deceased and out of anger, in sudden quarrel, the appellant is said to have caused him single blow on the head of the deceased by pick axe by 9 CRA No. 206 of 2015 which she suffered grievous injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence (Ex.P/17) available on the record proved by Dr. S. Choudhary (PW-10), it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her death, as such, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC. 15. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of deceased Sen Bai and the injury caused by him was not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 10 years, which he has already undergone as he was in jail from 24.06.2012 to 03.02.2023 i.e. more than 10 CRA No. 206 of 2015 10 years, but the fine amount imposed by the learned trial Court shall remain intact. However, at present, Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 16. This criminal appeal is partly allowed. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit