1 2025:CGHC:39086 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 172 of 2025 1. Kush Dewar @ Chhotku Dewar, S/o Late Shibu Dewar, Aged About 24 Years, R/o Amanaka, Kukurbeda, Police Station Sarswati Nagar, Raipur, District Raipur, Chhattisgarh. 2. Love Dewar @ Badku Dewar, S/o Late Shibu Dewar, Aged About 24 Years, R/o Amanaka, Kukurbeda, Police Station Sarswati Nagar, Raipur, District Raipur, Chhattisgarh. ... Appellants versus • State Of Chhattisgarh, Through The District Magistrate, Raipur, District Raipur, Chhattisgarh. ... Respondent (Cause title taken from Case Information System) For Appellants : Mr. Shivendu Pandya, Advocate. For State/Respondent : Mr. Vivek Sharma, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 06/08/2025 1. The present appeal under Section 415 (2) of BNSS, 2023 has been filed challenging the judgment of conviction and order of sentence dated 23.08.2024 passed by the learned Additional Session Judge, Raipur, District Raipur (C.G.) in Session Case No.343/2022, whereby both the appellants have been convicted under Section 307/34 of IPC and sentenced to undergo R.I. for 5 years to each of the appellant with fine of Rs.100/- to each of the appellant and in default of payment of fine, 3 months’ additional R.I. to each 2 of the appellants. 2. The case of prosecution, in short, is that the complainant namely Surya Dewar (PW-07) lodged the report in the Police Station Sarswati Nagar, District Raipur (C.G) stating that on the date of incident i.e., on 07.10.2022 at about 09:40 P.M., the complainant called her son-in-law namely Shankar Sahu (PW-03) for inviting the dinner in her house and on the aforesaid date & time Vikram, Shankar, Sunil & Kishan were sitting near the Nilesh Kirana Shop and at the same time one of the juvenile & appellant no.1 came from the back side, caught hold the shirt of the Shankar, as Diksha Dewar & Banita stated to the appellant no.1 that the Vikram, Shankar, Sunil & Kishan has used the filthy language to them while eating the momos. It is alleged by the complainant that juvenile slapped Shankar, thereafter, the complainant intervened the incident. Further, it is alleged by the complainant that after some time appellant No.1 assaulted Sunil by way of some sharp object and when Sunil ran to the police station, then appellant No.2 kept the Sabbal in his hand and threatened to Shankar. Thereafter, complainant went to the Police Station Sarswati Nagar, District Raipur (C.G.) and lodged the report. The police has enquired the case and on the basis of memorandum, FIR was registered against the appellants/accused for the offence punishable under Sections 307/34 of IPC. After due investigation, charge sheet was filed against the present appellants/accused for the offence punishable under Sections 307/34 of IPC and Sections 25 & 27 of the Arms Act in Crime No.227/2022. 3. So as to hold the appellants guilty, the prosecution examined as many as 10 witnesses, exhibited 35 documents and Articles A to E & Article 6. The statement of the appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case. 3 4. The trial Court taking into consideration the evidences which have come on record vide impugned judgment dated 23.08.2024 found the appellants guilty for the offence punishable under Section 307/34 of IPC and accordingly convicted and sentenced them under the said section, as mentioned in paragraph-1 of this judgment. 5. Learned counsel for the appellants would submit that the appellants are not challenging the appeal on the conviction part and they confine their prayer only to the extent of sentence imposed upon the appellants. It is further submitted that the maximum sentence imposed upon the appellants is 5 years, out of which the appellant No.1/Kush Dewar @ Chhotku Dewar has already served the jail sentence for more than 2 years and appellant No.2/Love Dewar @ Badku Dewar has served the jail sentence for more than 1 and half years. Hence, considering all theses facts, the sentence imposed upon the appellants may be reduced to the period already undergone by them. 6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the counsel for appellants and submits that there is one criminal antecedents against appellant No.1/Kush Dewar @ Chhotku Dewar of the year 2020. As per FSL report (Ex.P/33), human blood has been found on the Articles – A, B, C & D, as such the appellants have rightly been convicted and sentenced and does not call for any interference by this Court. 7. I have heard learned counsel for the parties and perused the material available on record carefully. 8. Having gone through the material available on record and the statements of injured Sunil Mishra (PW-6) and eye witness Shankar Sahu (PW-3), Surya Dewar (PW-7) and the Investigating Officer Shruti Singh (PW-10) and Dr. 4 Shailesh M. Rout (PW-9), the involvement of the appellants in the crime in question is clearly established and the FSL report marked as Ex.P/33 is positive as human blood has been found on the aforementioned articles, as such this Court does not find any illegality in the findings recorded by the Trial Court as regards conviction of the appellants for the offence punishable under Section 307/34 of IPC. 9. As regards sentence, keeping in view the fact that the maximum sentence imposed upon the appellants is 5 years, out of which the appellant No.1/Kush Dewar @ Chhotku Dewar has already served the jail sentence for 2 years 2 months & 12 days and appellant No.2/Love Dewar @ Badku Dewar has served the jail sentence for 1 year 5 months & 10 days, the appellants are young boys, aged about 20-25 years and further considering the injuries sustained by the injured (PW-6) and the appellants have no past record, therefore, this Court is of the opinion that the ends of justice would be served if the appellants are sentenced to the period already undergone by them. 10. As regards sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287, Hon’ble Supreme Court has observed that 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 and held in para-9 as follows:- “9. Western jurisprudes 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 Nicodotis, 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 5 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 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.” 11. In the light of the decision of the Supreme Court in the case of Mohammad Giasuddin (supra) and keeping in view the fact that the appellants remained in jail from i.e., appellant No.1/Kush Dewar @ Chhotku Dewar has already served the jail sentence for 2 years 2 months & 12 days and appellant No.2/Love Dewar @ Badku Dewar has served the jail sentence for 1 year 5 months & 10 days. Accordingly, the conviction of the appellants under Section 307/34 of IPC is maintained, but their jail sentence is reduced to the period already undergone by them. However, the fine imposed upon the appellants by the Trial Court is amplified from Rs.100/- to Rs.10,000/- which will be paid by each of the appellants, the fine amount paid, if any, shall be adjusted and in default of payment of fine amount, the appellants to further undergo R.I. for 6 months. Thereafter, total amount of compensation of Rs.20,000/- shall be paid to the injured Sunil Mishra (PW-6), forthwith. 6 12. Consequently, the appeal is allowed in part to the extent indicated herein- above. 13. The appellants are reported to be in jail. They be released forthwith, if not, required to be detained in any other case or in default of the payment of the fine amount. 14. Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- (Sanjay Kumar Jaiswal) Judge DEEPTI JHA NIRALA Digitally signed by DEEPTI JHA NIRALA