1 / 9 2025:CGHC:19329-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1500 of 2024 Siyaram Sirdar S/o Madhauram Aged About 31 Years R/o Village- Gokulpur Police Station- Ramanujnagar, Present Address- Village- Koteya, Police Station- Premnagar, District- Surajpur, Chhattisgarh. ... Petitioner(s) versus State Of Chhattisgarh Through Station House Officer, Police Station- Premnagar, District- Surajpur, Chhattisgarh. ---- Respondent For Appellant : Mr. Gyan Prakash Shukla, Advocate. For State : Mr. Shailendra Sharma, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Arvind Kumar Verma, Judge Per Ramesh Sinha, CJ 29/04/2025 1. Challenge in this criminal appeal is to impugned judgment of conviction and order of sentence dated 22.07.2024 (Annexure A- 1) passed by learned Session Judge, Surajpur, (C.G.), in Session Case No.66/2018, whereby the appellant stands convicted and sentence as under: 2 / 9 Conviction Sentence Under Section 449 of the IPC. Rigorous imprisonment for 10 years & fine of Rs.500/-, in default of payment of fine, 02 months additional RI. Under Section 302 of the IPC. Imprisonment for life with fine of Rs.500/-, in default of payment of fine, 02 months additional RI. 2. Case of the prosecution, in brief, are that on 22.06.2018 complainant (Dheersai PW/1) made a oral report before the concerned Police Station that at about 07:00 am, his mother-in- law namely Rameshwari Bai (deceased) went to the agricultural field for work and after doing some work, she was taking rest there at hutment. When complainant reached there at about 09:00 a.m, he saw that inside the hutment, present appellant has assaulting his mother-in-law (Rameshwari Bai) by means of Axe on her head and, thereafter, appellant closed the hutment and fled away from the spot. Complainant went inside the hutment and he saw that Rameshwari Bai was lying injured on the ground in unconscious condition and, thereafter, she succumbed to the injuries on the spot. Based upon said report, merg was lodged and during investigation, appellant has been arrested and axe was also seized from him. 3 / 9 3. On completion of investigation, challan/charge sheet was filed against the appellant and based upon which, trial Court framed the charge against him. 4. After hearing learned counsel for the parties and appreciating the evidence/material available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellants in the manner as described in Para-1 of this judgment. 5. In the earlier round, this Court vide order dated 16.02.2024 passed in CRA No.180/2020, set-aside the impugned judgment/order of trial Court dated 05.11.2019 and remanded back the case to the trial Court for fresh adjudication of the case after recording of statement of complainant (PW/1-Dheersai). Copies of order/judgment dated 16.02.2024 & 05.11.2019 are annexed as Annexures A/2 & A/3. 6. Learned counsel for the appellant submits that the impugned judgment dated 22.07.2024 (Annexure P-1) is per se illegal and contrary to the evidence available on record, the prosecution has failed to prove their case beyond the reasonable doubt as most of the prosecution witnesses have not supported the case prosecution. There are many contradiction, omission and improvement in the prosecution witnesses, which the trial Court has failed to appreciate. 4 / 9 Learned Counsel further submits that, after the remand of the case, learned trial Court below fall short to consider the fact that there was previous dispute regarding the property, between the complainant/Dheersai and present appellant, therefore, with intention to grab the property, PW/1/Dheersai made different statements recorded under Section 161 of Cr.PC and before the trial Court, where he demonstrated himself as eye witness of this case. There are many contradiction and omission in evidence of complainant, therefore, his evidence cannot be reliable for the conviction of the appellant. As such, the appeal deserve to be allowed and the impugned judgment deserve to be set aside. In support of his contention, he places reliance upon the decision of Kali Ram Vs State of Himachal Pradesh, reported in 1973 AIR 2773. 7. On the other hand, learned counsel for the State supporting the impugned judgment would submit that based on material/evidence available on record, trial Court has rightly passed the impugned order/judgment and convicted the appellant for the aforementioned offence/crime. Hence, present appeal being sans merits is liable to be dismissed. 8. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 9. In the present case homicidal death of deceased Rameshwari Bai as a result of fatal injuries found on her body has not been substantially disputed on behalf of accused/appellant. Even 5 / 9 otherwise from the evidence of Dheersai (PW-1), Dr. Vivek Tiwari (PW-9) & autopsy report (Ex.P-13), it is established that death of the deceased was homicidal in nature. 10. As regards complicity of the appellant in crime in question, conviction is substantially based on the evidence of complainant Dheersai (PW-1). As per evidence of Dheersai (PW-1), there was land related dispute between the deceased and accused/appellant, on the date of incident at about 8:00 a.m. he had gone to agriculture field to give food to the deceased, who was resting at that time in the room constructed in agriculture field. On reaching there, he saw that accused Siyaram was assaulting the deceased from axe and rod. On seeing him, accused chased him, however, he somehow managed to flee. Thereafter, he returned to village and informed about the incident to Ratan, Fulesh, Meenabai and his wife Sushila. Thereafter he went to the police station and lodged FIR (Ex.P-2). Ocular evidence of the eyewitnesses (PW-1) clearly corroborates with the medical evidence adduced by the prosecution i.e. evidence of PW.9 who conducted autopsy over the dead body as per Ex.P-13. He has clearly stated that the injuries noticed on the body of deceased could be caused by the axe so seized from the accused/appellant. The defence has not been able to elicit anything incriminating in the cross-examination of the eyewitness or other prosecution witnesses based on which their evidence can be disbelieved or discarded. Furthermore, in the instant case, a very prompt F.I.R. has been lodged and a prompt 6 / 9 F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of false implication. There is no dispute to the fact situation that PW-1 Ram Prasad has lodged the F.I.R. very promptly. This fact, by itself, gives rise to the inference that he was present at the place of occurrence and immediately after seeing the incident, he rushed to lodge the F.I.R., which was registered with utmost promptness. Thus, in view of the above discussion, the complicity of appellant in the crime in question stands well proved. 11. As regards the question of motive, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. As per case of the prosecution, there was some land dispute between the parties and on account of such dispute, the incident took place and appellant had caused only single blow to the deceased although he was having opportunity to cause repeated blows to the deceased but after causing single injury that too by the axe he fled from the spot which shows that at the time of causing injury, the appellant was having knowledge that by his act the deceased may die but he has not caused injury with intent to cause homicidal death of the deceased. Therefore, the act attributed to the appellant squarely falls within the purview of Section 304 Part-II of the IPC. 12. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in 2009 (15) SCC 635, has laid down certain 7 / 9 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 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; 8 / 9 (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 ? 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.” 13. Considering facts and circumstances of the case, submissions of counsel for the parties, evidence of the prosecution witnesses, particularly the principles of law laid down by the Supreme Court in the above-stated judgment (supra) and the fact that the appellant is in jail since 24.06.2018, it would meet the end of 9 / 9 justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. 14. Consequently, this appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is hereby altered into Section 304 Part-II of the IPC and he is sentenced to undergo RI for 7 years. 15. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 16. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice J/-