1 2025:CGHC:13777 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 528 of 2024 1 - Nadhu Korwa S/o Etwa Korwa Aged About 44 Years R/o Village Hariletadhara, Police Station Shankargarh, Balrampur Sakalo P.S. Shankargarh District Surguja (C.G.) 2 - Dhomro Korwa S/o Nanka Korwa Aged About 21 Years R/o Village Mahuwa Kataradhara, Police Station Shankargarh, District Balrampur-Ramanujganj (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Gandhi Nagar, District Sarguja (C.G.) ... Respondent(s) For Appellant(s) : Mr. Ramsajiwan, Advocate For Respondent(s) : Mrs. Prabha Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 22/03/2025 1. With the consent of counsel for the parties, the matter is heard fi- nally at motion stage. 2 2. This criminal appeal has been filed under Section 374 (2) of Cr.P.C. by the appellants against the judgment of conviction and order of sentence dated 31.01.2024 passed by 5th Additional Ses- sions Judge, Ambikapur, District Sarguja (C.G.), in Session Trial No. 152/2021, whereby the appellants have been convicted and sentenced as follows:- Conviction Sentence U/s 304-II read with Section 34 of IPC R.I. for 10 years and fine amount of Rs. 500/-, in default of payment of fine, additional S.I. for 1 month. 3. Briefly stated facts of the case leading to the disposal of this appeal are that on 07.01.2021 at around 7:00 am, a dispute arose between the deceased Rajesh Korwa and the appellants for a loan of Rs. 100/-. The deceased Rajesh Korwa and the appellants were in the state of intoxication. The appellants started assaulting the decease with hand, fist and stick. The matter was reported to the police in Police Station Gandhinagar, District- Sarguja. 4. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 12 witnesses. Statement of the accused/appellants under Section 313 Cr.PC was also recorded in which they pleaded their innocence and false implication in the case. 5. After hearing the parties and going through the material available on record including the evidence of the witnesses, learned 5th Additional Sessions Judge, Ambikapur, District Sarguja has 3 convicted and sentenced the accused/appellant as described in paragraph No. 2 of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that the prosecution has utterly failed to prove its case under Section 304-II IPC beyond all reasonable doubts. He further submits that as there was no intention on the part of the accused/appellant to cause death of the victim, the offence under Section 304-II IPC is not made out. It is further contended that from perusal of the entire evidence, it is clear that even by accepting the whole case of prosecution, it would reveal that the incident took place in spur of movement and there is no preparation of motive for causing injury of any nature to the deceased. It is further contended that prosecution has failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellants. Without there being any sufficient, cogent and clinching evidence/material available on record, conviction of appellants is not sustainable. Alternatively, counsel for the accused/appellants submits that if the conviction part of the judgment impugned is not going to be interfered with, keeping in mind the fact that the accused/appellants have already remained behind the bars for about 3 years, the sentence imposed on him may be reduced to the period already undergone. 7. On the other hand, counsel appearing for the State supports the judgment impugned and submits that taking into consideration the statements of Dr. J.S. Saruta (PW-5) which gets corroboration from the testimony of other independent witnesses, the findings 4 recorded by the 5th Additional Sessions Judge holding the accused/appellant guilty under Section 304-II IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal. 8. Heard counsel for the parties at length and went through the evidence on record with utmost care and caution. 9. PW-1/Ramnath has deposed that the incident happened at around 7:00-8:00 am in the morning. At the time of incident he was standing near his house along with one Sukesh. When the wife of deceased Rajesh shouted he went to the house of Rajesh where the appellants were assaulting deceased with कोडी का बैंट In para 6 he deposed that he has not seen the appellants assaulting or abusing the deceased. 10. PW-2/Kamal Rai has deposed that the appellants herein live in his house on rent and the deceased and his wife also live in his house on rent. When the wife of deceased shouted he ran towards his (deceased) room where he found that Ramnath Tirki and Mukesh Painkra were also present. Sukhmari Bai, wife of deceased told them that the appellants have assaulted and abused the deceased. The next day after the incident, wife of deceased took the deceased to hospital in Ambulance where he died. In para 7 he has admitted that he has not seen the appellants assaulting or abusing the victim. 5 11. PW-3/ Sukhmari is the eye-witness who deposed in para 2 of her statement that on the date of incident, her husband (deceased) along with the appellants were consuming liquor in his home and when they were returning home then the deceased fell down because of which he sustained injuries on his head, waist and leg. In para 5 she stated that after consuming liquor the appellants assaulted her husband(deceased) as a result of which the deceased sustained injuries. In para 7 she stated that when her husband returned home he told her that he has sustained injuries in back and hand. 12. PW-04/Sukesh Painkara has deposed in para 2 that on the date of incident at around 7:00 pm the appellants and deceased were fighting with each other and the appellant Nadhu was assaulting Rajesh (deceased) with कोडी का बैंट and appellant Dhomro was holding Rajesh (deceased). In para 6 he deposed that when he reached the place of incident he saw that Rajesh (deceased) had fallen down. In para 8 he deposed that the appellants ran away from the place of incident when they saw him. 13. PW-05/Dr. J. S. Saruta who medically examined the deceased has prepared his report (Ex. P/1) has deposed that a huge swelling present in the left side of the head size of 6 cm in circle. Contused swelling. After opening the scalp, scalp hemetoma present in left parietal oxypital region of size 8 cm x 6 cm x 7 cm, depressed circular seen on the left parietal bone in the multiple pieces, extradural hemotoma present in the left side of parietal 6 region, there is no any other external injury seen on the body. All the injuries were caused by hard and blunt object. Injury is ante- mortem. 14. Thus from the evidence of the PW-1, PW-2, PW-3, PW-4 and PW- 5, it is crystal clear that the accused/appellants had hit the deceased with कोडी का बैंट , as a result of which injured suffered aforesaid injuries. According to the statement of the Dr. J.S. Satura (PW-5), the injuries sustained by the deceased was ante- mortem. 15. Looking to the entire evidence adduced by the prosecution, in considered opinion of this Court that the trial Court has rightly convicted the appellants for the aforesaid offences. I do not find any infirmity or illegality in the impugned judgment of the trial Court. Thus, conviction of appellants is hereby affirmed. 16. As regards the quantum of sentence, considering that incident in question took place in the year 2021 and now almost 03 years have passed. During these years, appellants must have suffered tremendous mental trauma and anguish of trial. The offence was committed by the appellants spontaneously due to heat of anger with कोडी का बैंट and hit the deceased- Rajesh once on the head, due to which he fell down and during treatment he died. Looking to the evidence available on the face of record, it is crystal clear that the appellants had no intention to kill the deceased. The incident has taken place with sudden provocation and heat of 7 passion and without any premeditation, and there is no motive available to kill Rajesh. The appellants have already undergone more than 03 years of substantive sentence imposed by trial Court, this Court is of the opinion that sentence imposed by trial Court upon the appellants (RI for 10 years) appears to be on higher side. So keeping in view all the circumstances, mentioned above, ends of justice will be served if the sentence imposed upon appellants is reduced from RI 10 years to RI 05 years. Therefore, the sentence imposed upon the appellant is hereby reduced to R.I. for 5 years. 17. In the result, appeal is allowed in part. However, fine sentence imposed by trial Court is maintained. 18. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above. 19. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima