1 2025:CGHC:51647 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 866 of 2025 1 - Shivmangal Singh Kamro S/o Ramprasad Aged About 35 Years R/o Village Mangora Pahadpara, P.S. Khadganva, District Koriya (C.G.) ... Appellant versus 1 - State of Chhattisgarh Through- Police Station Khadganva, District Koriya (C.G.) ... Respondent(s) For Appellant : Shri Bharat Sharma, Advocate. For State : Shri K.K. Bahrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 16 . 10 .202 5 1. Although, the appeal was listed for consideration on application for suspension of sentence and grant of bail, however, with the consent of the parties, the appeal is heard finally. 2. The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 19.02.2025 passed by the Additional Sessions Judge, Chirmiri District Koriya in Sessions Case No.83/2022 whereby the appellant has been convicted for the offence under Section 304-II IPC and sentenced for RI for 10 years with fine of Rs.500/-, in default of payment of fine, additional RI for one month. 3. The prosecution case in brief is that, on 17.07.2022 at about 9 AM the appellant demanded some money from his wife Kaushalya to which she refused and then an alteration took place between them and thereafter she 2 went to the house of her maternal uncle Amar Singh. In the evening, there was another alteration between the appellant and Amar Singh. Amar Singh scolded the appellant as to why he left his wife. On this issue, in the night at about 12 when Amar Singh was sleeping, the appellant assaulted him by Danda by which he received grievous injuries. On the next day i.e. on 18.07.2022 at about 9 AM Amar Singh died. Merg was intimated to the police and then FIR for the offence under Section 302 IPC was registered. On postmortem, the doctor found various injuries on his body and opined that cause of death is due to injuries on vital organs i.e. brain and lungs leading to neurogenic shock and cardio respiratory arrest and the manner of death was opined that it depends upon circumstantial evidence and police investigation. Spot map Ex.P/1 was prepared by the Patwari whereas Ex.P/4 by the Police. The appellant was arrested on 19.07.2022 and his memorandum statement Ex.P/7 was recorded. Based on his memorandum statement, one wooden club was seized from him vide seizure memo Ex.P/9. The clothes seized from the appellant, bloodstained and plain soil, shirt & Dhoti of deceased Amar Singh and T-shirt of the appellant were sent for chemical examination to regional FSL Ambikapur from where report Ex.P/23 was received, according to which, blood was found on the shirt & Dhoti of deceased Amar Singh. 4. Statement of witnesses under Section 161 CrPC were recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 302 IPC before the Judicial Magistrate First Class, Chirmiri. The case was committed to the court of Sessions Judge Koriya for its trial. The trial court framed charge for the offence under Section 302 IPC. The appellant denied the charge and claimed trial. 3 5. In order to prove charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement of the appellant under Section 313 CrPC was also recorded in which he denied the circumstances that appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the trial court convicted the appellant for the offence under Section 304-II IPC instead of Section 302 IPC and sentenced him as mentioned in the earlier paragraph of this judgment. Hence this appeal. 7. Learned counsel for appellant would submit that the appellant is not challenging his conviction for the offence under Section 304-II IPC, however, he is questioning the quantum of sentence awarded for the alleged offence. He would further submit that the offence of Section 304-II IPC does not provide any minimum sentence. The appellant is in jail since 19.07.2022 and thereby he has already served more than three years of his sentence. Therefore, looking to the injuries found on the body of deceased, the relationship between the appellant and the deceased and the trivial issue on which the incident occurred and also considering the age of the appellant, the sentence awarded is on higher side and therefore the same may be reduced for the period already undergone by the appellant. 8. On the other hand, learned counsel for the State opposes and have submitted that looking to the injuries found on the body of deceased, the manner in which the incident occurred and the appellant assaulted the deceased by wooden club when he was sleeping, the appellant is not entitled for any further leniency. The trial court has already shown its leniency by convicting him under Section 304-II IPC and awarding reasonable sentence which is not required to be interfered with. 4 9. I have heard learned counsel for the parties and perused the record of trial court. 10.Although the appellant is not challenging his conviction, however, this court deem it appropriate to examine the evidence available on record against the appellant. 11. PW-1, Ajay Singh, is the maternal grandson of the deceased. He has stated in his evidence that on the date of incident when he was passing through from the house of deceased, he heard murmuring of the deceased and when he went there, he saw him in injured condition and he disclosed that he has been assaulted by the appellant. He called Ambulance to take him hospital however when the Ambulance reaches, he already died. In cross examination he has stated that it was 6-7 AM when the deceased disclosed him about the incident. The appellant was residing along with the deceased with his family. The oral dying declaration made by the deceased before this witness could not be rebutted by the defence in his cross examination and he duly supported that he was being assaulted by the appellant. 12.PW-2, Ram Pratap, is also a witness of oral dying declaration. He is the maternal uncle of appellant and nephew of the deceased. He too have stated that deceased disclosed him that he has been assaulted by the appellant. Nothing is there in his cross examination also to disbelieve the evidence of this witness. 13.Similar is the statement of PW-3, Ramkunwar who is the neighbor of appellant as well as deceased and one of the relative. She too have stated that when she was giving massage to the deceased, he disclosed that he was assaulted by the appellant and when she asked from the appellant, he too have admitted that he has assaulted the deceased. She lodged a report to the police on which Dehati FIR Ex.P/2 was recorded on her instance. She too remain firm in saying that the appellant disclosed her that he was being 5 assaulted by the appellant. The evidence of this witness is also supported by Dehati FIR Ex.P/2 and Dehati Merg intimation Ex.P/3 lodged by PW-3 in which also she disclosed that deceased disclosed her that he was being assaulted by the appellant Shiv Mangal Singh. 14.Another witness PW-4, Jagdish Singh, is the witness who asked the appellant as to why he has assaulted the deceased, then the appellant confessed that he has committed mistake under the influence of liquor. He is also a witness of inquest Ex.P/6, memorandum Ex.P/7 and seizure memo Ex.P/8 & P/9. 15.PW-7, Dr. Nidhi Nischhal, is the Medical Officer who conducted postmortem of the dead body of the deceased. She stated in her evidence that on 19.07.2022 she conducted the postmortem of dead body of deceased Amar Singh and found both upper & lower limbs extended, body supine, both eye closed, grossly deformed left forearm with lacerated wound of 1x1x1 cm over upper 1/3rd of forearm along with discontinues looking ulna fracture. Bloodstains were present all over forearm of left hand. Lacerated wound of size 1x1x1 cm with multiple bloodstains present in left leg at mid of chin of tibial region. Hematoma lying over the left forebrain, contusion present over both lungs and found left forearm upper 1/3rd ulna fractured. She opined the cause of death due to injuries on vital organ i.e. brain and lungs leading to neurogenic shock and cardio respiratory arrest, and postmortem report is Ex.P/11. 16.Considering the evidence available on record and also that appellant was present in the house where the deceased was found injured in the next morning and the appellant having failed to explain the circumstances under which the deceased was found in injured condition, the trial court found him guilty for causing injuries to the deceased resulting into his death. However, considering that the incident occurred in a heat of passion and on the 6 previous quarrel, instead of convicting him under Section 302 IPC, the trial court convicted him under Section 304-II IPC, in which, this court does not find any infirmity or illegality and this court is also in agreement with the findings recorded by the trial court that the appellant has committed the offence of Section 304-II IPC and he has rightly been convicted for the said offence. 17.So far as sentence awarded to the appellant for the offence under Section 304-II IPC is concerned, the said offence does not provide any minimum sentence, the appellant is of 38 years of age having innumerable family responsibilities, looking to relation between the appellant and deceased, the trivial issue on which the altercation took place and also considering the detention period of appellant, the prayer for reduction of sentence awarded to the appellant is appealing to this court. Therefore, considering the aforesaid submissions and also keeping in view the law laid down by the Supreme Court in Mohammad Giasuddin Vs. State of Andhra Pradesh, 1977 (3) SCC 287, this court is of the opinion that ends of justice would meet if the sentence awarded to the appellant is reduced to the period already undergone by him. 18.Further, in the matter of Rajabala Vs. State of Haryana & Others, 2016 (1) SCC 463 in paragraph 1 & 2 the Hon’ble Supreme Court has held as under : “1. In Gopal Singh v. State of Uttrakahand[1], while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in 7 future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner.We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court.The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis supplied] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat [2], it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.[3]" [Emphasis supplied] 8 And again:- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 19.Considering the submissions made by the counsel for the appellant, relationship between the appellant & deceased, the age of appellant, the surrounding circumstances, considering the peculiar facts of present case and also in view of the ratio of law laid down by Hon’ble Supreme Court in the aforesaid cases, this court deem it appropriate to reduce the sentence awarded to the appellant for the alleged offence. 20.Therefore, the conviction of the appellant for the offence under Section 304-II IPC is affirmed, however, his sentence is reduced for RI for 5 years instead of RI for 10 years. The fine sentence and default stipulation as awarded by the trial court shall remain intact. 21.With the aforesaid alteration/modification of the sentence, the appeal is partly allowed. The appellant is reported to be in jail since 19.07.2022. He shall serve the entire sentence as modified by this court. 22.Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 23.Record of trial court be sent back along with copy of this judgment for necessary compliance. Sd/- (Ravindra Kumar Agrawal) Judge inder