1 2025:CGHC:7373 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1650 of 2024 Birendra Kashyap S/o Late Mahadev Kashyap Aged About 26 Years Near Old Bridge Haram Para, Geedam, Police Station And Tehsil Geedam, District South Bastar, Dantewada (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through - Station House Officer, Police Of Police Station - Geedam, District South Bastar Dantewada (C.G.) ---- Respondent -------------------------------------------------------------------------------------- For Appellant : Mr. Pritam Singh, Advocate For Respondent-State : Ms. Vaishali Mahilonge, PL. -------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 10.02.2025 1. This criminal appeal has been preferred by the appellant against the judgment dated 13.08.2024, passed in Session Case No.190/2021 by learned Session Judge, Dantewada, Distt - South Bastar (Dantewada), (CG), whereby appellant stands convicted as under :- 2 Conviction Sentence U/s 304 Part- II of the Indian Penal Code (IPC) Rigorous imprisonment for 10 years & fine of amount Rs.500/-, in default of payment of fine 01 months additional RI. 2. The prosecution case, in brief, is this that Sunil Kashyap (deceased) himself came to the concerned police station on 30/03/2021 and lodged report stating that on asking the appellant/accused as to why he did not attend the funeral of his cousin sister, he become angry, started abusing in filthy language and assaulting him (deceased) by means of fist and kick, due to which, deceased suffered grievous injuries, he was admitted in the hospital for treatment on 01/04/2021 and, thereafter, he died on 02/04/2021. Based upon report, FIR was registered against the appellant for the offence under Section 294, 323, 506 of I.P.C, however, after death of the deceased offence under Section 302 of IPC has been added. 3. On completion of investigation, challan/charge sheet was filed against the appellant and based upon which, trial Court framed the charges against him under Section 302 of the IPC. 4. The prosecution in order to prove its case examined 13 witnesses ie (PW-1 Dinesh Nag, PW-2/Maniram Kashyap, P.W.- 03 Rajkumar Kashyap, P.W.-04 Hari Shankar Baghel P.W.-05 Shiv Shankar Baghel, P.W.-06 Dr. Savita Tagraj, P.W.-07 Suryanarayan Nag, P.W.-08 Hemant Kumar Chandrawanshi 3 (Patwari) P.W.-09 Santosh Kumar Dhamgaye (S.I.), P.W.-10 Raj Kumar Singh Pradhan (Inspector), P.W.-11 Devendra Singh Karma (A.S.I), P.W.-12 Jay Singh Khunte (Inspector) P.W.-13 Dr. Sheetal Singh. However, appellant-accused in support of his defence not examined any defence witness. Statement of appellant (accused) was recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. 5. 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. Hence this appeal. 6. Learned counsel for the appellant submits that learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 304 Part-II of IPC as FIR was registered against the appellant on the oral complaint of the deceased. Alleged incident took place on 30.03.2021 and deceased was died on 02.04.2021, therefore, it may be possible that deceased may died due to some other reasons. P.W-06/Dr. Savita Tagraj, who examined the dead body of deceased, stated in her evidence that there was injury on head of deceased measuring 03 c.m. x 05 c.m, and no fracture was found on his head; she further stated that death of deceased may also be caused by ‘hemorrhage shock due to blood clouting’ or ‘falling of any heavy 4 object on the head of deceased’; she has not specifically suggested that the nature of death is homicidal or not and same finding has also been given by the trial Court in the impugned judgment. Present case is solely based upon the circumstantial evidence. Trial Court in para 10 of its judgment has enumerated two incriminating circumstances first Ex.P-7/report lodged by the deceased and second Ex.P-16/161 statement of the deceased treated as dying declaration under Section 32 of Indian Evidence Act, said statement has been noted as Ex. P-16 whereas, there are only 15 Exhibits recorded by prosecution. In absence of any certification or exhibition in the trial Court, 161 statement of deceased can't be treated as evidence at all. Moreover assuming that 161 statement of deceased taken as evidence, even in that case it is weak type of evidence as 161 statement is recorded by the police officer, though the law does not -prescribe any method of recording a dying declaration, even in that case it is expected that it is recorded by a Magistrate in the presence of the Doctor, however, in 161 statement of deceased recorded by the police does not have any endorsement by any of the doctor. All the eye-witnesses of the alleged incident have turned hostile and not supported the case of prosecution. As prosecution has failed to prove the offence beyond reasonable doubt, present appeal deserves to be allowed and the appellant is liable be acquitted/discharged from the aforementioned charge/offence. In support of her submission, he places reliance upon the judgment of Hon’ble Supreme Court in case of Laxmi versus Omprakash 5 & Others (2001) 6 SCC 118. Alternatively, it is argued that if the Court finds that alleged incident has been committed by the appellant, then considering the fact that appellant has already served more than three years of jail sentence out of 10 years, there was no pre-meditation and on the spur of moment incident had taken place, appellant is not having any previous criminal incident, the sentence awarded to the appellant be reduced to the period already undergone by him. 7. Per contra, learned Counsel appearing for the State supported the impugned judgment and submits that the impugned judgment passed by the trial Court is based on proper appreciation of material and evidence available on record and the same requires no interference. 8. I have heard learned counsel appearing on behalf of the parties and perused the record minutely. 9. Statement/dying declaration of deceased was recorded as Ex.P- 16 which is extracted below: “ श्री सुनिल कश्यप पति स्व. महादेव कश्यप उम्र 35 जाति घसिसयों सानिक पुराा पुलिलया के पास हारम थाा गीदम, सिजला दन् ेवाड़ा (छ०ग०)। मैं उपरोक्त प े पर रह ा हूँ ड्रायवरी का काम कर ा हूँ निदांक 29.03.2021 को पुराा मेरे ारायणपुर वाले चाचा की लड़की जो नि/मार थी की मत्यु की सूचा निमले पर परिरवार के साथ ारायणपुर गया था मरी का काय2क्रम निपटा 6 कर आज सु/ह निदांक 30.03.2021 को वापस अपे घर हारम आया था अपे छोटे भाई नि/रेन्द कश्यप को सु/ह 09:00 /जे /ोला की क्यों /े नि/रेन्द्र /ह खत्म हो गई ो ू ारायणपुर क्यों हीं गया ेरे को मालूम हीं था क्या? मेरे इ ा कहे पर नि/रेन्द्र गुस्से में आकर मुझे माँ /ह की गंदी गंदी गाली दे े हुये हाथ मुक्का से मेरे चहरे ाक मूह एंव पैर में मारा सिजससे मेरे ाक से खू निलैकै े लगा था होठ और ाक में सूज आ गया मार े हुये निवरेन्द्र /ोला की मुझे निकसी भी प्रकार की सलाह देे की जरूर हीं है आई ंदा मेरे मामले मे /ोलेगा ो जा से मार दूंगा झगड को मेरे मागा निदेश ाग एंव आस पास के लोग छु डाये मुझे गाली सुे में /हु /ुरा लगा था जा से मारे की धमकी देे के कारण /हु भयभी हू घटा को मेरे मामा और मेरे घर वाले देखे और सुे है। मेरे निप ाजी महादेव कश्यप के मृत्यु होे के पश्चा मेरी माँ े दूसरा निववाह मेरे चाचा मीराम से निकया था इस वजह से प्रथम सूचा रिरपोट2 दज2 करा े समय मैंे नि/रेन्द्र कश्यप के निप ाजी का ाम मीराम कश्यप लिलखवाया था वास् व में निप ाजी का ाम महादेव कश्यप है यही मेरा कथ है कथ मेरे / ाये अुसार लिलखा गया है" 10. PW-1/Dinesh Nag (uncle of deceased) in his evidence has stated that the incident took place on the second day of Holi in the year 2021, at about 10-11.00 a.m, deceased Sunil Kashyap met him on the road and asked to take him to the hospital, however, on the way deceased asked to take him to the police station. He admitted that he saw that deceased had an injury in his eye, however, he stated that in-front of him, accused - appellant did not do anything (incident) with the deceased. 11. PW-6/Dr. Savita Tagraj, who examined the dead body of deceased in her cross-examination has admitted the fact that head injuries of the deceased can occur if the heavy object falls 7 on his head. 12. True it is that the prosecution witnesses have not supported the prosecution case and they have turned hostile, but it is an uncommon phenomenon in criminal trial and same is not fatal to the case of prosecution particularly when the deceased himself made statement against the appellant. 13. Considering facts of the case, nature of offence, submission of counsel for the parties, the fact that report/FIR (Ex.P-7) lodged by deceased himself, particularly the statement/dying declaration of deceased Ex.P-16, further considering the evidence of the prosecution witnesses as well as other material/evidence available on record, this Court is of the considered view that learned trial Court has rightly convicted the appellant for the aforesaid offence. 14. As regards the quantum of sentence, considering that incident in question took place as back as in the year 2021 and now almost more than 04 years have passed; appellant has already undergone more than 03 years of substantive sentence, there was no pre-meditation and on the spur of moment incident had taken place, it was first offence of appellant, this Court is of the opinion that sentence imposed by trial Court upon the appellant (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 appellant is reduced from RI 10 years to RI 05 years. 8 15. In the result, appeal is allowed in part. While maintaining the conviction of appellant under Section 304 Part-II of IPC, the sentence imposed upon him by trial Court is reduced from RI for 10 years to RI 05 years. However, fine amount imposed on appellants is remain intact. 16. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE J/-