1 2025:CGHC:59652 NAFR HIGH COURT OF CHHA TTISGARH, BILASPUR CRA No. 1159 of 2024 Toshan Diwan S/o Mannuram Diwan Aged About 23 Years R/o Village Khusrupali, P.S. Tendukona, District : Mahasamund, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Aarakshi Kendra- Komakhan, District : Mahasamund, Chhattisgarh ---- Respondent ___________________________________________________________ For Appellant : Mr. Priyanshu Gupta, Advocate For State/Respondent : Mr. Karan Kumar Bahrani, PL ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 09/12/2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. The appellant has been filed the instant appeal under Section 374(2) 2 of the CrPC, 1973 questioning the judgment of conviction and order of sentence dated 23.12.2023 passed by the Second Additional Sessions Judge, Mahasamund (C.G.) in Sessions Case No.38/2023, whereby the appellant has been convicted and sentenced punishable under Section 304 Part-II of IPC, rigorous imprisonment for 10 years and fine amount of Rs.500/-, in default of payment of fine amount additional imprisonment for 03 months. 3. Brief facts of this case is that the accused Toshan Diwan and Sevati Bai Diwan were married in the year 2022 and after one year of marriage, a son was born out of their wedlock namely Digendra Diwan. Due to ill health of Sevati Bai Diwan, she had gone to her maternal village Pandripani. On 23/04/2023, the accused Toshan Dewan reached Pandripani, the maternal home of Sevatibai, and asked his wife Sevatibai to come along with him to their home, on this Sevatibai said that she is not feeling well and would not go right now, on this, the accused snatched his two and a half month old child, who was kept in Sevatibai's lap and threw him forcefully on the ground with the intention to kill him. Immediately the child was picked up and taken to Nuvapara Hospital (Orissa), where the child was declared dead by the doctor. 4. On the basis of written application to the above effect furnished by Sevatibai Dewan, on 24/04/2023 at the Police Post- Tuhlu, FIR was 3 registered against the accused at zero and a numbered Crime No. 46/2023 was registered against the accused in Police Station Komakhan under Section 302 of IPC. The present appellant got arrested on 24.04.2023. 5. After completion of investigation charge sheet was submitted before learned Court below on 22.06.2023. The trial Court examined as many as 9 witnesses on behalf of the prosecution and came to a conclusion that the appellant has committed offence under Section 304 (Part II) of I.P.C. in which the appellant has been convicted by the trial Court as mentioned in paragraph two of this judgment. Hence, this appeal. 6. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted and sentenced the appellant without there being any sufficient evidence available on record. He further contended that there are contradictions and omissions in the statement of the prosecution witnesses. 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 appellant. Without there being any 4 sufficient, cogent and clinching evidence/material available on record, conviction of appellants is not sustainable. 7. Per contra, learned Counsel appearing for the State supported the impugned judgment and contended 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 for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 9. Sevati Bai (PW-1) has stated in her examination-in-chief that the appellant is her husband, she was married in March 2022, after marriage they had a son- Digendra, who was two and a half months old at the time of the incident. She started having chest pain from the time of Digendra's delivery, she told her husband that she is not feeling well, get her treated, then he used to tell her that he does not have time, there is a village Nayapara adjacent to their village where her maternal uncle's house is, where her brothers had come, then they should also come to her house and see her, saying this they had come to her village Khusrupali, then she told her brother that she am not feeling well and get her treated, then she came to village Pandripani 5 with her brother. Toshan came to us in the village of Pandripani after 12 days. He asked her to come home. She told him that the doctor had called for one more day and she would return home after the treatment. The accused then picked up the child- Digendra, and in anger, threw him to the ground. After she screamed, people from nearby areas came, including her sister-in-law Savitri and her aunt D. Kumari. They took him to Nuapada, Odisha, for treatment. Digendra had suffered a head injury. When they arrived at the hospital, the doctor told them that Digendra was dead. 10. This witness has stated in her cross-examination (Para-06) that from the time of their marriage until the date of the incident, accused Toshan never abused or assaulted her. She visited her parents' home on April 11, 2023, and her son - Digendra, was born at her in-laws' house. Digendra was delivered in a Government Hospital. It is correct to say that the accused visited to care for her and provide assistance. It is correct to say that accused Toshan bore the expenses at that time. It is correct to say that after Digendra's birth, accused Toshan treated Digendra well and took care of him. 11. Dr. Chitranjan Barik (PW-6) who posted as Medical Officer in District Head Hospital Nuapada Odisha from April 2021, conducted post mortem of the deceased child. On 23/04/2023, the body of deceased Digendra Diwan, son of Toshan Diwan, age 03 months, was 6 brought to the mortuary of Main Hospital, Nuapada at 04:00 PM for postmortem by constable number 193 P.B. Nayak of Nuapada police station. The postmortem of the dead body was started by me at 04:45 p.m. On external examination of the dead body, he found that the deceased was about 03 months old male child with severe pain in hands, legs and entire body. Stiffness was present, eyes and mouth were closed, there was swelling on the parietal region on the right side of the back of the head, there was no ligature mark on the neck, neck bone and cartilage were fine, body length was 70 cm, both hands and legs were fine, apart from the head injury there were no other scratches or injury marks on the body. 12. On internal examination of the dead body, he found that a swelling was present in the occipital region at the back of the head, beneath which there was blood accumulation. The deceased had multiple fractures of the occipital bone. The spinal cord was intact, but the brain stem was completely ruptured. There was blood on both sides of the head and on the right side of the back of the head. Blood had accumulated inside the brain. There was also blood accumulation near the brain stem, the junction between the brain and the spine. Chest, abdomen, heart, lungs were all fine, except head injury of the deceased there was no fracture on any other part of the body. He opined that the death of the deceased was due to severe internal head 7 injury and fracture (severe intracranial hemorrhage), the period of death was likely to be within 12 hours of the post-mortem. The death of the deceased was likely due to anti motive injury on his head. The postmortem report is Exhibit P-9. 13. With regard to the death of the deceased, the trial Court found that the accused came to take his wife back to his home on the date of the incident. When his wife refused to leave her maternal home, the accused, in a fit of rage, took his two-and-a-half-month-old son, Digendra, who was in mother’s lap, and threw him to the ground. It is accepted that the accused had neither any dispute nor any animosity with his son- Digendra. The prosecution's account itself establishes that when the accused came to his wife on the date of the incident, he did not come prepared for any dispute with her, nor did he initiate any dispute upon his arrival. Prior to the incident, the accused treated his son- Digendra Diwan, and his wife - Sevati Bai, well, and there was no conflict. Therefore, according to the prosecution's case, the circumstance proved against the accused is that when her wife refused, he snatched his two and a half month old son- Digendra Dewan, from his wife’s lap and threw him on the ground in anger. While it is accepted that there was no old enmity and the accused committed the crime in a fit of rage, it cannot be said with certainty that the accused was prepared to commit the crime and intended to 8 cause Digendra's death. It certainly appears that at the time of committing the said act in anger, the accused was aware that the deceased Digendra was two and a half months old and that Digendra died due to the said physical injury caused by throwing him on the ground. 14. Looking to the entire evidence adduced by the prosecution, in considered opinion of this Court that the trial Court has rightly convicted the appellant for the aforesaid offence. I do not find any infirmity or illegality in the impugned judgment of the trial Court. Thus, conviction of appellant is hereby affirmed. 15. As regards the quantum of sentence, considering that incident in question took place on 23.04.2023 and during these years, appellant must has suffered tremendous mental trauma and anguish of trial. The offence was committed by the appellant spontaneously due to heat of anger, appellant snap his son and threw on the ground, due to which his minor son fell down and during treatment he died. Looking to the evidence available on the face of record, it is crystal clear that the appellant had no intention to kill his son. The incident has taken place with sudden provocation and heat of passion and without any premeditation, the incident has taken place and there is no motive available to kill his son. The appellant has already undergone about 2 ½ years of substantive sentence imposed by trial Court, this Court is 9 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 appellants is reduced from RI 10 years to RI 07 years. Accordingly, substantive jail sentence imposed upon appellant of 10 years is reduced to 07 years. However, sentence of fine awarded by trial Court is hereby affirmed/maintained. Ordered accordingly. 16. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above. 17. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant