Chattisgarh High Court
Paras Yadav vs State Of Chhattisgarh on 6 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1 / 20
2025:CGHC:11196
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1178 of 2023
• Paras Yadav Son of Late Shri Mitthu Lal Yadav, Aged About 45 Years
Resident of Devrikhurd Infront of Gramin Bank Gali, P.S. Torwa, District
Bilaspur Chhattisgarh
... Appellant
versus
• State of Chhattisgarh through Station House Officer, Police Station
Torwa, District Bilaspur Chhattisgarh
... Respondent
For Appellant : Mrs. Itu Rani Mukharjee, Advocate
For Respondent/State : Ms. Monika Thakur, Panel Lawyer
Hon’ble Shri Ramesh Sinha, Chief Justice
Judgment on Board
06/03/2025
1. Though, today the present appeal is listed for hearing on I.A.
No.01/2023, which is an application under Section 389 of the Code of
Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) for suspension of
sentence and grant of bail, but with the consent of learned counsel for
the parties and considering the age of the appellant and his period of
detention, the appeal is heard finally.
PAWAN
KUMAR
JHA
Digitally
signed by
PAWAN
KUMAR JHA
2 / 20
2. Accordingly, I.A. No. 01/2023 stands disposed of.
3. This criminal appeal filed by the appellant/accused under Section 374(2)
of Cr.P.C. is directed against the judgment of conviction and order of
sentence dated 26.04.2023 passed by learned Fifth Upper Sessions
Judge, Bilaspur, District- Bilaspur (CG) in Sessions Trial No. 249/2021,
whereby the appellant/accused has been convicted and sentenced in
the following manner:
CONVICTION SENTENCE
U/s 304 Part-II of Indian Rigorous Imprisonment for 07 years with
Penal Code. fine of ₹ 100/-, in default of payment of
fine 10 days additional R.I.
4. Case of the prosecution, in brief, is that on 18.02.2021 at 07.15 pm, the
complainant Shankar Yadav who is brother of accused appellant lodged
a complaint at the Torwa police station that the his father had died
three-four years after his retirement from the railways. He lived with his
wife and children in one part of his house in Devrikhurd and his brother
appellant/accused Paras Yadav and the deceased/mother Sirmati
Yadav, aged about 85 years, lived in the other part. Applicant’s mother
was a pensioner for the last twenty years. Accused Paras Yadav used
to take care of the deceased mother Sirmati Yadav by consuming her
pension. Accused Paras Yadav, being addicted to alcohol, used to
quarrel with the deceased mother after drinking alcohol day and night.
On 17.02.2021 at 7:00 pm, the complainant Shankar Yadav came home
after finishing his work. Appellant came home at 11:00 pm and at
around 1:00 am, started beating the deceased mother Sirmati Yadav
3 / 20
over food and drink. Hearing the sound, complainant got up, stopped
the appellant from beating her and went to his room and slept. When
the complainant got up to go to the bathroom at around 05.30 am, he
saw that the deceased mother was lying straight on the floor under the
bed, blood was coming out of the forehead, nose and mouth of the
deceased and the chair with iron rod was also broken. On the
complainant filing the information that his younger brother/accused
Paras Yadav had beaten and injured the deceased/mother Sirmati
Yadav and caused her death, the Torwa police station registered a case
intimation under section 174 of Cr.P.C., case number 11/2021,
registered a first information report number 68/2021 against the
accused under section 302 IPC, served summons to the witnesses for
case panchnama proceedings, prepared the map panchayatnama in the
presence of witnesses, got the dead body of the deceased sent for post-
mortem.
5. After completion of investigation, charge-sheet was filed against the
accused/appellant under Section 302 of IPC before the learned Fifth
Upper Sessions Judge, Bilaspur, District Bilaspur. Learned trial Court
framed charges against the appellant under Section 304 Part II of IPC
which was denied by the appellant and he prayed for trial of his case.
6. Statement of accused person was also recorded under Section 313 of
Cr.P.C. in which he denied all incriminating evidence appearing against
him, pleaded innocence and false implication and he has not examined
any witness in his defence.
7. In order to bring home the offence, the prosecution examined following
witnesses.
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Sr. Name of prosecution witness(es) Prosecution
No. witness No.
1. Shankar Yadav, son of the deceased PW-1
2. Sarathi Bagh PW-2
3. Surja Bai PW-3
4. Satyabhama Bagh PW-4
5. Dr. Premchand Banerjee PW-5
6. Patwari- Amarkant Jangde PW-6
7. Chandan Sardar PW-7
8. Constable No. 1266 Raunak Pandey PW-8
9. Investigation Officer Assistant Sub Inspector PW-9
Nirmal Kumar Ghosh
10. Investigation Officer Inspector Parvesh Tiwari PW-10
11. Investigation Officer Assistant Sub Inspector PW-11
Bharat Lal Rathore
8. Besides the ocular evidence, prosecution has also exhibited following
documents.
Sr. No. Document(s) Ext. No.
1. Marg Intimation No. 11/2021 dated Exhibit P-1
18.02.20201
2. First Information Report dated 18.02.2021 Exhibit P-2
3. Visual map dated Exhibit P-3
4. Arrest sheet dated 18.02.2021 Exhibit P-4
5. Arrest notice dated 18.02.2021 Exhibit P-5
6. Information under section 175 Cr.P.C. dated Exhibit P-6
18.02.2021
7. On delivery of the body Exhibit P-7
8. Notice to witnesses regarding preparation of Exhibit P-8
sight map
9. Patwari Map dated 15.05.2021 Exhibit P-9
10. Site Panchnama dated 15.05.2021 Exhibit P-10
11. Map Panchayatnama dated 18.02.2021 Exhibit P-11
12. Memorandum statement dated 18.02.2021 Exhibit P-12
recorded under section-27 of the Indian
Evidence Act
13. On production of the accused- 01 chair made Exhibit P-13
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of iron plastic cane, three legs of which were
broken, length and breadth 26 inches and 06
broken legs of chair, each having length 14.5
inches, seizure memo dated 18.02.2021
14. Seizure sheet dated 18.02.2021 of T-shirt and Exhibit P-14
lower worn by the accused at the time of the
incident
15. Statement of Suraj Bai recorded under section Exhibit P-14A
161 of Cr.P.C.
16. Seizure sheet of one brown coloured Exhibit P-15
checkered and one cream coloured plain sari
and blood stained and plain soil from the
crime scene dated 18.02.2021
17. Satyabhama Bagh’s statement recorded under Exhibit P-15A
Section 161 of Cr.P.C.
18. Post-mortem report dated 18.02.2021 Exhibit P-16
19. Letter dated 12.03.2021 sent to the Medical Exhibit P-17
Officer regarding the query report of the
seized chair
20. Query Report dated 17.03.2021 Exhibit P-18
21. Form of Duty Certificate dated 09.04.2021
Exhibit P-19
22. Letter dated 08.04.2021 sent by the Office of Exhibit P-20
Superintendent of Police, Bilaspur to the
Regional Forensic Science Laboratory,
Bilaspur
23. Draft sent by the Office of Superintendent of Exhibit P-
Police, Bilaspur to Regional Forensic Science 21and Exhibit
Laboratory, Bilaspur P-22
24. Exhibit receipt of Regional Forensic Science Exhibit P-23
Laboratory, Bilaspur dated 09.04.2021
25. Charge sheet No. 82/21, final report Exhibit P-24
26. Duty Certificate dated 18.02.2021 Exhibit P-25
27. Test result of Regional Forensic Science Exhibit P-25A
Laboratory, Bilaspur dated 16.06.2021
28. Verified copy of seized goods register Exhibit P-26C
9. The learned Upper Sessions Judge, Bilaspur, District- Bilaspur after
appreciating oral and documentary evidence available on record vide
impugned judgment dated 26.04.2023 has acquitted the appellant from
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the charge under Section 302 of IPC and convicted and sentenced the
appellant as mentioned in above paragraph of this order. Being
aggrieved by the said judgment, the instant appeal under Section 374
(2) of CrPC has been preferred by the appellant.
10. Assailing the impugned judgment of conviction and order of sentence
passed by the learned trial Court, learned counsel for the appellant
submits that finding recorded by the learned trial Court is baseless,
perverse, erroneous and contrary to the materiel evidence available on
record. Learned trial Court failed to appreciate the oral and
documentary evidence placed before it in its proper perspective. There
are material contradictions and omissions in the diary and Court
statement of the witnesses which cannot be made basis for conviction
of the appellant. Prosecution has not adduced any cogent and reliable
evidence to prove the guilt of the appellant. He submits that the trial
Court while convicting the appellant for the offence punishable under
Section 304 Part II of IPC has sentenced him to undergo RI for 07
years, overlooking the necessary legal ingredients of Section 304 Part
II. The essential element of “knowledge” as required under this section
has not been established beyond a reasonable doubt. The appellant
lacked any intention or knowledge that his act would likely cause death
The appellant did not possess the requisite knowledge that his actions
would result in fatal consequences. The trial court has erred in equating
a mere act of negligence with culpable homicide not amounting to
murder, which is a grave legal misinterpretation. The learned trial court
failed to consider crucial mitigating factors, such as the appellant’s clean
criminal record, the absence of any premeditation, and the fact that the
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incident occurred in the heat of the moment when appellant was in
intoxicating condition. Additionally, there is no evidence suggesting that
the appellant acted with any degree of recklessness that would justify
such a harsh sentence. It is contended that the appellant was deprived
of a fair trial due to procedural irregularities, including failure to grant
adequate opportunity to rebut the prosecution’s claims, improper
reliance on inadmissible evidence, and the overlooking of crucial
defense witnesses. These errors vitiate the proceedings and warrant
appellate intervention. Even assuming, without admitting, that the
appellant was liable under Section 304 Part II IPC, the sentence
imposed by the trial court is excessively harsh and disproportionate to
the facts of the case. The trial court failed to exercise judicial discretion
in imposing an appropriate sentence, thereby causing a miscarriage of
justice. It is further contended that the learned trial court failed to
consider the possibility of convicting the appellant under a lesser
offence, such as Section 304A IPC, which pertains to causing death by
negligence rather than culpable homicide. This failure amounts to a
legal oversight that demands correction by this Hon’ble Court.
11. On the other hand, learned State Counsel opposing the prayer of
learned counsel for appellant, would submit that looking to the nature
and gravity of offence, age of the victim who is his old aged mother on
the date of incident, and conduct of the appellant, the punishment
imposed upon him is proportionate to the act committed and therefore
there is no justification in reducing the same.
12. I have heard learned counsel for the parties and also perused the
records of the trial Court including the impugned judgment.
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13. The question for consideration would be whether the accused-appellant
is the perpetrator of the crime in question, which the learned trial Court
has recorded in affirmative on the basis of testimony and evidence
brought, it is clear that it is the appellant herein who on the fateful date
and time has caused grievous injuries to his mother (deceased), due to
which she died. As such, the learned trial Court has rightly held that it is
the appellant-accused who has caused injuries over the person of the
deceased mother and caused her death. Accordingly, I hereby affirm
the said finding.
14. The aforesaid finding brings up to the next question for consideration,
whether the case of the appellant is covered within Exception 4 to
Section 300 of the IPC vis-a-vis culpable homicide not amounting to
murder and his conviction can be converted to Section 304 A of the IPC,
as contended by learned counsel for the appellant?
15. The Supreme Court in the matter of Sukhbir Singh v. State of
Haryana1 has observed as under:-
“21. Keeping in view the facts and circumstances
of the case, we are of the opinion that in the
absence of the existence of common object
Sukhbir Singh is proved to have committed the
offence of culpable homicide without premeditation
in a sudden fight in the heat of passion upon a
sudden quarrel and did not act in a cruel or
unusual manner and his case is covered by
Exception 4 of Section 300 IPC which is
punishable under Section 304 (Part I) IPC. The
finding of the courts below holding the aforesaid
appellant guilty of offence of murder punishable
under Section 302 IPC is set aside and he is held
guilty for the commission of offence of culpable
homicide not amounting to murder punishable1 (2002) 3 SCC 327
9 / 20under Section 304 (Part I) IPC and sentenced to
undergo rigorous imprisonment for 10 years and to
pay a fine of Rs.5000. In default of payment of fine,
he shall undergo further rigorous imprisonment for
one year.”
16. The Supreme Court in the matter of Gurmukh Singh v. State of
Haryana2 has laid down certain 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;
(k) Number of other criminal cases pending
against the accused;
2 (2009) 15 SCC 635
10 / 20
(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.”
17. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of
the Supreme Court have held that once knowledge that it is likely to
cause death is established but without any intention to cause death,
then jail sentence may be for a term which may extend to 10 years or
with fine or with both. It has further been held that to make out an
offence punishable under Section 304 Part II of the IPC, the prosecution
has to prove the death of the person in question and such death was
caused by the act of the accused and that he knew that such act of his
is likely to cause death.
18. Further, the Supreme Court in the matter of Arjun v. State of
Chhattisgarh4 has elaborately dealt with the issue and observed in
paragraphs 20 and 21, which reads as under :-
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
11 / 20“20. To invoke this Exception 4, the requirements
that are to be fulfilled have been laid down by this
Court in Surinder Kumar v. UT, Chandigarh [(1989)
2 SCC 217 : 1989 SCC (Cri) 348], it has been
explained as under : (SCC p. 220, para 7)
“7. To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden
fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
acted in a cruel manner. The cause of the quarrel
is not relevant nor is it relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a
decisive factor but what is important is that the
occurrence must have been sudden and
unpremeditated and the offender must have
acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or
acted in a cruel manner. Where, on a sudden
quarrel, a person in the heat of the moment picks
up a weapon which is handy and causes injuries,
one of which proves fatal, he would be entitled to
the benefit of this exception provided he has not
acted cruelly.”
21. Further in Arumugam v. State [(2008) 15 SCC
590 : (2009) 3 SCC (Cri) 1130], in support of the
proposition of law that under what circumstances
Exception 4 to Section 300 IPC can be invoked if
death is caused, it has been explained as under :
(SCC p. 596, para 9)
“9. …. ’18. The help of exception 4 can be
invoked if death is caused (a) without
premeditation; (b) in a sudden fight; (c) without
the offender’s having taken undue advantage or
acted in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To
bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to
be noted that the “fight” occurring in Exception 4
to Section 300 IPC is not defined in the Penal
Code, 1860. It takes two to make a fight. Heat of
passion requires that there must be no time for
the passions to cool down and in this case, the
parties had worked themselves into a fury on
12 / 20account of the verbal altercation in the
beginning. A fight is a combat between two or
more persons whether with or without weapons.
It is not possible to enunciate any general rule as
to what shall be deemed to be a sudden quarrel.
It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the
proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there
was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or
acted in cruel or unusual manner. The
expression “undue advantage” as used in the
provisions means “unfair advantage”.
19. In the matter of Arjun (supra), the Supreme Court has held that if there
is intent and knowledge, the same would be case of Section 304 Part-I
of the IPC and if it is only a case of knowledge and not the intention to
cause murder and bodily injury, then same would be a case of Section
304 Part-II of the IPC.
20. Further, the Supreme Court in the matter of Rambir v. State (NCT of
Delhi)5 has laid down four ingredients which should be tested to bring a
case within the purview of Exception 4 to Section 300 of IPC, which
reads as under:
“16. A plain reading of Exception 4 to Section
300 IPC shows that the following four ingredients
are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion;
and
(iv) The offender had not taken any undue
advantage or acted in a cruel or unusual
manner.”
21. In the present case, statement of the complainant Shankar Yadav
5 (2019) 6 SCC 122
13 / 20
(PW1) is recorded before the trial Court on 04.01.2022. In paragraph
01, 03 & 04 of his chief examination statement he has stated that he
accused Paras Yadav is his younger brother and the deceased Sirmati
Yadav is his mother. Appellant used to leave the house every day at
05:00 to 06:00 pm and return home at around 10-11:00 pm. In
paragraph 05, he stated that on the date of incident at around 11:00 pm
when appellant returned to his house, he had some quarrel with his
deceased mother regarding food and drink, in which he came to
interrupt and asked them to sleep calmly. In paragraph 6 he deposed
that on waking up at around 05:30 am in the morning after the night of
incident, he found his mother lying on the floor below the bed in a
supine position, a broken chair and iron rod was kept nearby and on
asking about what happened to mother, the accused did not give any
answer. After that he went and told the people in the neighborhood. Two
women from the neighborhood and Sarathi Bagh (PW-2) came and saw
the scene. In paragraph 9 & 10, he stated about intimation to the police
and lodging of F.I.R. and in paragraph 11 he stated about arresting of
accused appellant in front of him and witness Dilip Singh Sohal. In
cross-examination of this witness, in paragraph 26, the above
mentioned facts revealed in the main trial were not included in the
statements disclosed under Section 161 of CrPC, the witness
expressed his inability to give the reason. The above evidence
presented by this witness in the main examination does not raise any
doubt that there was a fight and scuffle over food and drink between the
accused and the deceased on the date of incident.
22. Prem Chand Banerjee (PW-5) in paragraphs 2 to 4 of his examination-
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in-chief, on 18.02.2021, when the dead body of deceased Sirmati
Yadav, registered in case no. 11-2021 of Police Station Torwa, was
brought for examination, he found a hole of 3 cms in the forehead bone
of the deceased. By deposing about long linear fracture and congestion
in brain, throat, trachea, lungs, intestine etc., death of the deceased has
been stated to be due to shock caused by bleeding due to head injury,
stating that the injuries caused to the deceased were caused by hard
and blunt objects before death, and deposing that the death of the
deceased occurred 6 to 18 hours before the postmortem. Although, in
paragraph 8 of the cross-examination of Dr. Premchand Banerjee (PW
5) by the defence, the possibility of head injury being caused by falling
on the head of the deceased has not been ruled out. On the contrary,
the defence has argued that the deceased died due to falling on his
head. Since no suggestion was made in the cross-examination of
Shankar Yadav (PW-1) that the injury was caused by falling on the
head, the suggestive defence taken by the defence appears to be
baseless.
23. Investigating Officer Shri Parivesh Tiwari (PW-10) in paragraph 05 of his
examination-in-chief, on the basis of disclosure made by the accused
before witnesses Sarathi Bagh (PW-2) and Chandan Sardar (PW-7)
when the accused was interrogated on 18.02.2021 after the incident,
has revealed evidence of memorandum Exhibit P-12 being written with
self-signature and has revealed evidence of the accused having signed
parts D to E of memorandum Exhibit P-12. The witnesses of
Memorandum Exhibit P-12, Sarathi Bagh (PW-2) and Chandan Sardar
(PW-7), in paragraphs 5 and 2 respectively of their examination-in-chief,
15 / 20
on the basis of disclosure made by the accused in their presence, have
clearly denied recording of Memorandum Exhibit P-12 in their presence
and have merely admitted their signatures on Memorandum Exhibit P-
12.
24. Sarathi Bagh (PW-2) and Chandan Sardar (PW-7) in their cross-
examination did not disclose any material supporting evidence in the
context of the contents of Memorandum Exhibit P-12, but merely
accepted their signature on Memorandum Exhibit P-12 and did not
support the proceedings of Memorandum Exhibit P-12 edited by the
Investigating Officer. On the contrary, as no rebuttable evidence of the
disclosure made by the accused in the contents of memorandum Exhibit
P-12 has emerged on record, there is no doubt about the disclosure
made by the accused in memorandum Exhibit P-12.
25. Investigating officer Shri Parivesh Tiwari (PW-10) has deposed in
paragraphs 04, 06 and 07 of his examination-in-chief that the relevant
material was seized as per the seizure sheet respectively. Although he
has denied the defence’s suggestion that the seized items were not
sealed, by admitting in paragraph 21 of his cross-examination that there
is no mention of sealing of the seized items in the seizure sheet Exhibit
P-15.
26. Seizure witness Sarathi Bagh (PW-2) during his examination-in-chief, in
paragraph 06 stated about seizure of a chair whose three legs were
broken, he has given supporting evidence by deposing that he had
signed the seizure memo as per seizure memo P-13. Chandan Sardar
(PW-7) in his main examination has clearly denied that any material was
seized in his presence and has only accepted his signature on seizure
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memo P-13. In answer to the questions asked in cross-examination,
both the witnesses have clearly denied the prosecution’s suggestion of
seizure of any material in their presence. Sarathi Baag (PW-2) in
paragraph 28 of his cross-examination, has expressed his agreement
with the defence’s suggestion that the “broken chair was not seized”
and has stated in his own words that the police themselves took the
broken chair from the house of the accused from his own presence after
showing it to the witness and getting the seizure memo signed, which
clearly shows that the witness accepts that the seizure of the “broken
chair” was done in his own presence, because the common man cannot
be expected to be aware of the typical procedure of legal technical
seizure. Chandan Sardar (PW-7) in paragraph 07 of his cross-
examination, has expressed his agreement with the defence’s
suggestion that he signed the memorandum Exhibit P-12 and seizure
memo Exhibit P-13 on the instructions of the police and has stated that
no action was taken by the police in his presence. Both the seizure
memos are not valid. Evidence material of witnesses – except for the
seizure of the “broken chair” there is not of an advocacy nature
regarding the seizure of any other material.
27. In paragraph 27 and 28 of the examination, the report received on
sending the seized material – broken chair, legs, sealed saree, sealed
clothes of the accused, blood stained soil and plain soil for forensic
examination to the laboratory is Exhibit P-25 and the register of keeping
the seized property safe in the police station’s storehouse is Exhibit P-
26 and the verified copy is Exhibit-26C has been deposed. Constable
1266 Raunak Pandey (PW-8) in his examination-in-chief has deposed
17 / 20
that pursuant to the duty certificate Exhibit P-19, the memo Exhibit P-20
for taking the seized material to the Regional Forensic Science
Laboratory, Bilaspur along with the FSL draft was made available to the
laboratory and receipt Exhibit P-23 was received. In the report Exhibit P-
25, it is shown that the blood test results on the stains found on all the
seized property sent for testing, except for plain soil, are found to be
positive and the blood stains on the “bloody soil, broken chair and lower
of the accused” are disintegrated, due to which the result of such blood
being of human type is mentioned as negative. In addition to the seized
“broken chair”, the seized rod is found to have human blood group “0”
as mentioned in the FSL report Exhibit P-25. In the relevance of the
report Exhibit P-25, the result of the blood stains seen on the
deceased’s saree and the blood stains seen on the T-shirt of the
accused could not be known as it is uncertain. Also, the blood stains of
the deceased’s blood group could not be ascertained.
28. Investigating officer Shri Bharat Lal Rathore, A.S.I. (PW-11) has testified
in paragraph 04 of his examination-in-chief that he had sent the query
application Exhibit P-17 under his own signature to Dr. Premchand
Banerjee (PW-5) regarding receipt of the query report for the seized
material including the broken chair and other seized material. Dr.
Premchand Banerjee (PW-5) has testified in paragraph 06 of his
examination-in-chief that he had sent the query application Exhibit P-17
under his own signature to Dr. Premchand Banerjee (PW-5) on
17.03.2021, under crime number 68/2021 of Police Station-Torwa,
under section 302 IPC, upon receipt of the seized sealed “iron chair
woven with plastic wire and 06 sealed iron rods” for testing through
18 / 20
query application Exhibit P-17, evidence has been revealed that query
report Exhibit P-18 was recorded on the page of the application. In
query application Exhibit 17 and query report Exhibit P-18, “iron circular
plastic can fitted in a chair-like structure of 26 inch x 26 inch size, iron
rod of 14.5 inch length was found, in which 02 rods were fitted.” On
being asked about the possibility of death due to injury caused by the
seized chair and whether the blood on the chair was human blood?, it is
mentioned that the opinion was expressed that there was a possibility of
death of the deceased due to hitting with the seized rod and the rod
attached to the broken chair and that the blood-like stains on the chair
and the leg should be sent to the State Forensic Laboratory regarding it
being human blood. Dr. Premchand Bainji (PW-5) in paragraph 11 and
12 of his cross-examination, although there is no mention in the query
application and report respectively Exhibit P-17 and Exhibit P-18 about
the place of the seized chair and the leg of the blood-like stain, while
accepting that the presence of blood-like stains is not there in the query
application and report, has denied that the query report Exhibit P-18
was given without examining it.
29. Upon close scrutiny of the evidence of prosecutrix the Court concurs
with the findings of the trial court regarding the involvement of the
appellant in the incident. The evidence presented, including witness
testimonies and medical reports, establishes the appellant’s culpability
under Section 304 Part II IPC beyond a reasonable doubt. The
appellant had knowledge that his act was likely to cause death, even if
there was no intention to do so. Moreover, nothing has been elicited by
the defence as to why the appellant has been falsely implicated in the
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crime and thus the stand of false implication taken by the
accused/appellant is also not worth acceptance. Thus, conviction of the
accused/appellant under Section 304 Part II of IPC suffers from no
illegality and the same is hereby maintained.
30. The question which now arises for consideration of this Court is as to
what would be appropriate sentence to be awarded upon the
appellant ?
31. Considering the mitigating circumstances, this Court acknowledges that
the appellant has shown remorse for his actions, and there is no
indication that he is a habitual offender. Additionally, the Court opines
that prolonged incarceration would cause severe hardship to his
dependents. The principles of rehabilitation and reformative justice
should be considered in determining a fair sentence. This Court finds
that the sentence of seven years rigorous imprisonment awarded by the
trial court is excessive in light of the mitigating factors present in this
case. The appellant had no prior criminal record, the act was not
premeditated, and it occurred in a moment of high emotion without any
deliberate intention to cause death. Furthermore, this Court takes into
account judicial precedents where similar cases warranted a lesser
punishment.
32. In view of the above findings, this Court finds it just and proper to partly
allow the appeal by reducing the sentence from 07 years rigorous
imprisonment to 05 years rigorous imprisonment while maintaining
the conviction under Section 304 Part II IPC. The Court holds that a
lesser sentence would serve the ends of justice while still upholding the
principle of proportionality in sentencing. The appellant is given the
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benefit of reduced punishment due to his previously clean record and
the circumstances surrounding the incident. In addition, observations on
future conduct: this Hon’ble Court advises that the appellant undergo
counseling and rehabilitation to prevent future incidents of a similar
nature. Further, the appellant is directed to participate in social welfare
activities upon his release to ensure reintegration into society in a
meaningful and constructive manner.
33. Accused-appellant has already undergone more than 04 years of jail
sentence and has been in judicial custody from 19.02.2021. Accused’s
detention period should be adjusted in the sentence modified and the
remaining sentence should be served.
34. In the result, the appeal is partly allowed. While maintaining conviction
of accused/appellant under Section 304 Part II of IPC, the sentence
imposed on him under that section is hereby reduced to 05 years R.I.,
Rest of the impugned judgment passed by the learned trial Court shall
remain intact.
35. Let a copy of this judgment and the original record be transmitted to the
trial Court concerned forthwith for necessary information and
compliance.
- Sd/-
(Ramesh Sinha)
Chief Justice
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