Chattisgarh High Court
Aayatu Ram Potai vs State Of Chhattisgarh on 26 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
2025:CGHC:14546-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1000 of 2021
Aayatu Ram Potai S/o Late Ghasiya Ram Potai Aged About 35 Years R/o Village
Ghotiya P. S. Badgaon, District-North Bastar, Kanker Chhattisgarh --- Appellant(s)
versus
State Of Chhattisgarh Through The Station House Officer P. S. Badgaon, District
North Bastar Kanker Chhattisgarh --- Respondent
(Cause-title taken from Case Information System)
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For Appellant : Shri AN Pandey, Advocate
For Respondent/State : Shri Hari Om Rai, PL
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Hon'ble Shri Ramesh Sinha, Chief Justice
& Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ravindra Kumar Agrawal, J.
26.03.2025
1. Challenge in this appeal is to the judgment of conviction and
sentence dated 13.08.2021, passed by the learned Additional Session
Judge, Bhanupratappur, Distt-North Bastar-Kanker, CG, in ST-21 of 2019,
whereby the appellant has been convicted for commission of offence
punishable under Section 302 of the IPC, and sentenced for life
imprisonment with fine of Rs.2,000/- with default stipulation.
2. Brief facts of the case are that complainant-Bisau Ram Darro gave
merg intimation Ex.P19 to the Police Station-Siksode to the effect that on
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16.04.2019 when he along with Santlal Darro, present appellant, Ramsu,
Yashoda, and Baisakhin (since deceased) were returning to village-
Ghotiya from Kapsi, deceased Baisakhin and the complainant took lift on
the Motorcycle of Ramsai Kumeti, and came up to Pipli Road, and near
Pipli turning, he dropped them and went towards his house. After a short
while, appellant also came on his bicycle, and started quarelling with his
wife Baisakhin as to why she had come on the Motorcycle with other
person, and not with him. He started assaulting her, and when the
complainant intervened, he too was assaulted by the appellant.
Appellant assaulted his wife, Baisakhin by a stone which was lying there,
by which she received injuries on her head and died. Based on the merg
intimation given by Bisau Ram Darro, FIR Ex.P20 was registered against
the appellant for the offence punishable under Section 302 and 323 of the
IPC. Inquest Ex.P10 of dead-body of the deceased was prepared in
presence of the witnesses. Dead-body was sent for its postmortem to the
Community Health Centre, Pakhanjur, where PW8- Dr Sukhdev Shende
conducted postmortem of dead-body of the deceased, and gave report
Ex.P18. While conducting postmortem of the dead-body, the doctor has
noticed the following injuries:
Wound on both side of head on both occipital bone,
diameter-2 cm, bleeding mark, head bone pierced into the
brain matterWound on back side of neck in cervical area diameter
about 2 cm, fracture of cervical vertebra from 3 to 5, Injury
occurred in spinal cord.
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On internal examination, the doctor has found Spinal Cord injury
occurred on survical area of neck from 3 to 5, and opined that cause of
death is Spinal shock and neurogenic shock due to fracture of neck
vertibra and injury to the Spinal cord. Nature of death is homicidal.
3. The injured Bisau Ram Darro was also sent for his medical
examination to the Community Health Centre, Pakhanjor, where he too
has been examined by PW8- dr Sukhdev Shende, who gave MLC report
Ex.P13 and the doctor has noticed pain and swelling on right side of face
near right year, which is simple in nature. Spot Map Ex.P21 was
prepared by the Police, and Ex.P7 was prepared by the Patwari.
Appellant was arrested on 17.04.2019, and his memorandum statement
Ex.P2 was recorded and based on his memorandum statement, his
bicycle was seized vide seizure memo Ex.P3, and one stone has been
seized vide seizure memo Ex.P4. The said stone was sent for its query
report to the doctor, who gave his opinion Ex.P15 that the injury on the
face and mouth of the deceased can be possible by the stone. The
other query reports are Ex.P16, and Ex.P17.
4. Statement of the witnesses under Section 161 of the CrPC, and
statement of the complainant- Bisau Ram Darro under Section 164 of the
CrPC have been recorded, and after completion of usual investigation,
charge-sheet was filed against the appellant for the offence under
Section 302 and 323 of the IPC before the learned Judicial Magistrate
First Class, Pakhanjor. Case was committed to the Court of learned trial
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court for its trial. Learned trial court has framed charge against the
appellant for the offence under Section 302 and 323 of the IPC.
Appellant abjured his guilt and claimed trial.
5. In order to prove the charges against the appellant, the prosecution
has examined as many as 12 witnesses. The statement under Section
313 of Cr.P.C of the appellant was also recorded in which he denied the
material appearing against him and pleaded innocence and has
submitted that he has been falsely implicated in the offence.
6. After considering and appreciating the oral as well as documentary
evidence available on record, the learned Trial Court has convicted the
appellant and sentenced him as mentioned in earlier part of this
judgment. Hence, this appeal.
7. Learned counsel for the appellant would submit that the appellant is
innocent and has falsely been implicated in the offence. No offence is
made out against the appellant as alleged. The prosecution has failed to
prove its case beyond reasonable doubt. There are material omissions
and contradictions in the evidence of prosecution witnesses, which
cannot be made basis to convict the appellant for the offence in question.
The alleged eyewitness is interested witness, and there is inconsistency
in his evidence, and in the evidence of prosecution witnesses. The
presence of eyewitnesses is doubtful, as he lodged the report against the
appellant, saying that he is the injured witness but he himself has not
supported the prosecution cse, and the learned trial Court has acquitted
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the appellant for causing injury to the alleged eyewitness/complainant
Bisau Ram Darro, and thus his presence on the spot itself is doubtful,
and there is no other eyewitness to the incident that the appellant
assaulted the deceased. He would further submit that the appellant was
not armed with any deadly weapon, and the incident was occurred in a
heat of passion, and without taking any undue advantage, suspecting
fidelity of the deceased, he assaulted her. The act of the appellant does
not satisfy the ingredients of definition of “murder”, and his act, if any,
would come under the definition of Section 304 Part-I, or Part-II of the
IPC. Appellant remained in jail since 17.04.2019, and therefore, by
altering his conviction from 302 to 304 Part-II of the IPC, his sentence
may be reduced to the period, already undergone by him.
8. On the other hand, learned counsel for the state opposes the
argument advanced by learned counsel for the appellant and submitted
that but for minor omissions and contradictions, evidence of prosecution
witnesses are fully reliable. Suspecting the fidelity of his wife, when she
along with the complainant, was coming back from village Kapsi on the
Motorcycle of a villager, by asking lift, who dropped them near Pipli
Chowk, at that time, appellant came there, and assaulted the deceased
by stone on her head by which she received grievous injuries, and died
on the spot. This act of the appellant itself shows his intention to commit
murder of his wife, and the incident was witnessed by PW2-Bisau Ram
Darro. Even if the appellant is acquitted from the offence punishable
under Section 323 of the IPC, that itself is not sufficient to disbelieve
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other evidences available on record, which pointing towards guilt of the
appellant that he committed murder of the deceased-Baisakhin, his wife.
Therefore, the impugned judgment of conviction and sentence needs no
interference by this Court.
9. We have heard the learned counsel for the parties and perused the
record carefully.
10. So far as homicidal death of the deceased is concerned, PW8-Dr
Sukhdev Shende has proved the postmortem report of dead-body of the
deceased, who stated in his evidence that on 17.04.2019, dead-body of
the deceased Baisakhin was brought before him, and he conducted its
postmortem. While conducting postmortem, he found injuries on her
head at occipital region, and fracture of bone was also there. Her 3, 4
and 5 cervical vertebra was fractured, and injury to the Spinal cord, by
which she died. He opined cause of death of the deceased is Spinal
shock and neurogenic shock due to fracture of neck vertebra and injury to
the Spinal cord. Nature of death is homicidal. He also proved the Query
Report Ex.P17, and gave the opinion that injuries found on the body of
the deceased could have been caused by the said stone sent for its
query report. Nothing adverse has come in his cross-examination which
makes his evidence doubtful, and he confirmed the finding given in the
postmortem report.
11. Homicidal death is supported by the evidence of PW2, Bisau Ram
Darro, who stated in his evidence that when they were returning from
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Kapsi, deceased-Baisakhin took lift up to Pipli Road, and near Pipli
turning, the villager dropped them, where the appellant assaulted the
deceased by stone. He saw the dead-body of the deceased, who
received injuries on her neck, and bones were fractured. Further, the
witness to the inquest PW1-Dukay Bai Usendi, PW4-Nandu Ram Darro,
stated in their evidence that when they saw the dead-body of the
deceased, they saw the injuries on her head, by which she died, and
thus, learned trial Court has rightly came into conclusion that the
prosecution has proved death of the deceased homicidal by leading
cogent evidence in which this Court is also in agreement in the finding
recorded by the trial court that the deceased died due to homicidal death.
12. So far as involvement of the appellant in the offence in question, the
prosecution case is based on the evidence of PW2- Bisau Ram Darro,
who is eyewitness to the incident. He stated in his evidence that on the
date of incident, they had gone to village-Kapsi, and while returning from
there, he along with the deceased-Baisakhin took lift on a Motorcycle of
one Guddu, who dropped them at Pipli turning. At that time, appellant
came there on his bicycle, and asked him to go to his companions, and
he left the place and went to his companions. When he again reached at
Pipli turning, he saw that Baisakhin was lying dead, having injury on her
head. When he asked from the appellant, he disclosed that he assaulted
the deceased by stone. Thereafter, report has been lodged to the Police.
At this stage, he has been declared hostile, and cross-examined by the
prosecution and then he stated that while they were returning from village
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Kapsi, deceased shown her inability to walk to the village, and then she
took lift from a villager on his Motorcycle. Bisau Ram Darro also sat on
the Motorcycle with the deceased, and they came up to Pipli turning. He
also admitted that the appellant has raised suspicion on the fidelity of the
deceased, and started quarrelling with her. He also stated that appellant
has slapped him, and when the deceased intervened, she too was being
assaulted by the appellant, and thereafter, appellant took a stone which
was lying there, and assaulted the appellant with the stone, by which she
fell down on the ground, and thereafter, appellant pressed her neck by
his leg, and committed murder. Appellant chased him, then, he fled away
from the place. He informed the other persons, who are coming from
backside, and then, lodged the report.
In cross-examination, he stated that on being asked by the appellant
to go with his companions, he left them alone at Pipli turning, and came
to his companions. He did not see the actual assault made upon the
deceased. He admitted that when he again reached on the spot, he saw
the dead-body of the deceased but appellant was not there. He reported
the incident that the appellant slapped him, and also witnessed the
incident. He further stated in his cross-examination that when the
appellant slapped him, he came back from there. He further stated that
the appellant has not actually assaulted him, he only raised his hand for
assaulting him and then he went away from the place. He admitted that
his statement under Section 164 of the CrPC was recorded as Ex.P18
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but in further cross-examination, he stated that on the instance of the
Police, he made statement under Section 164 of the CrPC.
13. PW1-Dukay Bai usendi is sister of the appellant. She stated in her
evidence that on the date of incident, when they were returning from
village Kapsi, Bisau Ram Darro and the deceased took lift from a villager
on his Motorcycle, and they were coming by walking. At that time, Bisau
Ram Darro rushed to them and informed that Baisakhin died. She turned
hostile, and not supported the prosecution case.
14. PW3- Mohan Aanchala and PW4- Nandu Ram Darro are witnesses
of memorandum and seizure of stone, weighing 3.5 kg. Though they
have not fully supported the prosecution case, but have admitted their
signatures on the memorandum and seizure. On the basis of
memorandum Ex.P2, stone has been seized from the appellant vide
seizure memo Ex.P4, and as per the query report of the doctor, injuries
found on the body of the deceased could have been caused by the said
stone. Presence of the appellant at the relevant point of time on the spot
has been proved by PW2, Bisau Ram Darro. Though he is the injured
eyewitness to the incident, but he resile from his statement, and only
supported that when he left the place, the deceased and appellant were
there together, and after s short moment, when he came back, he found
the deceased died and the appellant was not there. From his evidence,
presence of the appellant is on the spot is duly proved and immediately
thereafter, the deceased was found in injured condition.
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15. PW11 Manay Bai is the sister-in-law of the appellant. She also
stated in her evidence that on the date of incident, they were returning
from village Kapsi. Bisau Ram Darro, deceased-Baisakhin and the
appellant were going ahead of them, and after some time, Bisau Ram
Darro came back and informed them that Baisakhin has been assaulted
by the appellant, and at that time, appellant and Bisau Ram Darro were
there at Pipli turning. When they reached to the spot, they saw the dead-
body of Baisakhin, and the appellant fled away from the spot. This
witness has also been declared hostile, and thereafter, not supported the
prosecution case, except the fact that Bisau Ram Darro has informed
them about the incident that the appellant assaulted the deceased.
16. PW12-Yashoda Salam is also witness to the same that when they
returning from village Kapsi, appellant, his wife-Baisakhin, and Bisau
Ram Darro (PW2), went ahead from them, and after some time, Bisau
Ram Darro rushed to them and informed that deceased-Baisakhin has
been assaulted by the appellant, and when they reached to the spot, they
saw her dead-body here.
17. From the above evidences, prosecution is able to prove the
involvement of the appellant in the offence in question that he assaulted
the deceased by stone, and fled away from the place. Even he has not
explained as to his wife has received injuries on her head when he along
with his wife were together at the relevant point of time.
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18. In case of Balvir Singh v. State of Uttarakhand, (2023) Live Law
(SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as
under:
“33. Section 106 of the Evidence Act, states as under:
“106. Burden of proving fact especially within knowledge.
When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. Illustration
(a) When a person does an act with some intention other than
that which the character and circumstances of the act suggest,
the burden of proving that intention is upon him.(b) A is
charged with travelling on a railway without a ticket, The
burden of proving that he had a ticket is on him.”
34. Section 106 of the Evidence Act referred to above provides
that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. The word
“especially” means facts that are pre-eminently or
exceptionally within the knowledge of the accused. The
ordinary rule that applies to the criminal trials that the onus lies
on the prosecution to prove the guilt of the accused is not in
any way modified by the rule of facts embodied in Section 106
of the Evidence Act. Section 106 of the Evidence Act is an
exception to Section 101 of the Evidence Act. Section 101 with
its illustration (a) lays down the general rule that in a criminal
case the burden of proof is on the prosecution and Section 106
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is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible or at any rate disproportionately
difficult for the prosecution to establish the facts which are,
“especially within the knowledge of the accused and which, he
can prove without difficulty or inconvenience”.
19. In the case of Nagendra Sah v. the State Of Bihar (2021) 10 SCC
725 the Hon’ble Supreme Court in Para 23 has held as under:
“23. When a case is resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
burden placed on him by virtue of Section 106 of the Evidence
Act, such a failure may provide an additional link to the chain of
circumstances.”
20. The aforesaid finding brings us 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 their conviction can be converted to Section
304 Part-I or Part-II of the IPC, as contended by learned counsel for the
appellants.
21. The Supreme Court in the matter of Sukhbir Singh v. State of
Haryana, (2002) 3 SCC 327 has observed as under:-
“21. Keeping in view the facts and circumstances of the
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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 punishable under 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.”
22. The Supreme Court in the matter of Gurmukh Singh v. State of
Haryana, (2009) 15 SCC 635 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
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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;
(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 ?
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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.”
23. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC
450, 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.
24. Further, the Supreme Court in the matter of Arjun v. State of
Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and
observed in paragraphs 20 and 21, which reads as under :-
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“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 its I 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
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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 account 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
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has not taken undue advantage or acted in cruel or
unusual manner. The expression “undue advantage” as
used in the provisions means “unfair advantage”.
25. 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.
26. Further, the Supreme Court in the matter of Rambir v. State (NCT
of Delhi), (2019) 6 SCC 122 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.”
27. According to the postmortem report, cause of death is Spinal shock
and neurogenic shock due to fracture of neck vertebra and injury to the
Spinal cord. Nature of death is homicidal. There is no other injury found
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on the body of the deceased. Appellant’s conduct shows that he did not
had the intention to cause the murder of the deceased though in a heat of
passion, he would have assaulted the deceased.
28. It is also not the case of the prosecution that the appellant came
armed heavily with any deadly weapon like sword or axe. The appellant
assaulted the deceased by a stone, which was lying there on the spot.
29. Reverting to the facts of the present case as some dispute arose
between the appellant and the deceased suspecting her fidelity, and
without there being any premeditation on the part of the appellant to
cause death of deceased, the assault was made. As such, his case
would fall within the purview of Exception 4 of Section 300 of IPC, as the
act of the appellant herein completely satisfies the four necessary
ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken any undue
advantage or acted in a cruel or unusual manner. Had the appellant
intended to cause murder of his wife, Baisakhin, he would have given
more blows with the stone. As such, it could be safely said that the
appellant did not had the intention to kill the deceased.
30. In view of the above discussion, we hold that it would meet the ends
of justice if the conviction of the appellant under Section 302 of the IPC is
altered/converted to Section 304 Part-II of the IPC.
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31. So far as sentence part is concerned, the submissions made by
learned counsel for the appellant that the appellant is presently aged
about 40 years, the offence is of the year 2019. Appellant has already
suffered the lis for about 6 years. He already remained in jail for more
than five years 11 months, and considering the nature of allegation, as
well as his detention period, appellant may be sentenced for the period
already undergone by him, is found to be appropriate in the facts and
circumstances of the present case.
32. So far as the sentence part is concerned, Hon’ble Supreme court in
the matter of Mohammad Giasuddin Vs State of Andhra Pradesh,
(1977) 3 SCC 287, it has been observed by the Hon’ble Supreme Court
as under:
“9. Western jurisdiction and ‘sociologists, from their own
angle have struck a like note. Sir Samual Romilly, critical of
the brutal penalties in the then Britain, said in 1817 : “The
laws of England are written in blood”. Alfieri has suggested :
‘society prepares the crime, the criminal commits it. George
Micodotis, Director of Criminological Research Centre,
Athens, Greece, maintains that ‘Crime is the result of the
lack of the right kind of education.’ It is thus plain that crime
is a pathological aberration, that the criminal can ordinarily
be redeemed, that the State has to rehabilitate rather than
avenge. The sub-culture that leads to anti-social behaviour
has to be countered not by undue cruelty but by re-
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culturisation. Therefore, the focus of interest in penology is
the individual, and goal is salvaging him for society. The
infliction of harsh and savage punishment is thus a relic of
past and regressive times. The human today views
sentencing as a process of reshaping a person who has
deteriorated into criminality and the modern community has
a primary stake in the rehabilitation of the offender as a
means of social defense. We, therefore consider a
therapeutic, rather than an in ‘terrorem’ outlook, should
prevail in our criminal courts, since brutal incarceration of
the person merely produces laceration of his mind. In the
words of George Bernard Shaw : ‘If you are to punish a man
retributively, you must injure him. If you are to reform him,
you must improve him and, men are not improved by
injuries’. We may permit ourselves the liberty to quote from
Judge Sir Jeoffrey Streatfield : ‘If you are going to have
anything to do with the criminal courts, you should see for
yourself the conditions under which prisoners serve their
sentences.”
33. Considering the submissions made by learned counsel for the
appellant, facts and circumstances of the present case, and further
considering the law laid down in Giasuddin (supra) case, ends of justice
would meet if the sentence of the appellant could be reduced to the
period already undergone by him.
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34. In the result, the appeal is partly allowed. The conviction of the
appellant for the offence of Section 302 of the IPC is set-aside, instead
thereof he has been convicted for the offence under Section 304 Part-II of
the IPC and sentenced for the period already undergone by him.
35. Appellant is reported to be in jail since 17.04.2019. He be released
forthwith if not required in any other case.
36. Keeping in view the provisions of section 481 of the BNSS 2023,
the appellant is directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs.
25,000/- with one reliable surety in the like amount before the court
concerned which shall be effective for a period of six months along with
an undertaking that in the event of filing of special leave petition against
the instant judgment or for grant of leave, the aforesaid appellant on
receipt of notice thereof shall appear before the Hon’ble Supreme Court.
37. The trial court records along with a copy of this judgment be sent
back immediately to the trial court, concerned for compliance and
necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
padma
Digitally signed
by V
PADMAVATHI
Date:
2025.04.15
15:30:13 +0530