High Court of Chhattisgarh
Case Details
HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 699 of 2004 2025:CGHC:1822 Sukhram, S/o. Mohana Korva, aged about 30 years, Occupation – Farmer, R/o. Village – Pahadkhaduwa, P.S. Raipur, District – Sarguja (C.G.) State of Chhattisgarh Through District – Surguja (C.G.) Versus ---- Appellant --- Respondent For Petitioner For Respondent : :
Legal Reasoning
Shri Vineet Kumar Pandey, Advocate. Shri Tarkeshwar Nande, Panel Lawyer. Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 10.01.2025 1. The challenge in this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) is the impugned judgment dated 24/04/2004 passed by the Additional Sessions Judge, Ambikapur, District – Surguja (C.G.) in Session Trial No. 386/2003 convicting the accused/appellant under Section 304 Part-II of I.P.C. and sentencing him to undergo R.I. for five years. 2. Case of the prosecution, in brief, is that on 30.07.2003, there was a marriage ceremony in the house of Jagdish Korva at Village - Pahadkhaduwa and on that occasion several villagers were drinking Hadia Liquor. In that event, when one Belash was returning with his tape recorder which was objected to by the deceased namely Bhagna. When Belash remained persistent in taking away his tape recorder, one Devnath and the deceased herein started thrashing him. In the meantime, the accused/appellant dealt a knife blow on the chest of Bhagna as a result of which he fell down and started bleeding profusely and ultimately at about -2- 7 pm he succumbed to the injuries suffered by him. Incident was reported on the next morning by Telgaram (PW-7) at Police Station – Rajpur upon which merg was recorded and the inquest on the dead body was carried out. On the basis of merg, FIR was registered vide (Ex.P/2) for the offence punishable under Section 302 of the I.P.C. Postmortem on the body of deceased was conducted by Dr. Rajendra Bansuriya (PW-10) who opined that the deceased died due to cardio respiratory arrest on account of the stab wound on the chest. According to the PM report the injuries were ante mortem, the death was homicidal in nature, and the injuries present on the body of the deceased could have been caused by the knife produced before him for examination. During the course of investigation, on the basis of the memorandum of the appellant, a knife, blood stained soil and lungi were seized and they were sent for chemical examination to FSL, Raipur. After completion of investigation, charge-sheet was filed for an offence punishable under section 302 of the I.P.C followed by framing of charge under the same section. 3. Prosecution examined 13 witnesses and exhibited as many as 16 documents. Statement of the accused under 313 of the Cr.P.C. was recorded in which he denied the charge and claimed false implication. 4. Learned trial Court after appreciating the evidence available on record convicted and sentenced the accused/appellant as stated above. Hence this appeal. 5. Learned Counsel for the appellant submits that the prosecution has not been able to prove its case beyond all reasonable doubts and that there are material contradictions and omissions in the statements of the witnesses so examined. He submits that even if the entire evidence collected by the prosecution is taken as it is, the accused/appellant cannot be convicted under Section 304 Part-II IPC as none of the witnesses has made a pin pointed allegations against the accused/appellant. He further submits that if the conviction of the appellant is not going to be set aside, at least the sentence imposed on him may be reduced to the period undergone which comes to about 8 months. He submits that there is no -3- criminal antecedents against the accused/appellant, that he did not misuse the liberty while being on bail, that his further detention may be detrimental not only to him but also to the society as being in the midst of hardened criminals he may also develop a criminal proclivity posing an alarm to the society and therefore, by giving him the benefit of Section 4 of Probation of Offender Act, he may be set free forthwith. To buttress his submission, he placed reliance upon the decision of Supreme Court in case of Hussainbhai Asgarali Lokhandwala Vs. State of Gujarat reported in 2024 SCC OnLine SC 1975, in the matter of State of Karnataka Vs. Muddappa reported in (1999) 5 SCC 732, and the decision of Madras High Court in case of Radhakrishnan Vs. inspector of Police in Cr.A. 592 of 2003 dated 23rd February, 2010. 6. Learned Counsel for the State however opposes the submission made by counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubts and therefore, there is no illegality or infirmity in the well reasoned judgment of the trial court convicting and sentencing the accused/appellant as described above. Likewise, looking to the allegation made against the accused/appellant he is also not entitled to get the benefit of Probation of Offender Act, 1958 (for short Act). 7. Heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 8. From the evidence on record in particular that of the doctor (PW-10), there is no hesitation for this Court to approve the finding of the trial Court as regards the death being homicidal in nature. This finding of the trial Court is accordingly maintained. 9. The next point to be determined by this Court is as to who is the author of the crime in question? 10. From the evidence of the three witnesses Jarha (PW/2), Belash (PW/3) and Telga -4- (PW/7), it is evident that the incident took place when Belash did not adhere to the say of the people present in the marriage ceremony including the accused/appellant. It is also evident that when Belash was moving away with the tape recorder carried by him, the accused/appellant dealt a knife blow on the chest of the deceased, who succumbed to the injuries almost 3 hours after the occurrence. The doctor (PW-10) has specifically stated that the injuries suffered by the deceased could have been caused by the knife produced before him, and that the injuries were ante mortem and the death homicidal in nature. The defence however has utterly failed to rebut the testimony of the prosecution witnesses. 11. Thus the material collected by the prosecution appears to be sufficient to hold the accused/appellant guilty of the act attributed to him, and so also the finding of the trial Court is based on the proper appreciation of the evidence brought forth before it. The eye-witnesses and the medical evidence also speak in the same tone and tenor connecting the accused/appellant with the crime in question. Their seems to be nothing before this Court to take a view other than the one taken by the trial Court as regards conviction of the appellant under Section 304 (Part-II) IPC. The same is hereby maintained. 12. In case of Muddappa (Supra) while dismissing the appeal filed by the State of Karnataka, Hon’ble Supreme Court observed that “Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation.” Relying upon the above judgment -5- Hon’ble Madras High Court in case of Radhakrishnan (Supra) extended benefit of Section 4 of the Act to the appellant therein and released him on probation of good conduct. In case of Hussainbhai Asgarali Lokhandwala (Supra), the Hon’ble Supreme Court has modified the sentence imposed under section 304 Part II pf IPC to the period already undergone by the appellant therein. 13. In light of the above decisions cited by the learned counsel for appellant it is to considered as to whether the sentence imposed on the appellant needs to be reduced and whether he could be extended benefit of section 4 of the Act. This Court has come across several mitigating circumstances such as the past track record of the accused/appellant being fair enough, as informed by counsel for the appellant this is the first criminal instance against the accused, that the incident had taken place about 21 years back, that being on bail the accused/appellant did not exhibit any unbecoming attitude as he has never misuse the liberty so granted and that with the passage of such a considerable long period, there is every likelihood that he might have settled in his family life and therefore, it would not be just and proper to unsettle him at this belated stage. Accordingly, as there is no minimum sentence provided under the Code for an offence under Section 304 Part-II IPC, this Court viewing the mitigating circumstances as detailed above, it appear to be just and proper to make the appellant undergo RI for three year, which would suffice according to the considered opinion of this Court. Held accordingly. Apart from this, if the facts of the case are read along with the provision contained in Section 4 of Act and case law as referred above, the accused/appellant entitles himself to derive the benefit of Section 4 of the Act.
Decision
14. In aforesaid view of the matter, the appeal is allowed in part. Conviction slapped by the trial Court is maintained and the sentence imposed on him is slashed to RI for three year. The appellant shall get the benefit of Section 4 of the Act. Appellant shall file one surety to the tune of Rs. 25,000/- each coupled with personal bond within 90 days from the date of order to the effect that he shall not commit any -6- offence and shall observe good behaviors and shall maintain peace during the period of one year, if there is breach of any of the conditions, he will be subjected himself to undergo sentence imposed by this Court before the Court below. 15. Record of the trial Court be sent back alongwith this Judgment for information and necessary compliance. 16. In the result, the appeal is allowed in part. Sd/- (Sachin Singh Rajput) Judge Ashish/Pawan PAWAN KUMAR Digitally signed by PAWAN KUMAR Date: 2025.02.10 16:44:42 +0530