Partly allowed

Smt.Gunadi Bai and Another v. State of Chhattisgarh

Chhattisgarh HC7 Jul 2024CRA/240/2006

Case brief

AI extract

What is this about?

This convicting defense appeal against a lower court sentence under Section 323 IPC. Upheld the conviction but ordered the sentence to be reduced commensurately with the time already served by the appellants while on bail.

What did the court decide?

Conviction under Section 323 IPC affirmed; sentences reduced to the extent of time already undergone during trial; bail bond extended for six months.

Smt.Gunadi Bai and Another Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

2024:CGHC:35814

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 240 of 2006

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1 – Smt. Gunadi Bai, W/o. Nathuram Gond, aged about 40 years, R/o. Village Koeba, Police Station Deobhog, District Raipur, Chhattisgarh

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2 - Smt. Rattri Bai, W/o. Durbal Gond, aged about 22 years, R/o. Village Koeba, Police Station Deobhog, District Raipur, Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh, Through the District Magistrate, District Raipur, Chhattisgarh

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... Respondent

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(Cause title taken from Case Information System)

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For Appellants : Ms. Rekha Shrivastava, Advocate For Respondent/State : Dr. Surendra Kumar Dewangan, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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Judgment on Board

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08/07/2024

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The present appeal has been filed by the appellants against the impugned judgment of conviction and sentence dated 21.03.2006, passed by learned Sessions Judge, Raipur in Sessions Case No. 387 of 2005, whereby the appellants have been convicted for the

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Digitally signed by VEDPRAKASH DEWANGAN

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offence under section 323 of IPC and sentenced for R.I. for one year with fine of Rs. 700/-, in default of payment of fine, additional R.I. for three months.

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The brief facts of the case are that on 05.09.2005, a dispute arose between the present appellant Gunadi Bai and the deceased on the issue that the co-accused Durbal had plucked certain lemons from the kitchen garden of the deceased. The dispute arose at the bore well, when the appellant Gunadi Bai and deceased came to fetch water. At that time, Durbal and Vijay were also coming from pond side and after seeing their dispute, Durbal assaulted the deceased by hand and fist and chappal. The present appellants, who are the mother and wife of the Durbal have also assaulted him. The deceased Dingar went on unconsciousness and after sometime he died.

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On the report of Somnath, who was the Sarpanch of the village, the Dehati Nalshi/Exhibit P-3A and Merg Intimation/Exhibit P- 2A was recorded at Police Station Deobhog. Based on the Dehati Nalshi, FIR/Exhibit P-3 and Merg Intimation/Exhibit P2 was recorded. The inquest of the dead body of the deceased was prepared vide Exhibit P-5 in presence of the witnesses and the dead body was sent for its post-mortem to Community Health Centre, Deobhog where PW-9 Dr. Ashok Chandra Wadhva conducted the post-mortem of the dead body and gave report/Exhibit P-20. According to the postmortem report, the cause of death was reported to be signs of Asphyxia Partial and nature of death was opined that nature of death

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cannot be ascertained. During the post-mortem report, the scratch mark below the chin and swelling below both ears were noticed by the doctor. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation charge sheet was filed before the learned Judicial Magistrate First Class Gariyaband for the offence under Section 302/34 of IPC against the co-accused Durbal Gond and the present appellants.

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The learned trial Court has framed charge against the appellants for the offence under Section 302 read with Section 34 of IPC. The appellants have denied the charge and claimed trial.

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In order to prove the charge against the appellants, the prosecution has examined as many as 09 witnesses. Statement of the accused persons under Section 313 of CRPC have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that on the date of incident, the deceased was assaulting them and when Durbal had seen the incident, he intervened and saved them. They are innocent and have been falsely implicated in the offence. Three defence witnesses, DW1 Nanhe Singh, DW-2 Amar Singh and DW-3 Tilak Ram have been examined by the appellants.

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After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has convicted the co-accused Durbal for the offence under Section 304 part-II of IPC and sentenced for R.I. for seven years with fine of Rs.2000/- in default of payment of fine, further R.I. for one year and the present appellants Smt. Gunadi

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Bai and Smt. Rattri Bai have been convicted for the offence under Section 323 of IPC and sentenced for R.I. for one year with fine of Rs. 700/-, in default of payment of fine, further R.I. for three months, which is under challenge in the present appeal.

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The co-accused Durbal Gond has challenged his conviction and sentence in Criminal Appeal No. 331 of 2006 before this Court and he has already completed his sentence and released from the jail on 15.08.2009 and therefore he has not pressed his appeal on 08.07.2024 itself, as he has already served the entire sentence and this appeal is filed by the two other accused persons, who have been convicted for the offence under Section 323 of IPC.

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Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The inconsistent evidence cannot be made basis to convict the appellants for the offence in question. They would further submit that the offence of Section 323 of IPC does not provide any minimum sentence. The appellants have been remained in jail during the trial from 19.09.2005 to 05.12.2005, which comes to about 2 months and 16 days. Both the appellants are ladies and the offence is of the year 2005. Therefore, considering their age, their undergone period may be considered to be sufficient sentence for the alleged offence against them.

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On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and have

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submitted that the prosecution has proved its case beyond reasonable doubt against the present appellants and there is no merit in their appeal and their appeal is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record of the case.

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The homicidal death is not in dispute in the present case, as the landed trial Court after considering the evidence available on record as well as the evidence of PW-9, Dr. Ashok Chandra Wadhva, who proved the injuries on the body of the deceased and was obtained to be Asphyxia. The learned trial Court considering the overall evidence with respect to the nature of injuries, the manner in which the incident occurred and the post-mortem report, came into conclusion that the death of the deceased was homicidal in nature. The allegations against the present appellants are that they have also assaulted the deceased when the quarrel took place near the bore well.

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From the evidence of Ghasnin/PW-3, who is the wife of deceased and eyewitness to the incident, has duly supported the prosecution's case that the present appellants have also assaulted the deceased by chappal. Nothing in her cross-examination to disbelieve her evidence that the present appellants were not caused any injuries to the deceased. Though another eyewitness Vijay was also there, but he has turned hostile and not supported the prosecution's case and the case of the prosecution rests only on the evidence of PW-3, who is the wife of the deceased. As there is no infirmity found in the evidence of PW-3/Ghasnin Bai that the

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deceased was also assaulted by the present appellants by chappal, learned trial Court has considered the injuries caused by them upon the deceased and nature and mode of his death and has convicted the present appellants for the offence under section 323 of IPC. I do not found any reason to disagree with the finding of the learned trial Court convicting the present appellants for the offence under section 323 of IPC and I therefore affirm the conviction of the present appellants for the said offence of under section 323 of IPC.

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In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh, (1977) 3 SCC 287 , Hon'ble Supreme Court has observed that 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 and held in Para 9 as follows:

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"9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel 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 Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If 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 subculture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the 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

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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."

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In the present case, the appellants have been convicted for the offence under section 323 of IPC. The said offence does not provide any minimum sentence. The offence is of the year 2005 and both the appellants are presently appears to be aged about 60 years and 42 years respectively and having numerous responsibilities of their family. Considering the nature of the allegation against the present appellants as well as in view of the law laid down by the Hon’ble Supreme Court in Mohammad Giasuddin's case (supra), this Court is of the opinion that ends of justice would meet if the sentence awarded to the appellants would be reduced for the period already undergone by them.

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In the result, the appeal filed by both the appellants- Smt. Gunadi Bai and Smt. Rattri Bai is hereby partly allowed . while maintaining

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their conviction for the offence under section 323 of IPC, their sentences are reduced for the period already undergone by them.

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The appellants are reported to be on bail. Their bail bond shall continue for the further period of 6 months, as provided under section 437-A of Code of Criminal Procedure.

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Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/(Ravindra Kumar Agrawal) Judge

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ved

Smt.Gunadi Bai and Another v. State of Chhattisgarh

Case brief

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Smt.Gunadi Bai and Another v. State of Chhattisgarh

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