Mathura Gir Vs State of Chhattisgarh

1 . The present appeal has been filed against the impugned judgment of conviction and sentence dated 14.12.2021 passed by the Ist Additional Sessions Judge Katghora, in Sessions Trial No. 28/2021 whereby the appellant has been convicted for the offence under Section 308 IPC and sentenced for RI for five years with fine of Rs.500/-. In default of payment of fine amount, additional Imprisonment for one month.

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2 . The case of prosecution in brief is that, on 05.03.2021 at about 11 AM while the appellant and victim were sitting and chatting together, some altercation took place between them and the appellant gave a Sickle blow on the neck of the victim Paras Ram Nirmalkar, PW-1, due to

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which he received injuries on his neck. Written report Ex.P/2 was lodged by the son of victim namely Rajesh Nirmalkar, based on which an FIR Ex.P/3 was registered against the appellant for the offence under Section 307 IPC. The victim was sent for his treatment to Community Health Centre, Pali where he was medically treated by Dr. Hemant Paikra, PW-9, who found a large deep cut wound on the right side of neck, stab wound on back of neck and deep cut wound on the left hand and all the injuries were caused by hard and sharp object. The victim was referred to CIMS Hospital Bilaspur for further treatment and expert opinion. His MLC report is Ex.P/9. When a query was made, the Doctor gave his query report Ex.P/10 in which he opined that injuries are grievous in nature and death was possible from the said injuries. The appellant was arrested and based on his memorandum statement Ex.P/7, Iron Sickle was seized vide seizure memo Ex.P/5. In the FSL report, Ex.P/18, blood was found on the said Sickle and Lungi of the appellant.

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3 . After completion of usual investigation charge sheet was filed against the appellant before the Judicial Magistrate First Class, Pali for the offence under Section 307 IPC. The case was committed to Sessions Judge, Korba from where the same has been transferred to the trial court for its trial. The Trial court framed charge for the offence under Section 307 IPC against the appellant. The appellant abjured his guilt and claimed trial.

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4 . In order to establish charge, the prosecution examined as many as 12 witnesses. The statement of appellant under Section 313 CrPC was recorded in which he denied the circumstances appears against him,

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pleaded innocence and submit that he has been falsely implicated in the offence. After appreciation of evidence led by the prosecution, the trial court has convicted the appellant for the offence under Section 308 IPC instead of 307 IPC and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal.

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5 . Learned counsel for the appellant would submit that the appellant is not challenging his conviction and confined his challenge in the appeal to the sentence part awarded to him for the offence under Section 308 IPC. The appellant is presently 65 years old, out of five years of jail sentence he has already undergone more than three years of sentence, the offence under Section 308 IPC is not provided with any minimum sentence and therefore looking to the circumstances under which the incident occurred, the undergone period may be considered to be sufficient for the alleged offence.

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6 . On the other hand the learned counsel for the State opposes the submissions made by the counsel for the appellant and submits that the alleged offence has duly been proved by the victim himself as well as the Doctor who medically examined the victim. The trial court has already taken a lenient view against the appellant and there is no need for further leniency in favour of the appellant and therefore his appeal is liable to be dismissed.

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7 . I have heard the counsel for the parties and perused the record of the trial court.

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8 . PW-1, Paras Ram Nirmalkar, is the victim, who stated in his evidence that on the date of incident he along with appellant consumed liquor and then altercation started between them which resulted into assault

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made by the appellant on his neck by Sickle due to which he received injuries on his neck and other part of his body and he was shifted to Hospital. In cross examination he admits that altercation started all of sudden after consuming liquor and then the appellant caused injuries to him. The appellant could not rebutted his involvement in the offence in question by cross examining the victim, PW-1. The injuries found on the body of victim has been proved by PW-9, Dr. Hemant Paikra who treated the victim at Community Health Centre Pali. He proved the injury report Ex.P/9. Thus, this court does not find any perversity in the conviction of the appellant. Although conviction has not been challenged by the appellant, yet from the evidence it has been proved that the appellant has caused injuries to the victim for which he has been convicted for the offence under Section 308 IPC by the trial court. 9 . So far as sentence part is concerned, the Hon’ble Supreme Court in Mohammad Giasuddin Vs. State of Andhra Pradesh, 1977 (3) SCC 287 in paragraph 9 of its judgment has held as under:

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“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 reculturisation. 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

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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.' In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion : "Circuit Judge Christmas Humphreys told the BBC reporter recently that a judge looks 'at the man in the dock in a different way : not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself.' In the context of karuna and punishment for karma the same Judge said : 'The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him; that is what compassion means."

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10. Considering the submissions made by the counsel for the appellant that offence is of the year 2021, the appellant is presently aged about 65 years and as such he must be saddled with innumerable family responsibilities, the offence of Section 308 IPC does not provide with any minimum sentence, the incident occurred in a heat of passion and all of sudden, looking to the nature of injury and the manner of the alleged incident and also the fact that the appellant has already undergone more than three years of his jail sentence, ends of justice would meet if the sentence part of appellant is reduced for the period already undergone.

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11. Therefore, considering the entire facts and circumstances of the case as also the law laid down by the Supreme Court in case of Giasuddin (Supra), this court while upholding the conviction of the appellant for the offence under Section 308 IPC, reduced the sentence of the appellant for the period already undergone by him. The fine amount awarded shall remain intact.

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12. With the aforesaid observation/alteration, the appeal is partly allowed to the extent indicated hereinabove. The appellant is reported to be on bail. His bail bond shall continue for a further period of six months as provided under Section 481 of BNSS, 2023.

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13. The trial court record be send back forthwith along with copy of this judgment for necessary compliance.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Mathura Gir v. State of Chhattisgarh

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Mathura Gir v. State of Chhattisgarh

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