Diamond Bariha Vs State of Chhattisgarh

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1

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2026:CGHC:2003

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1028 of 2024

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1 - Diamond Bariha S/o Late Budhram Bariha Aged About 24 Years Caste Bhinjwar R/o Arjuni, Police Station Pithora, District : Mahasamund, Chhattisgarh.

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Police Station Pithora, District : Mahasamund, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Shalvik Tiwari, Adv. For Respondent/State : Ms. Avelin Juneja, P.L.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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13/01/2026

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1 The present appeal has been filed under Section 374(2) of Cr.P.C. against judgment of conviction and order of sentence dated 28.11.2023 passed by the learned Second Additional Sessions Judge, Mahasamund, District - Mahasamund (C.G.), in Sessions Trial No. H-03/2023 whereby the learned Judge has convicted and sentenced the appellant as under :

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Digitally HEERALAL signed byHEERALAL SAHUDate: SAHU 2026.01.14 10:23:28 +0530

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Conviction	Sentence
U/s 307 of IPC Rigorous	imprisonment for 7 years
with fine	of Rs. 1000/-, in default of

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2

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	payment of fine	amount additional
	R.I. for 3 months.
	Rigorous impriso	nment for 5 years
U/s 458 of IPC	with fine of Rs. 1 payment of fine	000/-, in default of amount additional
	R.I. for 3 months.

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(Both the sentences were directed to run concurrently).

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2 The prosecution's case, in brief, is that on 29.10.2022 at about 4:00 pm, Gyaneshwar Dubey, son of Khemraj Dubey (victim), went to Radha Krishan Temple and at the same time, the accused, under the influence of alcohol, started to abuse Gyaneshwar Dubey. This incident was reported by him to his father, Khemraj Dubey (victim), and while Khemraj Dubey was confronting the accused, he started to abuse him using filthy language. The wife of the victim also intervened. Thereafter, on the same day at about 9:30 pm, the accused came to the house of the victim and hit him with an axe, causing head injury. On the basis of the complaint, FIR was registered and after completion of investigation charge sheet was filed against the appellant.

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3 So as to hold the appellant guilty, the prosecution has examined as many as 14 witnesses and exhibited 18 documents. The statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

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4 After hearing the parties, vide impugned judgment of conviction and order of sentence dated 28.11.2023 learned Judge has convicted and sentenced for the offence as mentioned in para-1 of this judgment. Hence, the present appeal.

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5 Learned counsel for the appellant submits that he is not pressing the appeal so far as it relates to the conviction

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3

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part of the judgment and would confine his argument to the sentence part thereof only. According to him, the incident is said to have taken place in the year 2022 and the appellant is in jail since 30.10.2022 i.e. about 3 years, 2 months and 14 days. The appellant is aged about 24 years and he is still serving the jail sentence; therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already undergone by him and he may be released from jail.

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6 Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the counsel for appellant.

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7 Heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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8 Dr. Mahendra Choudhary (PW-9) conducted the MLC of victim Khemraj Dubey and has given his report vide Ex. P- 10. As per the MLC report (Ex.P-10), a lacerated wound of 5x3x2 cm has been found on the left temporal region of the victim/injured, which was inflicted by a hard and sharp object, and the nature of the injury was serious.

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9 Neurosurgeon, Dr. Debabrata Sahana (PW-12), the treating doctor, has submitted that on 31.10.2022, injured Khemraj Dubey was admitted to DKS Hospital, Raipur. The injured person was brought in an unconscious state. CT scan of the brain of the injured was conducted, which revealed a blood clot in the left side of the brain and a fracture of the skull, along with fractures in the bones of the face.

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10 Having gone through the material available on record and the evidence of the witnesses Dr. Mahendra Choudhary (PW-9), Dr. Debabrata Sahana (PW-12), Khemraj Dubey (PW-1), Smt. Padma Dubey (PW-2), Lakeshwar Dubey (PW3), Keshar Dubey (PW-4), Gyaneshwar Dubey (PW-5), Ku.

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4

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Anjali Choubey (PW-6), Shivanand Tiwari (PW-10), Sikandar Bhoi (PW-11) and Gouribai Dubey (PW-14), establish the involvement of the appellant in the crime in question. This Court does not see any illegality in the findings recorded by the Trial Court as regards conviction of the appellant for the offence punishable under Sections 307 and 458 of IPC.

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11 As regards sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (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 Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 :

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"The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it’. George Nicodotis, 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 incarceration of the person merely produces laceration of his mind. In the words of George

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5

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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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12 In the light of the decision of the Supreme Court in the case of Mohammad Giasuddin (supra) and keeping in view the fact that the appellant is in jail since 30.10.2022, the maximum sentence imposed upon the appellant is 7 years, out of which he has already served the jail sentence of 3 years, 2 months & 14 days, no criminal antecedent of the appellant is recorded in the arrest memo, he has studied upto 8^th class and works as a farmer, this Court is of the opinion that the ends of justice would serve if the appellant is sentenced to the period already undergone by him.

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13 Accordingly, the conviction of the appellant under Sections 307 & 458 of IPC is maintained but his jail sentence is reduced to the period already undergone by him i.e. 3 years, 2 months and 14 days. However, the fine imposed upon the appellant by the Trial Court shall remain intact.

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14 Consequently, the appeal is allowed in part to the extent indicated herein-above.

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15 The appellant is reported to be in jail. He be released forthwith if not required in any other case.

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16 Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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Sd/- (Sanjay Kumar Jaiswal) JUDGE

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H.L. Sahu

Diamond Bariha v. State of Chhattisgarh

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Diamond Bariha v. State of Chhattisgarh

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