Umend Banjare Vs State of Chhattisgarh

For Appellant : Mr. Govind Ram Miri, Senior Advocate along with Mr. Abhishek Banjare, Advocate and Mr. Animesh Miri, Advocate For State : Mr. Krishna Gopal Yadaw, Dy. Government Advocate with Mr. Shailesh Puriya, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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CAV Judgment

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The appellant has filed present criminal appeal under Section 374(2) of the Criminal Procedure Code against judgment of conviction and order of sentence dated 29.04.2005 passed by learned Tenth Additional Sessions Judge (F.T.C.), Bilaspur, District Bilaspur (C.G.) in Sessions Trial No. 33/2004 whereby the appellant has been

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convicted and sentenced in the following manner:-

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Conviction	Sentence
U/s 304(2) of I.P.C.	: R.I. for 7 years with fine amount Rs. 500/- in default of payment of fine amount S.I. for 1 month

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Digitally signed by BHUMIKA BHUMIKA ANGARE ANGARE Date: 2026.04.16 17:24:39 +0530

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The prosecution case, in brief, is that the complainant Bisun and the appellant Umend Banjare are real brothers. The co-accused Gudda @ Aasreddy Banjare is the appellant’s son, Panchu is his son-in-law, and Paratram is Panchu’s brother. Both parties were labourers who in the month of November 2002, went to Sultanpur to work at a brick kiln and lived separately. During that period, an incident occurred at night when an unknown person approached Panchu’s wife while she was sleeping outside, leading Panchu to suspect Bisun, which resulted in altercation and enmity between them and both brothers returned to their village in the month of June 2003. On 22.09.2003, Panchu visited the appellant’s house along with Paratram. In the evening, Bisun began abusing Panchu, and upon intervention by the appellant, Bisun along with his wife Ramesh Bai (deceased) and son Montu, came to the appellant’s house and a quarrel ensued, culminating in a physical altercation. During the incident, Ramesh Bai sustained injuries allegedly inflicted by the appellant and others with sticks, and Montu was also injured. The appellant, however, also sustained injuries in course of same incident.

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It is further case of the prosecution case that the injured Ramesh Bai was taken to CIMS Hospital, Bilaspur, where she was admitted in the early hours of 23.09.2003 and subsequently died on 24.09.2003. Montu was also treated for his injuries. Post-mortem was conducted by Dr. Sahu. Subsequently, the complainant Bisun lodged an FIR on 23.09.2003, on the basis of which offences under Sections 294, 506, 323, 307, and 302/34 IPC were registered against the appellant and other accused, who were arrested on 24.09.2003 and remained in jail during the trial upto 29.04.2005.

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The prosecution after usual investigation has submitted chargesheet before the learned Judicial Magistrate First Class, Bilaspur who has committed the criminal case for trial before the learned Tenth Additional Sessions Judge (F.T.C.) Bilaspur registered as Sessions Trial No. ST-33/2004.

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The prosecution was set in motion by examining the witnesses has placed on record the documents namely application dated 24.09.2003 under Section 175 of Cr.P.C. (Ex. P/1), dead body panchnama (Ex. P/2), memorandum (Ex. P/3), property seizure memo (Ex. P/4), memorandum (Ex. P/5 to P/7), property seizure memo (Ex. P/8 to P/11), mauka naksha (Ex. P/12), property seizure memo (Ex. P/13), report (Ex. P/14), jaanch report (Ex. P/15 & P/16), property seizure memo (Ex. P/17), FIR (Ex. P/18), mulahija form of Montu (Ex. P/19 & P/20), Hospital Memo (Ex. P/21), merg intimation (Ex. P/22), numbari merg intimation (Ex. P/23), application dated 24.09.2003 under Section 175 of Cr.P.C. (Ex. P/24), application for examining dead body (Ex. P/25), najri naksha (Ex. P/26), application dated 28.09.2003 for mulahija (Ex. P/27), Memo of Police Inspector (Ex. P/28), receipt (Ex. P/29), application sent to Tahsildar (Ex. P/30), F.S.L. Report (Ex. P/31), arrest/court surrender memo (Ex. P/32 to Ex. P/35) and P.M. Report (Ex. P/36). The prosecution has examined 14 witnesses namely Bisun (PW-01), Manharan @ Montu (PW-02), Teejram (PW-03), Jeevan (PW-04), Bhaagbali (PW-05), Kejauram Sahu (PW-06), Dilesh (PW-07), Mahendra (PW-08), Dr. A.S. Khan (PW-09), Dr. R. Jeetpure [Radiologist] (PW-10), Ashok Das (PW-11), J.R. Lakra (PW-12), V. Tirkey [Inspector] (PW-13) and Dr. P.C. Sahu [Professor Forensic College] (PW-14).

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The accused to prove his innocence has exhibited documents namely statement of Bisun (Ex. D/1), statement of Manharan @ Montu (Ex. D/2), statement of Dilesh (Ex. D/3), copy of rojnamchasanha (Ex. D/4) and mulahija form of accused (Ex. D/5) and has examined Dr. Chandrashekhar Dhruv (DW-01). The accused before trial Court namely Umend Banjare, Panchu, Paratram and Gudda were examined under Section 313 of Cr.P.C.

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Learned trial Court on the basis of evidence, material on record has acquitted remaining three accused except the appellant and convicted the appellant for commission of offence U/s. 304(2) I.P.C. in place of Section 302 of IPC and awarded sentence as detailed above. Being aggrieved with the order of conviction the appellant preferred this appeal.

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Learned senior counsel for the appellant while criticizing the order passed by the learned trial Court would make following submissions:

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(a) That, there is delay of 23 hours in lodging of the FIR which is fatal for the prosecution and no explanation has been given for such delay, which makes the prosecution case false against the appellant and to substantiate his submission he has referred to the following judgments:

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1. Thulia Kali vs. State of TN reported in 1972 CRLJ 1296,

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2. Mukteshwar and Another vs. The State of of Uttar Pradesh reported in 2004 CRLJ 1335,

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3. Buta Singh vs. State of Punjab reported in 1991 (2) SCC 612,

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4. Ram Asrey & Another vs. State 2003 CRLJ 2276 (ALL DB)

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(b) He would further submit that victim was brought on tractor/trolley then she must have been kept in some bed and there must be

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some bleeding which was oozed from body of the victim whereas as per evidence nothing was placed on record by the prosecution which creates doubt over the case of the prosecution. It has been further contended that in his defence accused has examined Dr. Chandrashekhar Dhruw (DW-1) and also exhibited documents as Ex. D/1 to D/5 to substantiate that injuries caused to the deceased was simple in nature and if treatment would have been provided to the victim within stipulated time period then she would have survived. He would further submit that even if treatment is not taken within 20 hours then simple injury will be converted into grievous hurt which has been ignored by the learned trial Court, as such, the defense case is more probable than the prosecution. He would further submit that had it been timely and proper treatment was provided to the deceased, she could have been survived, as such, the conviction of the appellant for commission of offence under Section 304(2) of IPC suffers from perversity and illegality, therefore, the accused should have been granted benefit of doubt. To substantiate his submission he has referred to the judgments of the Hon’ble Supreme Court in case of Buta Singh vs. State of Punjab reported in 1991 (2) SCC 612 , Laxmi Singh and Another vs. State of Bihar reported in 1976 (4) SCC 394 and Judgment of High Court of Madhya Pradesh in case of Gyan Singh vs. State of Madhya Pradesh reported in 2000 (3) MPHT 50 (DB).

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(c) He would further submit that the learned trial Court erred in convicting the appellant without any cogent evidence with regard to role attributed by the appellant while acquitted other co-

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accused, thus, finding is perverse and contrary to the judgment passed by the Hon’ble Supreme Court in case of Kashmira Singh vs. State of Madhya Pradesh reported in 1952 (1) SCC 275 .

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(d) He would further submit that learned trial court has failed to consider that the injuries found on the person of the appellant remained unexplained by the prosecution and the supporting evidence or documents i.e. the F.I.R. and the medical report of the appellant though this important evidence was not produced by the prosecution, there is serious departure and contradiction in evidence from FIR version and medical evidence and the prosecution has not produced any evidence regarding the treatment given to the deceased which can throw light on the fact that the injury caused to the deceased was sufficient to cause death, as such all these perversity, illegality and the tented investigation create doubt on the prosecution case and the accused deserves to be acquitted by granting benefit of doubt, and to substantiate his submission he has referred to the judgment of Madhya Pradesh High Court in case of Mantram vs. State of Madhya Pradesh reported in 1997 (2) MPLJ 7 .

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(e) He would further submit that the serological report of Lathi alleged to have been seized from the appellant did not contain any blood stain and thus the appellant was liable to be acquitted. He would further submit that learned trial court has also failed to consider the fact that the possibility of injury found on the person of the deceased having been caused due to fall on the stone and hard surface, could not be ruled out. The possibility of fall due to

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scuffle during the intervention in the alleged marpit between the parties could not also be ruled out and where two views are possible, the benefit of doubt ought to have been given to the appellant and to substantiate this submission he has referred to the judgment of High Court of Madhya Pradesh in case of Lalit vs. State of Madhya Pradesh reported in 2000 (1) MPWL 131 and in case of Nehru and Others vs. State of Chhattisgarh reported in 2004 (1) CGLJ 340 .

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(f) He would further submit that the material witnesses have not been examined and the materials favourable to the accused have been suppressed with an ulterior motive. Under the circumstances, an adverse inference ought to have been drawn against the prosecution and the benefit of doubt ought to have been extended in favour of the appellant. He would further submit that trial court has further failed to consider that the investigating officer has not acted fairly and bonafidely and has not collected relevant evidence by not naming and examining the witnesses, but has created the evidence against the innocent accused person by examine Teejram (PW-3) and Dilesh (PW-7) who were not named in the FIR and to substantiate this submission he has referred to the judgment of the Hon’ble Supreme Court in case of Bir Singh and Others vs. The State of Uttar Pradesh reported in 1978 CRLJ 177, Marudanal Augusti vs. State of Kerala reported in 1980 CRLJ 446 , judgment of Bombay High Court in case of Fattulal Kasam Mulla vs. State of MH reported in 1984 I Crimes 454 and Judgment of High Court of Madhya Pradesh in case of Gabbu B

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Lodhi Anrs vs. State of MP reported in 2004 CRLJ 2001 .

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(g) He would further submit that learned trial court ought to have seen that the complainant party was aggressor and is wholly responsible for the alleged fight between the parties. It is evident from the record that the marpit took place at the door point of the appellant's house and he has every right to exercise the right of private defence. Even for the sake of argument if at all the alleged assault on the person of the deceased is considered to be proved, at the most the offence made out, is under Section 323 of the I.P.C, for causing one simple injury and to substantiate his submission he has referred to the judgment of Hon’ble Supreme Court in case of Buta Singh vs. State of Punjab reported in 1991 (2) SCC 612 and Darshan Singh vs. State of Punjab reported in 2010 AIR SCW 832 .

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(h) He would further submit that findings of the learned Sessions Judge are perverse in-as-much as while on the one hand the same set of evidence has been disbelieved while acquitting three accused, on the other hand it has been relied upon for convicting the appellant. He would further submit that the learned trial Court has wrongly arrived at conclusion that the appellant gave the act of alleged Marpit on the head of the deceased with knowledge that it was likely to cause death. Such a conclusion is based on no evidence and is arrived at merely on surmises and speculations, thus he would pray for setting aside the judgment of conviction by granting benefit of doubt. To substantiate their submission he has referred to judgment of in case of Gyan Singh vs. State of Madhya Pradesh reported in 2000 (3) MPHT

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50 (DB) .

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(i) He would further submit that there is no map of incident prepared by the prosecution which is necessary for the prosecution to prove its case beyond reasonable doubt and to substantiate his submission he has referred to the judgment of Hon’ble Division Bench of this Court in case of Mukesh Das Manikpuri vs. State of Chhattisgarh reported in 2025 (2) CGLJ 367 .

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(j) He would further submit that the learned trial Court should have seen that the prosecution has failed to prove its case beyond reasonable doubt and there is serious doubt with regard to case of the prosecution, as such, the accused is entitled to be acquitted by granting benefit of doubt.

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Per contra, learned counsel for the State opposing the submission made by learned counsel for the appellant would submit that learned trial Court has not committed any illegality in convicting the appellant. He would further referring statement of Teejram (PW-03) in para 1 of examination in chief has stated that Umend Banjare, Gudda, Umend's son-in-law and brother of son-in-law have assaulted Bisun's wife by stick. He would further submit that within two days from the date of incident deceased succumbed to death, as such, conviction of the appellant for commission of offence under Section 304(2) of IPC in place of Section 302 of IPC is legal, justified and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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From the submissions made by the parties, the point emerged for determination by this Court is whether the conviction of the appellant

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under Section 304(2) of IPC is legal, justified and does not warrant interference by this Court.

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To appreciate the point emerged for determination, it is expedient for this Court to thread-baring analysis of evidence, material on record led by the prosecution as well as evidence led by the defense.

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Bisun (PW-01) in his examination-in-chief has stated that on the date of incident Panchu, Paratram, Umend Banjare, Gudda about to 7-8 persons were coming from the house of Umend Banjare (appellant) abusing him, then the PW-01 has prevented them to stop abusing as he has not done any fighting with them. In the meanwhile, his wife has also reached thereafter, the accused namely Panchu Paratram, Umend Banjare, Gudda have assaulted his wife and at the time of assault they are having lathis with them, therefore, his wife fell down, as such, he apprehended that the accused persons may also assault him, therefore, he ran away from there. The son and daughter of the PW-01 were lift the deceased from the place of occurrence. He has stated that his son has also been assaulted by some of the accused causing injury in his hand. He has also stated that due to assault by the accused, his wife’s head was burst and also caused injury in one hand and in ribs. He has also stated that he has taken his wife by tractor to Dharm Hospital Bilaspur and thereafter, lodged the report on 02:00 PM on the next day and his wife expired on 4 O’Clock in the morning next day. The witness in his cross-examination has denied that Umend Banjare has not abused him and voluntarily stated that all the four accused were abusing him while living from house of Umend Banjare and also denied that he has gone to house of the Umend Banjare with lathi. This witness has been further cross-

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examined by other defence counsels and also explained the delay. He has voluntarily stated that he has taken care of his wife who is serious, therefore, he has lodged the FIR on the next day and also denied that due to old enmity, he has falsely implicated the appellant and also denied that Panchu and Paratram have not assaulted his wife. He has also stated that when the accused persons were assaulting his wife, at that time he was unarmed. He has affirmed that the accused have assaulted his wife with lathis for 2 or 3 minutes, therefore, she fell down and at that time he ran away from the place of occurrence and also stated that when accused were assaulting his wife, he made hue and cry. He has also denied that he has committed assault, therefore, he has neither defended nor made hue and cry.

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Manharan @ Montu (PW-02) has stated in his examination-in-chief that when her mother reached near to Umend Banjare’s house, Umend Banjare, Panchu and Paratram assaulted her mother with lathis, therefore, she fell down and when he reached at the place of occurrence the accused have assaulted him with lathi causing injuries on both the hands and his head, thereafter, his elder brothers Dilesh, Bablu and his sister Uttara carried their mother and also him to their house and at that time his mother was unconscious and his father has ran away from the place of occurrence. Thereafter, his father has taken his mother to the Dharm Hospital Bilaspur by tractor where on 22^nd September, his mother died. He was extensively cross-examined wherein he has affirmed that his mother after assaulted by the accused, fell down then he has reached the place of occurrence and also affirmed that when he was trying to pick up

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his mother, the accused have assaulted him, but he has admitted that which accused has assaulted him first, he cannot explain. In further cross-examination, he has stated that in the Police statement (Ex. D/1) he has not explained why there is no mentioning about injuries sustained in both the arms and also affirmed that he remained in the Hospital from 22^nd to 25^th September and he was discharged on 25^th September. He has also admitted that the elder brother does not touch wife of younger brother and also denied that due to dark, he could not see the persons who have assaulted him and voluntarily stated that light was on.

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Jeevan (PW-04) who is seizure witness has admitted that in Memorandum (Ex. P/3), Seizure Memo (Ex. P/4), Memorandum Ex. (P/5 to P/7) wherein he has signed. He has stated that from Paratram, Panchu and Gudda no lathi was seized by the prosecution. He has also admitted in seizure memo (Ex. P/8 to P/10), he has put his signature.

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Bhaagbali (PW-05) has admitted that in village Kuwa there is doctor and there is distance of 4 kms between village Kuwa and Nagaaradih and the roads are unpaved.

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Dr. A.S. Khan (PW-09) has stated in his examination-in-chief that he examined Ramesh Bai, wife of Bisun Banjare, aged about 45 years, resident of Nangaradih, brought by Police Constable Thomas Kujur 1014, PS Chakarbhata, on 23.09.2003 at 1:00 AM. Upon examination, he found two types of injuries:

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A lacerated wound on the left parietal region of the scalp, measuring 3 inches x 1/2 inch x 1/2 inch. I got a CT scan and X-ray of the left side of the skull done to assess the nature of the wound. At the time of examination, Ramesh Bai was semi-

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conscious and her condition was critical.

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He found a swelling below the left eye, which had turned black, measuring approximately 2.5 inches x 2 inches.

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It has been stated by this witness that he immediately admitted the patient to the female surgical ward for various investigations and treatment. Both injuries were found to be caused by a hard and blunt object which has been caused before 4 to 12 hours of his examination. This witness in his cross-examination has admitted that due to these injuries if immediately medical treatment is provided to the injured then the patient may not be in a serious condition. He has also admitted that the injury may be caused if the injured fell down in hard surface on left side eardrum. He has further admitted that in absence of any proper medical assistance simple injury may convert into grievous hurt and it may cause death also. The witness has also stated that tractor/trolley was brought from village area and due to uneven surface the condition of the patient may be deteriorated.

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Dr. R. Jeetpure [Radiologist] (PW-10) who has done X-Ray of the injured has stated on the left frontal bone as well as right wrist near radios bone there was fracture and exhibited Ex. P/16 which is the report given by him. In the cross-examination, he has stated that due to forceful fell down on the surface the injury No. 1 and 3 may be caused.

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Dr. P.C. Sahu [Professor Forensic College] (PW-14) who has done postmortem of the deceased has stated that left parietal and frontal bone was broken in so many pieces. He has also stated that there was fracture in the mid portion of skull sized 5 cm x 2 cm and the fracture was extended till sella turcica. He has also stated that there was hematoma having depth of 1 cm. He has also stated that brain’s

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covering was also missing wherein there was lacerated wound which is in left frontal base and on tip. H e has given the report (Ex. P/36) that cause of death is coma which may be caused because of these injuries and these injuries are sufficient to cause death. The witness was extensively cross-examined by the defense wherein he has stated that if the treatment is provided to the injured then she can be saved. But, there is no rebuttal with regard to the cause of injury, gravity of injury and cause of death which is because of injuries caused to the deceased.

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The accused examined under Section 313 of Cr.P.C. wherein he has stated that on 22.09.2003 when his son-in-law Panchu and his brother have visited to his house, then because of old dispute at about 8 O’clock in the night his brother Bisun and wife Ramesh Bai, son Montu and Dilesh in toxication condition have come to his house and started abusing the guest and quarrel with them. When he prevented them, they started assaulting him which has caused injury on the left shoulder and wrist, as such, he was suffering pain till now and he has been taken false implication. The accused in his defense has examined Dr. Chandrashekhar Dhruw (DW-01) who has examined the accused wherein he has stated that the accused has also suffered injuries which have been caused by hard and blunt substance and exhibited doctor’s report as Ex. D/5./ He has also exhibited D/1 which is statement of Bisun, Ex D/2 statement of Montu and Statement of Dilesh and also exhibited rojnamcha.

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In light of above appreciation of evidence, material placed on record, submission made by the learned senior counsel for the appellant, now this Court is examining the issue determined by this Court. To

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determine the issue, it is expedient for this Court to extract Section

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299, 300 and Section 304(2) of IPC as under:

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“ 299. Culpable homicide .—Whoever causes death by doing an act with the intention of causing death,or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

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300. Murder .—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

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2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

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3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—

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4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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304. Punishment for culpable homicide not amounting to murder. —Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

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or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

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Part II: Punishment - Imprisonment for 10 years, or fine, or both-Cognizable-Non-bailable_Trible by Courts of SessionNon-compoundable.”

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From perusal of the aforesaid provisions, it is quite vivid that in the scheme of IPC, "culpable homicide" is the genus and "murder" is its specie. All murder is culpable homicide but not vice-versa. For the purpose of fixing punishment, proportionality to the gravity of generic offence, IPC practically recognizes three degrees of culpable homicide, firstly murder as defined in Section 300 IPC; secondly, culpable homicide punishable under Section 304 Part 1 and thirdly,

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lowest type of culpable homicide punishable under section 304 Part II. Thus, there is fine difference between the two parts of Section 304 of the IPC. Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. Therefore, the first important expression is ‘culpable homicide not amounting to murder’. Culpable homicide which has been defined in Section 299 IPC. It says that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

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As such, all culpable homicides are murders except in the cases excepted under Section 300 IPC. Thus, except the cases specifically exempted under Section 300 IPC, all other acts within the meaning of Section 299 IPC would amount to committing the offence of culpable homicide. However, what is important to note is that for committing the offence of culpable homicide, a positive act must be done by the doer with the intention that such act would cause death or cause such bodily injury as is likely to cause death or he is having the knowledge that by such an act, death may be caused. What, therefore, is significant is that the doer of the act must have the intention of causing death or the intention of causing such bodily

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injury as is likely to cause death or has the knowledge that by doing such an act he is likely to cause death. Therefore, to commit the offence of culpable homicide, intention or knowledge is of crucial importance.

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Therefore, the requirement of Section 304 Part II IPC is that the doer must have the knowledge that the act performed is likely to cause death or to cause such bodily injury as is likely to cause death but without any intention to cause death, as such, the doer must have the knowledge that the act performed by him would likely cause death etc but there should not be his any intention to cause death must be proved by the prosecution.

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From the evidence brought on record by the prosecution, the learned trial Court has convicted the appellant for commission of offence under Section 304(2) and remaining accused namely Panchu, Paratram and Gudda have been acquitted. The learned trial Court while convicting the accused/Umend has given his finding in paragraph 11 after thread-baring analysis of the evidence particularly, evidence of Dr. P.C. Sahu (PW-14) and evidence of Bisun (PW-01) who is the eye witness of the incident has stated that Umend Banjare has assaulted his wife has given its finding in paragraph 12 that the injuries sustained by the deceased were grievous in nature and because of these injuries death was caused to Ramesh Bai which is not in normal condition and accordingly, it has recorded its finding that the prosecution is able to prove its case beyond reasonable doubt that the Umend Banjare has assaulted Ramesh Bai with intention to cause death or of causing such bodily injury as is likely to cause death, whereas the prosecution has not

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proved against the other accused as there is no evidence against other accused persons accordingly it has acquitted the other accused.

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From the record of the trial Court, it is quite vivid that the prosecution has seized lathis from Umend which consists of iron handle or grip (lohe ka muth) and also examined the seizure witness Jeevan (PW04) who has singed the seizure memo Ex. P/4 and from Umend four lathis were seized in which three were of bamboo and one was of tandu wooden. The said witness was not cross-examined by the defense. The prosecution has sent the lathis seized from accused Umend, Panchu, Paratram and Gudda for medical examination vide Ex. P/27 and also sought whether the injuries caused to the deceased or injured can be caused by this lathis and whether the blood stain found in the seized lathis are human blood. In response to that query Dr. A.S. Khan (PW-09) has given as reply to the query that injury may be caused by lathis wherein the prosecution has described the lathis and it has been mentioned that the lathi seized from accused Umend is having lohe ka muth (iron handle or grip) which is a metal fitting usually a cap or a ring attached to the ends or the gripping section of the wooden or bamboo staff as also evident from seizure memo (Ex. P/4) wherein the description of seized item has been given and it has been clearly mentioned that the bamboo lathi is having approximately 52 inch length and in the lower part of the lathi iron handle or grip (lohe ka muth) was fitted.

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From this description of lathi having attachment of iron handle or grip, this Court cannot lose sight of the fact that the purpose of fitting of iron handle or grip is to prevent the wood from splitting or fraying

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at the end and when it hits a hard surface, it maintains the balance and also increases the durability. The lathi having iron handle or grip when used for its offensive purposes, the iron-capped ends make the lathi a more formidable tool by increasing the impact when it strikes, whereas the other lathis seized from other accused Panchu, Paratram and Gudda does not consist of such iron handle or grip as evident from Ex. P/27. The lathi which consists of iron handle or grip if strikes in a human body particularly, on the head of a human body, it will definitely cause grievous injury on the head. In the present case as evident from Ex. P/27 the lathi seized from appellant consists of iron handle or grip (lohe ka muth) which definitely cause grievous impact when used for offensive purpose, thus, the prosecution is able to prove its case beyond reasonable doubt that the appellant has committed the offense. In the present case, the injury caused to the deceased was so grievous as evident from the evidence of Dr. P.C. Sahu (PW-14), Dr. A.S. Khan (PW-09) and Dr. R. Jeetpure [Radiologist] (PW-10) which has already been discussed by this Court in detail in foregoing paragraphs of this judgment.

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The submission made by the learned senior counsel for the appellant that the seizure of lathi is doubtful and even if it is to be taken as true, it does not contain any blood, therefore, the prosecution is unable to prove that the deceased was assaulted by the lathi. This submission made by learned senior counsel for the appellant deserves to be rejected as the eye witness of the incident Bisun (PW-01) has clearly deposed that all the accused were having lathis and they have assaulted with the lathis to the deceased and when she fell down they he ran away from the place of occurrence on a

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apprehension that they may kill him also. This evidence of the witness remains unrebutted despite long cross-examination by the defence and remained affirmed.

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The statement of Bisun (PW-01) whose credibility has not been diluted despite extensive evidence by the defense and eye witness holds high evidentiary value and cannot be rejected without major contradiction and can be accepted as its face value. The Hon’ble Supreme Court in case of Rai Sandeep @ Deepu alias Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 has held as under:

¶109

“22. In our considered opinion, the “sterling witness should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face valuewithout any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral,

¶110

21

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documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offenderguilty of the charge alleged.”

¶112

On the basis of above principle when this Court tests the version of Bisun (PW-01) the eye witness, it is fortunate that the said witness has passed the test mentioned above and there is no variation in his version from statement made before the Court. There is no material variation regarding identification of accused as well as the manner in which the occurrence took place. Thus, he has fully supported the case of the prosecution.

¶113

As such, the conviction of the appellant for commission of offence under Section 304 part II of IPC cannot be held to suffer from perversity or illegality as per Section 304 Part II of IPC. Section 304 Part II of IPC is applicable when the basic ingredient of offence under Section 304 Part II of IPC i.e. presence of knowledge and absence of intention is proved beyond reasonable doubt by the prosecution. The prosecution must prove that doer must have knowledge that the act performed by him would likely to cause death etc. but there should not be any intention to cause death. From the evidence and material placed on record by the prosecution, it is quite vivid that the manner in which the deceased was assaulted by the appellant, the appellant has knowledge that it may cause death.

¶114

Thus, the conviction of the appellant is legal, justified and is in accordance with the law laid down by the Hon’ble Supreme Court in case of Jugut Ram vs. State orf Chhattisgarh reported in 2020 (9) SCC 520 , wherein the Hon’ble Supreme Court has held in paragraphs 6 to 10 as under:

¶115

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¶116

“6. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh vs. The State of Punjab, 1958 SCR 1495, which stand well established. Suffice it to notice from precedents that in Joseph vs. State of Kerala, (1995) SCC (Crl.) 165, the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows:

¶117

“3. ….The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years’ RI.”

¶118

In Chamru Budhwa vs. State of Madhya Pradesh, AIR 1954 SC 652, the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death. Conviction under Section 302, IPC followed. This court observed as follows:

¶119

“5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.

¶120

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We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years’ rigorous imprisonment.”

¶122

In Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635, the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. Similarly in Mohd. Shakeel vs. State of A.P., (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999.

¶123

We do not consider that Laltu Ghosh (supra) and S. Rayappa (supra), with regard to credibility of related witnesses, have any relevance to the issue in question being decided by us.

¶124

We accordingly alter the conviction of the appellant from Section 302 IPC to Section 304 Part II, IPC. The appellant is in custody since 2004. He has already undergone the maximum period of sentence prescribed under the same. The appellant is, therefore, directed to be set at liberty forthwith unless wanted in any other case.”

¶125

33. Again the Hon’ble Supreme Court in case of Anbazhagan vs. State

¶126

represented by the Inspector of Police reported in 2024 (20) SCC 500 has held in paragraphs 66-66.13, 67 to 69 as under:

¶127

“66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-

¶128

66.13. In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.

¶129

We once again recapitulate the facts of this case. On the fateful day of the incident, the father and son were working in their agricultural field early in the morning. They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry. The lorry arrived, however, the deceased did not allow the driver of the lorry to use the disputed pathway. This led to a verbal altercation between the appellant and the deceased. After quite some time of the

¶130

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verbal altercation, the appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital.

¶132

Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone. The deceased died on account of the cerebral compression i.e. internal head injuries. However, the moot question is – whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the IPC.

¶133

In the aforesaid view of the matter and more particularly bearing the principles of law explained aforesaid, the present appeal is partly allowed. The conviction of the appellant under Section 304 Part I of the IPC is altered to one under Section 304 Part II of the IPC. For the altered conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of five years.”

¶134

As such, the conviction of the appellant for commission of offence under Section 304 Part II of IPC is legal, justified and does not warrant interference by this Court. Accordingly the point determined by this Court is answered against the accused.

¶135

Now this Court is examining the further submission made by the learned senior counsel for the appellant that there is non-compliance of Section 157 of Cr.P.C. which provides that procedure for investigation as the Investigating Officer has not sent intimation to the Magistrate to empower to take cognizance of such offence upon a Police report. Therefore, the FIR is liable to be discarded and to substantiate this submission he has referred to the judgment of Gabbu B. Lodhi (Supra) is being considered by this Court. From

¶136

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¶137

perusal of Ex. P/18 which is the FIR written by Sub Inspector and Endorsement made in the FIR (Ex. P/18) by which it has been intimated to the JMFC Bilaspur, it is quite vivid that there is compliance of Section 157 of Cr.P.C. and there is no crossexamination by the defense to the Investigating Officer whether the FIR was intimated to the concerned judicial Magistrate or not. In absence of any foundation laid by the defense the judgment referred to by the defense in case of Gabbu B. Lodhi (Supra) is not applicable as in that case there was no proof adduced by the prosecution for compliance of provisions of the Section 157 of Cr.P.C. regarding sending of copy of the FIR to the concerned Magistrate. Therefore, the submission that the FIR is afterthought is misconceived and due to non-compliance of Section 157 of Cr.P.C., the same be discarded deserves to be rejected and accordingly it is rejected.

¶138

Further submission of the learned senior counsel for the appellant that there is delay of lodging of FIR of 23 hours is fatal for the prosecution case and to substantiate his submission he has referred to the judgment of Hon’ble Supreme Court in case of Tulia Kali (Supra) is being considered by this Court. In the present facts of the case, Bisun (PW-01) who has lodged the FIR has given his explanation regarding delay of 23 hours in lodging of FIR has stated in paragraph 13 of the evidence he had denied that since his wife was not serious therefore, he has not lodged the FIR and voluntarily stated that since his wife was serious injured and he was taking care of his wife, therefore, he has lodged the FIR on the next day. This was the explanation given by the witness which is not exaggerated,

¶139

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¶140

but it’s a plausible explanation of delay which cannot be held to be unjustifiable for lodging of the FIR within 23 hours of incident. Thus, the judgment referred to by the senior counsel for the appellant in case of Tulia Kali (Supra) is distinguishable on the facts itself.

¶141

The further submission of the learned senior counsel for the appellant that since the accused and other persons were assaulting the deceased, therefore, to defend herself he has used private defence to save him as it has apprehension that the victim and another person may cause death, thus, he would submit that he deserves to be acquitted from the charges under Section 304 Part II of IPC and to substantiate this submisison he has referred to the judgment of Hon’ble Supreme Court in case of Darshan Singh vs.

¶142

State of Punjab reported in 2010 AIR SCW 832 wherein the Hon’ble Supreme Court has extensively examined the provisions of Sections 96 to 106 and has held in paragraphs 55 to 58 as under:

¶143

“55. In Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as under:-

¶144

"as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."

¶145

In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered

¶146

In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes

¶147

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¶148

so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact."

¶149

The following principles emerge on scrutiny of the following judgments:

¶150

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

¶151

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

¶152

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

¶153

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

¶154

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

¶155

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

¶156

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

¶157

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

¶158

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

¶159

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¶160

From the abovestated legal position and considering the evidence that the accused persons have assaulted the deceased first and even the injury which was caused to the appellant is not so grievous which may apprehend or reason to believe that the other party may kill him, as such, the essential ingredient to take private defence are not proved by the appellant, therefore, the accused is not entitled to take benefit of provisions contained in Sections 96 to 106 of IPC i.e. right of private defence. In fact the accused persons are aggressors and they have first abused Bisun (PW-01) and his family members, when they tried to prevent them, they started assaulting and this incident has taken place in front gate of appellant/Umend’s house, thus, it cannot be held that the accused is entitled to get benefit of private defence.

¶161

The further submission that due to non-explanation of injuries by prosecution makes it probable that accused may have acted in exercise of private defence deserves to be rejected as the prosecution witness Bisun (PW-01) and other witnesses have been cross-examined by the defense with regard to assault made to the appellant and other accused persons which has been denied by Bisun (PW-01) in paragraph 14 of his cross-examination. Similarly Manharan @ Montu has also denied in paragraph 9 that he along with his mother and father have assaulted the accused with lathis and also denied that he and his father were fighting which has caused injury to his mother and also denied that they have assaulted appellant Umend with lathi. Dilesh (PW-07) was also cross-examined by the defence wherein he has denied that his mother, father and brother Montu are under intoxication have assaulted the accused

¶162

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and other persons with lathi and also denied that Umend has caused injury on shoulder and back. Thus, the prosecution case cannot be found faulty due to alleged non-explanation of alleged injuries, accordingly the defence taken by the appellant that he has assaulted the deceased taking private defence is misconceived and deserves to be rejected and accordingly it is rejected.

¶164

The further submission of learned senior counsel for the appellant that due to carrying the deceased in a tractor though Public Health Centers are available at Bilha and Chakarbhata and he carried the victim to Bilaspur which has caused aggregation of injury is being considered by this Court. This Court cannot lose sight of the fact that the incident taken place on 22.09.2003, at that time no proper medical facilities were available for transportation of patient and only options which can be made available at the first instance is the tractors which are being used in agricultural work was available for transportation of patient which has been utilized by the family member of the villagers, therefore, the submission that nearby hospitals are available and the patient can be saved if the medical facilities immediately provided to the injured, this submission is incorrect submission as the gravity of the injury was so serious as evident from the evidence of Dr. P.C. Sahu (PW-14) who has narrated the gravity of the injury as her skull bone was multiple fractured which has been caused by hard and blunt substance. The other doctor who has examined the injured in the first instance Dr. A.S. Khan (PW-09), Dr. R. Jeetpure [Radiologist] (PW-10) has given

¶165

its opinion that injured was semi-conscious which cannot be caused while traveling in tractor. Even otherwise, Dr. P.C. Sahu (PW-14) in

¶166

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his evidence stated that CIMS hospital which is medical college hospital and all the facilities were available there which is not available in the Primary Health Centers, as such, the submission made by learned senior counsel due to transportation of the injured in a tractor the injury caused to her has been exaggerated which has caused death is misconceived and deserves to be rejected. Similarly, the submission with regard to non-examination of the victim at Primary Health Center has exaggerated the injury, therefore, offence under Section 304 Part II of IPC is not made out deserves to be rejected in view of the fact that medical facilities available in the medical college/hospital will be definitely far better than Public Health Centers and the facilities which are required for serious injuries are only available in the medical college/hospital which are at the time of incident controlled by medical colleges rather than Primary Health Centers located in remote places.

¶168

Learned Sr. counsel would submit that the prosecution should have proved beyond reasonable doubt that the present appellant-Umend Banjare has only assaulted whereas on the same set of evidence, learned trial Court has acquitted other four accused and there is no finding that only the appellant has assaulted the victim, therefore, the appellant also deserves to be acquitted as on the basis of parity of evidence and material on record and to substantiate this submission he has referred to the judgment of Kashmira (Supra) is being considered. From the evidence and the lathi which has been seized from Umend Banjare which consists of iron handle or grip in the lower part of the lathi when used for offensive purposes, the ironcapped ends make the lathi a more formidable tool by increasing the

¶169

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¶170

impact when it strikes which makes it different from other lathis seized from the other accused coupled with the injuries caused to the deceased, as such, conviction of the appellant cannot be held to be illegal or suffers from perversity or illegality.

¶171

The deceased’s husband Bisun (PW-01) has already explained the delay in lodging the FIR as he was held up in taking care of his wife who unfortunately expired which has caused delay of 23 hours in lodging of the FIR. This explanation given by the Bisun (PW-01) is looking to the facts and circumstances of the case and such 23 hours delay in not fatal to dislodge the credibility of the prosecution case, therefore, the submission made by the learned senior counsel for the appellant that delay in lodging of the FIR vitiates the entire trial is misconceived and accordingly it is rejected.

¶172

Learned State counsel would submit that there are serious discrepancies arise from preparation of the inquest report prior to the recorded time of death, as well as in the site plan and seizure memos were not written by the Investigating Officer but by an unidentified person, Jitendra Singh, who was neither cited nor examined as a witness, nor has his authorship been duly authenticated. These cumulative infirmities render the prosecution case doubtful and undermine the credibility of the investigation is being considered. From the record of the trial Court, it is quite vivid that the documents have been exhibited by the Investigating Officer and the same has been exhibited without any reservation or objection, therefore, the submission made by the learned senior counsel for the appellant deserves to be rejected and accordingly it is rejected.

¶173

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¶174

The further submission that the map (Ex. P/12) which has been prepared by the Patwari does not clearly mention the place of occurrence or incident which makes the prosecution case false, is being considered by this Court. From the evidence of Patwari, the map (Ex. P/12) wherein the place of occurrence, place of witness Bisun (PW-01) standing, place where Montu was present, place where door of accused Umend’s house, corner of Bisun’s house, Peepal Tree, Electric pole and house of Bishram have been clearly indicated. In the map the place where the body was found have been clearly mentioned and Kejauram Sahu, Patwari (PW-06) in his evidence has stated that he has prepared the map as per the statement given by the witnesses who were present at the place of occurrence and the Patwari has been extensively cross-examined, but nothing has been brought on record to discredit the map prepared by the Patwari (PW-06), as such, there is sufficient description of place of occurrence etc. which does not vitiate the correctness of the map to dislodge the prosecution case. Thus, the submission regarding credibility of the map (Ex. P/12) raised by the learned senior counsel for the appellant deserves to be rejected and accordingly it is rejected.

¶175

The further submission of the learned senior counsel that the prosecution has failed to examine independent and material witnesses despite the incident occurring in a densely inhabited area surrounded by several houses, as reflected in the site plan and other records. Although village officials and numerous local residents were present, none were examined or even named in the FIR. He would further submit that instead the prosecution relied upon statements of

¶176

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interested witnesses, namely the complainant Bishun and his sons, along with Teejram, whose presence at the scene is doubtful. Teejram’s statement was recorded after an inordinate delay and contains inconsistencies, and he admitted that his statement was not promptly recorded despite being called to the police station earlier. Similarly, Dilesh (PW-7) an interested witness, denied material aspects such as the injuries sustained by the accused and disowned his earlier statement. He would further submit that the complainant and his son, being participants in the incident, are not wholly reliable witnesses. The Investigating Officer’s admissions further support the inference that the prosecution witnesses are not trustworthy and non-examination of independent witnesses, coupled with reliance on interested and unreliable testimony, casts serious doubt on the prosecution case is being considered. It is equally well settled position of law that quality of evidence has to be considered not the quantity. The witnesses who were present in the place of occurrence have been examined by the prosecution and they have proved the guilt of the appellant beyond reasonable doubt which cannot be held to suffer from perversity, illegality, as such due to non-examination of other independent witness, conviction is liable to be set aside, deserves to be rejected accordingly it is rejected.

¶178

Since, this Court affirmed the conviction of the appellant for the offence committed under Section 304 Part II of IPC, the alternate submission made by the learned senior counsel for the appellant that the appellant at the time of incident was 50 years, now about 22 years have been lapsed and no other criminal case is being registered against the appellant, he has not misused the liberty

¶179

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granted by this Court while releasing the appellant on bail and the appellant remained in jail from 24.09.2003 to 11.07.2005 i.e. 1 year, 9 months and 17 days, thus, he would pray for already undergone is being considered.

¶181

Now, the submission for already undergone is being considered by this Court. Looking to the gravity of the offence and the manner in which the victim was injured and subsequently died, there are no mitigating factors available on record, therefore, prayer for already undergone deserves to be rejected and accordingly it is rejected, but looking to the fact that the incident pertains to 2003 and about 22 years have been lapsed and there is no minimum sentence provided under the Indian Penal Code for commission of offence under Section 304 Part II of IPC and the appellant is now 72 years old person is being considered. Before adverting to the submission for already undergone this Court has to examine the law with regard to gravity of the offence and proportionality of sentencing while reducing the sentence already undergone or by enhancing the fine. The Hon’ble Supreme Court in the case of Paramweshwari vs. The State of Tamilnadu and others reported in 2026 INSC 164 has examined the mitigating factors for reducing the sentence and held in paragraphs 22, 24 and 34 has held as under:

¶182

“22. The objective of punishment is to create an effective deterrence so that the same crime/actions are prevented and mitigated in future. The consideration to be kept in mind while awarding punishment is to ensure that the punishment should not be too harsh, but at the same time, it should also not be too lenient so as to undermine its deterrent effect.

¶183

This objective was also reiterated by this Court in a catena of judgments (see: Ahmed Hussein Vali Mohammed Saiyed and Another vs. State of Gujarat reported in (2009) 7 SCC 254); Guru Basvaraj Alias Benne Settappa vs. State of Karnataka reported in (2012) 8 SCC 734 and various others) wherein it was held that the object of awarding appropriate

¶184

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¶185

sentences is that society should be protected and the crimes should be deterred. The balancing has to be done between the rights of the accused and the needs of the society at large.

¶186

The misplaced understanding of various courts in treating compensation as a substitute of sentence is both a matter of concern and a practice which should be condemned. We have observed a trend amongst various High Courts wherein the sentences awarded to the accused persons by the Trial Court are reduced capriciously and mechanically, without any visible application of judicial mind. Considering the gravity of the situation as thus, we have culled out certain basic factors, which are to be kept in mind by the courts while dealing with imposition of sentence, in line with the view taken by this Court in the aforementioned cases. The said factors are enunciated as below:

¶187

A. Proportionality: Adherence to the principle of “just deserts” ought to be the primary duty of the courts. There should be proportionality between the crime committed and the punishment awarded, keeping in consideration the gravity of the offence.

¶188

B. Consideration to Facts and Circumstances: Due consideration must be given to the facts and circumstances of the case, including the allegations, evidence and the findings of the trial court.

¶189

C. Impact on Society: While imposing sentences, the courts shall bear in mind that crimes essentially impair the social fabric of the society (of which the victim(s) is/are an indispensable part) and erodes public trust. The sentence should be adequate to maintain the public trust in law and administration, however, caution should also be taken, and the Court shall not be swayed by the outrage or emotions of the public and must decide the question independently.

¶190

D. Aggravating and Mitigating Factors: The courts, while deciding the sentence or modifying the sentence, must weigh the circumstances in which the crime was committed, and while doing so, the court must strike a fair balance between the aggravating and the mitigating factors.”

¶191

In light of the law laid down by Hon’ble the Supreme Court and the facts of the case, and further considering the fact that the prosecution has also not placed any material on record indicating the criminal antecedents of appellant and he is regularly attending the trial Court after releasing by this Court on bail and has not misused the liberty granted to him while granting bail by this Court, I am of the view that ends of justice would be served if the jail sentence of 7

¶192

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¶193

years for commission of offence under Section 304 Part II of IPC awarded by the trial Court is reduced to three years and enhancing the fine amount from Rs. 500/- to Rs. 5,000/- for commission of offence under Section Section 304 Part II of IPC which shall be payable to the deceased’s family by the appellant as victim compensation. The appellant is directed to deposit the enhancing amount of Rs. 4,500/- before the trial Court within a period of two months from the date of passing of this judgment and thereafter the learned trial Court shall pay the aforesaid enhanced amount to the deceased’s family within four weeks from the date of depositing the aforesaid amount by the appellant.

¶194

Accordingly, conviction under Section 304 Part II of IPC is confirmed, but jail sentence of 7 years awarded by the trial Court under Section 304 Part II of IPC is reduced to thee years and the accused is entitled to set off for the period he remained in incarceration i.e. 1 year, 9 months and 17 days as per provisions of Section 428 of Cr.P.C. (Section 468 of BNSS, 2023) by enhancing the fine amount as detailed above, in default in payment of fine amount, three months R.I. will also be suffered by him for all the offence. All the sentence as awarded by this Court shall run concurrently.

¶195

Consequently, the instant appeal is partly allowed to the extent indicated herein-above.

¶196

From the records, it appears that the appellant is on bail and his bail bond shall stand cancelled. The appellant himself shall surrender before the concerned trial Court for serving out the remaining part of the jail sentence within 8 weeks from the date of judgment passed by this Court. If the appellant fails to surrender before the concerned

¶197

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trial Court, the Police authority will take necessary steps and compliance report be submitted to the Registry of this Court forthwith.

¶199

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

¶200

Sd/(Narendra Kumar Vyas) Judge

¶201

Bhumika

Umend Banjare v. State of Chhattisgarh

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Umend Banjare v. State of Chhattisgarh

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