Chattisgarh High Court
Umend Banjare vs State Of Chhattisgarh on 16 April, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2026:CGHC:17452
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 486 of 2005
Judgment Reserved On: 25.03.2026
Judgment Delivered On: 16.04.2026
ï‚· Umend Banjare S/o. Umrao Banjare Aged About 52 Years R/o. Village
Nagardih, P.S. Chakarbhata, District Bilaspur (C.G.)
... Appellant
versus
ï‚· The State Of Chhattisgarh Through P.S. Chakarbhata District Bilaspur
(C.G.)
... Respondent
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
Hon’ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. 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
convicted and sentenced in the following manner:-
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
Digitally
signed by
BHUMIKA
BHUMIKA ANGARE
ANGARE Date:
2026.04.16
17:24:39
+0530
2
2. 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.
3. 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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4. The prosecution after usual investigation has submitted charge-
sheet 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.
5. 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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6. 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.
7. 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.
8. Learned senior counsel for the appellant while criticizing the order
passed by the learned trial Court would make following submissions:
(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:
1. Thulia Kali vs. State of TN reported in 1972 CRLJ 1296,
2. Mukteshwar and Another vs. The State of of Uttar Pradesh
reported in 2004 CRLJ 1335,
3. Buta Singh vs. State of Punjab reported in 1991 (2) SCC 612,
4. Ram Asrey & Another vs. State 2003 CRLJ 2276 (ALL DB)
(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
5some 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).
(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-
6
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.
(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.
(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
7
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.
(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.
(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.
(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).
(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.
(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.
9. 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.
10. I have heard learned counsel for the parties and perused the record
of the trial Court with utmost circumspection.
11. From the submissions made by the parties, the point emerged for
determination by this Court is whether the conviction of the appellant
10
under Section 304(2) of IPC is legal, justified and does not warrant
interference by this Court.
12. 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.
13. 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-
11
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.
14. 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 22nd 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 22nd to 25th September and he was
discharged on 25th 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.
15. 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.
16. 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.
17. 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:
1. 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-
13
conscious and her condition was critical.
2. He found a swelling below the left eye, which had turned black,
measuring approximately 2.5 inches x 2 inches.
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.
18. 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.
19. 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. He 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.
20. 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.
21. 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
15
determine the issue, it is expedient for this Court to extract Section
299, 300 and Section 304(2) of IPC as under:
“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.
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–
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–
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–
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.
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;
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.
Part II: Punishment- Imprisonment for 10 years, or fine, or
both-Cognizable-Non-bailable_Trible by Courts of Session-
Non-compoundable.”
22. 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,
16
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.
23. 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
17
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.
24. 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.
25. 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
18
proved against the other accused as there is no evidence against
other accused persons accordingly it has acquitted the other
accused.
26. 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 (PW-
04) 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.
27. 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
19
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.
28. 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
20
apprehension that they may kill him also. This evidence of the
witness remains unrebutted despite long cross-examination by the
defence and remained affirmed.
29. 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:
“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,
21documentary 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.”
30. 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.
31. 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.
32. 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:
22
“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:
“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.”
7. 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:
“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.
23
6. 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.”
8. 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.
9. 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.
10. 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.”
33. Again the Hon’ble Supreme Court in case of Anbazhagan vs. State
represented by the Inspector of Police reported in 2024 (20) SCC
500 has held in paragraphs 66-66.13, 67 to 69 as under:
“66. Few important principles of law discernible from the
aforesaid discussion may be summed up thus:-
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.
67. 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
24verbal 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.
68. 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.
69. 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.”
34. 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.
35. 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
25
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 cross-
examination 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.
36. 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,
26
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.
37. 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.
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:
“55. In Jai Dev v. State of Punjab AIR 1963 SC 612 the court
held as under:-
“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.”
56. 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
57. 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
27
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.”
58. The following principles emerge on scrutiny of the
following judgments:
(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.
(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.
(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.
(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.
(v) It is unrealistic to expect a person under assault to
modulate his defence step by step with any arithmetical
exactitude.
(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.
(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.
(viii) The accused need not prove the existence of the right of
private defence beyond reasonable doubt.
(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.”
28
38. 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.
39. 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
29
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.
40. 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
its opinion that injured was semi-conscious which cannot be caused
while traveling in tractor. Even otherwise, Dr. P.C. Sahu (PW-14) in
30
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.
41. 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 iron-
capped ends make the lathi a more formidable tool by increasing the
31
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.
42. 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.
43. 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.
32
44. 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.
45. 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
33
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.
46. 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
34
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.
47. 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:
“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.
24. 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
35sentences 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.
34. 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:
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.
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.
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.
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.”
48. 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
36
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.
49. 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.
50. Consequently, the instant appeal is partly allowed to the extent
indicated herein-above.
51. 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
37
trial Court, the Police authority will take necessary steps and
compliance report be submitted to the Registry of this Court
forthwith.
52. Let a copy of this judgment and the original record be transmitted to
the trial Court concerned forthwith for necessary information and
compliance.
Sd/-
(Narendra Kumar Vyas)
Judge
Bhumika