Chattisgarh High Court

Khamhan Lal vs State Of Chhattisgarh on 25 July, 2022

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                                                                 NAFR


      HIGH COURT OF CHHATTISGARH, BILASPUR

                     CRR No. 102 of 2009

                 Order reserved on 17.6.2022

               Order pronounced on 25.7.2022

Khamhan Lal S/o Shri Agrahij Ram Sinha, aged about 32 years, R/o
Village Matiya B, Police Station - Balod, District Durg (C.G.)
                                                         ---- Applicant

                              Versus

State of Chhattisgarh through, Through - Station House Officer,
Police Station : Balod, District : Durg (C.G.) ---- Respondent



     For applicant      -     Shri Avinash Chand Sahu, Advocate

     For respondent/State-    Shri Ashish Tiwari, G.A.




                             CAV Order

25/07/2022

     This revision under Section 397 read with section 401 of Code

     of Criminal Procedure, 1973 has been preferred against the

     judgment impugned dated 23.01.2009 passed by learned

     Additional Sessions Judge, Balod, Distirct Durg, (C.G.) in

     Criminal Appeal No. 91/2008 whereby the judgment dated

     05.8.2008 passed by Judicial Magistrate First class, Balod,

     District - Durg (C.G.) in Criminal Case No. 2021/2005

     convicting the applicant under section 304 (A) of India Penal

     Code, 1860 and sentencing           him to undergo rigorous

     imprisonment for one year and fine of Rs. 1500/-, in default

     of payment of fine to further undergo rigorous imprisonment
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     for three month, has been affirmed.

2.   Facts

of the case in brief are that, on 25.06.2005 at about

11.00 hours electric wire was passing through hanging near

the badi of co-accused Punarad at village Matiya-B and the

deceased Suraj aged 9 years came in contact with the

electric wire and died. Further case of the prosecution is that

applicant and other accused Punarad Thakur and Pusau Ram

Goud had illegally connected wire from the electric pole and

with help of sickle earthing wire was also connected.

Deceased was taken to the hospital and Doctor sent the

death intimation to Police Station- Balod upon which merg

was registered and dehati nalishi was written. Post mortem

on the body of the deceased was conducted and First

Information was lodged. The spot panchnama was prepared

and electric wire was seized from the spot. Information of flow

of electric current was obtained from electricity board. After

due investigation, charge sheet was filed against the

applicant, accused Punarad Thakur and Pusau Ram Goud

before JMFC, Balod.

3. Learned JMFC framed charges under section 304 (A) of the

Indian Penal Code, 1860. The applicant and other accused

persons denied the charge and pleaded innocence. The

prosecution examined 14 witnesses and exhibited documents

in order to bring home the guilt of applicant.

4. The learned JMFC after due appreciation of the evidence

available on record, convicted and the sentenced the present

applicant as mentioned above. However, learned JMFC

acquitted the accused namely Punarad Thakur and Pusau

Ram Goud of the charge levelled against them. On appeal

being preferred by the present applicant, his conviction and

sentence came to be affirmed by the judgment impugned.

Hence this revision.

5. Counsel for the applicant submits that even if the entire case

of the prosecution is taken as it is, the ingredients of Section

304 (A) of IPC are not established. He submits that learned

JMFC did not appreciate the evidence in its proper perspective

and the prosecution witnesses are not trustworthy and their

statements do not inspire confidence. Alternatively, he

submits that looking to the totality of the facts and

circumstances of the case, the sentence awarded to the

applicant may kindly be reduced to sentence already

served/undergone and in lieu of that fine amount may be

enhanced. In order to buttress his submission he would place

on record that the offence was committed in the year 2005

and since then the applicant is still facing the prosecution.

According to the counsel for the applicant, the applicant has

not misused the liberty of suspension of his sentence by this

court and that looking to the fact that 17 years have passed

by since the commission of offence, some leniency may be

shown to the applicant.

6. On the other hand, counsel for the respondent/State supports

the judgment impugned and submits that looking to the

findings recorded the trial Court and subsequently confirmed

by the lower Appellate Court by the judgment impugned as to

the guilt of the applicant under Section 304 (A) of IPC, no

interference is warranted. He further submits that as the

prosecution was able to bring home the guilt of the applicant

beyond reasonable doubt, mere long pendency of case would

not automatically entitle the applicant to have the leniency,

and therefore, no interference is called for with the judgment

impugned and the revision is liable to be dismissed.

7. Heard counsel for the parties and perused the material

available on record including the judgment impugned with

utmost circumspection.

8. I shall deal with the submission of the learned counsel for the

applicant with regard to appreciation of the evidence brought

on record by the prosecution. Looking to the statement of PW-

1 Thakur Ram, PW-2 Jagannath, PW-6 Dr. Shashi Claudius, PW-

7 K.L. Sahu and PW-11 Gopiram, I am satisfied that the

conviction of the applicant is well founded and does not

require any interference in this revision. Nothing credible

came out in lengthy cross examination of these witnesses

which would make their testimony unreliable. Hence, on the

above discussion, I do not find any substance in the

submission of the learned counsel for the applicant that the

courts below failed to appreciate the evidence to its proper

perspective and reject the same.

9. Now I shall consider the submission of the learned counsel for

the applicant with regard to reducing the sentence to already

served/undergone by the applicant. It appears from the

record that the applicant has not misused his liberty and the

fine amount has also been deposited by him. It is to be seen

that the applicant was about 32 years at the time of

commission of offence who by now must be around 50 years

of age and that for these long 17 years, he must have gone

through the mental trauma of the fact that he may be sent

back to prison in the event of dismissal of his revision. In the

same breath, I am persuaded to mention herein few lines

from the judgment of the Apx Court in case of Mohammad

Giasuddin Vs. State of Andhra Pradesh reported in AIR

1977 SC 1926, which are as under:

"Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'"

10) It is true that the offence was committed in the year 2005

and the applicant faced trial since 2005. The revision is

pending since 2009 and about 17 years have elapsed since

the prosecution of applicant. Nothing is brought to the notice

of this court that the freedom of the applicant is detrimental

to society at large. Therefore, taking into consideration the

totality of circumstances, while maintaining the conviction of

the applicant under section 304 (A), the sentence of 1 year is

reduced to sentence already served/undergone by the

applicant. The fine amount of Rs.1500/- is enhanced to

Rs.10000/-. The applicant is granted 3 months time to deposit

the fine on failure applicant will undergo additional three