Nafr High Court
Case Details
1 2025:CGHC:1946-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 879 of 2023 Vikash Ram S/o Kedarnath Ram Aged About 22 Years Caste – Uraon R/o Village Salekera, Police Chowki Aara, District Jashpur, Chhattisgarh. --- Appellant versus State Of Chhattisgarh Through Station House OfÏcer, Police Station Jashpur, District Jashpur, Chhattisgarh. --- Respondent CRA No. 803 of 2023 1 - Vinod Bhagat S/o Ram Chandra Bhagat, Aged About 27 Years Caste Uraon R/o Village Darigada (Salekera), Police Out Post Aara, District Jashpur Chhattisgarh. 2 - Anuj Kumar Bhagat S/o Ram Chandra Ram Aged About 25 Years Caste - Uraon, R/o Village Darigada (Salekera), Police Out Post Aara, District Jashpur Chhattisgarh. ---Appellants Versus The State Of Chhattisgarh Through Police P.S. Jashpur District Jashpur Chhattisgarh. --- Respondent 2 For Appellants : Mr. Rishikant Mahobia and Mr. Malay Shrivastava, Advocates For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 13/01/2025 1 The appellants have filed these appeals under 374(2) of the Criminal Procedure Code, 1973 (for short, the Cr.P.C.) questioning the impugned judgment of conviction and order of sentence dated 23.02.2023 passed by the learned Additional Sessions Judge, Jashpur, District Jashpur, in Sessions Trial No. 48/2021 whereby the appellants have been convicted and sentenced as under: Conviction under Jail Sentence Fine Default Section (Rigorous) Amount Sentence 302 read with Section Life Rs. 8000/- Six months R.I. 34 of the Indian Penal imprisonment more Code (for short, the IPC) 201 IPC 3 years Rs. 2000/- 1 month RI more Both the sentences to run concurrently. 2 The appellants were charged for the offences punishable under Sections 302 read with Section 34 and 201 of the IPC alleging that in between 6:00 p.m. on 26.01.2021 and 5:00 a.m. on 27.01.2021, near village Chirwari Chingra Nala culvert, under Police Station Jashpur, Outpost Ara, District Jashpur, in connivance with a juvenile in conflict with law, with an intent to kill Baleshwar Ram, they killed him by hitting him on the 3 head with a lathi several times, thereby causing his death and thereafter threw his motorcycle and dead body under the culvert and destroyed evidence with the intent to screen themselves from legal punishment. 3 The appellants-Anuj Kumar Bhagat and Vinod Bhagat are real brothers and their father-Ramchandra and the father of deceased Baleshwar Ram Bhagat, namely, Dema Ram, were real brothers. 4 The case of the prosecution, in brief, is that on 27.01.2021 at about 7:00 a.m., the informant Kaleshwar Ram Bhagat (PW-1) was informed by his
Legal Reasoning
we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 22 The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under : “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 10 the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufÏcient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 23 Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of 11 the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 24 Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under : “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 12 invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufÏcient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 25 In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 26 Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) (ii) There must be a sudden fight; There was no premeditation; 5 (2019) 6 SCC 122 13 (iii) The act was committed in a heat of passion; and The offender had not taken any undue advantage or (iv) acted in a cruel or unusual manner.” 27 In the present case, even as per the memorandum statement of the appellants, Vinod Bhagat and Anuj Kumar Bhagat, they suspected that the wife of the deceased was performing witchcraft on them because of them their penis had shrunken. They intended to kill Birasmani (PW-2) the wife of the deceased but since the deceased was always with her, they could not kill her. However, on the fateful day, when the deceased was coming on his motorcycle, when they saw the deceased, the appellants became very much infuriated and assaulted him with Lathi and wooden stick which resulted into his death. Though the intention of the appellants was not to kill the deceased but to teach him a lesson as they already had some dispute with regard to the usage of water from the well, the sudden fight out-broke. It is not a case where the appellants have used any deadly sharp weapon like axe, sword, knife or any kind of firearm to assault the deceased but have used the Lathi which is ordinarily carried by any rural person. Even the eye witness stated that the deceased was beaten by Lathi. The prosecution has failed to establish or prove beyond reasonable doubt that there was any premeditation on the part of the appellants to cause death of deceased. Though the appellants did not had any intention to cause death of deceased, but by causing such injuries, he must have had the knowledge that such injuries inflicted by them would likely to cause death of of the deceased, as such, their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of 14 passion and (iv) the appellants had not taken any undue advantage or acted in a cruel or unusual manner. 28 Considering the above-stated facts, also considering the evidence of the prosecution witnesses and further taking into consideration that the appellants are in jail since 29.01.2021 and 30.01.2021, respectively, it would meet the ends of justice that if the conviction of the appellants under Section 302 read with Section 34 of the IPC is altered/converted to Section 304 Part-II of the IPC. 29 Accordingly, conviction of the appellants-Vinod Bhagat, Anuj Kumar Bhagat and Vikash Ram for the offence under Section 302 read with Section 34 of the IPC is set aside, however, they are convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for seven years. So far as the conviction and sentence for the offence under Section 201 IPC is concerned, the same is upheld. 30 The appellants are stated to be in jail. They shall serve out the sentence as modified by this Court. 31 The criminal appeals are partly allowed to the extent indicated herein- above. 32 Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentences to serve the same on the appellants informing him that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 15 33 Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.23 19:07:58 +0530
Arguments
niece Ms. Pushpa Rani Bhagat over the phone that her father Baleshwar Ram had gone to Bardan Ekka's house in village Chirwari on motor cycle to deliver empty plastic bottles on 26.01.2021 at about 5:30 p.m. but did not return home at night. Next day, on 27.01.2021 at 5:00 a.m., she, her mother Birsamani Bai (PW-2) and uncle (Fufa) Sanjay Bhagat went towards village Chirwari to look for him and on the way they reached Chingra Nala. His dead body was found lying under the culvert and the motorcycle was also lying there in a damaged condition. The deceased had several head injuries and was bleeding. There were marks of dragging on the culvert and the road and blood was present on it. A piece of stick was lying on the road near the culvert, which was stained with blood. 5 On receiving the aforesaid information, the informant-Kaleshwar Ram Bhagat (PW-1) along with his wife Samudri Bhagat and daughter Ms. Rashmi Bhagat went to the spot where he saw the dead body of the deceased. Earlier, the deceased had a dispute with his uncle Ramchandra and his sons Vinod Ram, Anuj Kumar (appellants herein) regarding the water of the well. Due to this, the informant-Kaleshwar Ram Bhagat (PW-1) expressed suspicion on these persons and on 4 giving the information of the above intention, a case was registered in connection with accidental and untimely death under Section 174 Cr.P.C. at Police Outpost Ara under section 302 IPC against the above mentioned three suspected accused persons (PW-6). In this regard, FIR bearing Crime Number 24/2021 (Exhibit P/6) was registered at Jashpur Police Station and during investigation, postmortem of the deceased, spot map of the incident (Exhibit P-2), statements of witnesses under section 161 Cr.P.C. were recorded. Accused Vinod Bhagat gave the police the Bermuda shorts and jacket which had blood stains on it, which he was wearing at the time of the incident, in his house. Information regarding concealment and recovery was given as per memorandum (Exhibit P-8) on the basis of which information regarding recovery of clothes worn by appellants Vinod and Anuj Kumar at the time of incident was given as per (Exhibit P/8 and P/9) and accordingly the appellants also got the same seized. Damaged motor cycle, a pair of slippers, plain soil and blood stained soil were seized from the place of incident vide Exhibit P/10. The seized items were sent to Regional Forensic Science Laboratory, Ambikapur and FSL report (Exhibit C-1) was obtained from there. After completing other necessary investigation, charge sheet was presented in the court of Judicial Magistrate First Class Jashpur against the appellants for the offences punishable under Section 302, 201, 34 IPC. The said case was committed to the Court of Additional Sessions Judge,Jashpur, vide order dated 21.06.2021 passed in Criminal Case No. 283/2021. 6 Charges were framed against the appellants under Sections 302 read with Section 34 of the IPC as well as Section 201 of the IPC. The appellants abjured the guilt and prayed for trial. 7 In order to bring home the offence, prosecution examined as many as 15 5 witnesses namely: A.S. (PW-1), Birsamani (PW-2), Sitaram (PW-3), Sudarshan Toppo (PW-4), Mrs. Urmila (PW-5), Sushil Eka (PW-6), Atma Kujur (PW-7), Rajni Minj (PW-8), Patwari Dinesh Kumar Baghel (PW-9), Constable Kulranjan Ekka (PW-10), Dr. A.P. Tigga (PW-11), SI Tejaswari Swarnkar (PW-12), Fabianus Minj (PW-13), Makmohan Ram (PW-14), Mrs. Asemariam (PW-15), ASI Narendra Singh (PW-16) and exhibited as many as 28 Exhibits. 8 The statement of the convict/appellant was recorded under section 313 Cr.P.C wherein the appellants expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they were innocent and have been falsely implicated. 9 The learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 23.02.2023 convicted and sentenced the appellants, as detailed in first paragraph of this judgment. 10 Mr. Malay Shrivastava learned counsel appearing for the appellants- Vikas Ram and Mr. Rishikant Mahobia, learned counsel appearing for the appellants-Vinod Bhagat and Anuj Kumar Bhagat submit that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302/34 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. The appellant-Vikas has not even been named in the FIR and neither any memorandum statement was recorded nor any seizure has been made from the appellant-Vikas. His name was surfaced in the offence only in the memorandum statement of one of the co-accused person. Kaleshwar Ram Bhagat (PW-1) who is the brother of the deceased and 6 Smt.Birasmani (PW-2), who is the wife of the deceased, have merely expressed their suspicion that on account of earlier dispute with regard to the water of the well, the appellants could have committed the murder. The statement of the so called eye witness Smt. Asemariyam (PW-15) was recorded by the police after two months of the incident which casts serious doubt about her being an eye witness. 11 It is lastly submitted that even if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to the deceased in a spur of moment and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants fall within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 12 On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellants’ conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 13 We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 7 14 The first question for consideration would be, whether death of deceased was homicidal in nature ? 15 Dr. A.P.tigga (PW-11) is the Doctor who had conducted postmortem of the deceased. In his report (Exhibit P/20) the as many as 8 injuries were found and the cause of death was opined to be cardio-respiratory failure due to internal bleeding in the cranial cavity and the nature of death was homicidal. The counsel for the appellants have not been able to controvert the finding recorded by the learned trial Court on this aspect. Hence, we are of the considered opinion that the finding recorded by the trial Court that death of deceased was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby afÏrm that finding. 16 Now, the next question for consideration would be whether the accused- appellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in afÏrmative by relying upon the testimony of prosecution witnesses. 17 The conviction is based on the testimony of the eye witness and also on the basis of circumstantial evidence. Smt. Asemriyam (PW-15) stated that she was working in her garden and also carrying wood. She saw that the appellants alongwith one juvenile assaulted the deceased with a lathi because of which he fell down. Thereafter, they all dragged him and threw him in the river and also threw his motorcycle. After killing, they all washed their hands and feet and went towards Darrigadha village. When her husband came home, she informed him about the incident. 18 PW-1, Kaleshwar Ram Bhagat, who is the informant, has stated that five years before the date of incident, there was some quarrel between the 8 appellants and the deceased because of which they suspected that they might have killed the deceased. Birasmani (PW-2) is the wife of the deceased. She stated that her husband and the appellants had a quarrel earlier. She has been declared hostile. Sitaram (PW-3) who has been declared hostile stated that he came to know that the deceased died because of some accident and he knows nothing about the incident. 19 On the basis of memorandum statement of the appellants Vinod Bhagat and Anuj Kumar Bhagat, and at their instance, the clothes worn by them which contained blood stains, have been seizued by the police. The FSL report also, the presence of human blood in those clothes have been afÏrmed vide Exhibit C-1. The FSL report further afÏrms presence of blood stains in the Lathis seized from the place of incident. In the memorandum statement, both the accused namely Vinod Bhagat and Anuj Kumar Bhagat have stated that they alongwith the accused-Vikash Ram and one juvenile, committed the murder of the deceased but they wanted to kill the wife of the deceased as they suspected that she was performing witchcraft against them. As such, the learned trial Court has rightly held that it was the appellants-accused who have caused injuries over the body of the deceased and caused his death. Accordingly, we hereby afÏrm the said finding. 20 The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 9 21 The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of the case,