Kamlesh Sahu S/o. Ramjee Sahu, Aged About 26 Years R/o. Rendapara, Behind Bafna’s House v. CRA No. 13
Case Details
2025:CGHC:4922-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1206 of 2023 Kamlesh Sahu S/o. Ramjee Sahu, Aged About 26 Years R/o. Rendapara, Behind Bafna’s House, Rasmada, Out Post Anjora, P.S. Pulgaon, District- Durg, Chhattisgarh. --- Appellant State Of Chhattisgarh Through Police Station Pulgaon, District Durg Chhattisgarh. --- Respondent versus CRA No. 1337 of 2023 Kapil Sahu S/o Ramji Sahu Aged About 25 Years R/o Rendapara, Behind Of Bafna's House, Rasmada, Police Chowki- Anjora, P.S. Pulgaon, District : Durg, Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through - Station House Officer, Police Station Pulgaon, District : Durg, Chhattisgarh --- Respondent CRA No. 535 of 2024 Saudagar @ Dau S/o Devendra Kumar Sahu Aged About 21 Years R/o Bazarpara Near Sahu Sadan, Rasmada, Police Chowki Anjora, P.S. Pulgaon District Durg Chhattisgarh ---Appellant(s) Versus State Of Chhattisgarh Through Station House Officer, Police Station Pulgaon, District Durg (C.G.) ---- Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For respective Appellants : Shri Uttam Pandey, ShriOm P Sahu, Ms For Respondent/State --------------------------------------------------------------------------------------------------------- : Shri Shashank Thakur, Dy AG Pooja Sinha and Shri Vikas Bajpai, Advocates Cra 1206 & 1337 of 2023, and 535 of 2024 2 Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Ravindra Kumar Agrawal, J. Per 28.01.2025 1. All these three appeals are arising out of the same crime number, same sessions trial and common judgment, therefore, they are being heard and decided together. 2. These appeals are arising out of a common judgment dated 16.2.2023 passed by the First Additional Sessions Judge, Durg in Sessions Case No. 283 of 2021, whereby the appellants have been convicted for the offence under Section 302/34 IPC and sentenced RI for life with fine of Rs.1000/- each, with default stipulation. 3. Brief facts of the case are that complainant- Nimendra Kumar Sahu, PW1 gave merg intimation to the Police Outpost-Anjora on 15.08.2021 that at about 8 pm when he was returning to his house, his cousin brother Krit Kumar Sahu has informed him on his mobile phone that Karan Thakur (since the deceased) was being murdered at Bazar Chowk, Rasmada. When he went there, he came to know that Saudagar Sahu @ Dau, Kamlesh Sahu, and Kapil Sahu (three appellants) have committed murder of the deceased by assaulting him by hammer and stone by giving him blows on his head. The merg intimation Ex.P4 was recorded and Dehati Nalishi Ex.P1 was also recorded by the police on the same day at about 21.10 hours. The Police proceeded to Cra 1206 & 1337 of 2023, and 535 of 2024 3 the place of incident and inquest Ex.P6 of the dead body of the deceased was prepared in presence of the witnesses. The dead-body of the deceased was sent for its postmortem to the District Hospital, Durg, where PW17- Dr.Prinyaka Sahu conducted the postmortem of the dead- body of the deceased, and gave her report Ex.P39. While conducting the postmortem, Doctor has noticed the following injuries on his body: Skull— # of left temporal parietal occipital area 22cm X 14cm, with bag of bones exposed brain matter Lacerated wound left temporal area posterior to pinna 4 x 2 x 0.5 cm Face— Lacerated wound just above eyebrows (right) 4 x 2 x 0.5 cm Lacerated wound just (right) below eye 2 x 1 cm Lacerated wound just over left knee (medial) 2 x 1cm Lacerated wound just over left ankle (med) 2 x 1cm All above injuries were ante-mortem in nature. 4. Doctor has opined that cause of death is shock and hemorrhage due to antemortem head injury and time lapsed since death is within 24 hours from postmortem examination approximately. The merg intimation was sent to the jurisdictional Police Station- Pulgaon, where numbered
Facts
merg intimation 65 of 2021 vide Ex.P36 was recorded and FIR Ex.P35 Cra 1206 & 1337 of 2023, and 535 of 2024 4 was also registered against all three appellants for the offence under Section 302/34 of the IPC. Query was also made from the doctor as to the cause of death of the deceased, whether it was homicidal, suicidal or accidental, then the doctor PW-17 gave query report vide Ex.P41 and opined, ‘nature of death is homicidal’. 5. Spot Map Ex.P2 was prepared by the Police and Ex.P3 was prepared by the Patwari. From the spot, one stone having blood like stains, one motorcycle and piece of cotton dried with blood that oozed out from the body of the deceased seized vide seizure memo Ex.P20. All three appellants were taken into custody on 16.08.21 and their memorandum statement Ex.P13 (Saudaghar @ Dau), Ex.P14 Kapil Sahu, and Ex.P15 Kamlesh Sahu were recorded. Based on memorandum statements of the accused- Saudagar @ Dau, one hammer having blood like stains was seized on his instance vide seizure memo Ex.P19. From the accused Kapil Sahu, his full shirt having blood like stains has been seized vide seizure memo Ex.P22, and from the accused Kamlesh Sahu, his full shirt having blood like stains has been seized vide Ex.P21. The shirt and jeans pant of appellant- Saudagar @ Dau has also been seized vide seizure memo Ex.P23. The seizure Panchnama Ex.P16, 17 & 18 has also been prepared by the Police with respect to seizure made from the appellants. Clothes of the deceased, jeans pant and shirt of the appellant Saudagar @ Dau, Full shirt of appellant- Kapil Sahu, Shirt of appellant- Kamlesh Sahu, blood collected from the spot through piece of cotton, stone seized from the spot and Cra 1206 & 1337 of 2023, and 535 of 2024 5 hammer seized from the spot were sent for their chemical examination to the state FSL, Raipur from where, report Ex.P63 was received and according to the FSL report, the blood stains found on the sent articles, except the plain soil / cotton, seized from the spot. In shirt of the appellant- Saudagar @ Dau (Article B2), full Shirt of appellant- Kapil Sahu (Aricle C), Shirt of appellant- Kamlesh Sahu (Article D) and blood collected from the spot through piece of cotton (Article E) were found to be stained with human blood, and the blood of the other articles was of disintegrated and its origin would be determined. The seized weapon of offence i.e. Stone and Hammer were sent for query report to the doctor and the doctor has opined by giving her query report Ex.P40 that injuries found on the body of deceased could have been caused by the said weapon and for confirmation of presence of human blood, she advised chemical examination of the articles. 6. During the investigation, call details report along with certificate under Section 65B of the Evidence Act has also been obtained by the Police with respect to the mobile number- 6268220823, and 6268999954. 7. Statement under 161 and 164 of the CrPC of the witnesses have been recorded and after completion of usual investigation, charge-sheet was filed before the learned JMFC, Durg against three accused persons / appellants for commission of offence under Section 302 / 34 of the IPC. Case was committed to the court of learned Sessions Judge, Durg from where the same has been transferred to the learned trial court for its trial. Cra 1206 & 1337 of 2023, and 535 of 2024 6 8. The learned trial court has framed charge against the appellants for commission of offence under Section 302 read with Section 34, in alternative, Section 302 of the IPC. The appellants abjured their guilt and claimed trial. In order to prove the charges against the appellants, prosecution has examined as many as 19 witnesses, statement of the appellants under Section 313 of the CrPC have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. 9. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial court has convicted the appellants and sentenced them as mentioned in the earlier part of the judgment. Hence this appeal by the appellants. 10.
Legal Reasoning
case, we are of the opinion that in the absence of the 1 (2002) 3 SCC 327 Cra 1206 & 1337 of 2023, and 535 of 2024 19 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.” 31. The Hon’ble 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 2 (2009) 15 SCC 635 Cra 1206 & 1337 of 2023, and 535 of 2024 20 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 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 sufficient 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 ? Cra 1206 & 1337 of 2023, and 535 of 2024 21 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.” 32. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of the Hon’ble 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. 33. The Hon’ble Supreme Court in the matter of Arjun v. State of 3 (2012) 8 SCC 450 Cra 1206 & 1337 of 2023, and 535 of 2024 22 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.” 4 (2017) 3 SCC 247 Cra 1206 & 1337 of 2023, and 535 of 2024 23 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 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 Cra 1206 & 1337 of 2023, and 535 of 2024 24 Exception 4, it is not sufficient 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”. 34. In the matter of Arjun (supra), the Supreme Court has held that if there is intention, and not 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. 35. Considering the entirety of the facts and circumstances of the case, and also the evidence available on record, the manner of assault, and nature of dispute between the parties, and also law laid down by the Hon’ble Supreme Court in the above mentioned judgments, it emerges as plausible and possible story that out of sudden quarrel, and sudden fight, but the appellants without any pre-meditation, much less intention to cause death, assaulted the deceased-Karan Thakur by hammer. Therefore, it is difficult to hold that it is a planned murder under these circumstances. However, the intention is said to have been happened all of sudden. Therefore, in our considered opinion, the act of the appellants would only amounts to culpable homicide not amounting to murder by application of exception 4 of Section 300 of the IPC. Cra 1206 & 1337 of 2023, and 535 of 2024 25 36. Since we find that there would be no intention with which it could be attributed that the appellants have no pre-meditation to kill the deceased, the appellants are liable to be convicted only under Section 304 Part II of the IPC. 37.
Arguments
Shri Uttam Pandey, learned counsel appearing for appellant- Kamlesh Sahu (CRA-1206 of 2023) would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in evidence of prosecution witnesses. The alleged eyewitnesses are inconsistent in material point of their evidence, and such inconsistent evidence cannot be made basis for conviction of the appellants for the alleged offence. He would further submit that though the prosecution has alleged that the weapon of offence has been seized from the appellant on the basis of his memorandum statement but the witnesses to the memorandum and seizure have not supported the prosecution case. Further, there is no human blood found on the weapon Cra 1206 & 1337 of 2023, and 535 of 2024 7 of offence to connect the said weapon with commission of murder of the deceased. The call details report which has been obtained by the prosecution is also of no value, as the same has not been proved in accordance with law as per its requirement, and even if it is proved that at the relevant point of time, the accused persons have made a telephonic call to the deceased that itself does not connect the appellants with murder of the deceased. He would also submit that the learned trial Court has given much weightage upon the FSL report that human blood has been found on clothes of the appellants, but in absence of any blood group of the deceased, and blood group found on the clothes of the appellants, the same cannot be connected with the blood found on the clothes of the appellants is the same blood that of the deceased. There is lack of cogent and clinching evidence against he appellants in the case to convict him for the capital offence. In alternative, he would further submit that the incident is occurred in a heat of passion and the quarrel started on trivial issue at the time of celebrating birthday of his friend Gajendra Thakur. He switched on the torch of mobile phone for which deceased- Karan Thakur scolded the appellant Kapil Sahu, and thereafter, the incident occurred. In view of the background of initiation of the offence, the appellants are not having knowledge to the fact that the deceased may have died by their assault, and therefore, the offence if any, does not travel beyond the scope of Section 304 of the IPC, and by altering the conviction of this appellant, his undergone period may be considered to be sufficient sentence for the offence, under which he was convicted. Cra 1206 & 1337 of 2023, and 535 of 2024 8 11. Shri Om Prakash Sahu, learned counsel appearing for appellants Kapil Sahu and Saudagar @ Dau, in addition to the argument advanced by learned counsel for the appellant- Kamlesh Sahu, would submit that these two appellants have no nexus with the injuries caused to the deceased, and there is absence of any cogent and clinching evidence against them that they too have assaulted the deceased, and no weapon of offence has been seized from them. The blood stains found on the clothes of the appellants are insufficient to hold them guilty for the alleged offence. In alternative, he would also submit that the offence against the present appellants, if any, does not travel beyond the scope of Section 304 of the IPC, as the same was occurred in a heat of passion started on a trivial issue, and the appellants were neither intended nor having any knowledge that the deceased may die by their act. Therefore, after altering the conviction of the appellants from the offence 302 IPC to 304 IPC, their undergone period of sentence may be considered to be sufficient sentence. 12. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the respective appellants, and submitted that there is ample and overwhelming evidence against the appellants and their involvement is there in the alleged commission of offence. But for minor omissions and contradictions, the evidence of prosecution witnesses is fully reliable. Involvement of the appellants is further corroborated from the seizure of weapon of offence as well as their clothes in which blood/human blood has been found in the FSL Cra 1206 & 1337 of 2023, and 535 of 2024 9 report for which they have not offered any explanation as to how the blood/human blood has been found on their clothes. From the call details report, it has been proved that the appellants have called the deceased to the place of incident, which is an additional link to connect them with the offence. The appellants were having motive to commit the offence as some dispute arose between them just before the time of incident, therefore, there is sufficient evidence against the appellants that they knowingly, and intentionally involved in assaulting the deceased. After appreciating the entire evidence available on record, the learned trial Court has convicted the appellants for the offence under Section 302/34 IPC, and there is no merit in the appeals filed by the appellants, and the same are liable to be dismissed. 13. We have heard learned counsel for the parties, and perused the record of the case. 14. So far as the homicidal death of deceased is concerned, in the inquest report Ex.P6, it was found that dead-body of the deceased was lying in mortuary of the District hospital, Durg, having injuries on his body, and pooled with blood. The witnesses to the inquest PW1 Nimendra Kumar Sahu, PW10 Madhayya Ram, have fully supported that the inquest Ex.P6 was prepared in their presence, and they saw the dead- body of the deceased having injuries over it. The homicidal death of the deceased was further proved by PW17, Dr Priyanka Sahu, who stated in her evidence that on 16.08.2021 she conducted postmortem of Cra 1206 & 1337 of 2023, and 535 of 2024 10 dead-body of the deceased, in which she found numerous antemortem injuries on his body, and she opined that the deceased died due to shock and hemorrhage due to antemortem head injury. In her query report Ex.P41, she opined that death of the deceased is homicidal in nature. In her cross-examination, the defence could not elicited any material so that her evidence could be dis-believed that the deceased has not died to head injury, or his death is not homicidal in nature. The learned trial Court has given a finding based on the evidence available on record considering the merg intimation, inquest as well as the postmortem report, and came into conclusion that the death of the deceased is homicidal in nature, which in the opinion of this Court, is based on proper appreciation of evidence, and we are also in agreement with the said finding of the learned trial Court. 15. So far as involvement of the appellants in crime in question is concerned, we have carefully examined the evidence available on recorded. 16. PW1-Nimendra Kumar Sahu, who is the complainant in the case, has stated in his evidence that he knows the appellants. On the date of incident, his cousin brother has informed him that Karan Thakur is lying dead in Bazar chowk, and then he went to the spot, and mob was gathered there and the deceased was lying in dead condition in pool of blood. The persons present there have disclosed that appellants- Saudagar, Kamlesh and Kapil have assaulted the deceased by hammer, Cra 1206 & 1337 of 2023, and 535 of 2024 11 and stone. He lodged the merg intimation, and Dehati Nalishi to the Police. In cross examination, he admitted that he has not seen the incident, and he only stated whatever he learned from the place of incident. 17. PW2-Nagendra Nishad is claimed to be the eyewitness to the incident, who stated in his evidence that on the date of incident at about 8 pm, he came out from his house to go to his duty. Near Bazar Chowk, the present appellants met him and the appellant- Saudagar @Dau asked him to call Karan Thakur through his mobile phone, and then, he called the deceased Karan Thakur there. When he proceeded ahead, he saw the deceased-Karan Thakur coming by his motorcycle. As and when he reached near Bazar chowk, scuffling started between the deceased and the accused persons. At that moment, Saudagar @ Dau came from backside, and gave hammer blow on his head. He immediately rushed to the place of incident, and by that time, appellant-Kapil Sahu, and Saudagar @ Dau were also present on the spot and after a short while, they too fled away from the place. He scared from the incident, and went back to his house. Appellant-Saudagar @ Dau left his mobile phone nearby the place of incident. At this stage, this witness has been declared hostile, and thereafter, he stated that since 7-8 months back Karan Yadav has given him a mobile phone, and he has given his Police Statement Ex.P8 and he disclosed whatever he saw at the place of incident. He also stated that his statement was also recorded before the Judicial Magistrate, Durg, which is ExP9. Cra 1206 & 1337 of 2023, and 535 of 2024 12 In cross-examination, he stated that when he made a telephonic call to the deceased, after about 10 minutes, Karan Thakur came there. He also admitted that due to the weekly market, there was mob at nearby place of the incident. He also admitted that deceased was his best friend but he could not try to save him because of the reason that he was at a considerable distance to him. In further cross-examination, he denied that in his statement, Ex.P9, he did not disclose that who have assaulted the deceased-Karan Thakur. He voluntarily stated that the deceased was coming from his house, and the present appellants were standing on the chowk. When Karan Thakur came to the place of incident, he left the place, and went towards the Hotel. From the entire cross-examination of this witness, the defence could not extract any material to disbelieve this evidence that he has not seen any incident that the accused persons have caused injuries to the deceased. The deceased came there on being called by this witness on the instance of the appelalnt-Saudagar @ Dau. 18. PW3-Gajendra Thakur is also claimed to be the eyewitness to the incident, and he stated in his evidence that on 15.10.2021, at about 7 pm, he was celebrating his birthday near Shitla Mandir, Rasmada, in his birthday party, his friends Aman, Bhupen, and Suraj and Karan Thakur, were present. When they were about to drink liquor, the accused persons Saudagar @ Dau, and Kapil Sahu came there, who were in drunken condition. When they started altercation, and asked to switch off Cra 1206 & 1337 of 2023, and 535 of 2024 13 the torch, his younger brother -Aman switched off the torch of his mobile phone, and thereafter, Kapil Sahu switched on his mobile phone, and put light on the face of Karan Thakur, and on that issue, altercation took place between them. After their heated exchange of altercation, they left the place, and went towards the Chowk. He made a mobile call to the deceased from the mobile phone of Kapil Sahu, and he called the deceased there. When Nagendra Nishad, PW2 came out from his house to go out, he too has come there, and at that time, Saudagar @ Dau has also asked Nagendra Nishad to call the deceased, and he has also called him. At that time, appellant Saudagar @ Dau took a hammer from the welding shop of his maternal uncle, and started hurling there. Kapil Sahu was also having knife with him, and threatened him with dire consequences. After a short moment, when he again came there after answering the call of nature, he saw that Karan Thakur had already fell down from his motorcycle, and Saudagar @ Dau gave a hammer blow on his head, due to which he also left the place, and went to the house of Karan Thakur, and informed the incident to his parents. But for minor omissions, and contradictions, this witness also remained firm in saying that all the three accused persons have raised quarrel with the deceased, and assaulted him by hammer, and stone, by which he received injuries on his body, and ultimately he died. 19. PW4- Krit Kumar Sahu, stated in his evidence that he was informed by his uncle Sangram Thakur that Karan Thakur was being assaulted by Saudagar @ Dau, Kapil sahu, and Kamlesh Sahu. When Cra 1206 & 1337 of 2023, and 535 of 2024 14 he reached to the place of incident, he saw that deceased was lying dead there. Since this witness is not the eyewitness, and he saw only the deceased lying dead on the spot, this evidence is not too much of relevance. 20. PW-5, Ajay Vaishnav is the witness of memorandum, and seizure Ex.P13 to Ex.P19 and also the arrest memos of the appellants. This witness has turned hostile, and has not supported the prosecution case. However, he admitted his signature over the aforesaid documents. 21. PW6- Phuleshwari Sinha, though claimed to be the eyewitness to the incident, and deposed the incident in her chief examination, but in cross-examination she denied that she is the eyewitness to the incident, and stated that she has not seen any incident that appellants-Kamlesh and Kapil have assaulted the deceased by hammer, and stone. She also admitted that she has not seen any incident. 22. PW7, Chandramohan Sao, is the Patwari, who prepared the Spot map Ex.P3; PW8, Dev Prasad Sahu is also a hearsay witness, and he turned hostile, and not supported the case. PW9- DS Rajput, has conducted part of the investigation, and prepared the inquest Ex.P6, and sent the dead-body for its postmortem. 23. PW10-Madhayya Ram has stated in his evidence that on the date of incident at about 7.45 pm, when he was taking his dinner, Phuleshwari informed him that the accused persons Saudagar @ Dau, Cra 1206 & 1337 of 2023, and 535 of 2024 15 Kapil Sahu and younger brother of Kapil Sahu have committed murder of a person who was lying there. When he came to the place of incident, appellant Saudagar @ Dau threw a stone on the deceased and fled away. After some time, Police reached there, and took the dead body to the hospital.. In cross-examination, he admitted that at the place of incident, mob was gathered he has not tried to interfere the incident, and he did not know as to what has been written in the Police Station, and he has not read over it. In further cross-examination, he admitted that he has not seen the incident, and he was standing at some distance, and he has not seen the accused persons assaulting the deceased. 24. Pw11-Bhima Nishad is also claimed to be the eyewitness to the incident, who stated in his evidence that on 15.08.2019, they were celebrating the birthday party along with Gajendra, Suraj and Bhupesh, Karan and Aman. At that time, Saudagar and Kapil came there, and some altercation took place on the issue of torch of the mobile phone, and after having some scuffle, the accused persons went away. The appellants went towards the Chowk, and they were sitting near the temple. After some time, he came to Bazar Chowk along with Karan Thakur on his motorcycle. As and when Karan Thakur parked his vehicle, accused Kapil Sahu, and Kamlesh Sahu started scuffling with him, and at that very moment, Sauaudagar @ Dau assaulted him by Cra 1206 & 1337 of 2023, and 535 of 2024 16 hammer on the back of his head. He scared from the incident, and fled away. In cross-examination, he deviated from his chief examination, and admitted that Kamlesh Sahu and Kapil Sahu have not assaulted the deceased Karan Thakur by hammer. He further admitted that he did not try to intervene in the matter. Although this witness has deviated from the assault made by the appellants Kamlesh Sahu and Kapil Sahu but he duly proved that these three accused persons were together, they called the deceased, and as and when Karan Thakur reached there, they started scuffling, and at that moment, appellant- Saudagar gave hammer blow on his head. Nothing could be elicited from the evidence of this witness also that he has not seen the incident. 25. PW12-Bhupendra Thakur is the witness, who stated that when they were celebrating birthday of his friend Gajendra, some altercation took place between the accused persons on the issue of torch of mobile phone, and thereafter, what happened, he did not know. In cross- examination, he has not supported the prosecution case, though he has not been declared as hostile witness. 26. PW13 Dhananjay Rajput turned hostile, and not supported the prosecution case. PW14-Dhuman Lal Sahu, Constable, and PW15- Narendra Singh Rajput, ASO has conducted part of the investigation, PW16 Bhagwat Sahu is the witness of memorandum and seizure of Ex.P13 to P23, and arrest memos Ex.P24 to 26 but has not supported Cra 1206 & 1337 of 2023, and 535 of 2024 17 the prosecution case, and turned hostile. However, he admitted his signature in the said documents. PW18 Sanjeev Nema, is the Nodal Officer, Reliance Jio Mobile Company, and proved the call detail report of the Mobile No.6268220823 and 6268999954, and certificate under Section 65 of the Evidence Act, with respect to Ex.P42, 43, 44, 45, 46 and 47. In cross-examination, he admitted that mobile number 6268220823 is issued in name of one Sangram Singh, resident of Rasmada, and the mobile No.6268999954 was issued in name of Adinibai, resident of Balod. He further admitted that after issuance of mobile number, it cannot be said that who is using the said mobile number. 27. PW19 Devsharan Singh, ASI is the Investigating Officer of the case has proved the investigation, and the manner in which he conducted the investigation. 28. From the evidence of prosecution witnesses, it appears that on the date of incident, deceased was celebrating the birthday party near Shitla mandir at village-Rasmada, along with his friends, the appellants came there, and on the issue of focusing the torch light of mobile phone, some altercation took place between the accused persons, and the deceased, the accused persons came to the Bazar Chowk, and called the deceased from the mobile phone of PW2 Nagendra Nishad, and PW3 Gajendra Thakur, when the deceased Karan Thakur came near Bazar chowk, accused persons again started scuffling and at that moment, Cra 1206 & 1337 of 2023, and 535 of 2024 18 appellant- Saudagar @ Dau assaulted him on his head by hammer, and when he fell down, he threw a stone on the deceased, and fled away from the place. The incident was witnessed by PW2 Nagendra Nishad, PW3 Gajendra Thakur, and PW10 Madhayya Ram, PW11 Bhima Nishad, and PW12 Bhupendra Thakur. From the memorandum of appellant- Saudagar @ Dau, the weapon of offence hammer has been seized from him, and in the FSL report, Ex.P63, human blood has been found on the clothes of the appellants. From the evidence of witnesses it also appears that appellants were having reason to cause injuries to the deceased as there was some quarrel took place between them just before the incident, when the deceased was celebrating his birthday party near Shitla mandir, and some scuffle also took place there. Therefore, involvement of the appellants in the crime in question has been established that they caused injuries to the deceased at the relevant point of time on his head on account of which he died. 29. Now, the question again arises as to what offenses they have committed whether the act of the appellants comes under the definition of murder or whether under the culpable homicide, not amounting to murder. 30. The Hon’ble 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
Decision
In the result, the appeal filed by the appellants is partly allowed. The conviction of Section 302 of the IPC is altered to one under Section 304 Part-II IPC, and they are sentenced to undergo RI for 7 years with fine of Rs.1,000/- each, in default of payment of fine, they shall undergo further RI for one month. 38. The appellants be given benefit of the period for which they have already undergone during trial as well as after conviction, as provided under Section 468 of the Bharatiya Nagrik Suraksha Sanhita, 2023, and the benefit of set off be given to them. 39. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellants are undergoing their jail sentence to serve the same on the appellants informing them 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. Cra 1206 & 1337 of 2023, and 535 of 2024 26 40. The trial Court records along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice padma