Partly allowed

Resham Lal And Anr. v. State Of Chhattisgarh

Chhattisgarh HC14 Oct 2022CRA/1169/2013

Case brief

AI extract

What is this about?

This court allowed an appeal in a murder case, setting aside convictions under Section 302 IPC. The High Court held that the incident was a sudden fight without premeditation or cruel manner, satisfying Exception 4 to Section 300 IPC. Consequently, the appellants were convicted under Section 304 Part-II IPC and sentenced to endure their pre-served jail term.

What did the court decide?

Convictions under Section 302 IPC set aside. Appellants convicted under Section 304 Part-II IPC. Sentenced to undergo jail term already served.

Resham Lal And Anr. Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1169 of 2013

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1. Resham Lal S/o Narayan Lahre, Aged About 55 Years

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2. Ajay Kumar S/o Resham Lal Lahre Aged About 22 Years

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Both R/o Jaistambh Chowk, Kaurinbhatha, Police Station Basantpur, Distt. Rajnandgaon Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through PS Basantpur, District Rajnandgaon Chhattisgarh

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---- Respondent

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For Appellants Mr. Sanjay Agarwal, Advocate For Respondent /State Ms. Ruchi Nagar, Dy. GA

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DIVISION BENCH

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ.

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Judgment on Board 14/10/2022

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Sanjay K. Agrawal, J.

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1 . This criminal appeal under Section 374(2) of Cr.PC is directed against the impugned judgment of conviction and order of sentence dated 4.10.2013 passed in Sessions Trial No.3/2013, whereby, learned Second Additional Sessions Judge, Rajnandgaon (CG) has convicted appellant - Ajay Kumar under Section 302 of the IPC and sentenced to

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undergo life imprisonment and pay fine of Rs.500/- , in default of payment of fine, to undergo additional RI for 3 months. Appellant Resham Lal has been convicted under Section 302/34 of the IPC and sentenced to undergo life imprisonment and pay fine of Rs.500/-, in default of payment of fine, to undergo additional RI for 3 months.

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2. Case of the prosecution, in brief, is that on 15.11.2012, at Jay Stambh Chowk, Kaurinbhatha, Basantpur, Rajnandgaon, the appellants and coaccused Gokul (now acquitted by the trial Court) assaulted deceased Goldie alias Golu alias Komal with Sabbal (crowbar) and Ustara (Razor) respectively and on account of the injuries sustained by the deceased, he died. Further case of the prosecution, in brief, is that on the said date, at 9.00 p.m., deceased Goldie @ Golu, Deepak Yadav (PW-2), Hemlal (PW-3), Shravan Kumar Yadav (PW-4), Vijay Yadav (PW-6) and others came near the house of appellant No.1 Resham Lal performing Raut Nach (a dance form). At that juncture, appellant No.2 Ajay Kumar, who is the son of appellant No.1, asked them not to dance in front of their house and also abused them, on which, a dispute arose between the deceased and appellant No.2 Ajay Kumar and in a fit of anger, he went into his house and came along with appellant No.1 Resham Lal and co-accused Gokul carrying deadly weapons. Appellant No.1 was armed with crowbar and appellant No.2 was armed with razor. Further case of the prosecution is that deceased Goldie, Deepak Yadav (PW-2), Hemlal (PW-3), Shravan Kumar Yadav (PW-4) and Vijay Yadav (PW-6) were all in an inebriated condition and suddenly, appellant No.1 Resham Lal assaulted the deceased by a crowbar and appellant No.2 Ajay Kumar assaulted him by a sharp edged weapon i.e. razor .

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Thereafter, the appellants ran away. Goldie @ Golu was taken to the hospital, but the Doctor declared him brought dead. The Merg intimation was registered vide Ex. P/1 on the information given by one Jhaduram and a copy of the same was sent to the SDM, Rajnandgaon and thereafter, FIR-Ex-P/2 was registered against the appellants. Inquest was conducted vide Ex. P/5 and the dead body of deceased Goldie@ Golu was sent for the postmortem examination, which was conducted by Dr. B.L. Kumre (P.W.-10) and the Postmortem Report has been prepared vide Ex. P/10, according to which, the mode of death is shock due to cut across the neck vessels, artery and jugular veins and cut across the two levels of the trachea anteriorly. Thereafter, on the memorandum statement of appellant Resham Lal, a crow bar was seized vide Ex.P/19 and on the memorandum statement of appellant No.2 Ajay Kumar, a razor was seized vide Ex.-P/20, which were sent for FSL examination. In the FSL report-Ex.P/34, on crowbar (recovered from appellant No.1), no human blood was found, whereas, on razor (recovered from appellant No.2), human blood was found. Similarly, on the shirt and pant of appellant No.2 Ajay Kumar, which were sent for FSL examination along with other articles, human blood was found.

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3. After usual investigation, the accused/appellant No.2 was chargesheeted for offence under Section 302 of the IPC and appellant No.1 was charge-sheeted for offence under Section 302/34 of the IPC and the same was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Second Additional Sessions Judge, Rajnandgaon received the case on transfer for hearing and disposal in accordance with law.

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4 . The accused/appellants abjured the guilt and entered into witness box. In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 34 documents. The defence has examined none and no document has been exhibited on their behalf.

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5 . The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence appellant No.1 under Section 302/34 of the IPC and appellant No.2 under Section 302 of the IPC in the manner mentioned in the opening paragraph of the judgment against which the instant appeal under Section 374 (2) of the Cr.P.C. has been preferred. However, the trial Court vide the impugned judgment acquitted appellant – Gokul.

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6. Mr. Sanjay Agrawal, learned counsel for the appellants would submit that all the three eye-witnesses i.e. PW-2 Deepak Yadav (PW-2), Hemlal (PW-3), Shrawan Kumar Yadav (PW-4) and Vijay Yadav (PW-6) were in a state of intoxication. He would further submit that they along with the deceased were performing Raut Nach in front of the house of appellant No.1 Resham Lal, to which, appellant No.2 Ajay Kumar objected and a dispute erupted. In view of the above, learned counsel for the appellants would submit that the case of appellant No.2 is squarely covered under Exception 4 to Section 300 of IPC. With regard to appellant No.1, learned counsel would submit that appellant No.1 was armed with a crowbar and there is no injury by the said weapon on the neck of the deceased. Therefore, at the most, appellant No.1 could have been convicted with the aid of Section 304 Part II of IPC. The prosecution is unable to bring home the offence

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under Section 302 & 302/34 of the IPC and hence, the conviction of the appellants/accused may be altered from Section 302 to Section 304 Part I or Part II of IPC. Hence, the present appeal deserves to be partly allowed.

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7. Per Contra, Ms. Ruchi Nagar, learned Dy. GA , would support the impugned judgment and submit that there is ample evidence available on record to connect the appellants with the crime in question. and the appellants' case is not covered with Exception 4 to Section 300 of IPC and as such, their conviction cannot be altered to Section 304 Part I or Part II of IPC, therefore, the instant appeal, being devoid of merits, is liable to be dismissed.

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8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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9. The first question for consideration would be whether the death of deceased Goldie @ Golu was homicidal in nature?

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10. Learned trial Court has recorded an afÏrmative finding with regard to this question on the basis of postmortem report (Ex. P/10), wherein, Dr. B.L. Kumre (P.W.-10), who has conducted the postmortem, has clearly stated that the death of deceased was homicidal in nature. As such, after hearing learned counsel for the parties and after going through the postmortem report (Ex. P/10), we are of the opinion that the finding recorded by the trial Court that death of deceased Goldie @ Komal is homicidal in nature is a correct finding of fact based on

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evidence available on record which is neither perverse nor contrary to the record and we hereby afÏrm the said finding.

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11. Now, the next question for consideration would be whether the appellants are the author of the crime in question ?

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12. The trial Court has heavily relied on the evidence of eye-witnesses Deepak Yadav (PW-2) , Hemlal (PW-3), Shrawan Kumar Yadav (PW-4) and Vijay Yadav (PW-6). After minutely going through the evidence of these witnesses, it appears, they have seen appellant No.2 Ajay Kumar assaulting the deceased with a sharp edged weapon on his neck, due to which, he suffered grievous injury and it has also been proved by Dr. B.L. Kumre (PW-10). On the memorandum statement of appellant No.2 Ajay Kumar, a sharp edged weapon i.e. razor was seized, which was sent for FSL examination and vide FSL report-Ex.P/34, human blood has been found on the said weapon. Further, on the shirt and full pant of appellant No.2 also, human blood was found. Though from appellant No.1 Resham Lal, a crowbar has been seized but no human blood was found on it. As per the evidence of Dr. B.L. Kumre (PW-10), the injury sustained by the deceased on his neck did not appear to be caused by a crowbar, therefore, the fact remains that the neck injury has been caused by a razor, seized from appellant No.2, on which, human blood was also found. As such, looking to the entire evidence available on record, it is duly established that appellant No.2 Ajay Kumar is the author of the crime in question, which has rightly been held by the trial Court, and appellant No.1 Resham Lal, though was

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present on the spot, has also been convicted with the aid of Section 34 of the IPC.

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13 .Now the next question is whether the offence in question would fall under Exception 4 to Section 300 of the IPC?

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14. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana {(2002) 3 SCC 327} has observed as under:-

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“ 21 . Keeping in view the facts and circumstances of the case, 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.”

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15. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana {(2009) 15 SCC 635} 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 IPC, which state as under :-

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“ 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 :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufÏcient in the ordinary course of nature to cause death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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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.”

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16. Likewise, in the matter of State v. Sanjeev Nanda {(2012) 8

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SCC 450}, their Lordships of 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.

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17. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh {(2017) 3 SCC 247} has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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“ 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)

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“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.”

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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)

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“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”.

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18. 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 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 IPC.

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19. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) {(2019) 6 SCC 122} has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“ 16 . A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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20 . Reverting back to the facts of the present case, in the light of parameters laid down by the Hon’ble Supreme Court, it is quite vivid that there was no intention on the part of the appellants to cause death of the deceased. On the fateful day, when deceased - Goldie @ Komal Yadav, Deepak Yadav (PW-2) , Hemal (PW-3) and Shrawan Kumar Yadav (PW-4) along with others were performing Raut Nach in front of the house of appellants 1 & 2, appellant No.1 asked them to not to do so, but they did not listen and continued to dance, which led to a dispute between them. Thereafter, the appellants along with the co-accused came armed with deadly weapons and appellant No.2 caused single injury on his neck, which was grievous, as the trachea was cut. The deceased was taken to the hospital, but he died. In view of the above, it can safely be inferred that there was no intention on the part of the appellants to cause death of the deceased and there was a sudden quarrel between the appellant and the deceased and in the said fight, the above injury was caused by appellant No.2 to the deceased by a sharp edged weapon.

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21. Since the injury has been caused by a sharp edged weapon on the vital part of the body of the deceased by appellant No.2, he have had knowledge that the injury is likely to cause death of the deceased and considering the role of appellant No.1, in our opinion, the offence

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committed by the appellants would fall under Exception-4 to Section 300 IPC and is punishable under Section 304 Part-II of the IPC and as such, they are guilty of committing offence under Section 304 Part-II of the IPC.

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22 . For the foregoing discussion, conviction and sentence imposed on the appellants under Section 302 & 302/34 of the IPC respectively are set aside and they are acquitted of the said charges. Instead, the appellants are convicted under Section 304 Part-II of the IPC. The impugned judgment would reflect that both the appellants are in jail since 17.11.2012 and thereby, they have already served more than 9 years 10 months of RI. Therefore, the ends of justice would be served if both are appellants are sentenced to the period already undergone by them. Ordered accordingly. They be released forthwith unless required to be detained in any other case. The fine amount imposed on the appellants by the trial Court shall remain intact.

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23. The appeal is allowed in part.

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Sd/- Sd/- (Sanjay K. Agrawal) ( Deepak Kumar Tiwari) Judge Judge

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Shyna

Resham Lal And Anr. v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Resham Lal And Anr. v. State Of Chhattisgarh

Case brief

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What did the court decide?

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