Partly allowed

Sudru Barsa v. State Of Chhattisgarh

Chhattisgarh HC10 Oct 2022CRA/146/2017

Case brief

AI extract

What is this about?

In an appeal against conviction for murder, the High Court upheld the finding that the death was homicidal. The court acquitted one appellant due to lack of corroborative evidence but altered the conviction of the second appellant from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC) under Exception 4.

What did the court decide?

Appellants' appeal allowed in part. Conviction of one appellant altered from Section 302 IPC to Section 304 Part I IPC. Second appellant acquitted and released forthwith. First appellant to be release

Sudru Barsa Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 146 of 2017

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1.Sudru Barsa S/o Pandru Barsa, Aged about 28 years,
Occupation Agriculture, Caste Madiya, R/o
Patelpara, Peena Bacheli, P.S. Bacheli, Distt.
Dantewada, Chhattisgarh.

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2.Somaru @ Banda Hure S/o Lakhma, Aged about 35
years, Occupation Agriculture, Caste Madiya, R/o
Kotwarpara, Peena Bacheli, P.S. Bacheli, Distt.
Dantewada, Chhattisgarh.

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---Appellants

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Versus

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State of Chhattisgarh through Police Station
Bacheli, Distt. Dantewada, Chhattisgarh.

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 ---Respondent

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For Appellants :-Mr. Shrawan Agrawal, Advocate
For State :-Mr. Sudeep Verma, Dy. G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
10/10/2022

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Sanjay K. Agrawal, J.

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1.This criminal appeal under Section 374(2) of CrPC

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has been preferred by the two appellants/accused

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persons namely Sudru Barsa (A-1) and Somaru (A-2)
against the impugned judgment dated 26/08/2016
(Annexure A/1) passed by learned Session Judge,

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South Bastar, Dantewada in Sessions Trial No.
260/2011 whereby both of them have been convicted
for offence punishable under Section 302/34 of IPC
and sentenced to undergo imprisonment for life and
appellant Sudru Barsa (A-1) has also been convicted
for offence punishable under Section 324 of IPC and
sentenced to undergo rigorous imprisonment for 3
years.

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2.Case of the prosecution, in brief, is that on
09/05/2011 at about 5 PM at Village Peena, Bacheli,
Distt. Dantewada, the appellants herein, in
furtherance of their common intention to cause
death of Hunga Barsa, assaulted him with knife and
caused grievous injuries on his neck and stomach
due to which he succumbed to death on the spot and
further assaulted the son of the deceased namely
Bheema Barsa (P.W.-6) and caused injuries on his
back and left thumb and thereby, committed the
aforesaid offences.

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3.Further case of the prosecution, is that, on
09/05/2011, the villagers were celebrating the soil
festival (local festival). Complainant Bheema Barsa
(P.W.-6) (son of the deceased) had gone to
Lakhmapara for some work and while he was returning
to his village, the appellants/accused persons came
with a knife and assaulted him on his back and when

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he tried to save himself, he suffered injury on his
left thumb. Thereafter, both the appellants/accused
persons ran away. When Bheema Barsa (P.W.-6)
reached his home, his wife Sukdi Bai (P.W.-5)
informed him that both the appellants/accused
persons, suspecting deceased Hunga Barsa to be
involved in the act of witchcraft, had come to
their home and while deceased Hunga Barsa was
sleeping in a wooden cot near the bamboo trees,
Somaru (A-2) caught hold of him and Sudru Barsa (A-

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1) assaulted him with a knife and caused injuries
on his stomach and neck due to which he succumbed
to death. Thereafter, complainant Bheema Barsa
(P.W.-6) saw his father Hunga Barsa lying dead in
the wooden cot and his intestine had come out from
the injury suffered by him on his stomach.

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4.On the next day, i.e. on 10/05/2011, complainant
Bheema Barsa (P.W.-6) registered merg intimation
vide Ex. P/11 and lodged FIR against the
appellants/accused persons vide Ex. P/10 pursuant
to which wheels of investigation started running.
Summons were issued to the witnesses vide Ex. P/13

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and P/14 and in the presence of the witnesses,
inquest was conducted vide Ex. P/15 and the dead
body of deceased Hunga Barsa was sent for

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postmortem, which was conducted by Dr. K. Gautam

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(P.W.-10), and as per the postmortem report (Ex.
P/20), cause of death is said to be syncope due to
rupture and tear of vital organs like lungs and

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liver which caused excessive blood loss and
cardiorespiratory arrest and the nature of death is
said to be homicidal. Plain soil as well as blood
stained soil was seized from the spot vide Ex. P/8
and the blood stained banyan worn by the deceased
was seized vide Ex. P/9. Pursuant to the memorandum
statement of appellant Sudru Barsa (A-1) vide Ex.
P/6, knife stained with blood was seized from his
possession vide Ex. P/7. The said seized articles
were sent to Dr. K. Gautam (P.W. - 10) for query,
but vide query report (Ex. P/21), he has not given

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any confirmed opinion and has advised to send the
articles for further chemical microscopic
conformation investigation. However, the said
articles were not sent for chemical examination as

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no FSL report has been brought on record. After due
investigation, the appellants were charge-sheeted
for offences punishable under Sections 307, 302/34
of IPC which was committed to the Court of Session
for hearing and disposal in accordance with law.

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5.In order to bring home the offence, prosecution
examined as many as 12 witnesses and brought on
record23documents.Thestatementsof

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appellants/accused persons was recorded wherein they
denied guilt and examined 1 witness in their defence,
however, they did not bring any document in their
defence.

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6.Learned trial Court, after appreciation of oral and
documentary evidence on record, finding the death of
deceased Hunga Barsa to be homicidal in nature and
further finding the appellants to be the perpetrators
of the crime, proceeded to convict them for offence
punishable under Section 302/34 of IPC and further
convicted Sudru Barsa (A-1) for offence punishable
under Section 324 of IPC and sentenced them as
aforesaid.

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7. Mr. Shrawan Agrawal, learned counsel for the appellants, would make the following submissions :-

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(i) Learned trial Court is absolutely unjustified in
convicting appellant Sudru Barsa (A-1) for offence
punishable under Section 302 of IPC on the basis of
the self-serving statement of Sukdi Bai (P.W.-5), who
is a related witness, as well as on the seizure of
knife from the appellant pursuant to his memorandum
statement, particularly when both the memorandum
witnesses namely Buska Barsa (P.W.-1) and Koya (P.W.-

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8) have turned hostile and the knife seized vide Ex.
P/7 has not been sent for chemical examination as no
FSL report has been brought on record, therefore,

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conviction of the appellant Sudru Barsa (A-1)
deserves to be set aside.

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(ii) So far as appellant Somaru (A-2) is concerned,
there is no evidence available on record to connect
him with the aforesaid offence except for the self-
serving statement of Sukdi Bai (P.W.-5) who has
stated that while Somaru (A-2) had caught hold of the
deceased, Sudru Barsa (A-1) had assaulted him with
knife. In absence of any other corroborative evidence
available against the appellant Somaru (A-2), it
would be unsafe to convict him as Sukdi Bai (P.W.-5)
did not even inform to her husband Bheema Barsa
(P.W.-6) about the involvement of Somaru (A-2) in the
crime in question. Moreover, no seizure has been made
from Somaru (A-2), as such, his conviction for
offence punishable under Section 302/34 of IPC.

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(iii) In alternative, he would submit that if it is
held that the appellants are the perpetrators of the
crime in question, then their conviction for offence
punishable under Section 302/34 of IPC be altered to
Section 304 Part II of IPC as the appellants
assaulted the deceased because he was involved in the
act of witchcraft and their act would fall within
Exception 4 of Section 300 of IPC and since the
appellants/accused persons are in jail since
10/05/2011 i.e. for more than 11 years, they be
sentenced to the period already undergone by them.

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8.Per contra, Mr. Sudeep Verma, learned State counsel,
would support the impugned judgment and submit that
learned trial Court has rightly convicted the
appellants herein for offence punishable under
Section 302/34 of IPC and it is not a case which is
covered with Exception 4 to Section 300 of IPC, as
such, the conviction of the appellants cannot be
converted to either Part I or Part II of Section 304
of IPC, therefore, the instant appeal deserves to be
dismissed.

¶45

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

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10.The first question for consideration is whether the
death of deceased Hunga Barsa was homicidal in
nature ?

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11.Learned trial Court has recorded an affirmative
finding in this regard on the basis of medical
opinion of Dr. K. Gautam (P.W.-10) as well as
postmortem report (Ex. P/20) wherein it has
categorically been held that cause of death is said

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to be syncope due to rupture and tear of vital
organs like lungs and liver which caused excessive
blood loss and cardiorespiratory arrest and the

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nature of death is said to be homicidal. Taking
consideration of the entire evidence available on

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record as well as looking to the injuries sustained
by the deceased on his neck and on his stomach and
relying upon the medical opinion of Dr. K. Gautam
(P.W.-10) as well as postmortem report (Ex. P/20),
we are of the considered opinion that learned trial
Court has rightly held the death of deceased Hunga
Barsa to be homicidal in nature. Moreover, the fact
that death of the deceased was homicidal in nature
has also not been seriously disputed by learned
counsel for the appellants. As such, we hereby
affirm the said finding recorded by the trial Court
that the death of deceased Hunga Barsa was
homicidal in nature.

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12.The next question for consideration would be
whether the appellants are the perpetrators of the
crime in question ? In order to consider this we
will take up the case of each of the
appellants/accused persons one by one.

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Case of Sudru Barsa (A-1):-

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13.It is the case of the prosecution that on the

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fateful day, both the appellants/accused persons,
in furtherance of their common intention to cause
the death of deceased Hunga Barsa, went to his
house and while he was sleeping in the wooden cot,
Somaru (A-2) caught hold of him and Sudru Barsa (A-

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1) assaulted him with knife and caused injuries on

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his stomach and on his neck due to which he died
instantaneously.

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14.The incident is said to have been witnessed by
Sukdi Bai (P.W.-5), who is the daughter-in-law of
the deceased. In her statement before the Court,
she has clearly stated that on the fateful day at
about 3 PM, while her father-in-law deceased Hunga
Barsa was sleeping, the appellants/accused persons
Sudru Barsa (A-1) and Somaru (A-2) came to their
home and while Somaru (A-2) held the deceased,
Sudru Barsa (A-1) attacked him with a knife and
inflicted two blows on the neck of the deceased and
three blows on his stomach due to which her father-
in-law deceased Hunga Barsa died on the spot and
when she asked the appellants/accused persons as to
why they were killing the deceased, they also
showed knife to her and threatened her. She has
then stated that when she was going to inform her

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husband Bheema Barsa (P.W.-6) about the incident,
the appellants/accused persons also assaulted her
husband and caused him injuries pursuant to which
he was hospitalized for a week. In her cross-

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examination, Sukdi Bai (P.W.-5) has stated that the
relationship between the appellants and her family

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was not cordial and deceased Hunga Barsa was
involved in the act of witchcraft which had led to

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the death of 3-4 villagers due to which all the
villagers were unhappy and upset with him.

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15.Bheema Barsa (P.W.-6), son of deceased Hunga Barsa
and husband of Sukdi Bai (P.W.-5), has also been
examined before the Court and he has clearly stated
that on the fateful day, while he was returning
from Lakhmapara to his village, on the way, the
appellants/accused persons came before him and
Sudru Barsa (A-1), who was hiding a knife behind
his back, assaulted him on his back and thereafter,
Bheema Barsa came to his home. Thereafter, he has
stated that when he went to the hospital, his wife
Sukdi Bai (P.W.-6) informed him that Sudru Barsa
(A-1) had assaulted the deceased with knife due to
which he has died. In paragraph 6 of his statement,
he has clearly stated that Sukdi Bai (P.W.-5) did
not inform him about the role of Somaru (A-2) in
the incident.

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16.Kumari Phulo (P.W.-7), daughter of Sukdi Bai (P.W.-
5) and Bheema Barsa (P.W.-6), has clearly admitted
in her statement before the Court that she has not
witnessed the incident and while the incident
happened, she was at her brother's house and when
her mother Sukdi Bai (P.W.-5) informed her that
Sudri Barsa (A-1) has killed her grandfather Hunga
Barsa, she came to her house and found her

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grandfather lying dead with injuries on his neck
and chest.

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17.The memorandum statement of the appellant/accused
Sudru Barsa (A-1) was recorded vide Ex. P/6 and
pursuant thereof, recovery of knife was made from
him vide Ex. P/7. Though the memorandum and seizure
witnesses namely Buska Barsa (P.W.-1) and Koya
(P.W.-8) have turned hostile and have not supported
the case of the prosecution, but the said knife was
sent for query to Dr. K. Gautam (P.W.-10), who had
conducted postmortem of the deceased. In the query
report (Ex. P/21), Dr. K. Gautam (P.W.-10) has
clearly stated that the knife seized from the
possession of appellant/accused Sudru Barsa (A-1)
could very well have been used to inflict injuries
on the deceased and the said knife also had blood
spots.

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18.Taking consideration of the entire evidence
available on record including the statement of eye-
witness Sukdi Bai (P.W.-5) as well as the statement
of her husband injured witness Bheema Barsa (P.W.-

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6) and seizure of knife made from the possession of
appellant Sudru Barsa (A-1) vide Ex. P/7 pursuant
to his memorandum statement vide Ex. P/6 which has
also been supported by the medical evidence of Dr.

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K. Gautam (P.W.-10), we are of the considered

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opinion that appellant/accused Sudru Barsa (A-1) is
indeed the perpetrator the crime in question.

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Case of Somaru (A-2):-

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19.So far as the case of appellant/accused Somaru (A-

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2) is concerned, after going through the entire
evidence available on record, we do not find any
incriminating evidence against him except for the
testimony of Sukdi Bai (P.W.-5) who has stated that

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Somaru (A-2) had caught hold of the deceased and
Sudru Barsa (A-1) inflicted injuries on him with
knife. However, Sukdi Bai (P.W.-5) did not inform
about the role of Somaru (A-2) to her husband

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Bheema Barsa (P.W.-6), which he has clearly
admitted in his statement that his wife did not
inform him as to what Somaru (A-2) had done.

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Moreover, no seizure has been made from
appellant/accused Somaru (A-2). As such, there is
nolegalevidencetoholdthatthe

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appellant/accused Somaru (A-2) was the perpetrator

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of the crime in question and in the considered

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opinion of this Court, learned trial Court has
erred in convicting him for offence punishable

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under Section 302/34 of IPC. We hereby acquit the
appellant/accused Somaru (A-2) from the charges
levelled against him and he be released forthwith,
if not required in any other case.

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20.The aforesaid finding brings us to the next
question for consideration, which is, whether the
trial Court was justified in convicting the
appellant/accused Sudru Barsa (A-1) for offence
punishable under Section 302 of IPC or his case is
covered with Exception 4 to Section 300 of IPC, as
contended by learned counsel for the appellants ?

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21.Sukdi Bai (P.W.-5), who is the sole eye-witness of

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the incident, has admitted in her cross-examination
that the relationship between the appellants and
her family were not cordial and since her father-
in-law Hunga Barsa practiced witchcraft due to
which 3-4 villagers had died, the villagers were
unhappy and upset with him. It is stated at the Bar
that Village Peena Bacheli, Police Station Bacheli,
District Dantewada is a backward area and it is a
fact of common knowledge that the appellants as
well as the deceased belong to under-developed

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community and most of them are illiterate and they
believe in superstitions. It is a common phenomena
in the community dominated areas to practice magic
and many other type of witchcrafts to achieve their

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object whether good or bad. They hold many
superstitions responsible for any misfortune and
mis-happenings in their life and sometimes they
become revengeful for no other reason but for their

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own doubts that someone is playing witchcrafts on
them or something wrong has happened in their life
or with their family due to witchcraft played by

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someone.

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22.In order to consider whether the case of the
appellant/accused Sudru Barsa (A-1) is covered with
Exception 4 to Section 300 of IPC, it would be
appropriate to notice the decision rendered by the
Supreme Court in the matter of Sukhbir Singh v.
State of Haryana1 wherein it has been 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 Sukhir 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.”

¶96

23.Thereafter, in the matter of Gurmukh Singh v. State

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of Haryana2, Their Lordships of the Supreme Court

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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have laid down certain factors which are to be
takenintoconsiderationbeforeawarding

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appropriate sentence to the accused 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 for 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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(c) The intention/knowledge of the accused
while inflicting the blow or injury;

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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 with
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
sufficient in the ordinary course of nature
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

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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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¶120

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.”

¶122

24.Likewise, in the matter of State v. Sanjeev Nanda3,

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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.

¶124

It is 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.

¶125

25.Further, the Supreme Court in the matter of Arjun

¶126

v. State of Chhattisgarh4 has elaborately dealt

¶127

with the issue and observed in paragraphs 20 and
21, which reads as under :-

¶128

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

¶129

¶130

“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)

¶131

“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.”

¶132

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)

¶133

“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

¶134

¶135

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 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”.

¶136

26.In the matter of Arjun(supra), the Supreme Court
has held that when and if there is intent and
knowledge, the same would be case of Section 304
Part-I 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.

¶137

27.Reverting to the facts of the present case in light

¶138

of the aforesaid principle of law laid down by
Their Lordships of the Supreme Court, it is quite
vivid from the statement of eye-witness Sukdi Bai

¶139

(P.W.-5) that the relationship between the
appellants and her family were not cordial because
her father-in-law deceased Hunga Barsa used to
practice witchcraft and the appellant, suspecting
the deceased to be involved in the act of
witchcraft, assaulted him with knife and caused his

¶140

¶141

death, as such, the appellant/accused Sudru Barsa
(A-1) had the intention to cause the death of the
deceased and looking to injuries suffered by the
deceased on his neck and stomach, the
appellant/accused must have had the knowledge that
his act is likely to cause the death of the
deceased.Thus,theconvictionofthe

¶142

appellant/accused Sudru Barsa (A-1) for offence
punishable under Section 302 of IPC is altered to
Section 304 Part I of IPC as his case is covered
with Exception 4 of Section 300 of IPC and since he
is in jail since 10/05/2011, he is sentenced to the
period already undergone. He be released forthwith,
if not required in any other case. So far as the

¶143

conviction of appellant/accused Sudru Barsa (A-1)
for offence punishable under Section 324 of IPC is
concerned, it is hereby maintained. Somaru @ Banda
Hure is acquitted from the charges levelled against
him.

¶144

28.Accordingly, this criminal appeal is allowed to the
extent indicated herein-above.

¶145

Sd/-Sd/-

¶146

(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
 JudgeJudge

¶147

Harneet

Sudru Barsa v. State Of Chhattisgarh

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Sudru Barsa v. State Of Chhattisgarh

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