Partly allowed

Devnath Rohidas And Anr. v. State Of Chhattisgarh

Chhattisgarh HC3 Nov 2022CRA/795/2013

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed the criminal appeal, setting aside convictions under Section 302/34 IPC for murder. Relying on Supreme Court precedents regarding sudden fights and Exception 4 to Section 300 IPC, the Court held the incident was unpremeditated with previous enmity, convicting the appellants under Section 304 Part-II IPC and sentencing them to the period already served.

What did the court decide?

Convictions under Section 302/34 IPC set aside; appellants convicted under Section 304 Part-II/34 IPC and sentenced to period already undergone; fine remains intact.

Devnath Rohidas And Anr. Vs State Of… — 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. 795 of 2013

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1. Devnath Rohidas S/o Shyamnath Aged About 42 Years R/o Gondlihapara Lafa, Police Station Pali, Civil And Revenue Distt. Korba Chhattisgarh

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2. Krishna Rohidas S/o Salikram, Aged About 30 Years R/o Village Sapalwa, Police Station Pali, Civil And Revenue Distt. Korba Chhattisgarh

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---- Appellants

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Versus

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State Of Chhattisgarh, Through Station House OfÏcer, Police Station Pali, Distt. Korba (CG)

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---- Respondent

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For Appellants Mr. Dharmesh Shrivastava, Advocate For Respondent /State Mr. Animesh Tiwari, Dy. AG

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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 03/11/2022

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of Cr.PC is directed against the impugned judgment of conviction and order of sentence dated 27.07.2013 passed in Sessions Trial No.90/2012,

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whereby, learned Additional Sessions Judge, Katghora, District Korba (CG) has convicted the appellants under Section 302/34 of the IPC and sentenced to undergo life imprisonment and pay fine of Rs.1000/- , in default of payment of fine, to undergo further RI for 6 months

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Case of the prosecution, in brief, is that on 19.7.2012 at 7:30 p.m., at village Lafa, Police Station Pali, District Kabirdham (CG), the appellants herein and accused Savitribai (now acquitted by the trial Court) in furtherance of their common intention assaulted deceased Bedram and also abused and assaulted Kunti Bai, wife of the deceased (PW-2) and Raju, son of the deceased (PW-3), by means of Tangi (axe) and Danda (club) on account of which, the deceased sustained various injuries and after three days of the incident i.e. on 22.7.2012, he died. In the above scufÒe, Kunti Bai, wife of the deceased (PW-2) and Raju (PW-3), son of the deceased also received injury. Accordingly, the accused persons were charged for the offence under Section 302/34 of the IPC. Further case of the prosecution is that deceased Bedram was referred to the CIMS Hospital, but he was not admitted in the said hospital instead he was escorted to a private hospital at Bilaspur. However, since the deceased was not recovering and his chances of survival was less, the Doctor of the said hospital asked his family members to take him back home, but on the way, he died. Raju (PW-3) lodged a merg intimation vide Ex-P/2 in the Police Station Pali. On the recommendation of the Panchas, the

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postmortem of the deceased was conducted by Dr. P. Agrawal (PW-10). The Postmortem Report has been prepared vide Ex. P/17, according to which, the cause of death was coma on account of the head injury and the death was homicidal in nature. Pursuant to the memorandum statement-Ex.-P/5 of appellant No.1 –Devnath Rohidas, the material object/weapon of offenceaxe was seized vide Ex.P/6 and pursuant to the memorandum statement - Ex.-P/7 of appellant No.2 - Krishna Rohidas, club was seized vide Ex.-P/8 . Thereafter, the seized articles i.e. axe and club were sent for examination to the Community Health Centre, Pali, where Dr. P. Agrawal (PW-10), examined the said axe and club and as per his report, no opinion can be given regarding human blood found on the seized articles and for ascertaining the same, the Doctor advised for chemical analysis by the Forensic Expert. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur, however, the report of the FSL is not brought on record for the reasons best known to the prosecution.

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After usual investigation, all the three accused persons were 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 Additional Sessions Judge, Katghora District Korba (CG) received the case on transfer for hearing and disposal in accordance with law.

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The accused/appellants abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 37 documents.

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The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence appellants 1 & 2 under Section 302/34 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 accused - Savitribai.

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Mr. Dharmesh Shrivastava, learned counsel for the appellants, would submit that Smt. Kuntibai (PW-2), Raju (PW-3) and Sarjunram, who is the cousin brother of the deceased (PW-4), are related witnesses and their testimonies does not inspire confidence as on the report of the appellant No.1 Devnath Rohidas vide Ex.-D/1A, an offence under Sections 341, 294, 506, 323 of the IPC was registered against Bedram (deceased) on the same date of the incident. However, subsequently, since the deceased died, Final Report-Ex.-D/2 was filed. Furthermore, from appellants Devnath Rohidas and Kishna Rohidas, only axe and club have been seized, which have not been proved beyond doubt by Ramkumar (PW-6) and no FSL report has been brought on record by the prosecution to prove that these two material objects were the weapons of offence. He submits that in that

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view of the matter, the conviction deserves to be set-aside. In alternative, learned counsel would further submit that in view of Ex.-D/1A (FIR) & Ex.D/2 (Final Report) and the evidence of Pal (PW-1), it appears that there was previous enmity between deceased Bedram and appellant No.1 Devnath Rohidas and the deceased has brutally beaten appellant No.1. and he even threw his body on the assumption that he is dead. Learned counsel submits that the case of the appellants is squarely covered under Exception 4 to Section 300 of IPC and therefore, their conviction for offence punishable under Section 302/34 of IPC be altered to Section 304 Part II of IPC since they are in custody w.e.f. 23.7.2012 i.e. more than 10 years. Hence, the appeal deserves to be allowed.

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Per contra, Mr.Animesh Tiwari, Dy. AG for the State would submit that Kunti Bai (PW-2), Raju (PW-3) and Sarjunram (PW-4) have clearly supported the case of the prosecution. Though they are related, but are eye-witnesses to the incident. Merely because, the offence was registered against deceased Bedram, who was the husband of Kunti Bai (PW-2), father of Raju (PW-3) and cousin brother of Sarjunram (PW-3), it cannot be held that they are the interested witnesses and therefore, the appeal deserves to be dismissed.

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

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

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10.The trial Court has recorded an afÏrmative finding in this regard relying on the Postmortem Report-Ex.-P/17 and referring to the evidence of Dr. P. Agrawal (PW-10), who was examined pursuant to the order passed by this Court. In view of the above, the trial Court has rightly held that the death of the deceased was homicidal in nature, which is a correct finding of fact based on evidence available on record and is neither perverse nor contrary to the record and we hereby afÏrm the said finding.

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Now, the next question for consideration is whether the trial Court has rightly held that the appellants 1 & 2 are the perpetrators or authors of the crime in question ?

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The trial Court has relied on the testimonies of PW-2 - Smt. Kuntibai, wife of the deceased, PW-3 - Raju, son of the deceased. and PW-4 -Sarjunram, cousin brother of the deceased, to rest the conviction on the appellants. Learned State Counsel has drawn out attention to the testimonies of these three eye-witnesses. After going through the testimonies of these three witnesses, we are of the opinion that they inspire confidence and have rightly been accepted by the trial Court. Upon close scrutiny, we do not

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find any infirmity in their evidence to hold that the appellants have not caused injury to the deceased and they have not seen the incident. Accordingly, we hold that the appellants have caused the injuries and on account of the said injuries inflicted by them, the deceased died. Though pursuant to the statements of the appellants, axe and club respectively have been recovered but Ramkumar (PW-6) has not supported the recovery and seizure. Moreover, the FSL report has not been brought on record to demonstrate that the weapons of offence so seized were actually used for commission of the aforesaid offence by the appellants yet we hold that the appellants have assaulted the deceased Bedram, on account of which, he died.

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This takes us to the question as to whether the appellants have rightly been convicted under Section 302 of the IPC or their case would fall under Exception 4 to Section 300 of the IPC.

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14.In order to consider whether the case of the appellants/accused 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 Haryana 1 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

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1 (2002) 3 SCC 327

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

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Haryana 2, Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding 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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(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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2 (2009) 15 SCC 635

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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 sufÏcient 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 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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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

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the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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Likewise, in the matter of State v. Sanjeev Nanda 3, 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 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.

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 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

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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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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

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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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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.

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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 to 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 light of the parameters laid down by the Hon'ble Supreme Court, it is established on record that deceased Bedram and appellant No.1 Devnath Rohidas had previous enmity, which is apparent from the evidence of PW-1 Pal, who has clearly stated that Bedram had brutally beaten appellant No.1 Devnath Rohidas and thrown him. Furthermore, on the same day, within a gap of half an hour, on the report of appellant No.1 Devnath Rohidas, an offence under Section 341, 294, 506, 323 of the IPC has been registered against deceased Bedram. The dispute arose between the parties on the ground that the appellants stood as sureties for one Shyamlal and made a report against Jagat (one of the villagers). In view of the above, it can safely be inferred that there was no premeditation on the part of the appellants to cause death of the deceased, which is apparent from Ex.D/1-A - FIR also, but the appellants have had knowledge that the injury is likely to cause death of the deceased since he had received the injury on his head. In our opinion, all the four of ingredients of Exception-4 to Section 300 would apply in the present case and the offence would fall under Exception-4 to Section 300 IPC and is punishable under Section 304 Part-II of the IPC and as such, he

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is guilty of committing offence under Section 304 Part-II of the IPC.

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21 . For the foregoing discussion, conviction and sentence imposed on the appellants under Section 302 /34 of the IPC are set aside and they are acquitted of the said charge. Instead, the appellants are convicted under Section 304 Part-II/34 of the IPC. The appellants are in jail since 23.7.2012 and thereby, they have already served more than 10 years 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. He be released forthwith if not required to be detained under any other process of law. The fine amount imposed on the appellants by the trial Court shall remain intact.

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Accordingly, the appeal is party allowed.

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Sd/- Sd/-

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

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Shyna

Devnath Rohidas And Anr. v. State Of Chhattisgarh

Case brief

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Devnath Rohidas And Anr. v. State Of Chhattisgarh

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