Partly allowed

Chaurasiya @ Kameshwar Kumhar v. State of Chhattisgarh

Chhattisgarh HC7 Aug 2023CRA/158/2022

Case brief

AI extract

What is this about?

The High Court examined appeals against murder convictions based on circumstantial evidence. It affirmed the death was homicidal but found the involved three accused committed a sudden fight without premeditation. Consequently, convictions for murder were downgraded to culpable homicide. The father appealed against was acquitted due to lack of evidence connecting him to the crime.

What did the court decide?

Appellants Chaurasiya, Shyamnarayan, and Ashok convicted for Section 304 Part I IPC instead of murder; sentence reduced to 10 years RI. Appellant Jogsai acquitted of murder charge and released.

Chaurasiya @ Kameshwar Kumhar Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 158 of 2022

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Chaurasiya @ Kameshwar Kumhar S/o Devsai Aged About 25 Years R/o Village Devgarh Pandripani, Police Station Sitapur, District Surguja CG.

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police Station Sitapur, District Surguja CG

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---- Respondent

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CRA No. 188 of 2022

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Jogsai Kumhar S/o Dayaram Kumhar Aged About 55 Years R/o Devgarh, Pandripani, PS Sitapur, Dist. Surguja (CG)

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---- Appellant

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Versus

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State of Chhattisgarh through the Station House Officer, PS Sitapur, Dist. Surguja (CG) Civil and Revenue Dist. Ambikapur (Surguja)

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---- Respondent

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CRA No. 190 of 2022

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1. Shyamnarayan Kumhar S/o Jogsai aged about 26 Years R/o Devgarh, Pandripani, Police Station Sitapur, District Surguja, CG

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Ashok Kumhar S/o Bojpat Kumhar Aged About 30 Years R/o Devgarh, Pandripani, Police Station Sitapur, District Surguja, CG

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---- Appellants Versus

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State of Chhattisgarh through the Station House Officer, Police Station Sitapur, District Surguja, CG, Civil and Revenue District Ambikapur, Surguja.,

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---- Respondent

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----------------------------------------------------------------------------------------------- For Appellants : Mr. Jitendra Shrivastava and Mr. Nishikant Sinha, Advocate

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For Respondent-State : Ms. Madhunisha Singh, Dy. Adocate General

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri N.K. Chandravanshi, Judge

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Judgment on Board. (07-08-2023)

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Per N.K. Chandravanshi, Judge

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Since above three criminal appeals arise out of same judgment of conviction and order of sentence relating to same crime number, they are heard together and being disposed of by this common judgment.

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These criminal appeals filed by the appellants-accused under Section 374(2) of Cr.P.C. are directed against the impugned judgment of conviction and order of sentence dated 10-01-2022, passed by learned Third Upper Sessions Judge, Ambikapur Distt. Sarguja in Sessions Trial No. 75/2020, whereby the appellantsaccused have been convicted for offence under Section 302/34 of the Indian Penal Code, (in short, hereinafter referred to as ‘the IPC’) and each of them has been sentenced to undergo imprisonment for life and fine of Rs. 200/-, in default of payment of fine, to further undergo R.I. for 6 months.

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Case of the prosecution, in brief, is that complainant Sukhlal Manjhi (P.W. 9) lodged report at PS Sitapur that his brother Naihar Sai along with his friends Shyamnarayan, Chaurasiya alias Kameshwar and Ashok Kumhar was constructing a hut (Jhala) of Jugsai and they also slept there for last 3 days. On 12-4-2020, he along with his friend Vishwanath went to village Udumkela and

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after returning from village, he stayed at house of his friend Vishwanath, there, mother of Vishwnath namely Sameena Kumhar (P.W. 4) told him that Shyamnarayan, Chaurasiya and Ashok were quarreling with Thutha alias Naihar. Knowing about it, he went to see his brother. At that time, the trio were talking about killing and throwing his brother. On fear, he did not go there and slept in the house of his friend Vishwanath. On 13-04-2020, at 10.00 hrs. he found his brother lying dead, there were signs of beating on his head, face and hand by sharp edged weapon. On the information of complainant, merg No. 44/2020 (Ex. P-22) and FIR (Ex. P-19) were registered. Spot map (Ex. P-20) was prepared. Inquest report ( Ex. P-2) was prepared. Blood stained and plain soil was seized vide Ex. P-3 from the place of occurrence. The dead body of deceased was sent for post mortem. Ex. P-11 is post mortem report. Site map was also prepared vide Ex. P-13 and Ex. P-14. Memorandum statement of accused persons Chaurasiya alias Kameshwar Kumhar, Ashok Kumhar and Shyamnarayan Kumhar and were recorded vide Ex. P-4, Ex. P-5 and Ex. P-6 respectively. Clothes wore by the accused persons at the time of incident and an axe used for commission of offence were seized vide Ex. P-7, Ex. P-8 and Ex. P-9. The accused persons were arrested. Seized article were sent for FSL for examination and FSL report is Ex. P-33 in which

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human blood was found on clothes and the axe.

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After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Sitapur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where, the 3^rd Upper Sessions Judge, Ambikapur received the case on transfer for trial. The appellants/accused abjured their guilt and entered into defence.

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In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 36 documents. The appellants-accused examined none in their defence, however, exhibited Exs. C-01, Ex. C-02 and Ex. C-03 in support of their case.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 10-01-2022, convicted the appellants for offence under Section 302/34 of the IPC and sentenced them as aforementioned, against which, these criminal appeals have been filed.

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Mr. Jitendra Shrivastava and Mr. Nishikant Sinha, learned counsel appearing for the appellants submit that the trial Court has erred in convicting the appellants for the offence under Section 302/34 of the IPC as the prosecution has failed to prove the offence beyond reasonable doubt. They further submits that there is no direct

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evidence against the appellants, and prosecution case rests on circumstantial evidence but the prosecution has failed to complete the chain of circumstances against the appellants. It is further submitted that the appellants have been made accused only on the basis of statement of Samina Bai (P.W. 4) recorded under Section 161 of the Cr.P.C. They also submit that there is no evidence against the appellant Jogsai Kumhar connecting him with the offence. So far as other accused Shyamnarayan Kumhar, Chaurasiya and Ashok Kumhar are concerned, in alternate, learned counsel for the appellants submits that on the basis of the evidence available on record, at the most, they may be convicted for offence under Section 304 Part I of the IPC.

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Per contra, Ms. Madhunisha Singh, learned Dy. Advocate General appearing for the State supports the impugned judgment and submits that the learned trial court has passed the impugned judgment based on the evidence available on record. She further submits that it is not a case where the appellants’ conviction under Section 302/34 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC. Therefore, these criminal appeal may be dismissed.

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We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also perused the record carefully.

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The first question for consideration before this Court is whether death of deceased Naihar Sai was homicidal in nature ?

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Dr. G.R. Kurre (P.W. 3) has conducted post mortem of the deceased and found following injuries on his body :-

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I. One lacerated wound on post part of vertex horizontallysize 6 cm x 4 cm x ½ cm,

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ii. One lacerated wound on central part of vertex – size 8 cm x 5 cm x 1 cm

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iii. One lacerated wound on the frontal part of the vertex, size 8 x 5 x 1 cm,

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iv. One Lacerated wound on the right perietal part of head size 4 x 3 x 1 cm,

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v. One lacerated wound on occipital part of head obliquely, size 5 x 3.4 x 1 cm.

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vi. One lacerated wound on neck at upper part, size 5 x 2 x 1 cm

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vii. One lacerated wound on above the right ear size 4 x 1.5 x 0.5 cm,

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viii.One lacerated wound on dorsal aspect of right head size 6 x 2 x 1 cm,

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ix. One lacerated wound on occipital part right side of head 4 x 1.5 x 1 cm,

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The doctor opined that cause of death is combined effect of excessive bleeding due to external and internal injuries and the death was homicidal in nature.

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The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. G.R. Kurre (PW-3), has come to the conclusion that death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Naihar Sai was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. Hence, we hereby affirm that finding.

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Now, the next question for consideration before this Court is whether trial Court has rightly recorded the finding that the accused-appellants are the perpetrator of the crime in question.

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In the present case, appellants have been convicted on the basis of circumstantial evidence and the circumstances have been mentioned by learned Upper Sessions judge in para 22 of the impugned judgment. Those circumstances have been considered by learned Upper Sessions Judge in para 24 to para 72 of the

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impugned judgment.

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It has been established by the prosecution that deceased Naihar Sai alias Thutha was sleeping since last 3 days of his death at the hut (Jhala) of appellant Jogsai Kumhar along with other three accused appellants. Although Smt. Samina Bai (P.W. 4), who, on hearing the quarrel noise coming from the hut (Jhala) of appellant Jogsai Kumhar, went there, and then she saw accused persons beating the deceased, she has denied this statement in her deposition recorded in the Court, but this facts has been supported by Bindeshwari Lal Paikra (P.W. 2) that she (Smt. Samina Bai P.W. 4) had stated these facts to the police and further, Sukhlal Manjhi (P.W. 9) has also admitted in his deposition para 4 to the suggestion given by learned Public Prosecutor that on being told by mother of his friend Vishwanath with regard to quarrel with his brother, he went to see his brother along with his friend, then he heard that Shyamnarayan Pandey, Chaurasia alias Kameshwar and Ashok Pandey were talking that they will kill and throw his brother and due to fear, he did not go there and on the next day, his brother was found lying dead. On the basis of evidence of aforesaid witnesses i.e. Bindeshwarilal Paikra (P.W. 2), Smt. Samina Bai (P.W. 4) and Sukhlal Manjhi (P.W.9 ), the theory of last seen together of the deceased with appellants Chaurasiya alias Kameshwar Kumhar, Shyamnarayan Kumar and Ashok Kumhar,

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held proved by the learned Upper Sessions Judge, cannot be said to be perverse.

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Further, Anup Kumar Ekka (P.W. 11), Inspector is the Investigating Officer. He has deposed that on the basis of memorandum statement Ex. P-6 of appellant Shyamnarayan, one blood stained axe, one blood stained white shirt were seized vide seizure memo Ex. P-7. On the basis of memorandum statement Ex. P-4 of accused Chaurasiya alias Kameshwar Kumhar, he seized blood stained red T-shirt vide seizure memo Ex. P-9, on the basis of memorandum statement Ex. P-5 of Ashok Kumhar, he seized one blood stained white-blue T shirt vide Ex. P-8. Although Bindeshwarilal Paikra (P.W. 2) and Janmejay Prabhakar (P.W. 10), who are witnesses of aforesaid memorandum and seizure, have not supported those documents, but they have accepted their signature on those documents and Bidenshwarilal Paikra (P.W. 2) has stated in his deposition that police has seized one axe from appellant Shyamnarayan. The axe, shirt/T shirt seized from three accused persons namely, Chaurasiya, Ashok and Shyamnarayan along with clothes of deceased were sent for FSL examination, in which blood stains have been reported to be found on them. No explanation has been offered by the appellants in their statements recorded under Section 313 of the Cr.P.C. that how blood stained clothes were recovered from them as well as

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axe seized from appellant Shyamnarayan.

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On minutely observing the evidence adduced by the prosecution, we find that learned trial Judge has rightly held guilty appellant Shyamnarayan Kumhar, Chaurasiya alias Kameshwar Kumhar and Ashok Kumhar as perpetrator of causing death of deceased Naihar Sai, but neither in the FIR name of the appellant Jogsai has been found place as perpetrator of the crime nor any witness has deposed in their Court statement against him, to hold guilty the appellant Jogsai or his involvement in commission of instant crime. None of the witnesses have made any substantive statement against appellant Jogsai. It seems that he has been implicated only because he is father of main accused Shyamnarayan and alleged hut (Jhala) was situated in the field of appellant Jogsai. Learned trial Judge has held him guilty on the basis of statement of witnesses recorded before the police, but the same has not been proved in their deposition recorded in the Court. Hence, we do not find any cogent evidence to connect appellant Jogsai in commission of alleged crime, but we find on the basis of evidence available on record that appellants Chaurasiya alias Kameshwar Kumar, Shyamnarayan Kumhar and Ashok Kumhar caused the injuries to the deceased and committed his homicidal death.

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Now we shall consider as to what offence is made out against the appellants Chaurasiya alias Kameshwar Kumar, Shyamnarayan Kumhar and Ashok Kumhar and whether the case of the appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants ?

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The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 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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1 (2002) 3 SCC 327

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The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2 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 :-

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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 from 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

2 (2009) 15 SCC 635

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;

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

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Similarly, 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

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3 (2012) 8 SCC 450

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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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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 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

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4 (2017) 3 SCC 247

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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 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”.

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In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not

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the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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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; (ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Reverting to the case in hand, as per ocular and medical evidence available on record, the deceased was assaulted by means of axe, hand and fists. As per deposition of Dr. G.R. Kurre (P.W. 3), out of injuries total 9 in number sustained by deceased, only one injury No. (vi) might be caused by sharp object, except that, other injuries might be caused by hard and blunt object. This fact shows that deceased was not assaulted by sharp edged side of the axe except one blow. Further, it is a case of prosecution itself that, deceased and other 3 appellants (except appellant Jogsai) were sleeping since last 3 days in the hut (Jhala) and during the course of talking, dispute arose and deceased was assaulted by

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5 (2019) 6 SCC 122

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appellants, thus, there was no premeditation of commission of crime, rather, it occurred in sudden fight in the heat of passion and most of the injuries caused to the deceased were by hands and fists. Hence considering the aforesaid facts, we deem it proper to modify the conviction of appellants Chaurasiya alias Kameshwar Kumhar, Shyamnarayan Kumhar and Ashok Kumhar and instead of Section 302 read with Section 34 of the IPC, they are convicted for offence under Section 304 Part I of the IPC. But, in our opinion, the prosecution has failed to prove the guilt of the appellant Jogsai.

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In the result, the impugned judgment of conviction and order of sentence is set aside. Criminal Appeal No. 188/2022 preferred by appellant Jogsai Kumhar is allowed and he is acquitted of the charge under Section 302 read with Section 34 of the IPC. Criminal Appeal No. 158/2022 preferred by appellant Chaurasiya alias Kameshwar Kumhar and Criminal Appeal No. 190/2022 preferred by appellants Shyamnarayan Kumhar and Ashok Kumhar are partly allowed. Instead of conviction under Section 302 read with Section 34 of the IPC, the appellants Chaurasiya alias Kameshwar Kumhar, Shyamnarayan Kumhar and Ashok Kumhar are convicted for offence under Section 304 Part I read with Section 34 of the IPC and each of them is sentenced to undergo RI for 10 years with fine of Rs. 200/-. The order of fine

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and default stipulation passed by the trial Court by the impugned judgment is upheld.

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The appellants are stated to be in jail. Appellant Jogsai Kumhar be released from jail forthwith, subject to compliance of provisions of Section 437-A of the Cr.P.C. Other appellants shall serve out the sentence as modified by this Court.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/-

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Sd/-

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(N.K. Chandravanshi) (Ramesh Sinha) Judge Chief Justice

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Pathak/-

Chaurasiya @ Kameshwar Kumhar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Chaurasiya @ Kameshwar Kumhar v. State of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

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