Partly allowed

Shera Yadav v. State Of Chhattisgarh

Chhattisgarh HC19 Jul 2023CRA/235/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against a murder conviction. It held that the killing occurred during a sudden quarrel in the heat of passion without premeditation, satisfying Exception 4 to Section 300 IPC. The prosecution charges for murder were downgraded to culpable homicide not amounting to murder.

What did the court decide?

Conviction under Section 302 IPC set aside and altered to Section 304 Part-II IPC; sentence reduced to 10 years rigorous imprisonment.

Shera Yadav Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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Page 1 of 17

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(Criminal Appeal No.235 of 2015)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 235 of 20 15

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Shera Yadav, Son of Pancha Yadav, aged about 25 years, Resident of Village Gangapur, Police Station Shahpur, District Bhojpur (Bihar)

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---- Appellant

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Versus

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State of Chhattisgarh, through: Police Station Akaltara, District Janjgir (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Nitesh Shrivas, Advocate For Respondent-State : Mr. Soumya Rai, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board (19.07.2023)

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Sanjay K. Agrawal, J

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(1) This criminal appeal preferred by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 22.01.2015, passed by the Court of 2^nd Additional Sessions Judge, Janjgir, District Janjgir-Champa (Chhattisgarh) in Sessions Case No.113 of 2014 (State of Chhattisgarh vs. Shera Yadav), whereby he has been convicted for offences: under Section 302 of IPC and sentenced to undergo life imprisonment

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(Criminal Appeal No.235 of 2015)

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with fine of Rs.2,000/- and, in default of payment of fine, sentenced to undergo additional simple imprisonment for 02 months and also under Section 201 of IPC and sentenced to undergo 10 years’ rigorous imprisonment with fine of Rs.2,000/- and, in default of payment of fine, sentenced to undergo additional simple imprisonment for 02 months (both the sentences are directed to run concurrently).

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(2) The case of the prosecution, in short, is that on 12.10.2012, at about 22:15 hours in the night, at Village Akaltara, District Janjgir-Champa (Chhattisgarh), the accusedappellant herein caused gun-short injury to Ajay Tiwari (hereinafter referred to as the “deceased”) by his service revolver, due to which he suffered grievous injury and died and further in order to escape/screen himself from committing aforesaid offence of murder, the appellant flee from the spot and threw his service revolver into river, and, thereby, the appellant is said to have committed offences under Sections 302 & 201 of IPC.

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(3) It is further case of the prosecution that on the date of incident, the appellant, the deceased, Niraj Choubey (PW-02), Ramlal Singh (PW-03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06) alongwith other persons were working in CCI Cement Factory, Akaltara as Security Guard and, at about

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Page 3 of 17

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(Criminal Appeal No.235 of 2015)

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10:00 PM in the night, some theft activity was suspected in the factory premises, upon which, the appellant herein, who was armed with gun, was asked by one Sitaram (not examined) to follow towards the theft suspected area and, in turn, the appellant refused and misbehaved with Sitaram, pursuant to which, a dispute arose between the appellant and Sitaram, in which, the appellant abused Sitaram with filthily words and they started quarreling with each other, thereafter, Ajay Tiwari (deceased), Niraj Choubey (PW-02), Ramlal Singh (PW-03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06) alongwith others tried to intervene between them, but the appellant further started quarreling with Ajay Tiwari and while the other persons tried to intervene between them, the appellant fired a gunshot from 10 ft. by his service revolver on Ajay Tiwari (deceased), due to which he suffered grievous injuries and fell down on the floor and, thereafter, the accused-appellant ran away from the spot and in order to escape/screen himself from the offence of committing murder of the deceased, the appellant threw his service revolver (pistol) in river. Thereafter, the deceased was escorted to the Government Hospital, Akaltara where the doctor declared him died.

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(4) The aforesaid incident was informed to Dharmendra Singh (PW-01), the then Field Officer of all the security guards

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(Criminal Appeal No.235 of 2015)

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working in the CCI Cement Factory, Akaltara, who, in turn, gave information about the said incident to the police, pursuant to which, the police registered marg. intimation (Ex.P/10) and FIR (Ex.P/02) against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/04 and inquest proceedings were conducted vide Ex.P/05. ‘Nazari Naksha’ was prepared vide Ex.P/06 and Panchnama was also prepared vide Ex.P/07. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/09), conducted by Dr. G.R. Armo (PW-08), it was opined that the cause of death of deceased is due to rupture of internal vital organs, caused by gunshot injury and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/16 and his memorandum statement was recorded vide Ex.P/12. From the place of incident, 100 gm blood stained soil and 100 gm simple soil were seized vide Ex.P/08. However, the aforesaid seized articles were not sent for FSL examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Akaltara and, thereafter, the case was committed to the Court of Sessions for hearing and

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(Criminal Appeal No.235 of 2015)

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trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 17 witnesses and exhibited 16 documents, whereas the appellant-accused in support of his defence has not examined any witness, but exhibited from 04 documents.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offences under Sections 302 & 201 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(7) Mr. Nitesh Shrivas, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that there are major contradictions in the statements of eye-witnesses and, thus, their testimonies are not reliable and trustworthy. Further, neither the weapon of the offence, i.e. pistol nor bullet has not been seized/recovered in the instant

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(Criminal Appeal No.235 of 2015)

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case and in absence of which the appellant could not have been held guilty for committing the offences in question. He relied upon the decision rendered by the Supreme Court in the matter of State of Rajasthan v. Daud Khan1 to bolster his submissions. In alternative, leanred counsel for the appellant submits that if the entire prosecution case is accepted as it is, then also the appellant is said to have committed murder of the deceased in spur of the moment and there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger the appellant caused gunshot injury to the deceased. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and as the appellant is in jail since 01.04.2014 i.e. more than 09 years, he be awarded the sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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(8) Per-contra , learned State counsel supported the impugned

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1 (2016) 2 SCC 607

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(Criminal Appeal No.235 of 2015)

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judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of statements of various prosecution witnesses especially the eyewitnesses, namely, Niraj Choubey (PW-02), Ramlal Singh (PW03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06) coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offences under Section 302 & 201 of IPC, as he has fired gunshot injury over the body of the deceased, due to which he died and further flee from the spot and threw the pistol (weapon of the offence) into river. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed.

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(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 and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has

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(Criminal Appeal No.235 of 2015)

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been opined that cause of death of deceased is due to rupture of internal vital organ caused by gunshot injury and nature of death is homicidal, which is duly proved by the statement of Dr. G.R. Armo (PW-08). Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. G.R. Armo (PW-08), who has conducted the postmortem of the deadbody of the deceased, we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(11) Now, the next question would be whether the accusedappellant herein has caused gunshot injury to the deceased, which the learned trial Court has recorded in affirmative by relying upon the testimonies of the eye-witnesses, namely, Niraj Choubey (PW-02), Ramlal Singh (PW-03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06), who were also present over the spot at the time of incident alongwith the appellant and the deceased. All the aforesaid eye-witnesses have stated before the Court that on the date and time of the incident they alongwith the appellant and the deceased were working in CCI Cement Factory, Akaltara as Security Guard and at about 10:00 PM in the night, as they suspected some theft activity in the factory premises, upon which, the appellant who was armed

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(Criminal Appeal No.235 of 2015)

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with gun was asked to follow towards the suspected area, but he refused and misbehaved with others and, therefore, a dispute arose and the appellant started quarreling with the deceased and, in furtherance thereof, the appellant fired a gunshot over the body of the deceased, due to which he suffered grievous injury and died. All the aforesaid eyewitnesses were subjected to some length of cross-examination, but they all remain consisted in their statement and nothing could be extracted from them to hold that they have not seen the incident or they are telling lie before the Court in order to falsely implicate the appellant. Thus, the testimonies of all the aforesaid eye-witnesses are reliable and trustworthy. Thus, on the basis of aforesaid statements of the eye-witnesses coupled with other material available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused gunshot injury over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused gunshot injury over the body of the deceased and caused his death, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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(12) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is

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(Criminal Appeal No.235 of 2015)

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covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant ?

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(13) The Supreme Court in the matter of Daud Khan (supra) while dealing with a case where the appellant therein was convicted for offence under Section 302 of IPC by the trial Court, which was converted to Section 304 (Part-I) of IPC by the High Court, has upheld by decision of the High Court by recording following findings in Para-47 & 48 as under:

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“47. If the facts of the case are looked at individually and randomly, they might create a doubt. However, if they are considered collectively, there is no room for doubt. The facts collectively are:

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(i) Nand Singh was shot with a gun.

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(ii) The bullet extracted from the body of Nand Singh could have been fired from that gun, or to put it negatively, it cannot be said that the extracted bullet could not have been fired from the recovered gun. Nobody questioned this.

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(iii) The gun-shot was fired from a close distance, but there was no blackening of Nand Singh’s skin possibly due to his apparel. Nobody questioned this.

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(iv) Nand Singh’s death was not immediate and he could have traversed a distance of about 70 (seventy) feet despite being shot. Nobody questioned this.

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(v) The medical experts testified that spillage of blood from the entry wound is not inevitable and so it is possible that Nand Singh’s blood was not found between the place of the incident and the place where

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(Criminal Appeal No.235 of 2015)

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he collapsed. The blood was, however, found where Nand Singh collapsed.

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(vi) There were five eye witnesses to the incident of shooting and they gave consistent statements and identified Daud Khan as the person who shot Nand Singh.

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None of these findings and conclusions are perverse. On the contrary, they have been accepted by the Trial Court and the High Court. We see no reason to take a different view.

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On a consideration of the entire material before us, we have no hesitation in upholding the view taken by the High Court with regard to the offence committed by Daud Khan and his conviction for that offence. We see no substance in the appeal filed by the State and find no reason to reverse the conclusions arrived at by the High Court with regard to the offence committed by Daud Khan. ”

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(14) Similarly, in the matter of Surendra Singh @ Bittu v. State of Uttaranchal2 , their Lordships of the Supreme Court

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has held as under:

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“13. In view of the acquittal of Trilok Singh and Rajendra Singh, the genesis of the occurrence cannot be said to have been proved. The appellant, according to the prosecution case itself, did not act on his own. He is said to have acted on impulse and that too upon being instigated by his brother. From the evidence of P.W.1 and P.W.2, it is evident that not only there had been hot exchange of words, but also a scuffle. The learned Trial Judge did not fully rely upon the evidence of P.W.2. Thus, there was no witness who can be said to have proved the actual genesis of the occurrence.

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The parties have their own agricultural lands 2 (2006) 9 SCC 531

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(Criminal Appeal No.235 of 2015)

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adjoining each other. The prosecution case is that the cattle belonging to the appellant had damaged the standing crops of the deceased, but the Investigating Officer did not find any evidence in this behalf. Why then there had been hot exchange of words and a scuffle ensued is not known. Only one shot was fired. The Appellant was not apprehended at the spot. In a situation of this nature, therefore, we are of the opinion that it cannot be said that the appellant had an intention to kill the deceased.

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In that view of the matter, we are of the opinion that the offence, which is established as against the appellant herein, would fall under Section 304 Part II of the IPC and not under Section 302 IPC. ”

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(15) Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 3 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

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3 (2017) 3 SCC 247

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(Criminal Appeal No.235 of 2015)

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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 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

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(Criminal Appeal No.235 of 2015)

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“undue advantage” as used in the provisions means “unfair advantage”.

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(16) 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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(17) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)⁴ 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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(18) Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that on the date of incident, the appellant, the deceased, Niraj Choubey (PW-02), Ramlal Singh (PW-03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06) alongwith other persons were

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4 (2019) 6 SCC 122

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(Criminal Appeal No.235 of 2015)

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working in CCI Cement Factory, Akaltara as Security Guard and, at about 10:00 PM in the night, some theft activity was suspected in the factory premises, upon which, the appellant herein, who was armed with gun, was asked by one Sitaram (not examined) to follow towards the theft suspected area and, in turn, the appellant refused and misbehaved with Sitaram, pursuant to which, a dispute arose between the appellant and Sitaram, in which, the appellant abused Sitaram with filthily words and they started quarreling with each other, thereafter, Ajay Tiwari (deceased), Niraj Choubey (PW-02), Ramlal Singh (PW-03), Ranjan Singh (PW-04) and Shankar Choubey (PW-06) alongwith others tried to intervene between them, but the appellant further started quarreling with Ajay Tiwari and while the other persons tried to intervene between them, the appellant fired a gunshot from 10 ft. by his service revolver on Ajay Tiwari (deceased), due to which he suffered grievous injuries and fell down on the floor. Thereafter, when the deceased was escorted to the hospital, the doctor declared him dead. As such, there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellant caused gunshot injury over the body of the deceased and caused his death. However, looking to the injuries

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sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.

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(19) In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo 10 years’ rigorous imprisonment, however, the fine sentence and default

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stipulation imposed by the learned trial Court shall remain intact.

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(20) This criminal appeal is party allowed to the extent indicated herein-above.

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(21) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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s@if

Shera Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shera Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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