Partly allowed

Rajesh Singh @ Guddu v. State Of Chhattisgarh

Chhattisgarh HC3 Oct 2023CRA/33/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh upheld the homicide finding but altered the appellant's conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part-II IPC) as the case fell under Exception 4 to Section 300 IPC.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; appellant to be released forthwith as he had already undergone the quantum of sentence.

Rajesh Singh @ Guddu 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.33 of 2016

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Rajesh Singh @ Guddu, aged 22 yrs, s/o Shri Devsharan Singh Gond, R/o Village – Kodagi, Thana-Khadagaon, Distt. Korea (CG) ---- Appellant

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Versus

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State of Chhattisgarh Through Police Station – Khadgaon, Distt. Korea (C.G.) ---- Respondent

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For Appellant Shri Anurag Dayal Shrivastava, Advocate. For State Shri Sudeep Verma, Dy. Government Advocate

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ. Judgment on Board (03.10.2023)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 28.11.2015 passed in Sessions Trial No.59/2013 by the 1^st Additional Sessions Judge, Manendragarh, Dist. Koriya (C.G.), by which, the appellant stands convicted & sentenced as under :-

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Conviction under Section	Sentence
302 of IPC	Imprisonment for life with fine
	of Rs.1,000/- and in default of
	payment of fine, further RI for six months.

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Case of the prosecution, in a nutshell, is that on 01.03.2013 at 6:30 pm at village Kodagi, Mahadevpara under Khadgaon

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Police Station, the appellant assaulted his father – Devsharan Gond (hereinafter referred to as the deceased) by axe after abusing and threatening to kill him, due to which, Devsharan Gond suffered injuries over his eyes and skull and died and thereby committed the offence. Further case of the prosecution, in brief, is that on 01.03.2013, the appellant abused his father Devsharan Gond and assaulted him by the blunt side of axe causing injuries over his body. The matter was reported by the injured Devsharan Gond to the Police Station Khadgaon stating therein that after returning from market he was sitting in the courtyard, at that time, the appellant came there and started quarrelling with him on fishy ground and while threatening to kill him assaulted him ultimately by blunt side of axe, due to which, he suffered injuries over his body and blood was oozing. Based on the report of victim Devsharan Gond, F.I.R was lodged against the appellant vide Ex.P.20. During investigation, based on the report of Doctor, merg intimation was recorded vide Ex.P.3, according to which, during course of treatment, Devsharan Gond has died. Spot map was prepared vide Ex.P.2A. Thereafter, inquest proceeding was done vide Ex.P.8 and dead body was sent to District Hospita, Baikunthpur for post-mortem examination where Dr. G.D.Baghel (P.W.7) conducted the post-mortem examination over the body of deceased Devsharan and gave his report vide Ex.P.9(A), according to which, cause of death was due to shock resulting

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into cardiac arrest on account of injury to spleen and excessive haemorrhage and mode of death was homicidal in nature. Memorandum statement of the appellant was recorded vide Ex.P.5, based on which, axe and Fawda (Spade) has been recovered from him vide Ex.P.6 and from the spot, plain soil and bloodstained soil and one piece of red coloured saree stained with blood were seized vide Ex.P.7. Seized articles were sent for examination to F.S.L. vide Ex.P.16 and vide F.S.L. report dated 29.10.2015, which was unexhibited, blood was found over the axe. Appellant was arrested vide Ex.P.18.

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Statements of the witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, the appellant was charge-sheeted under Sections 294, 506-B, 324 and 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence against the appellant, prosecution has examined as many as 18 witnesses and brought on record 20 documents to prove its case beyond reasonable doubt, whereas the appellant-accused person in support of his defence has exhibited none of the documents nor has examined any witness.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced the appellant as mentioned in opening paragraph, against which the present appeal has been preferred.

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Shri Anurag Dayal Shrivastava, learned counsel for the appellant would submit that the prosecution has not been able to prove its case beyond reasonable doubt. Conviction of the appellant is based on the evidence of P.W.14 Urmila and P.W.15 Surendra, whose evidence does not inspire confidence and not sufficient to connect the appellant in crime in question as they are interested witnesses and furthermore although axe has been recovered at the behest of the appellant, but no human blood was found over it, as per F.S.L. report, which was not exhibited. He would next contend that on fishy ground the appellant out of anger assaulted his father – Devsharam but no intention of causing his death can be attributed to him. He would further submit that if the case of the prosecution is taken as it is, no offence under Section 302 of IPC can be made out against the present appellant as it is not the case of murder. He would next submit that at the most, case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C. He would further submit that the appellant

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is in jail since 04.03.2013 and thus has incarcerated jail sentence for about 10 years and he may be sentenced to the period already undergone by him. Thus, the present appeal deserves to be allowed in full or in part.

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Per contra, learned State counsel would support the impugned judgment and submit that the prosecution has been able to prove its case beyond reasonable doubt and the learned trial Court, based on evidence of P.W.14 Urmila and P.W.15 Surendra, has rightly convicted the appellant for offence punishable under the aforesaid Section and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to Part-II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.

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

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The first question that falls for our consideration would be, whether the death of the deceased – Devsharan Gond was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-9-A) proved by Dr. G.D.Baghel (P.W.7) which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question would be, whether the appellant is the author of the crime in question ?

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Conviction of the appellant is based on P.W.14 Urmila, wife of the deceased Devsharan and P.W.15 Surendra, son of deceased, who have clearly supported the prosecution case by stating that on the date of incident, the deceased had not brought anything, particularly, oil for the appellant for his use, upon which, the appellant on that ground started abusing him and then quarrel took place between them. During quarrel, the appellant went inside the house and came with axe and out of anger, assaulted the deceased by blunt side of axe, by which, the deceased suffered injuries leading to his death. Both these witnesses have been subjected to cross-examination by the defence, but nothing has been elicited to disbelieve their statements. As such, considering the statements of PW-14 Urmila and P.W15 Surendra, coupled with medical evidence of Dr. G.D.Baghel (P.W.7) who proved the report Ex.P.9A, we are of the considered opinion that the trial Court has rightly come to the conclusion that the appellant is the perpetrator of crime in question, which is a pure and simple finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.

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Now, the question that remains for our consideration is whether the trial Court is justified in convicting the appellant for offence

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punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

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In order to consider whether the case of the appellant is covered within 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 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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14. The Supreme Court in the matter of Gurmukh Singh v. State of

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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, which state as under :-

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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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(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 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

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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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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 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 I relevant who offered the provocation or

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4 (2017) 3 SCC 247

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3 (2012) 8 SCC 450

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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 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

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when and if there is intent and knowledge, the same would be

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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)⁵ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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

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

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Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that on the date of incident, the deceased had not brought oil for the use of appellant from the market, to which, the appellant on that ground started abusing the deceased and quarrelling with the deceased. During quarrel, the appellant went inside the house and came with axe and out of anger, assaulted the deceased by blunt side of axe, causing grievous injuries. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries found on the person of the deceased, it is

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5 (2019) 6 SCC 122

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clear that there was no premeditation on the part of the appellant to cause death of Devsharan, but on fishy ground the appellant said to have assaulted his deceased father – Devsharan by blunt side of axe, out of sudden anger and in the heat of passion, as a result of which, he suffered injuries leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased but no intention of causing his death can be attributed to him.

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In that view of the matter, we are of the considered opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. The appellant is in jail since 04.03.2013. He is sentenced to RI for 10 years, which he has already undergone, keeping the fine amount imposed thereunder by the trial Court, in tact. As the appellant is reported to be in jail, we direct him that he be released forthwith, if not required in any other offence.

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In the result, the criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment and a copy of judgment along with the original record be transmitted to the trial Court concerned and concerned Superintendent of Jail forthwith for

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necessary information and action, if any.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Anjani

Rajesh Singh @ Guddu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajesh Singh @ Guddu v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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