Dismissed

Sameer Kumar Kshetriya v. State of Chhattisgarh

Chhattisgarh HC3 Jan 2023CRA/534/2019

Case brief

AI extract

What is this about?

In this criminal appeal challenging a conviction for murder under Section 302 IPC, the High Court affirmed the trial court's judgment. The court held that the killing, involving a fatal gunshot wound to a sleeping victim using a lethal weapon, did not occur in a sudden fight without premeditation. Consequently, Exception 4 to Section 300 IPC did not apply, and the appellant remained liable for mur

What did the court decide?

Criminal appeal dismissed; conviction and sentence of life imprisonment with fine under Section 302 IPC upheld.

Sameer Kumar Kshetriya Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 534 of 2019 Judgment reserved on 03/11/2022 Judgment delivered on 03/01/2023

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Sameer Kumar Kshetriya, Aged about 40 years, S/o K.B. Kshetriya, R/o Village Dulaljot, Police Station Naksalwadi, District Darjeeling, (West Bengal), Presently R/o 3^rd Batallion, “A” company, Post Dharmapenta, Police Station Kistaram, District Sukma, Chhattisgarh.

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---Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police Station Kistaram, District Sukma, Chhattisgarh.

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---Respondent

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For Appellant : Ms. Fouzia Mirza, Senior Advocate with Ms. Smita Jha, Advocate For State : Mr. Sudeep Verma, Dy. G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari C.A.V. Judgment

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein assailing the impugned judgment dated 14/02/2019 passed by learned Additional Sessions Judge, Special Court (Naxal) Dantewada, District South Bastar in Sessions Trial No. 139/2015 whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine

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of Rs. 100/-, in default of payment of fine, further R.I. for 30 days.

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Case of the prosecution, in brief, is that on 06/03/2015 at about 03:15 PM, the appellant herein, with the intention of causing death of head constable Ayodhya Prasad, shot him in his stomach with A.K.-47 rifle, but number 170 baadi number 51-8540 and caused his death, and thereby, committed the aforesaid offence.

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Further case of the prosecution is that on the date of the incident, at about 03:15 PM, sound of gunshot was heard and Kamal Narayan Patel (P.W.-13), Sub-Inspector, P.S. Kistaram, who was posted in the camp, came on the place of the incident and saw that head constable Ayodhya Prasad had been shot by someone and enquired constable Robin Tigga (P.W.-1) who was present at the spot at that time. Robin Tigga (P.W.-1) informed him that after completing his duty, he was going to his tent when the appellant also came behind him armed with his A.K.-47 rifle and went inside the tent of head constable Ayodhya Prasad. Robin Tigga (P.W.-1) further informed that he was changing his uniform when the sound of gunshot came from inside the tent of the deceased and he went inside the said tent, he saw that appellant was standing there holding his A.K.-47 rifle in his hand and deceased Ayodhya Prasad was sleeping inside the mosquito net and blood was oozing out of his stomach. In the meanwhile, after hearing the gunshot, other officers also reached there. On account of suffering from the gunshot wound, deceased Ayodhya Prasad succumbed to

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death on 04:15 PM. Thereafter, when the appellant was enquired therein, he admitted that he had shot the deceased with his rifle and caused his death. On the basis of the said information, Kamal Narayan Patel (P.W.-13) lodged dehati nalishi (Ex. P/1) and presented before the Kistaram Police Station by Robin Tigga (P.W.-1) on the basis of which first information report was lodged vide Ex. P/17 and merg intimation was registered vide Ex. P/2. Inquest was conducted vide Ex. P/22 and dead body of the deceased was subjected to postmortem, which was conducted by Dr. S.K. Bagh (P.W.-11) and as per the postmortem report (Ex. P/16), cause of death is said to be firearm injury, mode of death is said to be hemorrhage and shock. Nazri naksha was prepared vide Ex. P/3 and the clothes worn by the deceased were seized vide Ex. P/15. From the spot, appellant's A.K.-47 rifle was seized vide Ex. P/7 and plain soil, blood stained soil empty cartridge of the rifle, bullet sunken in the ground were seized vide Ex. P/8. The seized articles were sent for FSL and as per the FSL report (Ex. P/18, blood was found on the mosquito net and the clothes of the deceased. The A.K.-47 rifle as well as bullets and cartridges seized were also sent for FSL and as per the FSL report (Ex. P/20A), firearm discharge residues were detected from the rifle and the four cartridges were successfully test fired through the rifle on the basis of which, it was opined that the rifle was found to be in working condition and the cartridges were found to be live. On examination of the empty cartridges, it was found that the

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empty cartridge case had been fired through the said rifle. Statements of the witnesses were taken under Section 161 of CrPC and after due investigation, the appellant was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for trial in accordance with law.

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In order to bring home the offence, prosecution examined as many as 13 witnesses and brought on record 26 documents. The statement of appellant/accused person was recorded wherein he denied guilt and he examined one witness and exhibited one document in his defence.

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Learned trial Court, after appreciation of oral and documentary evidence on record, holding the death of deceased Ayodhya Prasad to be homicidal in nature and further holding the appellant to be the perpetrator of the crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

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Ms. Fouzia Mirza, learned counsel for the appellant, would submit that learned trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC as there was no previous enmity between the appellant and the deceased and there was no intention or premeditation on the part of the appellant to cause the death of the deceased and the incident happened in heat of passion and the appellant neither acted in a cruel manner nor took any undue advantage as only one bullet was shot, as such,

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the ingredients of Exception 4 to Section 300 are satisfied and at the most, the appellant could have been convicted for offence punishable under Section 304 Part II of IPC. In support of her submission, she would rely upon the judgment of the Supreme Court in the matters of Sadhu Singh vs. State of Pepsu1 , Dayanand vs. State of Haryana2 ; Shankar Narayan Bhadolkar vs. State of Maharashtra3 ; Mankeram vs. State of Haryana4 ; Bhagwan Singh vs. State of Uttarakhand5 ; State of Madhya Pradesh vs. Mohar Singh6 ; Budhi Singh vs. State of Himachal Pradesh7 ; Sarghroj Bhogappa Kamble vs. State of Maharashtra8 ; State of Rajasthan vs. Daud Khan9 and Radha Kishan vs. State of 10 Haryana .

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Per contra, Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence and the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC, as such, 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 with utmost circumspection.

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1 AIR 1954 SC 271

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2(2008) 15 SCC 717

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3 (2005) 9 SCC 71

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4 (2003) 11 SCC 238

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5 (2020) 14 SCC 184

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6 (2019) 15 SCC 57

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7 (2012) 13 SCC 663

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8 (2010) 13 SCC 651

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9 (2016) 2 SCC 607

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10 (1987) 2 SCC 652

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

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10. Learned trial Court has recorded an affirmative finding in this regard holding the death of deceased Ayodhya Prasad to be homicidal in nature relying upon the expert medical opinion of Dr. S.K. Bagh (P.W.-11) as well as the postmortem report (Ex. P/16) in which it has been clearly recorded that the cause of death is due to gunshot injury and mode of death is hemorrhage and shock. However, so far as the nature of death is concerned, the Doctor has not given an express opinion that the death was homicidal in nature. However, looking to the injury suffered by the deceased and further looking that no such evidence has been brought on record that the deceased suffered the said injury accidentally, we are of the considered opinion that the trial Court has rightly held the death of deceased to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court, more so, when it has not been seriously questioned by learned counsel for the appellant.

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11. The next question for consideration is, whether the appellant is the perpetrator of the crime in question ?

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12. Prosecution case rests upon the evidence of testimonies of Robbin Tigga (P.W.-1), Umashankar Dube (P.W.-5), Omkumar Mandloi (P.W.-6), Ramchandra Koma (P.W.-7), Kamlesh Verma (P.W.-8), Chuiram Bhagat (P.W.-9), Kamal Narayan Patel (P.W.-13) and medical evidence given by Dr. S.K. Bagh (P.W.-

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who has proved the postmortem report (Ex. P/16) as well as the FSL report (Ex. P/20A). However, the trial Court has convicted the appellant mainly on the basis of the testimonies of Robin Tigga (P.W.-1), Umashankar Dube (P.W.-5), Omkumar Mandloi (P.W.-6), Ramchandra Koma (P.W.-7), Kamlesh Verma (P.W.-8), Chuiram Bhagat (P.W.-9), Kamal Narayan Patel (P.W.-13) as the aforesaid witnesses have clearly deposed before the Court that after hearing the sound of the gunshot that had been fired, they reached the spot and found that the appellant was standing with his A.K.-47 rifle and when they asked him, the appellant confessed that he has killed the deceased by firing him with his A.K.-47 rifle, which has also been confirmed by Sharad Tamrakar (P.W.-12), who sent the said rifle along with cartridges for examination and from the FSL report (Ex. P/20A), it is vividly clear that gunshot injury suffered by the deceased was on account of firing from the A.K.-47 rifle of the appellant and moreover, the injury suffered by the deceased was fatal as he had suffered gunshot injury on his chest i.e. vital part of the body.

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13. Learned trial Court has also recorded a categorical finding that the tent in which the deceased was sleeping and in which the incident happened, it was also shared by Robin Tigga (P.W.-1) as well as Sumit Kumar Lakda (P.W.-2) along with the deceased and at the time when the gunshot was fired, Sumit Kumar Lakda (P.W.-2) and the deceased were sleeping inside the tent after completing their duty.

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14. At this stage, it would be appropriate to notice clause 'thirdly'

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of Section 300 of IPC which states as under :-

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“ 300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

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Secondly - XXXX XXXX

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Thirdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

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15. The appellant herein has made gunshot injury on the chest of the deceased which is a vital part of the body and if a gunshot injury is made in the chest of the human body which in its all probability will result into death particularly, when the weapon used in the offence i.e. A.K.-47 rifle is so lethal that gunshot injury will surely result in death in high degree of probabilities.

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16. The Supreme Court in the matter of Virsa Singh v. State of

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Punjab 11 has held in paragraphs 11, 12 and 13 as under :-

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“11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on common sense: the kind of enquiry that " twelve good men and true could readily appreciate and understand.

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11 AIR 1958 SC 465

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To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, thirdly " ;

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First, it must establish, quite objectively, that a bodily injury is present ;

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Secondly, the nature of the injury must be proved; These are purely objective investigations.

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Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

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Once these three elements are proved to be present, the enquiry proceeds further and,

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Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

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Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 thirdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.”

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17. As such, in the instant case, it is quite vivid that on the fateful

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day, the deceased was sleeping in his tent after completing his duty along with Sumit Kumar Lakda (P.W.-2) and at about 03:15 PM, the appellant entered their tent armed with his A.K.-47 rifle and shot the deceased on his chest by which the

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deceased suffered fatal injury and succumbed to death after about an hour. When everyone heard the sound of gunshot, they reached the said tent and found that deceased was sleeping with blood oozing out of his chest and the appellant was standing their holding his A.K.-47 rifle. As such, we are of the considered opinion, that prosecution has brought ample evidence on record to prove that appellant is the perpetrator of crime in question which has also been rightly held by the trial Court.

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18. Now, the submission that has been vehemently raised on behalf of the appellant is that the case of the appellant would fall within Exception 4 to Section 300 of IPC and he is liable to be convicted for offence punishable under Section 304 Part II of IPC and not under Section 302 of IPC.

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19. In order to consider the plea raised by learned counel for the appellant, it would be appropriate to notice Exception 4 to Section 300 of IPC, which states as under :-

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“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

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20. In the matter of Gurmukh Singh v. State of Haryana 12, Their

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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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12 (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 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

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

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

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Chhattisgarh 13 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 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

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13 (2017) 3 SCC 247

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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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22. Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in Arjun (supra), it is quite vivid that exception 4 to Section 300 of IPC would be invoked if the four requirements are found proved, which are, (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. In the instant case, although there is no such evidence brought on record with regard to the existing relation between the appellant and deceased and neither any evidence of previous enmity or previous dispute existing between them has been brought on record, however, the appellant assaulted the deceased and shot him with his A.K.-47 rifle on his chest while the deceased was sleeping in his tent and was defenceless which goes to show that the appellant must have had premeditation and intention on his part to cause death of the deceased and there was no sudden quarrel/fight that took place between them, as such, the incident did not happen in

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heat of passion. Moreover, since the deceased was sleeping, the appellant took full advantage of the situation and assaulted him and inflicted gunshot injury by AK-47, a deadly and dangerous weapon, that too, on his chest knowing fully well that the deceased would die. Considering the entire evidence available on record, we are of the considered opinion that the four requirements of Exception 4 to Section 300 of IPC are not present in the instant case, and in vies of abovestated findings, the judgments relied upon by the learned counsel for the appellant in the matters of Sadhu Singh (supra), Dayanand (supra), Shankar Narayan Bhadolkar (supra), Mankeram (supra), Bhagwan Singh (supra), Mohar Singh (supra), Budhi Singh (supra), Sarghroj Bhogappa Kamble (supra), Daud Khan (supra) and Radha Kishan (supra) relating to applicability of Section 304 (Part-I/II) of IPC, are clearly distinguishable to the facts of the present case. As such, the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC. In that view of the matter, we do not find any merit in this appeal. We hereby affirm the judgment of conviction and sentence recorded by the learned trial Court.

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23. Accordingly, this criminal appeal stands dismissed.

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Sd/Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge

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Harneet

Sameer Kumar Kshetriya v. State of Chhattisgarh

Case brief

What is this about?

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Sameer Kumar Kshetriya v. State of Chhattisgarh

Case brief

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