Partly allowed

Sunder Lal Yadav @ Shyam Sunder Yadav v. State Of Chhattisgarh

Chhattisgarh HC20 Jul 2023CRA/604/2015

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal partly, setting aside the murder conviction and altering it to culpable homicide not amounting to murder (Section 304 Part-II IPC) while maintaining the conviction for criminal misappropriation under Section 449 IPC.

What did the court decide?

The conviction under Section 302 IPC was altered to Section 304 Part-II IPC; sentence of 10 years rigorous imprisonment awarded; conviction and sentence under Section 449 IPC maintained.

Sunder Lal Yadav @ Shyam Sunder Yadav Vs… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 604 of 2015

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Sunder Lal Yadav @ Shyam Sunder Yadav, S/o. Raghunath Yadav, Aged About 29 Years, R/o. Nagfani, Patelpara, P.S. Barsur, District South Bastar Dantewada, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Station Barsur, District South Bastar Dantewada, Chhattisgarh.

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---Respondent

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For Appellant :- Mr. M.P.S.Bhatia, Advocate For State/Respondent :- Mr. Sameer Oraon, Govt. Advocate

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

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Judgment On Board (20.07.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 11.03.2015, passed by the learned Second Additional Sessions Judge, South Bastar Dantewada, in Sessions Trial No.257/2013, by which the appellant herein has been convicted for the offence under Sections 302 & 449 of Indian Penal Code and sentenced as under with a direction to run both the sentences concurrently.

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CONVICTION	SENTENCE
U/s. 302 of I.P.C.	: Life imprisonment and fine of Rs.
	100/-, in default ofpayment of fine,

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	additional rigorous imprisonment for 2 months.
U/s. 449 of I.P.C.	: Rigorous imprisonment for 10 years
	and fine of Rs. 100/-, in default of
	payment of fine, additional rigorous
	imprisonment for 2 months

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2. Case of the prosecution, in brief, is that on 22.08.2013 at about 11:00 a.m. at village Nagfani, Patelpara, Police Station- Barsur, District Dantewada, appellant tress-passed in the house of his elder brother Gourilal (now deceased) and assaulted him by knife, by which he suffered grievous injuries and died; thereby, offences have been committed. Further case of the prosecution is that there was a domestic dispute between appellant and deceased (both reals brothers) on account of which, on the fateful day, appellant herein tress-passed the house of deceased and assaulted him by knife, which was witnessed by Saraswati (PW-1), who informed the incident to Bucky (PW-9), Shankar Lal (PW-5) and Vishnu Kashyap (PW-3) and thereafter, the matter was reported to the Police Station- Barsur and FIR was registered vide Ex.D-1, inquest was conducted vide Ex.P-3 and dead body was sent for post-mortem, which was conducted by Dr.Sudama Das (PW-8), who proved the post-mortem report Ex.P-13, in which cause of death was due to excessive bleeding due to external and internal injuries and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-4, knife was seized vide Ex.P-5, which was sent for examination to FSL and in the FSL report, blood was found on the seized knife. After due investigation, the appellant was

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charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 14 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to Ex.D-5.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 & 449 of Indian Penal Code and sentenced him as mentioned in the opening paragraph of the judgment against which the present appeal has been preferred.

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5. Mr. M.P.S.Bhatia, learned counsel for the appellant would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and in FSL report (Ex.P-1), human blood has not been found on the seized sharp edged weapon i.e. knife and in view of the decision rendered by the Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh¹ the recovery is of no use. He further submits that, at the most, case of appellant would fall under Exception 4 to Section 300 of I.P.C. and the alleged offences are liable to be converted either to Section 304 Part-I or Part-II of I.P.C. and the appeal deserves to be allowed in part.

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1 (2019) 7 SCC 781

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6. Mr. Sameer Oraon, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and it is not a case where the sentence of the appellant can be converted to Section 304 Part-I or Part-II of I.P.C. and, as such, the instant appeal deserves to be dismissed.

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7. 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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8. The first question for consideration as to whether the death of deceased Gaurilal was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-13 proved by Dr. Sudama Das (PW-8), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question for consideration is, whether the appellant has assaulted the deceased by which he suffered grievous injuries and died ?

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10. Taking into account the statement of Saraswati (PW-1), who is the eye-witness and further taking into account that pursuant to memorandum statement of appellant, knife has been seized, on which in FSL report (Ex.P-1), blood has been found and on the appellant’s shirt also, blood has been found; the trial Court has rightly held that the appellant has caused the death of deceased Gourilal.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of I.P.C., as contended by learned counsel for the appellant ?

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12. In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of I.P.C., it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana2 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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13. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 3, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the

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2 (2002) 3 SCC 327

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3 (2009) 15 SCC 635

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accused with reference to Section 302 or Section 304 Part II, which state as under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(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

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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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14. Likewise, in the matter of State v. Sanjeev Nanda 4, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part II of the I.P.C., 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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15. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 5 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)

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5 (2017) 3 SCC 247

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4 (2012) 8 SCC 450

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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 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

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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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16. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I I.P.C. 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 I.P.C.

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17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁶ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of I.P.C., 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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6(2019) 6 SCC 122

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18. Returning 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 there was no premeditation on the part of the appellant to cause death of the deceased, as the appellant and deceased both were real brothers and only on account of pending domestic dispute, which is apparent from the statement of Shankar Lal (PW-5) and Ku. Bucky Bai (PW-9), appellant is said to have caused four injuries to deceased by knife, by which he died. There was no intention to cause death, but the appellant must have had knowledge that the injury caused by him to deceased is likely to cause death and the appellant had not taken any undue advantage and has not acted in unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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19. In view of the above, the impugned judgment of conviction and order of sentence dated 11.03.2015 is hereby set aside. The conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to undergo 10 years rigorous imprisonment, as he is in jail since 24.08.2013. However, the conviction and sentence awarded to appellant for offence under Section 449 of I.P.C. and also the fine sentences are hereby maintained. Both the sentences to run concurrently.

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20. In view of the above, this criminal appeal is partly allowed to the extent indicated herein-above.

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21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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

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Aks

Sunder Lal Yadav @ Shyam Sunder Yadav v. State Of Chhattisgarh

Case brief

What is this about?

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Sunder Lal Yadav @ Shyam Sunder Yadav v. State Of Chhattisgarh

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