Ramprit Singh Kharwar, Vs the State of Chhattisgarh

1. This criminal appeal preferred by the appellants herein under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 08.01.2021 passed in Sessions Trial No.58 of 2018 by the 2nd Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj (C.G.), by which the appellants stand convicted for the offence under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and fine of

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Rs.1,000/- each, in default of payment of fine amount, additional rigorous imprisonment for six months each.

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2. Case of the prosecution, in brief, is that Smt. Kashmani (PW-1), wife of the Shiv Shankar was resident of village Bhawarmar, Police Station -Ramanuganj (C.G.). On the date of incident i.e. 10.03.2018, after harvesting of the paddy, the straws and the paddy were kept in the field of one Ramsaran Gupta. On 10.03.2018 itself, Shiv Shankar (the deceased) went to set on fire the straws owned by him and after sometime at about 11:15 AM, the son of the complainant rushed to her and informed that where the straws kept by the deceased were burnt, at that time, Ramprit Singh Kharwar (Appellant No.1) had kept his harvest of peas, having seen the fire burning the straws kept by the appellants, Ramprit and his son Jitendra (Appellant No.2) got agitated and raised objection to said act by the deceased and a scuffle took place and at that time Ramprit and his son Jitendra threw the deceased into the fire whereby he suffered 60-65% burn injury. He was immediately taken to Ramanujganj Hospital and subsequently, was shifted to higher medical centre at Ambikapur wherein, eventually he died on 18.03.2018. Dehati Nalishi (Ex.P1) and the FIR (Ex.P14) was lodged by wife of the deceased, Kasmani Devi (PW-1) on 10.03.2018. Thereafter, spot map (Ex.P2) was prepared. The police recorded the statements of the eye witnesses and other witnesses, the dead body was subjected to postmortem and appellants were apprehended and charge-sheet was filed.

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3. During the course of trial, the appellants/accused abjured their guilt and claimed to be tried. The prosecution examined as many as 18

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witnesses and exhibited 30 documents. In the statement recorded under Section 313 CrPC, the appellants stated that they have been falsely implicated in the crime, however, they have examined one witness in their defence. Upon appreciation of evidence, the trial Court came to a finding that the appellants have committed the offence and convicted & sentenced them as mentioned above. Thus, this appeal.

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4. Learned counsel appearing for the appellants would submit that the statement of eye witness would show that the incident happened on the spur of moment and practically the appellant Ramprit and deceased both fell into the fire while scuffle took place. He would further submit that even appellant No.2- Jitendra, who is son of appellant No.1 – Ramprit, has been falsely implicated and statement of Mukesh Yadav (PW-3) and Laxman Yadav @ Laxmi (PW-9) itself would show the entirety of the incident which is attributed to Ramprit. He would further submit that the statements of so-called eye witnesses Satyam Singh (PW-12) and Rajkumar Sahu (PW-15) are not reliable as they were not eye witnesses to the incident and they were tutored witnesses at the behest of one Vishal and deceased was the cousin brother of Vishal, who is working in the police department and false implications have been tutored and statements have been made. He would submit that the statement of independent witness Laxman Yadav (PW-9) would show the manner in which the offence took place which would in any case the incident was because of sudden scuffle and dispute took place when the peas which was sowed by the appellants and kept the same after harvesting which was got damaged. Therefore, without any animosity, on a sudden fight, this incident happened. He would submit that the dying

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declaration (Ex.P-27) of the deceased would further show that the presence of one Vinod was outside and even the other family members were present. Therefore, the said dying declaration cannot be completely relied on and in any case the circumstances would lead the case not amounting to the murder, therefore, the appellants’ case would not fall under Section 302 of the IPC, and accordingly, the appellants are entitled to be acquitted.

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5. Per contra, learned State counsel would support the impugned judgment and would submit that the statements of the eye witnesses categorically state that the appellants have thrown the deceased into the fire thereby, he sustained 60-65% burn injury on the different parts of his body which were deep burn injuries. He further submits that the dying declaration of the deceased (Ex.P27) which was recorded by Nitu Bhagat (PW-16), Nayab Tahsildar, remains unrebutted which is also corroborated by Mukesh Yadav (PW-3) and Laxman Yadav (PW9). He would submit that the prosecution has proved its case beyond all reasonable doubt, therefore, the impugned judgment is well merited, which do not call for any interference of this Court.

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6. We have heard learned counsel for the parties and perused the record.

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7. Smt. Kasmani (PW-1), who is wife of the deceased is not the eye witness to the incident. She only states that in a field they had kept the straws and the paddy and her husband went to set the wastage on fire. Thereafter, she was informed by her son Arvind that her husband was thrown in to the burning fire by the accused Ramprit and Jitendra. Thereafter, she lodged Dehati Nalishi (Ex.P1). In her cross-

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examination, the fact has come that the other harvested peas were kept in the same area and Ramprit had also kept 5-6 bags of peas there itself as on the date they were harvesting the crop of peas and were keeping it in the said area. Her statement also shows that the straws which were kept in said part of land were put on fire.

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8. Statement of Mukesh Yadav (PW-3) shows that he was present on the spot. He has stated that Ramprit (Appellant No.1) after harvesting the peas was taking it from his field to store it. He saw that the deceased Shiv Shankar put fire on some paddy straws for which dispute took place. Thereafter, Jitendra (Appellant No.2) son of Ramprit also came there and after the scuffle, Ramprit and deceased both of them fell down in the fire and stated that Ramprit had pushed Shiv Shankar into the fire. This witness admits that the place wherein the fire was put on, 5-6 bags of peas were kept by Ramprit and he stated that the fire which was put on by the deceased Shiv Shankar would have destroyed the peas. Examination and cross-examination of this witness shows that because of the fact that Ramprit had kept certain harvested peas in an area wherein adjacent to it the deceased Shiv Shankar had put fire into the paddy straws kept nearby and on that count the dispute aggravated and thereafter, the scuffle took place and deceased was pushed in the fire. This witness further stated that he has not seen Ramprit pushing the deceased into the fire.

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9. Arvind Singh (PW-4), who is son of the deceased is the another eyewitness. His statement would show that the deceased and accused persons are relatives with each other. He states that at the time of incident he was playing nearby area, at that time, his father Shiv

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Shankar (the deceased) has put on fire to the paddy straws and his father was sitting under a tree. At that time, Ramprit (Appellant No.1) brought some peas from his field and thereafter, Jitendra (Appellant No.2) also came and both of them were abusing Shiv Shankar. Thereafter, Ramprit started beating Shiv Shankar and Jitendra also caught hold of his neck and both of them threw him into the burning fire. In the cross-examination, suggestions were given that he was tutored and making statements at the behest of one Vinod and he has not seen the incident but this witness affirmed the fact that he has seen the incident.

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10. Laxman Yadav @ Laxmi Yadav (PW-9) states that on the date of incident i.e. March, 2018 at about 11:00 AM, he was grazing his cattle and while he was returning, at that time, he saw that the deceased Shiv Shankar has set fire to the paddy straw and was sitting under the tree. Thereafter, he stated that Ramprit (Appellant No.1) came with bunch of bag of peas from his field and objected to such fire. The conversation started and Ramprit stated that the entire peas would be burnt and if the peas would be burnt what he would feed his children and family and on that issue they started quarreling. Subsequently, Jitendra (Appellant No.2) also came to the spot and both of them caught hold of the deceased but after sometime Jitendra left hand of deceased while Ramprit pushed the deceased Shiv Shankar into fire. Thereafter, Ramprit started collecting the peas which were scattered at the spot and pulled back Shiv Shankar from the fire. The statement of Arvind (PW-4) and Laxman Yadav (PW-9) would show the reason of dispute on the date of incident but there was no quarrel earlier to it.

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11. The deceased Shiv Shankar was initially taken to the hospital and Dr. Vijay Rathore (PW-15) treated him and according to him, the deceased sustained burn injury to the extent of 60-65% and the MLC report is Ex.P-9. Looking to the nature of the injury, he referred the deceased to a higher medical centre, Ambikapur and in respect of the MLC report, he states that at that time which was not explained as to how the deceased sustained burn injury, therefore, he has put on question mark in the report as against the accidental burn. The deceased was thereafter referred to higher centre at Holy Cross, Hospital, Ambikapur and the M.L.C. Bed Head Ticket is exhibited as P-28. Dr. Madhu Kumar (PW17A) is the doctor who treated Shiv Shankar states, that on 10.03.2018, Shiv Shankar was brought to the hospital and having asked as to how it happened, it was replied that the deceased was setting fire to the paddy straw in his field, at that time, one Ramprit (Appellant No.1) has pushed him into the burning fire and in the Bed Head Ticket (Ex.P28), similar narration has been made that while burning the paddy straws in his field, he was pushed by Ramprit. There is no involvement of Jitendra (Appellant No.2) as has been shown in it.

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12. According to Neetu Bhagat (PW-16A), Nayab Tahsildar who recorded the dying declaration (Ex.P27) on 10.03.2018, the deceased stated that prior to the incident, there was no dispute between him and the appellants and further stated that when he went to his field and put on fire to his paddy straws at that time Ramprit and Jitendra both have pushed him into the burning fire and Laxman Yadav (PW-9) has saved him by taking him out of the fire. Laxman Yadav (PW-9), on the contrary stated that initially though Ramprit and Jitendra have caught hold of the deceased but later on Jitendra has left and he was alone pushed by

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Ramprit which is also supported by Ex.P28 which is narrated in the medical history when the deceased was admitted to the hospital. Therefore, the doubt has been created about the role played by Jitendra (Appellant No.2). There is no direct plausible evidence which has been brought before us beyond reasonable doubt as to what role was played by Jitendra. The deceased died out of the burn injury and the postmortem report is Ex.P30 in which it has been opined that death occurred due to cardio-respiratory failure due to septic shock on account of burn injury, which is proved by Dr. Mithlesh Minj (PW-18).

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13. So far as statement of Satyam Singh (PW-12) and Vishal Singh (PW13) is concerned, there is major contradiction appeared as both are the child witnesses and categorically stated that when the incident happened, their school was closed and it was in the month of May and June, 2018 whereas, admittedly the incident happened in the month of March, 2018. When specific suggestions were given to these witnesses, they denied the same but the date of incident being the fixed one and their statements cannot be accepted about change of date of incident. The incident took place on 10.03.2018 and their statements were recorded by Investigation Officer, Rajkumar Sahu (PW-15A), Assistant Sub-Inspector on 20.04.2018. If there were eye witnesses to the incident and when the entire facts were moving around the specific locality and people, why statement of Satyam Singh (PW-12) and Vishal Singh (PW-13) were not recorded, is not explained. From their statements, it appears that both the witnesses tried to improve their evidence and specific allegations have been made that Satyam Singh (PW-12) is the son of Vinod Singh and Vinod Singh, who is the cousin of the deceased, works in the police department. Therefore, his statement,

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which inculpates both accused persons Ramprit and Jitendra, we do not find to rely on it by ignoring the evidence of independent witness. Therefore, the benefit has to sway in favour of Jitendra (Appellant No.2) to evaluate the facts of the case. Accordingly, in view of the contradictory statements made by the witnesses, we are of the view that the prosecution was not able to prove the case beyond reasonable doubt against Jitendra (Appellant No.2) under Section 302 of the IPC. In view of the same, Jitendra Singh Kharwar (Appellant No.2) is acquitted of the charge punishable under Section 302 of the IPC.

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14. Now, the question that requires consideration is whether the trial Court is justified in convicting Ramprit Singh Kharwar (Appellant No.1) for offence 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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15. In order to consider whether the case of Appellant No.1 - Ramprit Singh Kharwar 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

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1 (2002) 3 SCC 327

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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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16. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, 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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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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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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2 (2009) 15 SCC 635

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

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17. 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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18. 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)

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

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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 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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19. 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 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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20. 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: (i) There must be a sudden fight; (ii) There was no premeditation; (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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21. In respect of Appellant No.1-Ramprit Singh Kharwar, admittedly, the incident happened on 10.03.2018 when Ramprit had harvested his peas and was keeping the same in a field nearby area where the deceased was burning paddy straws. Out of result of such fire some of the peas kept by Ramprit got destroyed to which, he got annoyed and raised objection which resulted in scuffle. In the process, in the spur of a moment and in the heat of passion, Ramprit (Appellant No.1) caught hold of the deceased and pushed the deceased Shiv Shankar into the fire and thereafter, as per statement of Laxman Yadav (PW-9), he dragged him out of fire. Consequently, it would show that Ramprit (Appellant No.1) out of sudden provocation and in a heat of passion has acted and lost his control. Therefore, the act committed by Appellant

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5 (2019) 6 SCC 122

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No.1 - Ramprit is not premeditated but is a result of sudden fight and quarrel in the heat of passion.

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22. In that view of the matter, we are of the opinion that the case of the Ramprit Singh Kharwar (Appellant No.1) is covered within Exception 4 to Section 300 of IPC and since Ramprit 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 and he is sentenced to eight years rigorous imprisonment in place of imprisonment for life and the fine sentence imposed thereunder by the learned trial Court shall remain intact.

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23. In the result, the criminal appeal is partly allowed in respect of Appellant No.1 - Ramprit Singh Kharwar whereas the criminal appeal in respect of Appellant No.2 - Jitendra Singh Kharwar is allowed and he is acquitted from the charges levelled against him by giving him benefit of doubt.

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24. Appellant No.2 - Jitendra Singh Kharwar is reported to be in jail, therefore, he is directed to be released forthwith, if not required to be detained in connection with any other offence.

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25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.

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Sd/-	Sd/-
(Goutam Bhaduri) JUDGE	( Radhakishan Agrawal ) JUDGE

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Prakash

Ramprit Singh Kharwar, v. the State of Chhattisgarh

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Ramprit Singh Kharwar, v. the State of Chhattisgarh

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