Partly allowed

Krishna Ram Chouhan v. State Of Chhattisgarh

Chhattisgarh HC19 Jun 2024CRA/1687/2017

Case brief

AI extract

What is this about?

Appeal against life sentence for murder. Court found no premeditation, applied Exception 4 to Section 300 IPC, altered conviction to culpable homicide not amounting to murder (10 years RI), affirmed Section 326/34 conviction, and awarded ₹5 lakh victim compensation plus artificial legs.

What did the court decide?

Conviction under 302/34 altered to 304 Part-II/34 with 10 years RI; fine intact; ₹5 lakh compensation to victim; artificial legs directed.

Krishna Ram Chouhan Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1687 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1687 of 2017

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(Arising out of judgment dated 04.08.2017 passed in Sessions Trial No.56/2014 by the Additional Sessions Judge, Kunkuri, District Jashpur, Chhattisgarh)

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Krishna Ram Chouhan S/o Kathul Ram, aged about 45 years R/o Sirimkela, Police Station Duldula, District Jashpur Chhattisgarh.

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Smt. Heeramani Bai W/o Krishna Ram Chouhan, aged about 40 years, R/o Sirimkela, Police Station Duldula, District Jashpur, Chhattisgarh.

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---- Appellants

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Versus

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State of Chhattisgarh, through the Incharge, Chowki - Lodam, Police Station Duldula, District Jashpur Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Rahul Mishra, Advocate / Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee For Respondent-State :-Mr. Sharad Mishra, Panel Lawyer.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Agrawal

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Judgment On Board

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(20.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellants herein namely Krishna Ram Chouhan

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CRA No. 1687 of 2017

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(A-1) and Smt. Heeramani Bai (A-2), wife of A-1, calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 04.08.2017 passed by the Additional Sessions Judge, Kunkuri, District Jashpur, Chhattisgarh in Sessions Trial No.56/2014 whereby the appellants have been convicted for offence punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment 1 month and also convicted for offence punishable under Section 326 read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and pay fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment for 1 month. All the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that on 25.06.2014 at about 8:00 am at village Sirimkela, Police Station Duldula, District Jashpur Chhattisgarh, Jagatpal appellants herein (A-1 & A-2) along with their son Jagatpal, juvenile accused, assaulted Kaleshwar Ram (now deceased) and injured eye witness Mangleshwari Bai, wife of the deceased, by axe, spade and wooden stick by which Kaleshwar Ram (deceased) suffered grievous injuries and died and

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CRA No. 1687 of 2017

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Mangleshwari Bai also suffered grievous injuries and lost her legs. The said incident was reported by Dhaneshwar Ram Chouhan (PW-1), brother of the deceased, to police pursuant to which merg intimation and FIR were registered vide Exs. P/2 & P/1, respectively. Spot map was prepared vide Ex.P/4. Inquest proceedings (Ex.P/30) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/22), proved by Dr. V.K. Indwar (PW-8), cause of death was shock due to severe haemorrhage and homicidal in nature. Mangleshwari Bai (PW-2), injured eye witness, was also medically examined and as per her MLC report (Ex.P/24), proved by Dr. V.K. Indwar (PW-8), she has suffered grievous injuries. Pursuant to memorandum statements of A-1 & A-2 (Exs.P/11 & P/12, respectively) wooden sticks (बे�टएवं�डं�ण्डं�) have been seized vide Exs.P/13 & 14, respectively, and pursuant to memorandum statement of co-accused Jagatpal, juvenile, (Ex.P/16), axe has been seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/42) on axe (article B) and neck towel (article L), seized pursuant to memorandum statement of Jagatpal, juvenile, & on wooden stick (article K), seized pursuant to memorandum statement of A-2, blood was found.

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CRA No. 1687 of 2017

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After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 26 witnesses and exhibited 42 documents and Article-A-1 whereas, the appellants in defence have examined 1 witness, but not exhibited any document. S tatement of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Rahul Mishra, learned counsel for the appellants, submits that appellants have already completed their jail sentence for offence under Section 326 read with Section 34 of the IPC,

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CRA No. 1687 of 2017

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whereas, conviction for offence under Section 302 read with Section 34 of the IPC is not made out against the present appellants as they were not armed with the axe. He also submits that as per the postmortem report of the deceased (Ex.P/22) and as per medical report of injured eye witness Mangleshwari Bai (PW-2), grievous injuries were suffered by the sharp edged weapon i.e. axe and as per the statement of injured eye witness Mangleshwari Bai (PW-2) the deceased armed with axe on the date and time of incident. He also submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence 304 Part II of the IPC and the appellants are in jail since 26.06.2014, almost 9 years have been completed and, as such, it is a fit case where conviction of the appellants for offence under Section 302 read with Section 34 of the IPC can be converted / altered to an offence under Section 304 Part-II read with Section 34 of the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Sharad Mishra, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He also submits that

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CRA No. 1687 of 2017

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considering the nature of injury of Mangleshwari Bai (PW-2) and the deceased conviction for offences under Section 326/34 & 302/34 IPC is well merited. He further submits that it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the appellants have rightly been convicted for the offences in question. Thus, 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 gone through the records with utmost circumspection.

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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The said question has been answered by the trial Court in affirmative that the death of Kaleshwar Ram (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/22) proved by Dr. V.K. Indwar (PW-8) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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CRA No. 1687 of 2017

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Now, the question for consideration would be whether the appellants have assaulted the deceased?

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So far as the conviction of the appellants for offence under Section 326 read with Section 34 of the IPC is concerned, considering the statement of Mangleshwari Bai (PW-2), whose legs were cut by A-1, A-2 along with co-accused Jagatpal, juvenile co-accused; her treatment slip (Ex.P/33), CT scan report (Ex.P/34) proved by Dr. P.R. Shivhare and MLC report (Ex.P/24) proved by Dr. V.K. Indwar (PW-8), we find that the finding recorded by the trial Court to base the conviction of the appellants herein for offence punishable under Section 326 read with Section 34 of the IPC as well as sentence of 7 years are well merited and we hereby affirm the said finding of the trial Court.

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Now, the conviction of the appellants herein for offence under Section 302 read with Section 34 of the IPC is based on the testimony of injured eye witness Mangleshwari Bai (PW-2), who in paragraph no.3 of her statement before the Court has clearly stated that appellants herein along with co-accused Jagatpal, juvenile, assaulted her and the deceased by axe, spade and wooden stick by which they suffered grievous injuries and her husband Kaleshwar Ram died and she

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CRA No. 1687 of 2017

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suffered grievous injuries and lost her legs. However, axe has not been seized from the possession of the appellants herein and it was seized from the possession of co-accused Jagatpal, juvenile. Furthermore, as per Dr. V.K. Indwar (PW-8), who conducted the postmortem of the deceased, deceased suffered 7 grievous sharp cut injuries and according to his opinion all could have been caused by sharp edged weapon i.e. axe which was seized from the possession of co-accused Jagatpal, juvenile, not from the possession for appellants herein. However, from the possession of the appellants herein only wooden sticks (बे�टएवं�डं�ण्डं�) were seized pursuant to their memorandum statements and as per PW-8 no sharp cut injuries said to have been caused by wooden sticks (बे�टएवं�डं�ण्डं�), but the facts remains that the appellants herein with the aid of Section 34 of the IPC have rightly been held to be the person who caused the injuries to deceased.

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Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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1 (2017) 3 SCC 247

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CRA No. 1687 of 2017

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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 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

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CRA No. 1687 of 2017

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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 if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)² 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;

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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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2 (2019) 6 SCC 122

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CRA No. 1687 of 2017

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Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that there is no premeditation on the part of the appellants herein and as per statement of injured eye witness Mangleshwari Bai (PW-2) appellants herein were not armed with the axe, she has clearly stated in her statement before the Court that her husband (deceased) had caught hold of the axe which was snatched by the appellants and the juvenile coaccused. As such, there is no intention on the part of the appellants herein, but they must have had knowledge that such injury inflicted by them on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants under Section 302 read with Section 34 of the IPC can be altered/converted to Section 304 Part-II read with Section 34 of the IPC.

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CRA No. 1687 of 2017

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In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 read with Section 34 of the IPC is altered to Section 304 Part-II read with Section 34 the IPC as there is no premeditation on the part of the appellants herein and the appellants are sentenced to undergo rigorous imprisonment for 10 years, however, the fine amount imposed by the learned trial Court shall remain intact. So far as the conviction of the appellants for the offence under Section 326 read with Section 34 of the IPC as well as sentence of 7 years are well merited and for which they have already completed their jail sentence.

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Before parting with record, the issue of victim compensation needs to be addressed by us. The learned Additional Sessions Judge in paragraph 45 of his judgment had recommended for payment of compensation under Section 357A of the CrPC to the victim, but no specific amount has been mentioned which appears to be inadequate in our consideration and contrary to Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 formulated by the State of Chhattisgarh w.e.f. 2-10-2018 pursuant to the direction given by the Supreme Court in the matter of Nipun Saxena and another v. Union of India and others 3.

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3 (2019) 13 SCC 715

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CRA No. 1687 of 2017

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The Supreme Court in the matter of Nipun Saxena (supra), in paragraph 9, held on 05.09.2018 that till the Scheme is framed, the NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 of the POCSO Rules of 2012.

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It would be appropriate to mention here that the National Legal Services Authority (NALSA) setup a committee and finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes and submitted before the Supreme Court on 24-4-2018 and on 21-5-2018, the said Scheme was accepted by the Supreme Court and called as “the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes”. In the said Scheme, minimum limit of compensation provided to victim, who lost her any limb or part of body resulting in 80% permanent disability or above, is 2₹ lakhs and upper limit of compensation is ₹ 5 lakhs and thereafter in exercise of the powers conferred by Section 357A of the Code, the State of Chhattisgarh has framed a scheme known as the “Compensation Scheme for Women victims/Survivors of Sexual Assault/other Crimes, 2018” with effect from 2-10-2018, explanation appended to the Scheme provides that in case of injured victim, it would be applicable.

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CRA No. 1687 of 2017

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The Schedule attached to the said Scheme provides that in case of victim, who lost her any limb or part of body resulting in 80% permanent disability or above, minimum limit of compensation would be ₹ 2 lakhs and upper limit of compensation would be ₹ 5 lakhs. Serial No.5 of the said Schedule reads as under: -

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SCHEDULE APPLICABLE TO WOMEN VICTIM OF CRIMES

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S.No.	Particulars of loss or injury	Minimum Limit of Compensation	Upper Limit of Compensatio n
5.	Loss of any Limb or part of body resulting in 80% permanent disability orabove	Rs. 2 Lakh	Rs. 5 Lakh

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Now, the question is, whether the victim in the present appeal is entitled for compensation as per the Scheme of 2018 framed by the State Government which came into force with effect from 2^nd October, 2018 as per the notification dated 4^th February, 2019 by which date the Scheme has been brought into force or under the old scheme which was in force with effect from 3-8-2011 as offence in present case is said to have been committed on 25.06.2014.

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Reverting to the facts of the present case in the light of the above-stated statutory provisions and in the light of the

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CRA No. 1687 of 2017

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aforesaid principles of law laid down by their Lordships of the Supreme Court in aforesaid judgment, it is quite vivid that since the victim has lost her legs and the appellants have been convicted for offences under Section 302 read with Section 34 of the IPC and also under Section 326 read with Section 34 of the IPC, the injured victim and her family members were required to be rehabilitated/protected. Consequently, the recommendation ought to have been made by the learned trial Court to the DLSA or the SLSA under Section 357A(2) of the Code, but that has not been done despite the clear cut mandate in that regard. Taking into consideration that the injured victim has lost her both legs and she has suffered not only physically but mentally also, and also considering the gravity of offence, the victim is entitled for total compensation of ₹ 5 lakhs under the Scheme of 2018 and not under the Scheme of 2011. It is pertinent to mention here the observation made by the trial Court about the injury of the victim, which states as under:-

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" सा�क्षी�मं�ग्ले�श्वंरी�बे�ईके�दो�नों�पै�रीके�घु�टनों�के�नों�चे�के�भा�गनोंहीं हीं�।वंहींदो�नों�पै�रीसा�पै"र्ण$तः& विवंकेले��गहीं�।उसा�प्रा�र्थी+ धनों�श्वंरी�री�मंद्वा�री� ग�दो�मं. उठा�केरीबेया�नोंदो�नों�हीं�तः�न्या�या�लेयाके�गवं�हीं�केक्षी (Witness Box) तःकेले�या�गया�।"

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Accordingly, it is held that the injured victim (PW-2) is entitled for compensation of 5 lakhs from the State Government. The₹

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CRA No. 1687 of 2017

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District Magistrate/Collector, Jashpur shall deposit the abovestated amount before the concerned trial Court within 30 days from today and thereafter, the concerned trial Court shall disburse the said amount to the injured victim (PW-2) in accordance with the directions given by the Supreme Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and others 4 (paragraph 17) read with paragraph 12 in Nipun Saxena (supra). However, it is made clear that if the compensation amount is not paid to the victim (PW-2) within 45 days from the date of receipt of this judgment, the State Government is liable to pay 6% interest on the said amount till the date of actual payment. it is needless to mention here that if compensation to any extent has already been paid to the victim, same shall be adjusted from 5 lakhs to be paid to the₹ victim (PW-2) as per our directions. Further, under the facts and circumstances of the present case, we also deem it appropriate to direct the Collector, Jashpur, for taking steps to provide artificial legs to the victim (PW-2) under any Government Scheme formulated for the said purpose.

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Consequently, with aforesaid directions this criminal appeal is partly allowed to the extent indicated herein-above.

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4 AIR 1994 SC 1631

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CRA No. 1687 of 2017

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27.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 this judgment be also sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence. Further, a copy of this judgment be also sent to the District Magistrate, Jashpur, the Collector, Jashpur and also to the Secretary, DLSA, Jashpur to ensure strict compliance of the above stated directions made in this judgment within the stipulated time. Thereafter, the concerned trial Court and the Secretary, DLSA, Jashpur, shall send a compliance report to the Registry of this Court with regard to deposition of the compensation amount to the victim (PW-2) as well as the steps taken by the Collector, Jashpur for providing artificial legs to the victim (PW-2) under the Government Scheme.

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Sd/- (Sanjay K. Agrawal) Judge

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Sd/- (Sanjay Agrawal) Judge

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Ankit

Krishna Ram Chouhan v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Krishna Ram Chouhan v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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