Partly allowed

Shivlal v. State of Chhattisgarh

Chhattisgarh HC23 Jun 2024CRA/175/2018

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 302 and 307 read with Section 34 IPC for an axe assault over tree-cutting that killed one person and injured another. The High Court affirmed the convictions but held the killing fell within Exception 4 to Section 300 IPC as a sudden fight without premeditation, altering the murder conviction to Section 304 Part-II and sentencing to time already undergone.

What did the court decide?

Conviction under Section 302 altered to Section 304 Part-II IPC with sentence limited to period already undergone; Section 307/34 conviction intact; release directed after eight years in custody.

Shivlal Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.175 of 2018

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Shivlal S/o Ramdev Harijan, Aged About 48 Years, Caste Agriculture, R/o Village Kakna, Navapara, Police Chowki, Bariyon Police Station Rajpur, Revenue District Balrampur Ramanujganj Civil District Surguja Chhattisgarh, District: Surguja (Ambikapur), Chhattisgarh

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Devprasad Giri S/o Sundar Giri Aged About 41 Years Caste Agriculture, R/o Village Kakna, Navapara, Police Chowki, Bariyon Police Station Rajpur, Revenue District Balrampur Ramanujganj Civil District Surguja Chhattisgarh, District: Surguja (Ambikapur), Chhattisgarh

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Rajkumar Harijan S/o Shivratan Harijan Aged About 31 Years R/o Village Kakna, Navapara, Police Chowki, Bariyon Police Station Rajpur, Revenue District Balrampur Ramanujganj Civil District Surguja Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh

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---- Appellants/Accused (In Jail)

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Versus

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State Of Chhattisgarh Through District Magistrate Ambikapur District (Revenue And Civil) Surguja Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh

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---- Respondent/Prosecutor

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For Appellants : Shri Ashok Kumar Swarnkar, Advocate For Respondent/State: Shri Afroz Khan, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (24/06/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by appellants herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 14.12.2017 passed by the Second Additional Judge to the Court of Additional Sessions Judge, Ramanujganj in Sessions Trial No.44/2016, by which, they have been convicted and sentenced as below :-

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Sl. No.	Name of Accused	Conviction	Sentence
01.	Shivlal S/o Ramdev Harijan	Section 302/34 IPC	Imprisonment for life and fine of Rs.25,000/-
		Section 307/34 IPC	Rigorous Imprisonment for seven years and fine of Rs.15,000/-
02.	Rajkumar Harijan S/o Shivratan	Section 302/34 IPC	Imprisonment for life and fine of Rs.25,000/-
		Section 307/34 IPC	Rigorous Imprisonment for seven years and fine of Rs.15,000/-
03.	Devprasad Giri S/o Sundar Giri	Section 302/34 IPC	Imprisonment for life and fine of Rs.25,000/-
		Section 307/34 IPC	Rigorous Imprisonment for seven years and fine of Rs.15,000/-

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Sentences awarded to the appellants/accused under

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the original sections were ordered to run concurrently. In default of payment of fine under the afore-stated sections, each of the appellants have to undergo additional rigorous imprisonment for one year on each default, which will run separately one by one.

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The case of the prosecution, in brief, is that on 21.03.2016 at 10 PM at Village Amadipara, there was an altercation which took place between the appellants herein and Shivram, Kamla Prasad and Parmanand regarding cutting of trees and thereafter, the appellants herein assaulted the deceased-Shivram with the help of a sharpedged weapon i.e. axe (tangi), by which, he suffered grievous injuries and died. The appellants herein have also caused grievous injury to Kamla Prasad (PW-10), which will be sufficient to cause death and thereby committed the offence. Merg Intimation was recorded by Parmanand vide Ex.P-1. Parmanand (PW-1) reported the matter to the Police Chowki-Bariyon, Police Station-Rajpur, District BalrampurRamanujganj and FIR (Ex.P-18) was lodged against the appellants herein, pursuant to which, offence under Sections 302, 307, 120-B & 34 of the IPC was registered against them and the wheels of investigation started

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running. Thereafter, inquest was conducted vide Ex.P-4. Pursuant to memorandum statement of the Appellants herein vide Ex.P-11, Ex.P-12, Ex.P-13, axe (tangi) and their clothes were seized vide Ex.P-14, Ex.P-15, Ex.P-16. The seized articles were subjected to forensic examination, but, the FSL report has neither been exhibited nor has been put to notice seeking their explanation. Dead body of the deceased-Shivram was subjected to postmortem and postmortem of the dead body of the deceased-Shivram was conducted by Dr. Asrita Kachhap (PW-12) and his report is Ex.P-17 and cause of death was shock as a result of excessive hemorrhage due to head injury and all other injuries and it was stated to be homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellants under Sections 302, 307, 120-B & 34 of the IPC. The appellants abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution has examined as many as 17 witnesses and exhibited 31 documents (Ex.P-1 to Ex.P-31). Statement of the appellants-

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accused were recorded under Section 313 of the Cr.P.C., wherein they denied guilt and examined one Bandhan Ram (DW-1) in their defence.

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellants under Sections 302, 307 read with Section 34 of the IPC in the manner mentioned in the opening paragraph of this judgment, against which, the instant appeal has been preferred.

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Mr. Ashok Kumar Swarnkar, learned counsel appearing for the appellants submits that conviction of the appellants is based on the testimony of eye-witness Parmanand (PW-1) and injured witness Kamla Prasad (PW10), according to which, the appellants herein have assaulted the deceased-Shivram with the help of an axe (tangi) and caused grievous injuries, as a result of which, he died and they have also caused grievous injuries to Kamla Prasad (PW-10). It is further submitted that taking the prosecution case as it is and considering the nature of injury and that death has occurred, to which, the appellants had knowledge, but there was no intention or

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motive to cause death, at the most, the case of appellants would fall under Exception 4 to Section 300 of I.P.C. and the alleged offence is liable to be converted to Part-II of Section 304 of I.P.C. and appellants be sentenced for the period already undergone by them, as they are in jail since 23.03.2016, and as such, the appeal be allowed in part.

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Mr. Afroz Khan, learned State counsel, would submit that the learned trial Court has rightly convicted the appellants herein for the aforesaid offence and it is not a case where the sentence of the appellants can be converted to Section 304 Part-II of I.P.C. and, 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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The first question for consideration as to whether the death of deceased-Shivram was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-17 proved by Dr. Asrita Kachhap (PW-12), according to which, cause of death was shock as a result of excessive hemorrhage due to head

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injury and all other injuries and it was stated to be homicidal in nature, 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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Now, the next question is, whether the appellants have assaulted Shivram by tangi (axe) and caused death of the deceased-Shivram?

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Conviction of the appellants is based on the statement of eye-witness Parmanand (PW-1) as also injured eyewitness Kamla Prasad (PW-10), who has clearly stated that on the date of incident, when they are working along with the deceased-Shivram in their field, as they are members of Van Raksha Samiti, at that time, when they heard voice of cutting trees and reached to the spot and seen that the appellants herein were cutting the teak wood, to which, they all objected for the same, but, the appellants didn’t agree and they caused grievous injuries to Kamla Prasad (PW-10) as also caused grievous injuries to the deceasedShivram with the help of an axe, due to which, he died. To some extent, Kamla Prasad (PW-10) was subjected to cross-

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examination, but, nothing has been extracted to hold that he has seen the appellants causing grievous injuries to the deceased-Shivram with the help of an axe, which was seized and subjected to forensic examination, but, FSL report has not been brought on record. As such, the trial Court has rightly recorded a finding that it is the appellants, in furtherance of their common intention, who have caused death of the deceased-Shivram, which is a correct finding of fact based on evidence available on record and accordingly, we hereby affirm the said finding.

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Now, the question would be whether the case of the appellants would fall under Exception 4 to Section 300 of IPC and, as such, their conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellants ?

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In order to consider whether the case of the appellants is covered under 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 Haryana1 wherein it has been observed as under :-

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1 (2002) 3 SCC 327

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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 Sukhbir 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

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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

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2 (2009) 15 SCC 635

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

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Likewise, in the matter of State v. Sanjeev Nanda 3,

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their Lordships of the Supreme Court have held that once

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3 (2012) 8 SCC 450

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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 IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had

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4 (2017) 3 SCC 247

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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

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must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the

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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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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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

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

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Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court and further considering the charge levelled upon the appellants, it is quite vivid as per the statement of eye-witness Parmanand (PW-1) as also injured eye-witness Kamla Prasad (PW-10), who has clearly stated that on the date of incident, when he was working along with the deceased-Shivram in their field,

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5 (2019) 6 SCC 122

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as they are members of Van Raksha Samiti, at that time, when they heard voice of cutting trees and reached to the spot, they seen that the appellants herein were cutting the teak wood, to which, they all objected for the same, but, the appellants didn’t agree and in a sudden heat of passion, they caused grievous injuries to Kamla Prasad (PW-10) as also to the deceased-Shivram with the help of an axe, as a result of which, he died thereafter, but, there was no premeditation or motive to cause death and they must have had knowledge that those injuries would likely to cause death and the appellants had not taken any undue advantage and have not acted in unusual manner; thus, the case of the appellants would fall under Exception 4 to Section 300 of I.P.C.

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In view of the above, the impugned judgment of conviction and order of sentence dated 14.12.2017 passed by the Second Additional Judge to the Court of Additional Sessions Judge, Ramanujganj in Sessions Trial No.44/2016 is hereby set aside. The conviction of appellants for commission of offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and they are sentenced to the period already undergone by them.

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Conviction and sentence awarded to the appellants under Section 307 read with Section 34 of the IPC shall remain intact. Appellants have already completed more than eight years in jail as they are in jail since 23.03.2016, therefore, they shall be released forthwith from jail, unless they are required in any other offence.

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In view of the above, this criminal appeal is partly allowed.

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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 appellants are suffering the jail sentence.

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SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Shivlal v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shivlal v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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