Teras Gond Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1923 of 2017

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Teras Gond, S/o Late Samay Lal Gond, Aged About 43 Years, R/o Village Changori, at present Madhuva, P.S. Akaltara, District Janjgir-Champa, Chhattisgarh,

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Ghanshyam Kenwat, S/o Dev Singh Kenwat, Aged About 40 Years, R/o Madhuva, at present Pondidalha, P.S. Akaltara, District JanjgirChampa, Chhattisgarh.

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Dev Singh Kenwat, S/o Late Sudha Ram Kenwat, Aged About 80 Years, Madhuva, P.S. Akaltara, District Janjgir-Champa Chhattisgarh.

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Shyam Sunder Kenwat, S/o Dev Singh Kenwat, Aged About 38 Years, R/o Madhuva, P.S. Akaltara, District Janjgir-Champa Chhattisgarh.

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---- Appellants

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Versus

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State of Chhattisgarh Through the Police Station Akaltara, District Janjgir-Champa, Chhattisgarh.

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---- Respondent

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For Appellant No.1 : Mr. Pawan Shrivastava, Advocate For Appellant No.2 : Mr. Goutam Khetrapal, Advocate For Appellants No.3 & 4 : Mr. Sunil Sahu, Advocate For Respondent/State : Mr. Ankur Kashyap, Dy. Govt. Advocate Division Bench

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Hon’ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (12.03.2024)

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Sanjay Kumar Jaiswal, J.

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1. This criminal appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) by the appellants is directed against the impugned judgment of conviction and order of sentence dated 16.11.2017 passed by the Sessions Judge, Janjgir-Champa,

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Chhattisgarh in Sessions Trial No.5 of 2017, whereby the appellants stand convicted and sentenced as under :-

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Conviction	Sentence
Under Section 302 or 302/34 of	Imprisonment for life with fine of
IPC	Rs.100/- to each of the appellants
Under Section 307 or 307/34 of	R.I. for 10 years with fine of
IPC (twice)	Rs.100/- to each of the appellants
Under Section 450 of IPC	R.I. for 7 years with fine of Rs.100/- to all the appellants

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As such, all the appellants were directed to pay fine of Rs.400/- each, in default of payment of fine amount, they would undergo additional R.I. for 15 days each.

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All the sentences were directed to run concurrently.

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2. The case of the prosecution, in a nutshell, is that, on 05.10.2016, at about 7.00 A.M., at village Madhuva within the ambit of Police Station Akaltara, District Janjgir-Champa (C.G.), the appellants, who have common intention, assaulted deceased Milotin Bai, Ramdhan (PW-3) and Lakhan (PW-4) by means of sticks, rod and axe, due to which, they suffered grievous injuries and Milotin Bai died and, thereby committed the aforesaid offence.

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3. The further case of the prosecution is that, on 05.10.2016, at about 9.30 A.M., Radheshyam (PW-2) lodged a First Information Report (Ex.P/5) at Police Station Akaltara alleging therein that he was present in his house and at that relevant time, appellants entered into his house and started assaulting his wife and children by means of sticks, rod and axe. They were trying to assault him also, but he ran away from the spot. After some time, when he reached to his house, he saw that appellants fled away from his house after

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assaulting his wife and children. All the injured persons were referred to CIMS Bilaspur for treatment, but on 05.10.2016, Milotin Bai died at Community Health Centre, Akaltara. Thereafter, summons under Section 175 of Cr.P.C. was given vide Ex.P/6 and inquest proceedings were conducted vide Ex.P/7. Merg intimation was recorded vide Ex.P/21. MLC of injured persons were conducted vide Ex.P/22 to Ex.P/27 respectively. The dead body of deceased Milotin Bai was sent for postmortem examination and in the postmortem report (Ex.P/28) conducted by Dr. Ramkishan Jitpure (PW-12), he opined that the cause of death seems to be due to head injury and trauma and nature of death is homicidal. Thereafter, the appellants were arrested vide Ex.P/16 to Ex.P/18 and Ex.P/34 respectively. Memorandum statement of the appellants were recorded vide Ex.P/9 to Ex.P/12 respectively, pursuant to which, seizure of blood stained sticks, axe and rod were affected vide Ex.P/13, Ex.P/14, Ex.P/15 & Ex.P/33 respectively, which were sent for chemical examination to Forensic Science Laboratory. In the FSL report (Ex.P/47), blood stains have been found on the seized sticks, rod and axe. Thereafter, after due investigation, the appellants were charge-sheeted for offence punishable under Sections 302 or 302/34, 307 or 307/34 (twice) and 450 of IPC, in the jurisdictional Criminal Court, which was committed to the Court of Sessions Judge for hearing and trial in accordance with law, in which, the appellants abjured their guilt and entered into defence.

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4. The prosecution in order to prove its case, examined as many as 12 witnesses and exhibited 48 documents, whereas in order to prove defence, appellants have neither examined any witness nor exhibited any document. Statements of the appellants were recorded under Section 313 of Cr.P.C., in which, they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for offence punishable under Sections 302/34, 307/34 (twice) and 450 of IPC and sentenced them as mentioned herein-above, against which, this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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6. Learned counsel appearing for the respective appellants submit that the prosecution has failed to prove its case beyond reasonable doubt. They further submit that though the death of deceased Milotin Bai is said to be homicidal in nature, but there was no motive or intention on the part of the appellants to commit death of deceased. They also submit that injuries caused to Ramdhan (PW3) as well as Lakhan (PW-4) are not grievous in nature. Thus, the case of the present appellants falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case

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where the conviction of the appellants under Section 302 or 302/34 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC and, further appellant No.1-Teras Gond is in jail since 08.10.2016, appellant No.2-Ghanshyam Kenwat is in jail since 09.12.2016, appellant No.3-Dev Singh Kenwat is in jail since 15.12.2016 and appellant No.4-Shyam Sunder Kenwat is in jail since 15.12.2016 i.e. more than 7 years, taking into consideration the period they have already undergone, the appellants be released from jail forthwith. Hence, present appeal deserves to be partly allowed.

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7. Per contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for offence under Sections 302 or 302/34, 307 or 307/34 (twice) and 450 of IPC. Exception 4 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellants under Section 302 or 302/34 of IPC requires to be converted/altered to Section 304 Part-II of IPC, thus, the present appeal deserves to be dismissed.

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8. 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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9. The first and foremost question is as to whether the death of the

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deceased Milotin Bai was homicidal in nature ?

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10. The learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record particularly, considering postmortem report (Ex.P/28) which is duly proved by the evidence of Dr. Ramkishan Jitpure (PW-12) as well as the statements of Ramdhan (PW-3) and Lakhan (PW-4). Accordingly, taking into consideration the postmortem report (Ex.P/28) and the statements of Dr. Ramkishan Jitpure (PW-12), Ramdhan (PW-3) and Lakhan (PW-4), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased Milotin Bai is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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11. Now, the next question would be whether the appellants herein have caused injures to Milotin Bai (deceased), Ramdhan (PW-3) and Lakhan (PW-4), due to which, Milotin Bai died as such they are authors of the crime ?

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12. The case against the appellants is based on direct evidence. Ramdhan (PW-3) and Lakhan (PW-4) are sons of deceased Milotin Bai. Appellants have also assaulted them and they suffered injuries in the said incident, for which, appellant No.3-Dev Singh Kenwat has been convicted separately under Section 307 of IPC (twice) and appellants No.1, 2 & 4, namely, Teras Gond, Ghanshyam

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Kenwat and Shyam Sunder Kenwat have been convicted separately for offence under Section 307/34 of IPC (twice) for attempt to murder.

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13. Ramdhan (PW-3) and Lakhan (PW-4) have deposed in their Court statement that appellants were holding sticks, rod and axe in their hands, they came to their house and started abusing as well as assaulting them as also their mother Milotin Bai (deceased), due to which, they suffered injuries and their mother Milotin Bai died. The Police seized a stick from appellant No.1- Teras Gond, a stick from appellant No.2-Ghanshyam Kenwat, an axe from appellant No.3Dev Singh Kenwat and an iron rod from appellant No.4-Shyam Sunder Kenwat vide Ex.P/13 to Ex.P/15 and Ex.P/33, respectively. According to FSL report (Ex.P/47), blood stains have been found in all these seized weapons. Dr. Ramkishan Jitpure (PW-12) has proved X-ray report (Ex.P/48) of Lakhan (PW-4) and opined that there was fracture on his hand and palm. The said evidence has not been rebutted. On the basis of above evidence, it has been concluded by the trial Court that appellants in furtherance of common intention have assaulted Milotin Bai (deceased), Ramdhan (PW-3) and Lakhan (PW-4), due to which, Milotin Bai died and Ramdhan (PW-3) and Lakhan (PW-4) have suffered injuries. Accordingly, we hereby affirm the finding recorded by learned trial Court that it is the appellants who are authors of crime.

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14. The aforesaid finding brings us to the next question for

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consideration, which is, whether the trial Court has rightly convicted the appellants for offence punishable under Section 302 or 302/34 of IPC respectively or their case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, their conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellants ?

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15. Learned counsel for the respective appellants have argued that both the parties are neighbours; they had previous enmity; there is a land dispute between them and there was no intention of the appellants to commit murder of Milotin Bai.

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16. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana¹ has 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 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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17. The Supreme Court in the matter of Gurmukh Singh v. State of

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1 (2002) 3 SCC 327

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Haryana² 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 of IPC, 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 fro 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 without 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 to cause 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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2 (2009) 15 SCC 635

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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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18. Likewise, in the matter of State v. Sanjeev Nanda³ 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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19. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh⁴ , 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

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4 (2017) 3 SCC 247

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3 (2012) 8 SCC 450

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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 combat between two or more persons whether with or

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

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22. Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that both the parties are neighbours and they

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5 (2019) 6 SCC 122

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had old land dispute. According to the report lodged by the appellants side, a case has already been filed against the complainant side in the Court. There was a dispute regarding digging of land, in which, abuses took place. The incident took place in continuation of that dispute. Looking to the nature of injuries caused to deceased, it is not established that there was any intention of the appellants to cause murder of deceased Milotin Bai, but there was knowledge, which is visible from their act. However, looking to the injuries sustained by deceased Milotin Bai, as recorded by Dr. Ramkishan Jitpure (PW-12), which has been caused on her head, the appellants must have had the knowledge that such injuries inflicted by them on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants completely satisfies the four necessary ingredients of Exception 4 to Section 300 of 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 appellants had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants, Teras Gond, Ghanshyam Kenwat, Dev Singh Kenwat and Shyam Sunder Kenwat under Section 302 or 302/34 of IPC can be altered/converted to the Section 304 (Part-II) of IPC.

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23. In view of the aforesaid discussion, conviction of the appellants for offence punishable under Section 302 or 302/34 of IPC as well as

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the sentence of imprisonment for life awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injuries caused by them were not sufficient in the ordinary course of nature to cause death, all the appellants are convicted for offence punishable under Section 304 Part-II of IPC. Since appellants are in jail for more than 7 years, taking into consideration the period they have already undergone, we award them the sentence already undergone by them.

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24. Insofar as the case of attempt to murder of Ramdhan (PW-3) and Lakhan (PW-4) for which they are convicted for offence under Section 307 or 307/34 (twice) of IPC as well as question of their conviction under Section 450 of IPC is concerned, the same are affirmed. The appellants are sentenced to undergo imprisonment for 7 years under Section 307 or 307/34 of IPC (twice) and rigorous imprisonment for 7 years under Section 450 of IPC. Since, the appellants are in jail for more than 7 years, therefore, they are sentenced to the period already undergone by them for the offence punishable under Sections 307 or 307/34 (twice) and 450 of IPC.

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25. The fine sentence imposed by the learned trial Court shall remain intact. Accordingly, the appellants be released from jail forthwith, if not required in any other case.

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26. The criminal appeal is allowed in part to the extent indicated herein-above.

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27. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.

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Sd/Sd/-- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Yogesh

Teras Gond v. State Of Chhattisgarh

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Teras Gond v. State Of Chhattisgarh

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