Bablu Kashyap Vs State of Chhattisgarh

1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant-accused, is to the legality, validity and correctness of the judgment dated 13.03.2019 passed by the Sessions Judge, Bastar, Place – Jagdalpur, Chhattisgarh, in Sessions Trial No. 76/2018 by which the sole appellant herein has been convicted for

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offence under Section 302 of the IPC and sentenced to undergo imprisonment for life with fine of ₹500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for three months.

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2. Case of the prosecution, in short, is that on 23.07.2018 at about 8:00 PM, at village Bheja Chhindbhata Para, Police Station Mardum, District Bastar, Chhattisgarh, the appellant assaulted his uncle (brother of appellant’s father) Baldev Kashyap (now deceased) with iron axe by which he suffered grievous injuries and died and in order to conceal the evidence, he sent Kumari Fulmati (PW-4) and Shanti Bai (PW-5) out of the house and thereby committed the aforesaid offence. The said incident was reported by Fulmati Kashyap (PW-4), daughter of the deceased, pursuant to which merg intimation and FIR were registered vide Exs.P/8 & P/9, respectively. Spot map was prepared vide Ex.P/10. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/11) proved by Dr. Neeraj Kashyap (PW-10), cause of death was internal and external hemorrhage due to head injury and nature of death of deceased was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/4), weapon of offence i.e. iron axe was seized vide Ex.P/05. As per query report (Ex.P/12) proved by Dr.Neeraj Kashyap (PW-10), injuries which were found over the body of the deceased could be caused by the said iron axe, which was seized pursuant to memorandum statement of the appellant. Further, as per the FSL report (Ex.P/24), human blood was found on the T-shirt of the appellant.

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3. After due investigation, appellant herein was charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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4. In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 24 documents, whereas, defence, in support of its case, has not examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him 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 appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Shashi Kumar Kushwaha, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that as per the statement of Baldev Thakur (PW-6), there was old dispute between the appellant and the deceased on account of demand of Rs.6,000/- which the deceased had incurred on the marriage of the appellant and due to which a scuffle took place between them and the appellant, in sudden provocation, assaulted the deceased and therefore, it would be case, at the most, of commission of offence 304 Part-II of the IPC and also it

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is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of the IPC. He further submits that the appellant is in jail since 25.07.2018 i.e. more than 6 years have been completed, thus, the present appeal deserves to be allowed in full or in part.

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7. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and 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 appellant can be modified for lesser offence, therefore, the appellant has rightly been convicted for the offence in question. Thus, the instant 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 perused the records minutely.

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9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/11) proved by Dr. Neeraj Kashyap (PW-10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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10. Now, the question for consideration would be whether the appellant is the author of the crime in question?

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11. Case of the prosecution is not based on direct evidence but it is based on circumstantial evidence. The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 , in which it was observed in paragraph 153 as under :-

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“ 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra² where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4)they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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2 (1973) 2 SCC 793

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1 (1984) 4 SCC 116

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12. From the statement of Fulmati (PW-4) and Smt. Shanti Bai Kashyap (PW-5) who are daughter and wife of the deceased respectively, have stated that on the date of incident, when they were in the house along with the deceased, the appellant came to their house with axe on his hand and threatened them to kill and told Fulmati and Shanti Bai to leave the house on which, they ran away from the premises and the appellant and the deceased were left inside the house. After some time, when they came to the house, they saw that the deceased was found dead lying on the floor. They have also stated that they have seen the appellant absconding from the spot. They further stated that there was old enmity between the appellant and the deceased for the money which the deceased had incurred at the time of marriage of the appellant as the father of the appellant had died during his childhood. As such, there was dispute existing between the appellant and the deceased.

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13. Balram Thakur (PW-6), has stated that on the date of incident, the appellant came to his house and told him that he had assaulted his uncle Baldev Kashyap (deceased) by axe and committed his murder. He further stated that there was old enmity between the appellant and deceased due to which scuffle took place between them and in that event, the appellant assaulted the deceased with axe. This apart, considering the fact that pursuant to memorandum statement of the appellant (Ex.P/4) weapon of offence i.e. iron axe was seized vide Ex.P/5. As per query report (Ex.P/12) proved by Dr.Neeraj Kashyap (PW-10), injuries which were found over the body of the deceased could be caused by the said iron axe. Further, as per the FSL report (Ex.P/24), human blood was found on the T-shirt of the appellant. Thus, the trial

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Court has rightly held that it is the appellant who assaulted the deceased by axe by which he suffered grievous injuries and died and, as such, we hereby affirm the said finding recorded by the trial Court.

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

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15. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 3 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 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

(2017) 3 SCC 247

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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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16. In the matter of Arjun (supra), the Supreme Court has held that

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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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17. 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:

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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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18. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the statement of Balram Thakur (PW-6) before whom the appellant made extra-judicial confession and the statements of Fulmati (PW-4) & Smt. Shanti Bai Kashyap (PW-5) that on the fateful day, due to previous enmity with respect to money, appellant quarreled with the deceased and out of anger, assaulted him with iron axe, as a result of which, the deceased sustained grievous injuries over his body and died. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased – Baldev Kashyap, on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with iron axe, as a result of which, he suffered grievous injuries over his body leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased but no intention of causing his death can be attributed to him.

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19. In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the

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knowledge that his act of assault would likely to cause the death of the deceased, his conviction for the offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC and he is sentenced to ten years rigorous imprisonment. However, the fine sentence imposed by the learned trial Court shall remain intact.

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20. In the result, the criminal appeal is partly allowed.

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21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.

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

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Prakash

Bablu Kashyap v. State of Chhattisgarh

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Bablu Kashyap v. State of Chhattisgarh

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