Partly allowed

Bhuneshwar Sahu v. State Of Chhattisgarh

Chhattisgarh HC9 Jul 2024CRA/67/2018

Case brief

AI extract

What is this about?

The Division Bench acquitted appellants named in the FIR but un-identified by the injured eyewitness, thereby extracting a benefit of doubt. It also altered the murder conviction of four other appellants from Section 302 to culpable homicide nonmurder, Exception 4 to Section 300 IPC.

What did the court decide?

Appellants A-2, A-3, and A-9 to A-14 are acquitted. Appellants A-1, A-4, A-5 and A-6 convicted of culpable homicide not amounting to murder under Section 304 Part-I IPC and acquitted of other charges.

Bhuneshwar Sahu Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1976 of 2017

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(Arising out of judgment dated 25.11.2017 passed in S. T. No. 01/2017 by learned 2^nd Additional Sessions Judge, Rajnandgaon (CG)

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Ramanik S/o Late Shri Veersingh Sahu Aged About 52 Years R/o Village Mahrajpur, Thana Lalbag, Civil And Revenue District Rajnandgaon Chhattisgarh, Chhattisgarh

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Bharatlal S/o Shri Ramanik Sahu Aged About 25 Years R/o Village Mahrajpur, Thana Lalbag, Civil And Revenue District Rajnandgaon Chhattisgarh, District:Rajnandgaon, Chhattisgarh

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(Died And Deleted) Shobhit Sahu As Per Honble Court Order Dated 16-04-2024.

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Smt. Parmila Sahu @ Chaiti W/o Shri Ramnik Sahu Aged About 45 Years R/o Village Mahrajpur, Thana Lalbag, Civil And Revenue District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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---- Appellants

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Versus

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State Of Chhattisgarh Through The District Magistrate Rajnandgaon District Rajnandgaon Chhattisgarh

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---- Respondent

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Criminal Appeal No. 67 of 201 8

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Bhuneshwar Sahu S/o Late Punuram Sahu Aged About 48 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Sagar Lal S/o Ramjeevan Sahu Aged About 39 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Lokesh Sahu S/o Bhuneshwar Sahu Aged About 23 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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Naresh Sahu S/o Ramjeevan Sahu Aged About 42 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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(Deleted) Ramjeevan Sahu (Died) As Per Honble Court Order Dated 16-04-2024.

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Teminbai W/o Bhuneshwar Sahu Aged About 37 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Amritbai W/o Naresh Sahu Aged About 35 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Tominbai W/o Sagarlal Sahu Aged About 33 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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Bharti Sahu W/o Ajit Sahu Aged About 40 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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10. Renuka Sahu W/o Bhuwanlal Sahu Aged About 40 Years R/o Village- Maharajpur, Police Station Lalbag, District Rajnandgaon, Chhattisgarh.

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---- Appellants

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Versus

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State Of Chhattisgarh Through The Arakshi Kendra Lalbag, District Rajnandgaon, Chhattisgarh.

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---- Respondent

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For Appellants : Mr. B. P. Singh, Advocate and Mr. Sumit Shrivastava, Advocate For Respondent : Mr. Ashish Shukla, Addl. Advocate General

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(Division Bench)

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

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Judgment On Board

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(10.07.202 4)

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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Sanjay K. Agrawal, J.

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1. Since both the criminal appeals, under Section 374(2) of CrPC, have arisen out of the same impugned judgment and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

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2. For sake of convenience, all the appellants/accused persons in both the appeals will be hereinafter referred to as under:

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Ramanik – A1	Shobhit Sahu – A8
Bharatlal - A2	Teminbai - A9
Bhuneshwar Sahu - A3	Parmila Sahu @ Chaiti – A10
Sagar Lal – A4	Amritbai – A11
Lokesh Sahu – A5	Tominbai - A12
Naresh Sahu – A6	Bharti Sahu – A13
Ramjeevan Sahu – A7	Renuka Sahu - A14

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3. There are total 14 accused persons in this case, out of which 2 accused namely Ramjeevan Sahu A-7 & Shobhit Sahu A-8 died during pendency of the appeals, therefore, the appeals in respect of Ramjeevan SahuA-7 & Shobhit Sahu A8 stand abated, accordingly, their names were deleted. Hence, both the appeals, in so far as it relates to the remaining appellants A-1 to A-6 and A-9 to A14, are being decided by this judgment.

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4. In both the criminal appeals, the judgment dated 25/11/2017 passed by Second Additional Sessions Judge, Rajnandgaon, Chhattisgarh, in S. T. No.01/2017 has been

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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challenged by which the appellants have been convicted for the offence punishable under Sections 147/149, 148/149, 323/149 & 302 of the Indian Penal Code ('IPC') and sentenced as under:-

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Conviction	Sent	ence
u/s 147/149 of IPC	R.I. for 3 months Rs.100/-, in default of fine, to undergo R.I. for 15 days.	and fine of of payment additional
u/s 148/149 of IPC	R.I. for 3 months Rs.100/-, in default of fine, to undergo R.I. for 15 days.	and fine of of payment additional
u/s 323/149 of IPC	R.I. for 3 months Rs.100/-, in default of fine, to undergo R.I. for 15 days.	and fine of of payment additional
u/s 302 of IPC	Life Imprisonment Rs.500/-, in default of fine, to undergo R.I. for one month.	and fine of of payment additional

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5. The case of prosecution, in brief, is that on 05.10.2016 at about 10 to 10:30 p.m., in village Mahrajpur, P.S. Lalbag, District Rajnandgaon, the appellants herein, in furtherance of common intention, assaulted Vipin Sahu (now deceased), by crowbar, rod and stick in front of the house of the deceased, as a result of which, he suffered grievous injuries and died while being taken to the hospital. The matter was reported to the Police by the wife of deceased Lokeshwari Sahu (PW-12), pursuant to which FIR was registered vide Ex.P-21. The dead body of deceased was subjected to postmortem, which was conducted by Dr. S. N. Hussaini (PW-13), who has proved the post-mortem report Ex. P-22, in which, cause of death

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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has been opined to be Cranio-cerebral injury along with multiple fractures. Pursuant to memorandum statements of the appellants Exs. P-28 to P-40, the weapons of offence i.e. crowbar, bamboo sticks, wooden plank and rods were seized vide Exs. P-41 to P-51 which were sent for chemical examination to FSL and as per FSL report Ex.P-73, blood was found on the said articles.

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6. After completion of investigation, appellants herein were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence stating that they have not committed any offence and they have falsely been implicated in crime in question.

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7. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 74 documents. The statement of the appellants / accused was recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellants-accused in support of their defence have not examined any witness nor have exhibited any document.

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8. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in paragraph No.4 of this judgment, against which both the appeals have

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.

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9. Mr. B. P. Singh and Mr. Sumit Shrivastava, learned counsel for the appellants would submit that in the FIR and Merg intimation, names of the accused persons find place but in the Court statements, the star witness of the prosecution namely Lokeshwari Sahu (PW-12) has named only accused Nos.1, 4, 5 & 6 namely Ramanik, Sagar, Lokesh and Naresh respectively as assailants. It has been argued that though the accused persons have been named by Lokeshwari Sahu (PW-12) but in her court statement, no overt act has been attributed to these appellants. It has been argued that so far as accused No.10 Parmila Sahu @ Chaiti is concerned, in paragraph-2 of the statement of Lokeshwari Sahu, it has come that Parmila Sahu was trying to prevent Lokeshwari Sahu from intervening in the matter. It has been further argued that no specific allegations have been made against the remaining accused persons and even test identification parade has not been conducted by the prosecution. It is also argued that the other eyewitnesses to the incident have turned hostile. Hence, learned counsel have prayed for acquittal of the appellants on the basis of benefit of doubt.

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10. On the other hand, Mr. Ashish Shukla, Additional Advocate General , supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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rightly convicted the appellants for the aforesaid offence and therefore, the instant appeals deserve to be dismissed.

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11. 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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12. The conviction of the appellants is based on the direct testimony of injured eye witness Lokeshwari Sahu (PW-12) as well as the incriminating circumstantial evidence i.e. recovery of weapons of offence which were seized on the memorandum statements of the appellants on which as per FSL report Ex.P-73, blood was found. Therefore, considering the nature of evidence available on record, it would be appropriate to take up the case of A-2, A-3 and A-9 to A14 first and subsequently the case of A-1, A-4, A- 5 & A-6.

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The case of Bharatlal – A2, Bhuneshwar Sahu – A3, Teminbai – A9, Parmila Sahu @ Chaiti – A10, Amritbai – A11, Tominbai – A12, Bharti Sahu – A13 & Renuka Sahu - A14

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13. These 8 accused persons were named by injured eye witness Lokeshwari Sahu (PW-12) who lodged the FIR (Ex.P-21). However, this injured eyewitness in her examination-in-chief before the trial court has only named Ramanik – A1, Sagar Lal – A4, Lokesh Sahu – A5 & Naresh Sahu – A6 . She has repeated the name of A1, A4, A5 and A6 in paragraph 25 of her statement. In para 18, she has clearly stated that she used to visit the house of Sagar Lal – A4 & Lokesh Sahu – A5 and she knew them as their

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018 houses are near to her house. So far as A-2, A-3 and A-9 to A-14 are concerned, she has clearly stated that she does not know their names as they live in other places of the village and their names were told to her by her brother-in-law Saket Sahu who has been examined as PW8 but as per PW-8, he has not stated the names of A-2, A- 3 and A-9 to A-14 to Lokeshwari (PW-12), though he has clearly stated that he accompanied Lokeshwari to the police station. Lokeshwari Sahu (PW-12) has stated that she knew some of the appellants and is also acquainted with them, but the names of other accused persons were disclosed by her brother-in-law Saket Sahu (PW-8), however PW-8 has not stated before the court that he had told the names of other accused persons to Lokeshwari Sahu. As such, there is serious doubt with regard to identity of the accused persons except A-1, A-4, A-5 and A-6. Though the other accused persons were named in the FIR but the injured eye witness Lokeshwari Sahu failed to identify them by name except accused A-1, A-4, A-5 and A-6. Therefore, it was incumbent on the part of the prosecution to conduct the Test Identification Parade to identify the accused persons as to whether they were the assailants of deceased Vipin Sahu or not, but the prosecution has not conducted any identification parade for the reason best known to them. Though in the FIR, these 8 appellants were named but the injured eye witness PW-12 could not identify them and she knew only few of them i.e. A-1, A-4, A-5 and A-6. Though some of the weapons of offence have been seized on the memorandum statements of these appellants but the recovery witnesses Khivendra Kumar Sinha (PW-16) & Rahul Khobragade

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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(PW-18) have turned hostile and have not supported the case of prosecution. No specific overt act or allegation has been levelled against these 8 appellants. Therefore, even their presence at the place of occurrence is doubtful, the benefit of which goes in favour of these 8 appellants. In that view of the matter, we are unable to uphold the conviction of appellants Bharatlal – A2, Bhuneshwar Sahu – A3, Teminbai – A9, Parmila Sahu @ Chaiti – A10, Amritbai – A11, Tominbai – A12, Bharti Sahu – A13 & Renuka Sahu - A14 for the offence under Sections 147/149, 148/149, 323/149 & 302 of IPC and therefore, these 8 appellants deserve to be and are accordingly acquitted from the said offences on the basis of benefit of bout.

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The case of Ramanik – A1, Sagar Lal – A4, Lokesh Sahu – A5 & Naresh Sahu – A6

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14. It is not in dispute that the deceased had already served jail sentence in several criminal cases which is also proved from para-10 of the statement of Sammohan Sahu (PW-1). It is also not in dispute that prior to the date of offence, on the question of construction of toilet, a dispute occurred between the deceased and the village member Ramanik – A1 and it is the case of the prosecution that appellant (A-1) Ramanik Sahu had threatened the deceased which the trial Court has also recorded in para43 of its judgment. It appears that the villagers were aggrieved with deceased and on that count the dispute arose between the parties in which these 4 appellants are said to have assaulted the deceased. A crowbar was seized

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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from appellant A-4 and a wooden plank (Balli) was seized from appellant A6, on which, as per FSL report Ex. P-73 blood was found. As such, the finding recorded by the trial Court that these 4 appellants have assaulted the deceased by which he suffered grievous injuries and died and which is also established from the statement of injured eye witness Lokeshwari Sahu (PW-12), is a correct finding of fact based on evidence available on record and accordingly, we affirm the said finding.

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15. Now, the question is, whether the case of these 4 appellants would fall under Exception 4 to Section 300 of IPC?

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16. In order to consider whether the case of these 4 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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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of

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(2002) 3 SCC 327

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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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 Haryana 2, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, which state as under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(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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(2009) 15 SCC 635

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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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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18. Likewise, in the matter of State v. Sanjeev Nanda 3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part II

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(2012) 8 SCC 450

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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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 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 not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it 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

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(2017) 3 SCC 247

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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death is caused, it has been explained as under : (SCC p. 596, para 9)

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

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20. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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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

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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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22. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that prior to the date of incident, a dispute had arisen between deceased and village member Ramanik – A1 in the village Panchayat on the issue of construction of village toilet, otherwise the government was likely to stop the supply of rice etc. It is also evident from the evidence that the villagers were aggrieved and on that count, dispute arose between the parties, in which these 4 (four) appellants are said to have assaulted the deceased, due to which, he suffered grievous injuries and died. This makes it clear that there was no premeditation on the part of these 4 appellants to cause death but they must have had intention as well as knowledge that such injury inflicted by them on the body of the deceased would likely to cause his

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(2019) 6 SCC 122

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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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 these 4 appellants 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 appellants had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants Ramanik – A1, Sagar Lal – A4, Lokesh Sahu – A5 & Naresh Sahu – A6 under Section 302 of IPC can be altered/converted to Section 304 Part-I of IPC.

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23. In that view of the matter, the conviction of the appellants Ramanik – A1, Sagar Lal – A4, Lokesh Sahu – A5 & Naresh Sahu – A6 for offence punishable under Section 302 of IPC is altered/converted to Section 304 Part-I of the IPC and they are sentenced to R.I. for ten years. But the fine amount imposed by the learned trial Court shall remain intact. However, the conviction of A1, A4, A5 & A6 for offence punishable under Sections 147/149, 148/149 and 323/149 is set-aside and they are acquitted of the said charges on the ground of benefit of doubt.

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24. In the result, the appeals so far as they relate to Appellants A1, A4, A5 & A6 are partly allowed to the extent indicated herein-above and the appeals qua Appellants A2, A3 & A9 to A14 are allowed.

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25. Appellants A-2, A-3 & A-9 to A14 are on bail, they need not surrender, however, their bail bonds shall remain in

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Criminal Appeal Nos. 1976 of 2017 & 67 of 2018

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force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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26. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, for information and necessary action, if any.

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

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Khatai

Bhuneshwar Sahu v. State Of Chhattisgarh

Case brief

What is this about?

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Bhuneshwar Sahu v. State Of Chhattisgarh

Case brief

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