Partly allowed

Netram @ Netu Kaushik v. State of Chhattisgarh

Chhattisgarh HC10 Jun 2024CRA/698/2018

Case brief

AI extract

What is this about?

Appeal against conviction under Section 302 IPC for killing the deceased with an axe after a quarrel over an old dispute. The High Court affirmed the homicidal death and authorship findings but held there was no premeditation or intention to cause death, altering the conviction to Section 304 Part-II and releasing the appellant on sentence already undergone.

What did the court decide?

Conviction altered from Section 302 to Section 304 Part-II IPC; sentenced to period already undergone; fine retained; release directed.

Netram @ Netu Kaushik Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 698 of 2018

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{Arising out of judgment dated 26.03.2018 passed in Sessions Trial No.01/2017 by the learned Sessions Judge, Kabirdham (Kawardha)}

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Netram @ Netu Kaushik, S/o. Lokchand Kaushik, Aged About 19 Years, R/o. Village Mungelidih, Police Station Kawardha, District Kabirdham, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through : Station House Officer, Police Station- Kawardha, District Kabirdham, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Dharmesh Shrivastava, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate

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(Division Bench)

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

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Judgment On Board (11.06.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 26.03.2018, passed by the learned Sessions Judge, Karbirdham, in Sessions Trial No.01/2017, by which, the appellant herein has been

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convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine amount, 6 months additional imprisonment.

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2. Case of the prosecution, in brief, is that on 30.10.2016 at about 12:30 p.m. at village Mungelidih, Police StationKawardha, District Kabirdham, the appellant herein assaulted Shatru @ Budhram Kaushik (now deceased) by axe, by which, he suffered grievous injuries and died. The matter was reported to the police by Shatrughan (PW-6), pursuant to which, Merg Intimation was registered vide Ex.P-8, FIR was registered vide Ex.P-9, Spot Map was prepared vide Ex.P-3, Inquest was conducted vide Ex.P-7 and dead body of deceased Shatru @ Budhram was subjected to post-mortem, which was conducted by Dr. Dharmendra Kumar (PW-4), who proved the post-mortem report Ex.P-4, in which, cause of death was stated to be shock due to excessive bleeding from the wound and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-14, axe was recovered vide Ex.P-15 along-with other articles, which were sent for chemical examination to FSL and as per the FSL report (Ex.P-24), human blood was found on the axe and other seized articles i.e. saree, shirt, lower &

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towel. After due investigation, appellant was chargesheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 28 documents and the appellant-accused in support of his defence has not examined any witness, but has exhibited the document Ex.D-1.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

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5. Mr. Dharmesh Shrivastava, learned counsel for the appellant, would submit that taking into case of the prosecution as it is, at the most, the case of appellant would fall under Exception 4 to Section 300 of I.P.C. as there was no premeditation and intention to cause death

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and, as such, the conviction of appellant under Section 302 of I.P.C. can be altered either to Section 304 Part-I or Part-II of I.P.C. and he be sentenced for the period already undergone, as he is in jail since 01.11.2016 i.e. more than 7 years.

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6. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of I.P.C. He further submits that it is not a case wherein the offence can be converted either to Part-I or Part-II of Section 304 of I.P.C., as such, the appeal deserves to be dismissed.

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7. 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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8. The first question for consideration as to whether the death of deceased Shatru was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-4) proved by Dr. Dharmendra Kumar (PW-4), according to which, cause of death was stated to be shock due to excessive bleeding

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from the wound and death was 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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9. Now, the next question is, whether the appellant has caused the death of deceased Shatru @ Budhram Kaushik ?

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10. Taking into consideration the statement of eye-witness Smt. Kirti Bai Kaushik (PW-5), wife of deceased, who has clearly stated that when her son informed that his father and appellant were quarreling then she reached to the spot where the appellant and deceased were quarreling and thereafter, after brief quarrel, the appellant assaulted her husband and caused a single neck injury by axe, by which, he died. She was subjected to some extent of cross-examination but nothing has been extracted to hold that she is not the eye-witness and she had not seen the incident and furthermore, pursuant to memorandum statement of the appellant, axe has been seized on which human blood was found as per the FSL report (Ex.P-24), we are of the considered opinion that the finding recorded by the trial court that it is the appellant who had caused the death of deceased Shatru is a correct finding of fact

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based on evidence available on record and accordingly, we affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of I.P.C., as contended by learned counsel for the appellant ?

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12. In order to consider whether the case of the appellant 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

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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 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

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1 (2002) 3 SCC 327

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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 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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2 (2009) 15 SCC 635

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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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14. Likewise, in the matter of State v. Sanjeev Nanda 3, 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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15. 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

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4 (2017) 3 SCC 247

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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 without weapons. It is not possible to enunciate

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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 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 I.P.C.

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17. 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 I.P.C., 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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5(2019) 6 SCC 122

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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. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death, but as per the statement of Smt. Kirti Bai Kaushik (PW-5), due to old dispute, quarrel took place between appellant and deceased and after brief quarrel between them, appellant is said to have assaulted the deceased by axe, by which, he suffered single neck injury and died. Considering the medical evidence available on record, single injury was found by Dr. Dharmendra Kumar (PW-4) on the neck of the deceased, as such, there was no intention on the part of the appellant to cause death, but the appellant must have had knowledge that the injury caused by him is likely to cause death and he had not taken any undue advantage and has not acted in unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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19. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered

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to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, he is in jail since 01.11.2016, however, the fine amount imposed by the trial Court shall remain intact. Accordingly, we direct that the appellant be released forthwith from jail, unless he is required in any other offence.

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20. In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

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21. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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

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Ashok

Netram @ Netu Kaushik v. State of Chhattisgarh

Case brief

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Netram @ Netu Kaushik v. State of Chhattisgarh

Case brief

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