Partly allowed

Sitaram Kashyap v. State Of Chhattisgarh

Chhattisgarh HC4 Mar 2024CRA/718/2017

Case brief

AI extract

What is this about?

The High Court partially allowed an appeal against murder convictions. It converted the charge of murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part-II IPC) for six appellants under Exception 4, clarified that the seventh appellant was entitled to acquittal for lack of evidence, and ordered release of the six imprisoned appellants who had served their maximum s

What did the court decide?

Convictions under Section 302 IPC reduced to Section 304 Part-II IPC for six appellants; seventh appellant acquitted; six appellants released from jail having served maximum term.

Sitaram Kashyap Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 718 of 2017

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(Arising out of judgment dated 08.03.2017 passed in Sessions Trial No.10/2016 by learned Sessions Judge, Korba, district Korba, CG)

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1 - Sitaram Kashyap S/o Late Shri Bhagirathi Kashyap Aged About 55 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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2 - Dinesh Kashyap S/o Sitaram Kashyap Aged About 28 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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3 - Rajesh @ Raju Kashyap S/o Sitaram Kashyap Aged About 21 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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4 - Phool Bai Kashyap W/o Sitaram Kashyap Aged About 52 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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5 - Purain Bai Kashyap W/o Dinesh Kashyap Aged About 25 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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6 - Savitri Kashyap W/o Late Ramsagar Kashyap Aged About 25 Years, R/o Sandel, Police Station- Urga, Civil And Revenue District- Korba, Chhattisgarh.

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7 - Janki Bai Kashyap W/o Chhedilal Kashyap Aged About 23 Years, R/o Village- Kenabhantha, Police Station- Balouda, Civil And Revenue District- JanjgirChampa, Chhattisgarh.

---- Appellants

Versus

State Of Chhattisgarh, Through Station House Officer, Police Station- Urga, District- Korba, Chhattisgarh.

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---- Respondent

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For Appellants :- Mr. Suresh Tandan, Advocate. :- For Respondent Mr. Ankur Kashyap, Dy. Gov. Advocate.

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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 (05.03.202 4)

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Sanjay K. Agrawal, J.

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1 . The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ('CrPC') has been preferred by the appellants herein against the judgment and order dated 08.03.2017 passed by Sessions Judge, Korba, District Korba in Sessions Trial No.10/2016, by which all the appellants have been convicted for the offence punishable under Sections 148, 506 Part-2, 302, 323, 452, 427, 323 read with Section 149 of the Indian Penal Code ('IPC'). In addition, appellant no.1 Sitaram Kashyap has been convicted under Section 506 Part-2 of IPC i.e. he has been convicted twice under Section 506 Part-2 of IPC.

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All the appellants have been sentenced in the following

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manner:-

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Conviction	Se	nten	ce
u/s 148 read with Section 149 of IPC	R.I. for 2 years Rs.500/-, in defau of fine, to under R.I. for 3 months.	and lt of go a	fine of payment dditional
u/s 506 Part-2 read with Section 149 of IPC	R.I. for 1 year Rs.1,000/-, in payment of fine, additional R.I. for 3	and def to mon	fine of ault of undergo ths.
u/s 302 read with Section 149 of IPC	Life Imprisonment Rs.5,000/-, in payment of fine, additional R.I. for 2	and defa to year	fine of ult of undergo s.
u/s 323 read with Section 149 of IPC	RI for 6 month causing injury to and Gauri Bai	s t Rad	wice for heshyam
u/s 452 read with Section 149 of IPC	R.I. for 1 year Rs.1,000/-, in payment of fine, additional R.I. for 3	and def to mon	fine of ault of undergo ths.
u/s 427 read with Section 149 of IPC	RI for 6 months
u/s 323 read with Section 149 of IPC	RI for 6 months

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In addition, appellant No.1 Sitaram Kashyap has been sentenced as under: -

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u/s. 506 Part-2 of IPC R.I. for 1 year and fine of Rs.1,000/-, in default of payment of fine, to undergo additional R.I. for 3 months.

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2 . The case of the prosecution, in nutshell, is that on 27.11.2015, the appellants herein armed with

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dangerous weapons, in furtherance of their common object, reached the spot where Bhuvneshwar (now deceased), his wife Gouri Bai (PW-5) and his father Radheshyam Kashyap (PW-1) were harvesting crops and assaulted deceased Bhuvneshwar, as a result of which, he suffered grievous injuries and died on the spot. Thereafter, the appellants came to the house of complainant and assaulted his wife Bisahin Bai (PW-4) and also threatened the inmates of the house, thereby committed the aforesaid offence. Radheshyam Kashyap (PW-1) reported the matter to the Police, pursuant to which FIR (Ex.P/1) was registered. Inquest proceedings were conducted and the dead body of deceased was subjected to postmortem. As per postmortem report (Ex.P/08), proved by Dr. D. R. Raj (PW-8), cause of death was grievous injuries sustained by the deceased and death was homicidal in nature. Pursuant to memorandum statements of the appellants Ex. P-25, P-27, P-29, P-31, P-33, P-35 & P- 37, the weapons of offence i.e. axe, bamboo stick, sickle and knife, bamboo stick, wooden leg of a cot, bamboo stick & axe were seized vide Ex. P-26, P-28, P-

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30, P-32, P-34, P-36 & P-38 respectively which were sent for chemical examination to FSL along with other articles and in FSL report Ex. P-59, human blood was found on ‘B2’ i.e. the shirt of Appellant no.2 Dinesh Kashyap and ‘G’ i.e. sickle seized from the possession of Appellant no.3 Rajesh Kashyap.

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3 . During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 59 documents. Statements of the accused/appellants were recorded under Section 313 of 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, in their defence, 1 witness has been examined and 3 documents have been exhibited by them.

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4 . The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants

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questioning the impugned judgment of conviction and order of sentence.

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5 . Mr. Suresh Tandan, learned counsel appearing for the appellants would submit that the involvement of all the appellants is exaggeration and false implication on afterthought. He would argue that on an admitted position that the appellants and the deceased, injured belong to two different branches of one common ancestor and there being many existing disputes with regard to title over agricultural lands, it cannot be said that there was any intention to commit murder of Bhuvneshwar. Next submission is that on afterthought grounds, after death of Bhuvneshwar, each and every member of the family of Appellant no.1 Sitaram Kashyap has been involved, which includes number of family members also whereas, they have not committed any offence. He would further submit that the name of appellant no.7 Janki Bai does not find place in the FIR, though the FIR was lodged by injured eye-witness Radheshyam Kashyap (PW-1) soon after the incident, however, the trial Court has convicted

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and sentenced her along with other accused persons. As such, the appeal deserves to be allowed in full or in part.

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6 . Mr. Ankur Kashyap, learned Dy. Government Advocate, per contra, would submit that the prosecution has been able to prove its case beyond reasonable doubt. He submits that in the present case, there are more than one eye-witnesses particularly Radheshyam Kashyap (PW-1) and Gouri Bai (PW-5) who are injured eye-witnesses, have clearly stated regarding involvement of all the appellants in the alleged commission of offence by clearly stating that the appellants forming unlawful assembly arrived with common object to kill deceased Bhuvneshwar, tied his legs with rope and then assaulted till his death. As such, the appellants do not deserve for acquittal and their appeal is liable to be dismissed.

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7 . We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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8. The first question for consideration i s whether the death of deceased Bhuvneshwar was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex. P- 8) proved by Dr. D. R. Raj (PW-8), which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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9. Now, the question for consideration is as to whether the appellants have caused the death of deceased Bhuvneshwar?

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10. Considering the statements of injured eye witnesses Radheshyam Kashyap (PW-1) and Gouri Bai (PW-5) – the father and the wife of deceased, who on the date of offence were present along with the deceased on the spot and harvesting crops of their own field, have clearly stated that the appellants 1 to 6 came to the spot armed with various weapons and assaulted deceased Bhuvneshwar, as a result of which, he suffered grievous injuries and died on the spot and

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further considering that pursuant to the memorandum statements of the appellants, various weapons have been seized from their possession and as per the FSL report Ex. P-59, human blood was found on sickle seized from Appellant no.3 Rajesh and on the shirt of Appellant no.2 Dinesh Kashyap, we are of the considered opinion that the finding recorded by the trial Court that it is the appellants 1 to 6 who assaulted deceased Bhuvneshwar by dangerous weapons by which he suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. However, there is no evidence on record against appellant No.7 Janki Bai Kashyap showing her involvment in the offence. The injured eye witness Radheshyam Kashyap (PW1) himself reported the matter to the Police soon after the incident, based on which FIR was registered, but even in the FIR, the name of Appellant no.7 Janki Bai does not find place. Therefore, she is entitled for acquittal of all the charges under which she has been convicted and sentenced.

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11. Now, the question is, whether the case of the appellants 1 to 6 would fall under Exception 4 to Section 300 of IPC?

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12. In order to consider whether the case of the appellant 1 to 6 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 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

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1 (2002) 3 SCC 327

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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

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Singh v. State of Haryana 2, has laid down certain

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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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2 (2009) 15 SCC 635

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be

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kept in view while convicting and sentencing the accused.”

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14. Likewise, in the matter of State v. Sanjeev

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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 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

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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

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3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

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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 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

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

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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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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 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. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is

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5 (2019) 6 SCC 122

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quite vivid that appellant no.1 Sitaram Kashyap and complainant Radheshyam Kashyap (PW-1) both are the sons of Bhagirathi Kashyap and they belong to two different branches of a common ancestor and there being many existing disputes with regard to title over the agricultural lands, out of which one case is pending before the Tahsildar, Barpali, it cannot be held that there was any intention to commit murder of deceased Bhuvneshwar but definitely it can be held that the appellants 1 to 6 must have had knowledge that such injury inflicted by them on the body of the deceased would likely to cause his 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 the appellants herein 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 1 to 6 under Section 302 read with section 149 of IPC

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can be altered/ converted to Section 304 Part-II read with section 149 of IPC.

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19. Accordingly, the conviction of the appellants 1 to 6 for offence punishable under Section 302 read with section 149 of IPC is altered/converted to Section 304 Part-II read with section 149 of the IPC and they are sentenced to the period already undergone, as they are in jail since 28.11.2015 i.e. more than 8 years, however, the fine amount imposed by the learned trial Court shall remain intact.

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20. However, in view of the discussions made hereinabove, the conviction and sentence of Appellants 1 to 6 for the offence punishable under Sections 148, 506 Part-2, 323, 452, 427 & 323 read with section 149 of IPC including the fine part and its default clause is hereby affirmed and well maintained. In addition, the conviction and sentence of Appellant no.1 Sitaram Kashyap under section 506 Part-2 of IPC is also affirmed. However, the conviction of Appellant no.7 Janki Bai Kashyap, for the offence punishable under Sections 148, 506 part-2, 302, 323, 452, 427, 323

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read with section 149 of IPC is set-aside and she is acquitted of all the charges levelled against her.

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21. Appellants 1 to 6 are reported to be in jail since 28.11.2015, thereby they have already completed the maximum sentence of 2 years of imprisonment awarded under Section 148 read with section 149 of IPC. We, therefore, direct that all the appellants be released from jail forthwith, if their detention is not required in connection with any other offence.

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22. In the result, the appeal regarding Appellants 1 to 6 is partly allowed to the extent indicated herein-above and the appeal regarding Appellant No.7 is allowed.

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23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and also to the concerned Jail Superintendent for information and necessary action at the earliest.

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

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Khatai

Sitaram Kashyap v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sitaram Kashyap v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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