Partly allowed

Rupanram and Other v. State of Chhattisgarh

Chhattisgarh HC8 Jul 2024CRA/720/2006

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside conviction under Section 304(I) IPC and substituting it with Section 304(II) IPC. The court held that the injury was caused without premeditation in a sudden fight in the heat of passion, and the offender did not take undue advantage. The sentence was reduced to the period already undergone.

What did the court decide?

Conviction modified to Section 304(II) IPC; sentence reduced to period already undergone; bail bond continued for 6 months under Section 437-A Cr.P.C.

Rupanram and Other Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

2024:CGHC:35207

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 720 of 2006

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1 - Rupanram son of Sandhuram Kanwar aged about 40 years, residence of Sakin village Lalati, Police Station Udaipur, District, Surguja.

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2 - Sangram Singh alias Irisharan Singh son of Mankundi Kanwar aged about 33 years, Sakin village Lalati, Police Station Udaipur, District, Surguja.

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... Appellants

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versus

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1 - State of Chhattisgarh through Police Station- Udaipur, District Surguja (C.G.)

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... Respondent

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For Appellants : Mr. Keshav Dewangan, Advocate For Respondent : Dr. Surendra Kumar Dewangan, P.L.

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board

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09/07/2024

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This appeal has been filed against the judgment of conviction and sentence dated 01.09.2006 passed by Learned 3rd Additional Sessions Judge, (F.T.C.) Ambikapur, Surguja, Chhattisgarh in Sessions Case No. 289/2005 whereby the appellants have been convicted and sentenced under Section 304(I) of I.P.C. and sentenced him for R.I. for 10 years with fine of Rs. 500/- to each of the appellants and in default of payment of fine further R.I. for one month.

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The brief facts of the case are that on 17.06.2005 at about 03:00 p.m. the complainant Godabai PW-4 has lodged a report to the police at about 07:30 a.m. when her brother Ishwar Prasad was working in his field, the appellants came there asked to release the cattles from his plough and assaulted the deceased Ishwar Prasad by wooden plank by which her brother fell down and received injuries on his head. When the deceased fell down on the ground, the appellants assaulted him by fist and kicks, thereafter they fled away from there. She informed the incident to her sister Sunita and Sarita and then the other villagers took the deceased to his house and while they were managing the vehicle to take the deceased to hospital, he died at about 09:30 a.m. On the report of PW-4 Godabai, the F.I.R. Ex.-P/3 and merg-intimation Ex.-P/4 was registered by the police. The inquest Ex.-P/9 was prepared in presence of the witnesses. The dead body was sent for its post-mortem to Community Health Center Udaipur where PW-3 Dr. I. D. Bhatnagar has conducted the post-mortem of the dead body of the deceased and gave his report Ex.-P/2 while conducting the postmortem of the deceased the doctor has found the following injuries on his body:-

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(i) Multiple bruises over both hands and with forearms both and shoulders.

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(ii) Tear over right eye ext. congestion and blackish scelure.

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(iii) lacerated wound 3x2 inch upper frontal region with fracture of frontal bone deep to the duramatter and haemotome.

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(iv) contusion 6x4 inch with thoracolumbar region of injuries are

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antemortem injuries.

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Injury no.3 causes coma with hemorrhagic shock followed death. The doctor has opined that the cause of death is due to fracture of frontal bone of skull deep to the brain causes coma with hemorrhagic shock followed death. Mode of death is homicidal in nature.

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During the investigation the appellants have taken into custody and on the basis of memorandum statement of the appellant Roopanram Ex.P/6 one wooden plank has been seized from him vide seizure memo Ex.-P/7. The blood stained and plain soil was also seized from the spot vide Ex.-P/8. The blood stained and plain soil and the wooden plank seized from the appellant Roopanram were sent for FSL examination to State FSL, Raipur from where Ex.-P/14-A has been received according to which blood has been found on the blood stained soil and wooden plank seized from the appellant Roopanram.

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Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned Chief Judicial Magistrate, Ambikapur for the offence under Section 302/34 of the I.P.C. The case was committed to the Court of learned Sessions Judge, Surguja, place Ambikapur from where the same has been transferred to the learned trial Court for its trial.

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The learned trial Court has framed charges for the offence under Section 302 of I.P.C. against the appellant Roopanram whereas the charge against the Sangram @ Irisharan Singh has been framed for the ofence under section 302/34 of I.P.C. The appellants denied the charge and claimed trial.

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In order to prove the charge against the appellants, the prosecution has examined as many as 9 witnesses. The statement under Section 313 of Cr.P.C. has also been recorded in which they denied the circumstance appears against them, plead innocence and the appellant Roopanram has submitted that the deceased Ishwar was ploughing the field which is owned by him and when he tried to stop

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him ploughing his field, the deceased Roopanram started raising dispute, at that time he was having a small spade with him for using it in removing the soil in the field by which he made assault on him otherwise the deceased would beaten him from the club which he was having in his hands. The deceased Ishwar had tried to encroach his land, therefore, the dispute arose. however, the appellants Sangram have stated that he had gone to the place of incident along with the coaccused Roopanram, deceased has already fell down on the ground and they spread water on his face and he has not assaulted him and he has been falsely implicated in the offence. Three defence witnesses namely DW-1 Duafar Ram, DW-2 Amarsai DW-3 Parasnath Yadav have been examined by the appellant in their defence.

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After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial court has convicted and sentenced the appellants as mentioned in the earlier part of the judgment. Hence this appeal.

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Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The injuries found on the body of the deceased is not corroborated with the evidence of doctor and from the weapon allegedly seized from the appellants. There is every possibility that deceased was being assaulted by someone else, by which he received injuries on his head. Memorandum and seizure witnesses have not supported the case of the prosecution. There are material inconsistencies in the evidence of so-called eye-witnesses and in absence of any clinching and cogent evidence against the appellants,

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they cannot be convicted for the alleged offence. In alternative he would submits that the appellants have remained in jail for more than 03 years. There is no intention to cause death of the deceased by giving such injuries and thereby converting the offence under Section 304(I) of the I.P.C. into 304(II) of I.P.C., the period of undergone by the appellants may be considered to be the sufficient sentence for the alleged offence. The appellants are remained in jail for about 03 - 04 years respectively.

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Per contra learned counsel for the State opposes the submissions made by learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable which proves the guilt of the appellants. The medical evidence adduced by the prosecution has also corroborated the allegations raised by the witnesses and there is no inconsistency in it. He would further submits that the learned trial Court has already taken the lenient view and awarded minimum sentence for the offence under Section 304(I) of I.P.C. and the offence neither is liable to be converted under Section 304(II) nor the sentence of the appellants is liable to be reduced. Therefore, the appeal filed by the appellants is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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The first and foremost question arise would be whether the death of the was homicidal in nature?

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The learned trial Court after appreciating oral as well as documentary evidence available on record particularly relied upon the statement of Dr. I.D. Bhatnagar PW-3 who conducted the post-mortem, has come

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into conclusion that fracture of frontal bone deep to the brain cause coma, hemorrhagic shock followed death and the mode of death is homicidal in nature. Further from the evidence of eye-witnesses Godabai PW-4, Fhoolkumari PW-6, it is clear that the appellants have assaulted the deceased Ishwar by lathi, fist and kicks and when he was taken to his house and they were arranging the vehicle for taking him to the hospital he died. As such, I am of the considered opinion that the finding recorded by the learned trial Court that the death of the deceased was homicidal in nature is proper. The finding of the fact based on evidence available on record, it is neither perverse nor contrary to the record and hereby affirmed that finding.

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Now the next question for consideration whether the accused appellants are the perpitrator of the crime in question which the learned trial Court has recorded in affirmative by relying upon the testimony of the eye-witnesses Godabai PW-4, Fhoolkumari PW-6.

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PW-4 Godabai has stated in her evidence that the deceased was her brother. On the date of incident at about 07:00 a.m. she had gone to the field along with her brother. At that time the appellants came there and asked her brother to release the cattles from the plough, thereafter the appellant Roopanram has started assaulting her brother by wooden plank on his head and back when he fell down the other appellant Sangram assaulting him by fist and kicks. By the assault made by the appellants he received injuries and blood was coming out from the injuries. She rushed to her house and inform and other family members and villagers. The deceased was taken to his house and when they were arranging for vehicle to take him to the hospital he died. Thereafter she had gone to police station for lodging of the report.

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Similar is the statement of PW-6 Fulkumari, who is the mother of the deceased. In her cross-examination, defence could not elicited any material which makes the evidence of these two witnesses doubtful and their evidence are consistent with the allegation the appellants have caused injuries to the deceased. Accordingly I affirm the said finding that the appellants are perpitrator of the criminal offence in question.

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The aforesaid finding brings this Court to the next question for consideration, whether the case of the appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants.

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The Hon'ble Supreme Court in the matter of Gurmukh Singh v. State

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

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

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(a) Motive or previous enmity;

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

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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

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

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

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

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

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(m) The conduct and behaviour of the accused after the incident. 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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Likewise, in the matter of State v. Sanjeev Nanda, their Lordships of

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the Hon'ble Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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Further, the Hon'ble Supreme Court in the matter of Arjun v. State of Chhattisgarh 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

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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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” 21. 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

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(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 4 (2017) 3 SCC 2472024:CGHC:9062 DB 11 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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In the matter of Arjun (supra), the Hon'ble Supreme Court has held

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that if there is intent and knowledge, the same would be case of Section 304 Part-I of the 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 of the IPC.

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According to the evidence of eye-witnesses PW-4 Godabai and PW-6 Fulkumari when the deceased was working in the field, the appellants came there asked him to stop the work and released the cattles from plough and when the deceased was not released the cattles from the plough, assault was made by the appellants. The claim of the appellants are that the field in which the deceased was ploughing is belong to him and the deceased tried to encroach his land. It is not the case of the prosecution that the appellants came there armed with any deadly weapon like sward or axe. The appellants carrying wooden

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plank which normally a farmer was carrying in his hand while going to their agricultural field which is common in the village, therefore, in the facts and circumstances of the case the act of the appellants completely satisfies the ingredients of Section 304-II of I.P.C. in stead of Section 304-I of I.P.C. Therefore, the conviction of the appellants under Section 304(I) and 304(I)/34 respectively are set-aside and instead thereof, they have been convicted for the offence under Section 304(II) and 304(II)/34 of I.P.C. respectively.

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Accordingly, the present appeal is partly allowed . The appellants are sentenced for the offence of Section 304(II) and 304(II)/34 of I.P.C. respectively for the period already undergone by them. The appellants reported to be on bail. Their bail bond shall continue for further period of 6 months as provided under Section 437-A of Cr.P.C.

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The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action.

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Sd/-

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(Ravindra Kumar Agrawal) JUDGE

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Alok

Rupanram and Other v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rupanram and Other v. State of Chhattisgarh

Case brief

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What did the court decide?

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