Partly allowed

Heera Lal @ Bhagat v. the State of Chhattisgarh

Chhattisgarh HC17 Jun 2024CRA/749/2018

Case brief

AI extract

What is this about?

Two appellants appealed a life sentence conviction for murder arising from a theft altercation. The High Court accepted that the act was sudden, unpremeditated, and committed in the heat of passion without undue advantage, applying Exception 4 to Section 300 IPC. The court set aside the murder conviction, reconvicted the appellants under Section 304 Part-II IPC, and directed their release.

What did the court decide?

Conviction for Section 302 IPC set aside; convicted under Section 304 Part-II IPC; released forthwith.

Heera Lal @ Bhagat Vs the State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

(Cr.A.No.749/2018)

HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.749 of 2018

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{Arising out of judgment dated 23-4-2018 in Sessions Trial No.R 10/2017 of the 2^nd Additional Judge, Ramanujganj to the Court of Additional Sessions Judge, Ramanujganj}

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Heera Lal @ Bhagat, S/o Rajaram Gond, aged about 36 years

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Moti Lal, S/o Rajaram, aged about 31 years

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Both R/o Village Lamori Gowatiyapara, P.S. Basantpur, District Balrampur-Ramanujganj (C.G.)

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(In Jail) ---- Appellants

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Versus

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The State of Chhattisgarh, through Police Station Basantpur, District Balrampur-Ramanujganj (C.G.)

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---- Respondent

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For Appellants: Mr. A.K. Prasad, Advocate. For Respondent/State: Mr. Sharad Mishra, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Agrawal, JJ.

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Judgment On Board (18/06/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of the CrPC at the instance of the two appellants herein is directed against the impugned judgment of conviction recorded and sentence awarded by the learned 2^nd Additional Judge, Ramanujganj to the Court of Additional Sessions Judge, Ramanujganj by which the two appellants have been convicted for offences under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced to undergo imprisonment for life & pay fine of ₹ 10,000/- each, in default of payment of fine to further

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(Cr.A.No.749/2018)

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undergo additional rigorous imprisonment for one year and rigorous imprisonment for one year & pay fine of ₹ 1,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three months, respectively, with a direction to run both the sentences concurrently.

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Case of the prosecution, in short, is that on 17-11-2016 at about 10.30 p.m., at Village Lamori, Kerwa Road, the two appellants herein in furtherance of their common intention abused and assaulted Ramprasad by hands & fists and stick by which he suffered grievous injuries and died and also caused simply injuries to Amarsai (PW-1) and thereby committed the offence. It is the further case of the prosecution that deceased Ramprasad, Amarsai (PW-1) & Norbat (PW-2) after having stolen the crop/paddy sown and cut by Girdhari Lal (PW-13), were transporting the same to their home which was caught by the two appellants herein and on account of stealing the crop/paddy of Girdhari Lal (PW-13), brief altercation took place between the appellants herein on the one hand and deceased Ramprasad, Amarsai (PW-1) & Norbat (PW-2) on the other hand and the appellants have caused injury to Ramprasad & Amarsai (PW-1) by which Ramprasad suffered grievous injuries and died and Amarsai (PW-1) sustained simple injuries. Amarsai (PW-1) reported the matter to the police pursuant to which morgue intimation was lodged vide Ex.P-11 and FIR was registered vide Ex.P-12. The investigating officer prepared spot map vide Ex.P-1 in the form of Crime Details Form and wheels of investigation started running. Inquest on the dead body of the deceased was conducted vide Ex.P-14. On the recommendation of panchas, the dead body was subjected to

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(Cr.A.No.749/2018)

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postmortem which was conducted by Dr. A.K. Singh (PW-11) vide postmortem report Ex.P-15A in which cause of death was stated to be asphyxia due to throttling and nature of death to be homicidal. The accused persons were taken into custody vide Exs.P-6 & P-7 and their memorandum statements were recorded vide Exs.P-2 & P-3 pursuant to which wooden sticks were seized from them vide Exs.P-4 & P-5. Injured witness Amarsai (PW-1) was examined by the doctor vide MLC report Ex.P-16A according to which simple injuries i.e. two abrasions & one swelling were found caused by hard & blunt object.

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Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellants were chargesheeted for offences under Sections 294, 323 & 302 read with Section 34 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Ambikapur (Surguja) from where the learned 2^nd Additional Judge, Ramanujganj to the Court of Additional Sessions Judge, Ramanujganj received the case on transfer for trial.

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The accused / appellants abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 19 documents. The defence has neither examined any witness nor exhibited any document in support of its case. The accused / appellants were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them and pleaded innocence and false implication.

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The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellants under

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(Cr.A.No.749/2018)

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Sections 302 read with Section 34 & 323 read with Section 34 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

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Mr. A.K. Prasad, learned counsel appearing for the appellants, would submit that taking the prosecution case as it is, at the most, offence under Section 304 Part-II of the IPC would be made out against the appellants, as there was no intention of the appellants to cause the death of the deceased, but only knowledge can be attributed, as such, there was no premeditation on the part of the appellants and the appellants are in jail since 19-11-2016 thereby they are already in jail since more than seven years, therefore, it is a fit case where conviction of the appellants can be converted/altered to an offence under Section 304 Part-II of the IPC. Therefore, taking into consideration the period already undergone by the appellants, the appellants be released from jail forthwith by partly allowing the appeal.

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Mr. Sharad Mishra, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and oppose the appeal and submit that the prosecution has been able to bring home the offence against the appellants beyond reasonable doubt and the trial Court has rightly convicted the appellants and it is not the case which should be converted to Section 304 Part-II of the IPC. Furthermore, there was no motive of the appellants for commission of the offence.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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(Cr.A.No.749/2018)

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The first question whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-15A proved by Dr. A.K. Singh (PW-11), which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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The next question is, whether the appellants are the authors of the crime in question, which has also been answered by the trial Court in affirmative. Amarsai (PW-1) – injured eyewitness, has clearly stated that when he (PW-1), Norbat (PW-2) & deceased Ramprasad were about to pickup / steal the crop belonging to Girdhari Lal (PW-13) – gotia of the village, and when they were carrying the same to their home, the accused/appellants came there and stopped them and some altercation took place between them and the appellants started assaulting them with stick and they also assaulted Ramprasad (deceased) and Norbat (PW-2) fled away from the spot. Norbat (PW-2) has partly supported the case of the prosecution, though he has not seen the incident. Gopal Ram (PW-8), whom Heeralal – one of the accused / appellants, approached in the night informing that he has caught hold of the thief, has stated in his evidence that Heeralal informed him that Ramprasad (deceased), Amarsai (PW-1) & Norbat (PW-2) have stolen the crop sown by gotia of the village and thereafter, this witness (Gopal Ram – PW-8) & accused/appellant Heeralal went to the house of gotia. Girdhari Lal (PW-13) – gotia of the village, has accepted the version of Gopal Ram (PW-8). As such, Amarsai (PW-1) & Norbat (PW-2) have partly supported the case of the prosecution and

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(Cr.A.No.749/2018)

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on the basis of memorandum statements of the accused/appellants, wooden sticks have been seized from both the appellants. Thus, considering the statements of above witnesses, we have no hesitation to hold that the trial Court has rightly held that it is the appellants who have caused injuries to the deceased and thereby the deceased has succumbed to the injuries sustained by him and died. We do not find any perversity in the said finding of the trial Court and we also affirm the finding that the appellants are the authors of the crime.

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The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part-II of the IPC, as contended by learned counsel for the appellants?

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The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 has 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 Sukhbir 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

1 (2002) 3 SCC 327

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(Cr.A.No.749/2018)

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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The Supreme Court further, in the matter of Gurmukh Singh v. State of

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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 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 from 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;

2 (2009) 15 SCC 635

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(Cr.A.No.749/2018)

(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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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 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 Supreme Court in the matter of Arjun v. State of

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3 (2012) 8 SCC 450

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(Cr.A.No.749/2018)

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Chhattisgarh 4 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :-

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“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual 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

4 (2017) 3 SCC 247

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(Cr.A.No.749/2018)

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 Arjun (supra), the Supreme Court has held that if there is intent and

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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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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 bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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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Reverting to the facts of the present case in light of the above principles 5 (2019) 6 SCC 122

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of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellants have no premeditation to cause the death of deceased Ramprasad, but as per the statement of Amarsai (PW-1) who also accompanied the deceased, on the fateful day, Amarsai (PW-1) along-with Norbat (PW-2) & deceased Ramprasad have stolen the crop of Girdhari Lal (PW-13) and were carrying / transporting the same to their house and on that pretext, the incident appears to have occurred which is supported by Girdhari Lal (PW-13) and there was no motive of the appellants to commit the offence, as such, the appellants have no intention, but only knowledge. The appellants must have had the knowledge that the injuries inflicted by them on the body of the deceased would likely to cause his death and further considering the nature of dispute between the appellants & the deceased and also considering that the appellants are in jail since 19-11-2016, in our considered opinion, this case would fall within the purview of Exception 4 to Section 300 of the IPC.

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In view of the aforesaid discussion, conviction of the appellants under Section 302 read with Section 34 of the IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injury caused by them was not sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II of the IPC and sentenced to the period already undergone by them, with fine and default stipulation as awarded by the trial Court. However, their conviction and sentences under Section 323 read with

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Section 34 of the IPC are hereby maintained. The appellants are in jail since 19-11-2016. We direct them to be released forthwith if not

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required to be detained under any other process of law.

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The criminal appeal is partly allowed to the extent indicated hereinabove.

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

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

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Soma

Heera Lal @ Bhagat v. the State of Chhattisgarh

Case brief

What is this about?

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Heera Lal @ Bhagat v. the State of Chhattisgarh

Case brief

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