Partly allowed

Ajit Singh Rathiya v. State of Chhattisgarh

Chhattisgarh HC26 Nov 2024CRA/926/2019

Case brief

AI extract

What is this about?

Father and son appealed convictions for murder and causing disappearance of evidence after the son fatally assaulted his brother during a drunken quarrel on Diwali and the body was buried in the courtyard. The High Court altered the murder conviction to culpable homicide not amounting to murder and sentenced the son to eight years' rigorous imprisonment, while acquitting the father for lack of evi

What did the court decide?

Ajit Singh Rathiya's Section 302 IPC conviction altered to 304 Part-II with 8 years' RI; Dharam Singh Rathiya acquitted under Section 201/34 IPC.

Ajit Singh Rathiya Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:46470-DB

NAFR

Digitally signed by PRAKASH KUMAR Date: 2024.12.02 12:04:08 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 926 of 2019

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Ajit Singh Rathiya S/o Dharam Singh Rathiya, Aged About 35 Years, R/o Gurda, Police Station - Kharsiya, District - Raigarh, Chhattisgarh,

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---- Appellant

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Versus

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State of Chhattisgarh Through Police Station - Kharsiya, DistrictRaigarh, Chhattisgarh,

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---- Respondent

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CRA No. 1982 of 2019

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Dharam Singh Rathiya S/o Late Ajambar Singh Rathiya, Aged About 80 Years, R/o Village Gurda, Police Station Kharsia, District Raigarh, Chhattisgarh,

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----Appellant

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Versus

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State of Chhattisgarh Through Police Station Kharsia, District Raigarh, Chhattisgarh,

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	----Respondent
For Appellant in CRA No.926/2019	: Mr. Suresh Kumar Verma, Advocate,
For Appellant	: Mr. Akash Shrivastava and Mr. Rishi
in CRA No.1982/2019	Rahul Soni, Advocates,
ForState/Respondent	: Mr.Soumya Rai,Panel Lawyer,

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Radhakishan Agrawal,

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Judgment On Board

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(27.11.2024)

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Sanjay K. Agrawal, J

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1. Since both the appeals arise out of one and same judgment they are clubbed and heard together and are being disposed of by this common judgment.

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2. Assail in the present criminal appeals filed under Section 374(2) of the CrPC preferred by the appellants-accused, is to the legality, validity and correctness of the judgment dated 30.11.2018 passed by the 2^nd Additional Sessions Judge, Raigarh, Chhattisgarh, in Sessions Trial No. 18/18 by which the appellant – Ajit Singh Rathiya (CRA No.926/2019) has been convicted for offence under Section 302 and 201 of the IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/-, in default of payment of fine amount to further undergo additional rigorous imprisonment for one year and rigorous imprisonment for three years with fine of Rs.500/- in default of payment of fine amount to further undergo additional rigorous imprisonment for six months respectively. Both the above sentences were directed to run concurrently. Likewise, appellant – Dharam Singh Rathiya (CRA No.1982/2019) has been convicted for offence under Section 201/34 of the IPC and sentenced to undergo rigorous imprisonment for three years with fine of Rs.500/- in default of payment of fine amount to further undergo additional rigorous imprisonment for six months.

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3. Case of the prosecution, in short, is that on 18.10.2017 at about 8:00 PM, at village Gurda, Police Station Kharsiya, District Raigarh, Chhattisgarh, the appellant – Ajit Singh Rathiya on the day of Diwali festival, in the state of intoxication, assaulted his brother – Bhiram Singh (now deceased) with stick ( danda ) by which he suffered grievous injuries and died and in order to conceal the evidence, he with the help of appellant – Dharam Singh Rathiya ( father of deceased and appellant – Ajit Singh Rathiya) buried the dead body in the courtyard of the house and thereby committed the aforesaid offence. The said incident was reported by Heeramati Rathiya (PW-1), mother of the deceased, pursuant to which Dehati Nalishi (Ex.P-26), Dehati Merg Intimation (Ex.P-25) and FIR (Ex.P-28) were registered. Crime Details Form was prepared vide Ex.P-2. Inquest proceedings (Ex.P-9) were conducted and the dead body of the deceased was excavated with the permission of the competent authority. The dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P-18) proved by Dr. Rajesh B. Goswami (PW-11), cause of death was antemortem ligature strangulation and nature of death of deceased was homicidal in nature. Pursuant to memorandum statement of the appellant – Ajit Singh Rathiya (Ex.P-12), weapon of offence i.e. wooden stick and nylon rope were seized vide Ex.P13 on which human blood was found.

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4. After due investigation, appellants herein were charge - sheeted for the aforesaid offence and the case was committed to the

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Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence.

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5. In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 38 documents, whereas, defence, in support of its case, has not examined any witness nor exhibited any document. The statements of the appellants / accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeals have been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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7. Mr. Suresh Kumar Verma, learned counsel for the appellant – Ajit Kumar Rathiya, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He further submits that on the date of offence, while having dinner, a scuffle took place between both the brothers i.e. appellant Ajit Singh Rathiya and deceased Bhiram Singh and, as such, in the state of intoxication, appellant - Ajit Singh Rathiya assaulted the deceased with stick ( danda) which is not

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a dangerous weapon. He further submits that on a sudden provocation, appellant - Ajit Singh Rathiya assaulted and also said to have strangulated the deceased and, therefore, it would be a case, at the most, of commission of offence under Section 304 Part-II of the IPC and also it is a fit case where conviction of the appellant - Ajit Singh Rathiya for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of the IPC. He further submits that the appellant is in jail since 25.10.2017 i.e. more than 7 years have been completed, therefore, he may be sentenced for the period he has already undergone.

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8. Mr. Rishi Rahul Soni and Mr. Akash Shrivastava, learned counsel appearing for appellant – Dharam Singh Rathiya submit that there is no evidence available which shows that the appellant – Dharam Singh Rathiya has caused the death of the deceased, further, that no finding has been recorded by the Trial Court that the appellant – Dharam Singh Rathiya charged with offence under Section 201 of the IPC had the knowledge or reason to believe that offence under Section 302 of the IPC has been committed. To support his contention, he relied upon the decision of this Court passed in the matter of Nanaki @ Shyam Lal Patel vs. State of Chhattisgarh in CRA No.210 of 2011.

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9. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and it is not the case of alteration of offence from offence under

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Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the appellants have rightly been convicted for the offence in question. Thus, the instant appeals deserve to be dismissed.

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10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

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11. The first question, as to 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-18) proved by Dr. Rajesh B. Goswami (PW-11), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the Trial Court holding that the death of the deceased was homicidal in nature.

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12. Now, the question for consideration would be whether the appellants are the authors of the crime in question?

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13. However, since, appellant – Ajit Singh Rathiya has been convicted for offence under Sections 302 and 201 of the IPC and appellant – Dharam Singh Rathiya has been convicted for offence under Section 201/34 of the IPC, therefore, firstly we will consider the appeal of appellant – Ajit Singh Rathiya and

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thereafter, we will consider the appeal of appellant – Dharam Singh Rathiya, separately.

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14. It is the case of the prosecution that on the eve of Diwali festival, both the brothers i.e. appellant – Ajit Singh Rathiya and deceased Bhiram Singh were quarreling after consuming liquor which also appears from the statement of their mother Heeramati (PW-1). Further, the sister of appellant – Ajit Singh and deceased, namely, Nandani (PW-2) has also stated that on the date of offence, when Bhiram Singh (deceased) was having dinner, appellant – Ajit Singh Rathiya assaulted him. Subsequently, FIR (Ex.P-28) has been lodged by Heeramati (PW-1) which is proved by K.K. Aadil (PW-16) in which it has been stated that on the date of offence, on account of some dispute, appellant – Ajit Singh Rathiya has assaulted his brother Bhiram with stick ( danda), which is not a dangerous weapon. Similarly, vide Ex.P-30 which is a memo regarding permission of excavation of dead body of missing person, it has been stated that on account of quarrel between appellant Ajit Singh Rathiya and Bhiram (deceased), Ajit Singh Rathiya has caused the death of the deceased, thereafter, Bhiram disappeared. On being informed by appellant No.2 – Dharam Singh Rathiya, the dead body of the deceased was exhumed with the permission of competent authority and then the investigation started. As such, appellant – Ajit Singh Rathiya, on the state of intoxication, on account of some dispute, assaulted the deceased. As such, we are of the considered

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opinion that the finding recorded by the Trial Court that it is the appellant – Ajit Singh Rathiya who had caused the death of deceased is a correct finding of fact based on evidence available on record and accordingly, we affirm the said finding.

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15. Now, the question is, whether the case of the appellant – Ajit Singh Rathiya (CRA No.926/2019) would fall under Exception 4 to Section 300 of IPC and as such, his conviction under Section 302 of the IPC can be altered to Section 304 Part – II of IPC, as contended by learned Counsel for appellant – Ajit Singh Rathiya?

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16. The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 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 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

(2017) 3 SCC 247

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

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18. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)² 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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19. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there is no premeditation on the part of appellant – Ajit Singh Rathiya to cause death, but as per the statement of Heeramati (PW-1) mother of the deceased, on the eve of Diwali festival, both the brothers i.e. appellant – Ajit Singh and deceased – Bhiram Singh had consumed liquor and due to some dispute, quarrel took place between them, and on the heat of passion, appellant – Ajit Singh Rathiya assaulted the deceased by stick (danda) , by which, deceased suffered grievous injuries and died. Furthermore, Nandani (PW-2) sister of the appellant – Ajit Singh and deceased, has also reiterated the same version. Statements of above witnesses also find support from the contents of FIR (Ex.P-28) which is lodged by the mother of the deceased herself. As such, there was no premeditation and intention on the part of the appellant – Ajit Singh Rathiya to

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2 (2019) 6 SCC 122

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cause death, but he must have had knowledge that the injuries caused to him are likely to cause death and, as such, the case of appellant – Ajit Singh Rathiya would fall under Exception 4 to Section 300 of IPC.

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20. In view of the above, the conviction of appellant – Ajit Singh Rathiya (CRA No.926/2019) for offence punishable under Section 302 of the IPC is altered to Section 304 Part – II of the IPC and the appellant – Ajit Singh Rathiya is sentenced to 8 years rigorous imprisonment by reducing it from imprisonment for life. However, the fine sentence and default stipulation, as imposed upon the appellant by the learned Trial Court, along with the direction that all the sentences shall run concurrently, shall remain intact. Further, the conviction and sentence imposed upon the appellant – Ajit Singh Rathiya for offence under Section 201 of the IPC is hereby affirmed/upheld and same shall remain as it is.

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21. In the result, the Criminal Appeal No.926/2019 is partly allowed to the extent indicated herein-above.

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22. With regard to appeal of appellant – Dharam Singh Rathiya (CRA No.1982/2019), it is the case of prosecution that appellant – Ajit Singh Rathiya has caused the death of the deceased and thereafter, he along with the help of his father i.e. appellant – Dharam Singh Rathiya, buried the dead body of the deceased in the courtyard of the house which is owned by Dharam Singh Rathiya. The appellant – Dharam Singh Rathiya has been

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convicted as noticed hereinabove under Section 201 of the IPC. Section 201 of the IPC states as under:

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“201.Causing disappearance of evidence of offence, or giving false information to screen offender. —Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;

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if a capital offence. —shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

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if punishable with imprisonment for life. — and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

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if punishable with less than ten years’ imprisonment. —and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

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23. The Supreme Court in the matter of Sukhram v. State of Maharashtra³ has considered prerequisites for conviction for offence under Section 201 of the IPC and held that the intent to screen the offender committing an offence must be the primary and sole aim of the accused and there must be on record cogent

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3 (2007) 7 SCC 502

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evidence to prove that intention and a mere suspicion is not sufficient to bring home the said offence. It was observed as under:-

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“18. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.

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In Palvinder Kaur v. State of Punjab⁴ this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the court should safeguard itself against the danger of basing its conclusion on

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4 AIR 1952 SC 354

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suspicions, however, strong they may be. (Also see Suleman Rehiman Mulani v. State of Maharashtra⁵ , Nathu v. State of U.P.⁶ , V.L. Tresa v. State of Kerala⁷ .)”

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24. In Nagendra Nath Bhakta v. Emperor⁸ , it has been held by the Calcutta High Court that removing the corpse of a murdered man from the scene of murder to another place does not come under Section 201 as the removal does not cause the disappearance of some evidence of the commission of the murder.

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25. A careful perusal of the impugned judgment would show that the Trial Court has not recorded specific finding that appellant – Dharam Singh Rathiya was aware about the commission of offence i.e. murder by appellant – Ajit Singh Rathiya for offence under Section 302 of the IPC and now, that the said offence has been converted to Section 304 - Part II of the IPC and furthermore, it has also not been held that the appellant Dharam Singh Rathiya had the knowledge or the reason to believe that offence has been committed and it has also not been recorded that the appellant – Dharam Singh Rathiya has assisted appellant – Ajit Singh Rathiya in burying the dead body in the courtyard with intention of screening the offender from legal punishment. However, Nandani (PW-2) who is the sister of the deceased, has clearly stated that she had not seen his father appellant Dharam Singh Rathiya dragging the body of the

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5 AIR 1968 SC 829

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6 (1979) 3 SCC 574

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7 (2001) 3 SCC 549

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8 AIR 1934 Cal 144

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deceased for purpose of burying in the courtyard of the house. Even otherwise, there is no cogent evidence available on record to prove that offence under Section 201 of the IPC has been committed by appellant – Dharam Singh Rathiya. As such, there is no evidence available which relates to disappearance of any evidence of the commission of an offence with the intention of screening the offender from legal punishment.

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26. Taking the finding of the trial Court as it is in light of principle of law laid down by their Lordships of the Supreme Court in Sukhram (supra), none of other ingredients of said offence (Section 201 IPC) are satisfied for convicting the appellant – Dharam Singh Rathiya for offence under Section 201 of the IPC.

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27. Accordingly, conviction and sentence of the appellant – Dharam Singh Rathiya under Section 201/34 of the IPC are hereby set aside. He is acquitted of the charge under Section 201/34 of the IPC. He is reported to be on bail. He need not surrender. However, his bail bonds shall remain in operation for a period of six months as per the provisions contained in Section 437-A of the CrPC.

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28. The Criminal Appeal No.1982/2019 is allowed to the extent indicated hereinabove.

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29. 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 copy of judgment

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may also be sent to the concerned Jail Superintendent wherein

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the appellants are suffering the jail sentence.

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

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Prakash

Ajit Singh Rathiya v. State of Chhattisgarh

Case brief

What is this about?

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Ajit Singh Rathiya v. State of Chhattisgarh

Case brief

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