Partly allowed¶56

Dayasar Kashyap v. State of Chhattisgarh

Chhattisgarh HC6 Mar 2025CRA/1564/2019

Case brief

AI extract

What is this about?

Chhattisgarh HC, CRA No. 1564 of 2019, decided 07.03.2025 (Sanjay K. Agrawal & Sanjay Kumar Jaiswal): Dayasar Kashyap v. State of Chhattisgarh — murder conviction (s.302 IPC) altered to s.304 Part-II IPC (10 yrs RI) via Exception 4 to s.300 IPC sudden-fight/no-premeditation reasoning drawn from Arjun v. State of Chhattisgarh (2017) 3 SCC 247; s.307 conviction upheld; key evidence: eye-witness Daymati Kashyap PW-10, axe seizure at appellant's instance (PW-3, PW-4), FSL Ex.P-25 human blood; disposed partly allowed.

What did the court decide?

Appeal partly allowed: conviction under Section 302 IPC altered to Section 304 Part-II IPC with a fresh sentence of 10 years' rigorous imprisonment; the conviction and sentence under Section 307 IPC (5 years RI with fine) maintained as well merited. ¶56

Dayasar Kashyap Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the death of deceased Sudarshan Kashyap was homicidal in nature. +2 more

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Court's answer

The death of Sudarshan Kashyap was homicidal: the trial Court's finding, resting on the post-mortem report (Ex.P-9) proved by Dr. Gyanesh Kumar Choubey (PW-8) recording serious injuries on the neck as cause of death, was affirmed as a correct finding of fact, neither perverse nor contrary to the record.

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Ratio / Principle

It was the appellant who caused the death of the deceased: the trial Court's finding was affirmed, based on the injured eye-witness Daymati Kashyap (PW-10), wife of the deceased, who saw the appellant assault his brother with an axe, recovery of the axe at the appellant's instance duly proved by seizure witnesses Govind Ram (PW-3) and Ramdas (PW-4), and the FSL report (Ex.P-25) showing human blood on the seized axe.

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Key takeaways

On the principles laid down in Arjun v. State of Chhattisgarh (paras 20-21) for Exception 4 to Section 300 IPC, there was no premeditation and no intention on the part of the appellant to cause death (the appellant and the deceased being real brothers, the assault arising out of a property dispute per PW-10 and the s.313 Cr.P.C. statement), but the appellant must have had knowledge that the injuries caused by him were likely to cause death; hence the conviction under Section 302 IPC deserved conversion to Section 304 Part-II IPC.ratio¶53
The conviction of the appellant for the offence punishable under Section 302 IPC was altered to Section 304 Part-II IPC, and the appellant was sentenced to undergo 10 years' rigorous imprisonment.ratio¶55

Detailed headnote1 paragraphs

Criminal appeal (CRA No. 1564 of 2019) under Section 374(2) Cr.P.C. to the High Court of Chhattisgarh against the judgment dated 04.10.2019 of the Sessions Judge, Kondagaon (Sessions Trial No.73/2016), convicting Dayasar Kashyap under Sections 302 & 307 IPC for the axe assault of 10.07.2016 at village Ghussi Gudrapara in which his brother Sudarshan Kashyap died and Smt. Dayamani was grievously injured; co-accused Smt. Subati Kashyap stood acquitted. The Division Bench (Sanjay K. Agrawal and Sanjay Kumar Jaiswal, JJ.) affirmed (i) that the death was homicidal on the post-mortem report Ex.P-9 (Dr. Gyanesh Kumar Choubey, PW-8), and (ii) that the appellant inflicted the fatal injuries, on the testimony of the injured eye-witness Daymati Kashyap (PW-10), seizure of the axe at the appellant's instance proved by Govind Ram (PW-3) and Ramdas (PW-4), and FSL report Ex.P-25 showing human blood on the axe. Applying the exposition in Arjun v. State of Chhattisgarh (2017) 3 SCC 247, paras 20-21 (which draws on Surinder Kumar v. UT, Chandigarh and Arumugam v. State) on Exception 4 to Section 300 IPC, the Court held there was no premeditation or intention to cause death — the appellant and deceased being real brothers and the assault stemming from a property dispute (PW-10; s.313 Cr.P.C. statement) — but the appellant had knowledge that the injuries were likely to cause death; the conviction was therefore altered to Section 304 Part-II IPC with 10 years' rigorous imprisonment, while the Section 307 conviction and sentence were upheld as well merited. Appeal partly allowed.

2025:CGHC:11348-DB

ASHOK SAHU

Digitally signed by ASHOK SAHU Date: 2025.03.11 10:11:00 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1564 of 2019

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{Arising out of judgment dated 04.10.2019 passed in Sessions Trial No.73/2016 by the learned Sessions Judge, Kondagaon}

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Dayasar Kashyap, S/o. Parati Kashyap, Aged About 32 Years, R/o. Village Badekanera, Police Station Kondagaon, District Kondagaon, Chhattisgarh.

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... Appellant

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versus

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State Of Chhattisgarh, Through Police Station Kondagaon, District Kondagaon, Chhattisgarh.

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... Respondent

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For Appellant : Mr. P.K.Tulsyan, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer

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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 (07.03.2025)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 04.10.2019, passed by the learned Sessions Judge, Kondagaon, in Sessions Trial No.73/2016, by which, while acquitting the co-accused Smt. Subati Kashyap for the offences under Section 302 read with Section 34 and under Section 307 read with Section 34 of I.P.C., the appellant herein has been convicted for offence under Sections 302 & 307 of Indian Penal Code and sentenced as under :

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CONVICTION		SENTENCE
U/s. 302 of I.P.C.	:	Life imprisonment and fine of Rs. 25,000/- in default of payment of fine, 6 months' additional rigorous imprisonment.
U/s.307 of I.P.C.	:	Rigorous imprisonment for 5 years and fine of
		Rs.10,000/-, in default of
		payment of fine, 2 months' additional rigorous imprisonment.

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Both the sentence to run concurrently.

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2 . Case of the prosecution, in brief, is that on 10.07.2016 at about 6:30 A.M. at village Ghussi Gudrapara, Police Station Kondagaon, the appellant herein in furtherance

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of their common intention with the acquitted co-accused Smt. Subati Kashyap assaulted Sudarshan Kashyap (now deceased) by axe, by which he suffered grievous injuries and died and they also assaulted Smt. Dayamani by axe, by which she also suffered grievous injuries, which were sufficient to cause death. Thereby, the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, Dehati Merg Intimation & Merg Intimation was registered vide Ex.P-13, Dehati Nalsi was registered vide Ex.P-14, Inquest was conducted vide Ex.P-3 and dead body of deceased Sudarshan Kashyap was subjected to post-mortem, which was conducted by Dr. Gyanesh Kumar Choubey (PW-8), who proved the post-mortem report vide Ex.P-9, according to which, cause of death was stated to be serious injuries on the neck. The weapon of offence i.e. Axe was seized at the instance of the appellant herein, which was sent for chemical examination to FSL alongwith other seized articles and as per the FSL report (Ex.P-25), human blood was found on the seized axe. After due investigation, the appellant was chargesheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and

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disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 25 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Sections 302 & 307 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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5 . Mr. P.K. Tulsyan, learned counsel for the appellant, would submit that, at the best, the offence under Section 304 Part-II of I.P.C. is made out against the appellant, as the appellant and deceased both are real brothers and on account of property dispute, the appellant is said to have assaulted the deceased and there was no intention on the part of the appellant to cause death. As such, the conviction of appellant for the offence under Section 302

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of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced to the period already undergone, as he is in jail since 10.07.2016 and the appeal be allowed in part.

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6 . Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C., as Daymati Kashyap (PW-10) is the eye-witness to the incident and the weapon of offence i.e. axe has been seized at the instance of the appellant on which human blood has been found; therefore, the appeal deserves to be dismissed.

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

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8 . The first question for consideration as to whether the death of deceased Sudarshan Kashyap was homicidal in nature has been answered by the trial Court in

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affirmative relying upon the post-mortem report (Ex.P-9) proved by Dr. Gyanesh Kumar Choubey (PW-8), according to which, cause of death was stated to be serious injuries on the neck and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . Now, the next question is, whether the appellant has caused the death of deceased Sudarshan Kashyap ?

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10. Considering the finding of the trial Court relying upon the statement of the injured eye-witness Daymati Kashyap (PW-10), wife of the deceased, who had seen the incident, by which the appellant herein assaulted his brother by axe, by which he suffered grievous injuries and died and the axe has been recovered at the instance of the appellant, which was duly proved by seizure witnesses Govind Ram (PW-3) and Ramdas (PW-4) and as per the FSL report (Ex.P-25), human blood has been found on the seized axe, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who had caused the death of the deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the

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record and accordingly, we hereby affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ?

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12. 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 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

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1 (2017) 3 SCC 247

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offender must have acted in a hit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a

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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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13. 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 was no premeditation on the part of the appellant to cause death, the appellant and deceased both are real brothers and as per the statement of Daymati Kashyap (PW-10), who is the eye-witness and also as per the statement under Section 313 of Cr.P.C. at para 23, on account of property dispute, the appellant has assaulted his brother (deceased) by axe, by which he suffered grievous injuries and died. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death. As such, it is the fit case where the conviction of appellant for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C.

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14. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is now sentenced to undergo 10 years rigorous imprisonment. However, the conviction and sentence awarded to the appellant for the offence under Section 307 of I.P.C. is well merited.

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

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

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

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Ashok

Dayasar Kashyap v. State of Chhattisgarh

Case brief

What is this about?

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Dayasar Kashyap v. State of Chhattisgarh

Case brief

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