Kashi Ram Vs State of Chhattisgarh

This Appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 25.01.2007 passed by the Fifth Additional Sessions Judge, Bilaspur (Chhattisgarh) in Sessions Case No.337/06, whereby the appellant has been convicted for commission of offence under Section 304 ( Part-I ) of IPC and sentenced to undergo rigorous imprisonment for 6 years and to pay fine of Rs.1,000/-, in default

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of payment of fine, to undergo additional rigorous imprisonment for 3 months.

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Case of prosecution is that on 24.06.2006, appellant was working as a labour in the house of Nirmal Toppo and the appellant and one Harishchandra demanded wages from Contractor namely Rajesh Kumar Kaswal, due to which, dispute arose between the appellant and the contractor. Then, the appellant and the contractor went near Munshi namely Nandlal, however, appellant threw a brick on the Contractor which struck on the head of the contractor. Thereafter, complainant namely Santosh Kumar and labour namely Harishchandra took the injured to his home at Dayalband, Bilaspur, wherefrom, he was taken to the hospital by his family members and subsequently, he died. Complainant namely Santosh Kumar filed FIR with the Police Station Civil Lines, Bilaspur. Thereafter, the said police station prepared panchnama of dead body. Spot Map and seizure letter were also prepared.

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Statement of witnesses were recorded. After completion of investigation, charge-sheet was filed.

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In order to bring home the charges, the prosecution has examined as many as 14 witnesses and exhibited 17 documents vide Ex.P/1 to Ex.P/17 to prove its case against the appellant.

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Statement of the accused/appellant was also recorded, in which, he pleaded innocence and false implication and exhibited four documents vide Ex.D/1 to Ex.D/4.

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Though Charge-sheet was filed against the appellant for offence under Section 302 IPC, however, learned trial Court after appreciating the oral and documentary evidence convicted the accused/appellant for commission of offence under Section 304 ( Part-I ) of IPC and sentenced him as mentioned in opening paragraph of this judgment.

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Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned Trial Court failed to consider that the prosecution has failed to prove its case beyond reasonable doubt and learned trial Court has grossly erred in holding the appellant guilty under Section 304 (Part I) of IPC. Learned trial Court has not appreciated the prosecution evidence in accordance with the established principles of law relating to appreciation of evidence and thus, the impugned judgment of conviction and order of sentence of the trial Court is based on surmises and conjectures, therefore, the same is liable to be set aside. Reliance has been placed in the judgment dated 16.01.2025 passed in the matter of Vijay @ Vijayakumar vs. State Represented by Inspector of Police in Criminal Appeal No.1049/2021 by the Hon’ble Supreme Court.

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Alternatively, learned counsel for the appellant submits that if this Court ultimately comes to the conclusion that the conviction of the appellant is proper, then, considering the fact that the incident took place in the year 2006; this appeal is pending since 2007; the appellant is now aged about more than 50 years; the appellant has remained in jail for more than 1 year and he did not misuse the liberty while on bail; he is facing the lis since 2007 i.e. for about more than 18 years and therefore, the jail sentence awarded to the appellant may be reduced to the period already undergone by him.

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Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. So, there is no scope for interference by this Court. This appeal being without any merits is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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In the case at hand, the trial Court framed charges against the appellant under Section 302 IPC, however, after appreciating the oral and documentary evidence, learned trial Court convicted the accused/appellant for offence under Section 304 ( Part-I ) of IPC in place of Section 302 IPC and sentenced him as mentioned in

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opening paragraph of this judgment.

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Santosh Kumar (PW-1) has stated that on the date of incident he and Rajesh (deceased) went to find labours in Ameri Village. While returning, they both went to a house in Totabari to find labours. When they went to the terrace of that house, they found that Kashi/appellant, Harish and two other labours are working. Thereafter, appellant demanded payment from Rajesh, however, Rajesh refused to give any payment, on account of which, dispute arose between both of them and the appellant hit Rajesh with a brick which struck onto his head and Rajesh fell on the ground and appellant ran away from there. This witness and Harish took Rajesh to his home. Further, Santosh told the family members of Rajesh that due to some dispute, Kashi hit Rajesh with a brick and thereafter, Santosh, Harish and family members of Rajesh took Rajesh to the Hospital.

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Harishchandra (PW-2) stated that he was working with appellant who demanded payment from Rajesh and dispute arose between them. Rajesh, appellant and Santosh went to the ground floor. Thereafter, one labour namely Meena called Harishchandra, who then also went to the ground floor and saw that Rajesh was lying on the ground in an unconscious condition. Thereafter, Rajesh was taken to his home. Family members of Rajesh asked as to what happened with Rajesh, then Santosh told that appellant/ Kashi has killed Rajesh.

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Nirmal Toppo, SDO (PWD) who is PW-4 stated that on 24.06.2006,

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in the afternoon, when he was sleeping, one man who came with Rajesh shouted that Rajesh has been hit and has fallen on the ground. Then, this witness came out of the house and saw that at the side of the road, Rajesh was lying on the ground in an injured condition. Durgesh Kumar Gorkh (PW-6) stated that labours told him that Kashi has killed Rajesh.

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Dr. Pulak R Banarjee (PW-9) stated that he referred Rajesh to CIMS Hospital. Dr. Mahesh Rawatrai (PW-8) conducted post mortem of the deceased and proved his report vide Ex.P/10 and found following injuries i) swelling of the occipital region, swelling is diffuse & extending to the whole area of the occipital region upto the nape of the neck. All the injuries are antemortem in nature. Cause of death is coma as a result of subdural hemorrhage injuries.

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As regards conviction imposed on the appellant under Section 304 (Part I) of IPC:-

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In the matter of Lavghanbhai Devjibhai Vasava Vs. State of Gujarat, (2018) 4 SCC 329 , the Hon'ble Supreme Court has referred to its earlier decision in the matter of Dhirendra Kumar Vs. State of Uttarakhand, 2015 SC OnLine SC 163 , to delineate the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 or under Section 304 of IPC. The said parameters are reproduced hereunder :-

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“(a) The circumstances in which the incident took place;

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(b) The nature of weapon used;

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(c) Whether the weapon was carried or was taken from the spot;

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(d) Whether the assault was aimed on vital part of body;

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(e) The amount of the force used;

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(f) Whether the deceased participated in the sudden fight;

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(g) Whether there was any previous enmity;

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(h) Whether there was any sudden provocation;

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(i) Whether the attack was in the heat of passion; and

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(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.”

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In the matter of Kala Singh @ Gurnam Singh Vs. State of Punjab , (2021) 10 SCC 744 , there was a sudden fight between the appellant Kala Singh and the deceased as the deceased had stolen a pigeon of the appellant and the co-accused (Kehar Singh) hit the deceased with a rod on the head resulting in his death. Coaccused was convicted under Section 302 and 201 of IPC whereas appellant was convicted under Section 302/34 and 201 of IPC and sentenced to life imprisonment and RI for three years respectively. In appeal, High Court having found that the scuffle had taken place on the spur of moment in a sudden fight in the heat of passion upon a sudden quarrel and as such, not a premeditated act, modified the conviction from 302 to 304 Part-I of IPC and imposed of 12 years’ RI and fine of Rs.10,000/- with default sentence of six months. The Hon’ble Supreme Court held that it was not a premeditated one and as there was no intention

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on the part of the appellant and co-accused either to cause death or cause such bodily injury as is likely to cause death, as such the High Court ought not to have convicted the appellant for the offence under Section 304 Part-I of the IPC and modifying the same into Section 304 Part-II of IPC, reduced the sentence from 12 years to 07 years’ RI while maintaining the fine sentence imposed by the High Court.

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In light of parameters laid down by the Hon’ble Supreme Court in the aforesaid case and on close scrutiny of evidence available on record, it appears that on the date of incident deceased and Santosh (PW-1) went to Ameri Village to find labours. While returning, when they both went to the terrace of the house in Totabari and they saw that appellant, Harish and two other labours were working. Thereafter, the appellant demanded money from deceased Rajesh, which he refused to give, because of which, dispute arose between them. Thereafter, appellant assaulted deceased with a brick on his head, as a result of which, the deceased fell on the ground and the appellant ran away.

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From the conduct of the appellant, it appears that appellant was having knowledge but he was not having any intention to cause murder or any bodily injury which may result in death of the deceased. Thus, the offence would fall under Section 304 (Part II) of IPC.

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On the basis of aforesaid discussion, this Court is of the view that the trial Court has wrongly convicted the appellant under Section

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304 (Part I) of IPC.

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For the foregoing, conviction and sentence imposed on the appellant under Section 304 (Part I) of IPC are set aside and instead thereof, appellant is convicted under Section 304 (Part II) of IPC.

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As regards sentence imposed upon the appellant. It is clear that the incident took place in the year 2006; this Appeal is pending since 2007 and the appellant is now aged about 53 years and has also remained in jail for more than 1 year. Hence, this Court is of the view that ends of justice would be served if the appellant is sentenced to the period already undergone by him.

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In view of the aforesaid discussion, the sentence imposed upon the appellant is modified to the extent of the period already undergone by him, however, the fine amount imposed on the appellant by the trial Court shall remain intact.

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Consequently, this Appeal is allowed in part to the extent indicated above. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC.

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Let a copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith.

Sd/-

(Rajani Dubey)

JUDGE

Avinash

Kashi Ram v. State of Chhattisgarh

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Kashi Ram v. State of Chhattisgarh

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