Chattisgarh High Court
Jaipal Chand Basor vs State Of Chhattisgarh on 23 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 209 of 2014
Jayant Kumar Surya, S/o Charku Das Surya, aged about 33
Years, R/o Tikarkala, PS Gaurela, Civil and Rev. Distt.
Bilaspur, C.G.
----Appellant
Versus
State of Chhattisgarh, Through SHO, PS Pendra, Distt.
Bilaspur, C.G.
---- Respondent
For Appellant Mr. Rishi Rahul Soni, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
CRA No. 289 of 2014
Jaipal Chand Basor, S/o Moti Lal Basor, aged about 25 Years,
R/o Village Tikarkala Bartola, PS Gourella, Tah. - Gaurella,
Distt. Bilaspur C.G.
----Appellant
Versus
State of Chhattisgarh Through PS Incharge, PS Gaurella,
Distt. Bilaspur C.G.
---- Respondent
For Appellant Mr. Ankit Singhal, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
CRA No. 346 of 2014
Gajju @ Sumeet Kumar, S/o Mohit Ram, aged about 20
Years, R/o Village Tikarkala, P.S. Gaurela, Distt. Bilaspur, C.G.
----Appellant
Versus
The State of Chhattisgarh, Through SHO, P.S. Pendra, Civil
and Rev. Distt. Bilaspur, C.G.
---- Respondent
For Appellant Mr. Roop Naik, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
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Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
23.01.2023
Sanjay K. Agrawal, J.
1. All these appeals under Section 374(2) of Cr.P.C. have been filed against the judgment of conviction and order of sentence dated 20.12.2013 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur, C.G. in Sessions Trial No.03/2013, therefore, they are being disposed by this common judgment. By the impugned judgment, the appellants are convicted and sentenced as under:-
Conviction Sentence Under Section 302 read Life Imprisonment and fine of with 34 of Indian Penal Rs.200/-, in default of payment Code of fine amount to undergo further additional R.I. for two months
2. Case of the prosecution, in short, is that on 02.10.2012 at about 9:00 pm, at Village Jhorki within the ambit of Police Station Gaurela, District Bilaspur, C.G., the appellants- accused assembled in the house of PW-7 Patram Singh and due to some previous dispute, assaulted Santosh Kumar (herein after referred to as the "deceased") with axe, due to which he suffered grievous injuries and succumbed to the same. Further case of the prosecution, in nutshell, is that PW- 1 Hemvati, wife of the deceased, reported the matter to the 3 police station Gaurela stating that in the night of 02.10.2012, dead body of her husband was found, pursuant to which merg intimation was registered vide Ex.P/01 and FIR was registered against unknown persons vide Ex.P/2. On recommendation of panchas, the dead body was sent for postmortem which was conducted by PW-10 Dr. A.I. Minj, who has proved the postmortem report Ex.P-13. According to postmortem report, the cause of death is due to head and throat injury and the death is homicidal in nature. Pursuant to the memorandum statement of the appellant No.1 Jayant Kumar Surya vide Ex.P-12, axe was seized vide Ex.P-13 and sent to FSL but no FSL report has been received.
3. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellants were charge- sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused abjured their guilt and entered into defence by stating that they have not committed the offence.
4. The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 28 documents. Defence has not examined any witness in its support, however, exhibited two documents Ex.D-1 and Ex.D-2. Accused/appellants were examined under Section 313 of Cr.P.C.
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5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offence under Section 302/34 of IPC and sentenced them as mentioned herein-above, against which these appeals have been preferred by the appellants- accused questioning the impugned judgment of conviction and order of sentence.
6. Mr. Rishi Rahul Soni, learned counsel appearing for the appellant in CRA No.209 of 2014 submits that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that PW-6 Devan Singh, PW-7 Patram Singh and PW-8 Smt. Girajabai are not the eye- witnesses in this case and they have also not seen the incident, therefore, appellant's conviction is bad in law. There was no intention on the part of the appellant- Jayant Kumar Surya to cause death of the deceased. Hence, the case of the present appellant- Jayant Kumar Surya falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant- Jayant Kumar Surya is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant- Jayant Kumar Surya can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be 5 allowed in full or in part.
Alternatively, he submits that if this Court ultimately comes to the conclusion that the appellant- Jayant Kumar Surya is guilty of the offence under Section 304 Part-I or Part- II of IPC, considering the fact that the incident took place in the year 2012 and the fact that the appellant is in jail since 10.05.2012, the accused/appellant Jayant Kumar Surya be sentenced to the period already undergone by him.
7. Counsel for the appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar in CRA No. 289 of 2014 and CRA No.346 of 2014 submit that the appellants-Jaipal Chand Basor and Gajju @ Sumeet Kumar have been convicted under Section 302 of Indian Penal Code with the aid of Section 34 of Indian Penal Code but considering the evidence available on record, their conviction is bad in law and they deserve to be acquitted of the charge levelled against them.
8. Per-contra, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for offence under Section 302/34 of IPC. Exception 4 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellants under Section 302/34 of IPC requires to be 6 altered to Section 304 Part-I or Part-II of IPC, thus, the present appeals deserve to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
10. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/13), wherein it has been opined that the cause of death of deceased is due to head and throat injury and nature of death is homicidal, which is duly proved by the statement of Dr. A.I. Minj (PW-10), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/13) and the statement of Dr. A.I. Minj (PW-10), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.
CRA No. 209 of 2014
11. Now, the next question would be, whether the accused- 7 appellant Jayant Kumar Surya herein is the perpetrator of the crime in question?
12. Case of the prosecution is based on the testimony of PW-7 Patram Singh and PW-8 Smt. Girjabai as the said incident took place in the house of PW-7 and PW-8. It is the case of the prosecution that on 02.10.2012, firstly the appellant- Gajju @ Sumeet Kumar came to the house of PW-7 Patram and thereafter appellants- Jaipal Chand Basor and Jayant Kumar Surya also came there and started consuming liquor and took cannabis (Ganja). After some time, the deceased also reached the house of PW-7 Patram Singh and he also expressed his desire to consume cannabis (Ganja) which was in the hands of appellant Jayant Kumar Surya. Appellant- Jayant Kumar Surya refused to pass the cannabis (Ganja) to the deceased saying that deceased is his enemy. There was also a dispute regarding Rs.30/- between the appellant Jayant Kumar Surya and deceased because of which some altercation took place between them where PW-7 Patram had to intervene. Thereafter, appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar took the deceased out of the house of PW-7 Patram and in the field, appellant- Jayant Kumar Surya assaulted upon the deceased- Santosh Kaul with axe, as a result of which he suffered grievous injuries and succumbed to the same. The said version is also supported by PW-8 Smt. Girjabai. Pursuant to the memorandum statement Ex.P-12 of 8 the appellant- Jayant Kumar Surya, axe was seized from the place indicated by appellant- Jayant Kumar Surya, though no blood has been found, but considering the statements of PW-7 Patram Singh and PW-8 Smt. Girjabai, it can be said that the appellant- Jayant Kumar Surya assaulted the deceased with axe by which he suffered grievous injuries and died. As such, the appellant- Jayant Kumar Surya had caused injury to the deceased with axe.
CRA No. 289 of 2014 & CRA No. 346 of 2014
13. The allegation against the appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar is that they have taken the deceased out of the house of PW-7 Patram Singh and PW-8 Smt. Girjabai and they have been convicted under Section 302 of Indian Penal Code with the aid of Section 34 of Indian Penal Code.
14. The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellants for offence punishable under Section 302/34 of IPC or their case is covered under Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellants?
15. The Supreme Court in the matter of Sukhbir Singh v. State of 9 Haryana1 has observed as under:-
"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 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."
16. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 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 IPC, which state as under :-
"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 for its special perspective. The relevant factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 10
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(I) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(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 ?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
24. 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."
17. Likewise, in the matter of State v. Sanjeev Nanda3, their 3 (2012) 8 SCC 450 11 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.
18. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
"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) "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, 4 (2017) 3 SCC 247 12 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."
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) "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".
19. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then 13 same would be a case of Section 304 Part-II IPC.
20. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)5 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:
"16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner."
21. Reverting to the facts of the present case in light of the above 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- Jayant Kumar Surya to cause death of the deceased as the accused-appellants were assembled in the house of PW-7 Patram Singh where they consumed liquor and cannabis (Ganja), all of a sudden, deceased came to the house of PW-7 and asked for cannabis (ganja) along with smoking pipe which was not given by the appellant Jayant Kumar Surya and on account of some previous enmity, the appellants Jaipal Chand Basor and Gajju @ Sumeet Kumar took the deceased out of the house of PW-7 and the appellant- Jayant Kumar Surya is said to have assaulted the deceased with axe. 5 (2019) 6 SCC 122 14
22. Considering the nature of injury and further considering the fact that on a sudden quarrel, the appellant- Jayant Kumar Surya assaulted the deceased with axe, it is clear that there was no premeditation on the part of the appellant- Jayant Kumar Surya to cause death of the deceased and only because of a previous dispute, out of sudden anger, in heat of passion, the appellant- Jayant Kumar Surya assaulted deceased, due to which he died. However, looking to the injuries sustained by deceased, the appellant- Jayant Kumar Surya must have had the knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant- Jayant Kumar Surya completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant- Jayant Kumar Surya under Section 302/34 of IPC can be altered/converted to Section 304 (Part-II) of IPC.
23. In view of the aforesaid discussions, the conviction of the appellant- Jayant Kumar Surya for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is 15 hereby set aside. Considering that there was no premeditation on the part of the appellant- Jayant Kumar Surya to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant- Jayant Kumar Surya is convicted for offence punishable under Section 304 (Part II) of IPC and sentenced to imprisonment for 10 years and 3 months. Since the appellant- Jayant Kumar Surya is in jail since 05.10.2012, taking into consideration the period he has already undergone, we award him sentence already undergone by him, but the fine sentence imposed by the learned trial Court shall remain intact. Since the appellant- Jayant Kumar Surya in CRA No.209/2014 is reported to be in jail, therefore, he is directed to be released forthwith, if not required to be detained in connection with any other offence.
24. Considering the evidence available on record, the role of appellants Jaipal Chand Basor and Gajju @ Sumeet Kumar and in light of the decisions of the Supreme Court in the matters of Shyamal Ghosh vs. State of West Bengal 6, Mrinal Das v. State of Tripura7 and Suresh Sankharam Nangare v. State of Maharashtra8, we find no evidence against the appellants Jaipal Chand Basor and Gajju @ Sumeet Kumar to convict them with the aid of Section 34 of Indian Penal Code. The 6 AIR 2012 SC 3539 7 (2011) 9 SCC 479 8 2012 (9) JT 116 16 prosecution has neither been able to prove prior concert nor pre-arranged plan and even no overt act has been proved by the prosecution so far as appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar are concerned. As such, in absence of pre-arranged plan and further in absence of participation in crime in question, the finding recorded by the learned trial Court invoking Section 34 of the IPC to convict the appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar under Section 302 of the IPC is liable to be set aside and, accordingly, they are acquitted of the said charge. Since the appellants- Jaipal Chand Basor and Gajju @ Sumeet Kumar in CRA Nos.2892014 & 346/2014 respectively are already on bail, they need not surrender before the learned trial Court. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of CrPC.
25. In the result, CRA No.209/2014 filed by the appellant- Jayant Kumar Surya is partly allowed to the extent indicated herein- above whereas the CRA No.289/2014 & CRA No.346/2014 filed by the appellants Jaipal Chand Basor and Gajju @ Summet Kumar are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Akhilesh