Chattisgarh High Court
Ramdev Singh vs State Of Chhattisgarh on 13 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1799 of 2019
Ramdev Singh, S/o Raghuvar Singh, Aged about 36 years, R/o-Village
Daser, Police Station-Sonhat, District Koriya (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, Through Station House Officer, Police Station-
Sonhat, District Koriya (CG)
---- Respondent
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For Appellant : Mr.Kaushal Yadav, Advocate For Respondent-State : Mr.Arijit Tiwari, Panel Lawyer
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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (13.9.2022) Sanjay K. Agrawal, J
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 16.10.2019, passed by the learned Additional Sessions Judge (FTC), Koriya at Baikunthpur in Sessions Trial No.71/2018, by which the appellant has been convicted for offence under Sections 304 Part-I and 323 of the IPC and sentenced to undergo RI for 10 years and fine of Rs.25,000/-, in default of payment of fine, to further undergo RI for six months for offence under Section 304 Part-I of the IPC and RI for one year and fine of Rs.500/-, in default of payment of fine to further undergo RI for six months under Section 323 of the IPC.
2. Case of the prosecution, in brief, is that in the intervening night of 2 18th -19th October, 2018 complainant-Kamlesh (PW-4) along with his father Ramphal, mother Rambai (PW-6) and sister had gone to participate in marriage ceremony at the house of Chandrama Singh, and the appellant herein had also come to participate in the said marriage by his motor-cycle. In the morning at 3.30 a.m. complainant- Kamlesh took the said motorcycle on the pretext of taking gutkha without leave of the appellant herein. After around half an our when Kamlesh (PW-4) was returning along with one Budhsagar, the appellant herein noticed and asked to stop the vehicle and immediately thereafter started beating Kamlesh, hearing his cry, his father Ramphal and mother Rambai reached to the spot, Ramphal tried to intervene and rescue Kamlesh, thereafter the appellant became angry and then assaulted Ramphal by hand-fist, leg and bamboo stick, by which Ramphal fell down and died on the spot on account of injuries suffered by him. Merg intimation was registered by Kamlesh vide Ex.P-5 and pursuant to which, FIR (Ex.P-23) was registered for offence under Sections 302 and 323/34 of the IPC. Spot map was prepared by investigating officer vide Ex.P-6. Pursuant to memorandum statement of the appellant vide Ex.P-10, one bamboo stick was recovered from his possession vide Ex.P-11. Dead body of deceased Ramphal was sent for postmortem to Community Health Center, Sonhat, where Dr.R.P.Singh (PW-12) conducted postmortem vide Ex.P-18 and opined that cause of death was due to injury to spleen and haemorrhagic shock and death was homicidal in nature. Thereafter, statement of the witnesses were recorded and after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, 3 Baikunthpur, who in turn, committed the case to the Court of Sessions, Koriya (Baikunthpur), from where the Additional Sessions Judge (FTC), Koriya (Baikunthpur) received the case on transfer for trial. The appellants/accused abjured their guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 24 documents. The appellant examined none in his defence, but exhibited two documents i.e. copy of FIR as Ex.D-1 and statement of Kamlesh Singh as Ex.D-2 in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and dated 16.10.2019, convicted the appellant for offence punishable under Sections 304 Part-I and 323 of the IPC and sentenced him for the period as aforementioned, against which, this criminal appeal has been filed.
5. Mr.Kaushal Yadav, learned counsel appearing for the appellant, would submit that the trial Court has found that there was no intention to cause death of deceased Ramphal, yet convicted the appellant for offence under Section 304 Part-I of the IPC, whereas the act of the appellant would fall under Section 304 Part-II of the IPC. Therefore, the impugned judgment deserves to be set aside.
6. On the other hand, Mr.Arijit Tiwari, learned Panel Lawyer for the respondent/State, would support the impugned judgment and submit that the appellant has rightly been convicted for offence under Sections 304 Part-I and 323 of the IPC and as such, the appeal deserves to be dismissed.
7. We have heard learned counsel appearing for the parties, considered 4 their rival submissions made herein-above and also went through the records with utmost circumspection.
8. The trial Court after appreciating oral and documentary evidence available on record has clearly recording the finding that death of deceased Ramphal was homicidal in nature and further recorded the finding that it is the appellant who has caused death of Ramphal, but further held that the appellant has committed offence under Section 304 Part-I of the IPC and therefore, proceeded to convict him for offence under Section 304 Part-I of the IPC.
9. The question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 304 Part-I of the IPC ?
10. In the matter of Arjun v. State of Chhattisgarh 1, 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 same would be a case of Section 304 Part-II IPC.
11.At this stage, it would be appropriate to notice the finding recorded by the trial Court in paras-17 and 18 as under:-
"17........As noticed above, it is not the case of prosecution that accused intended to cause death. Case of the prosecution is, that bodily injury was caused due to supervening circumstances arose during altercation and beatings having been given to Kamlesh and in the mean time intervention having been caused by the deceased. Injury was allegedly caused by hand/fist wooden stick, resulting into death due to rupture of spleen. So, it would not be proper to infer, that the accused had made preparation for such injury. The post-mortem report does not reveal that the injury inflicted was sufficient in the 1 (2017) 3 SCC 247 5 ordinary course of nature to cause death. Moreover, injury has been caused during scuffle arising spontaneously. There is no evidence that the said accused made preparation for such assault. Alleged weapon, Danda is common thing available anywhere.
18. Therefore, having heard learned counsels for the parties, considering the law laid down by the Hon'ble Apex Court, circumstances brought on record and the totality of circumstances I'm of the considered view that the said injuries were not intended to be caused by the accused with the intention to kill, or with the intention to cause such bodily injury as the accused knew to be likely to cause death, or, with the intention of causing particular bodily injury which was sufficient in the ordinary course of nature to cause death, however, from the circumstances brought on record it can be safely inferred that the injury inflicted by hand-fist and wooden stick in a congested way surrounded by Badi (as suggested by defence in para-9 of cross- examination of PW-14) etc. was likely to cause death. Hence, accused Ramdev Singh is liable to be held guilty of culpable homicide not amounting to murder, punishable under section 304 part-I IPC."
12. A careful perusal of the finding recorded by the trial Court in paras-17 and 18 would show that the trial Court has clearly recorded the finding that there was no intention to cause death, but further held that the injury inflicted by the appellant by hand-fist and wooden stick was likely to cause death, but thereafter the trial Court proceeded to hold guilty for offence under Section 304 Part-I of the IPC, whereas going by the finding of the trial Court, it is clear that the appellant have had the knowledge that injury inflicted by him is likely to cause death, it would be offence under Section 304 Part-II of the IPC. Accordingly, the appellant is convicted for offence under Section 304 Part-II of the IPC and since he is in jail from 20.4.2018 i.e. for more than 4 years and 5 months, he is sentenced to the period already undergone by him.
13. The trial Court has imposed fine of Rs.25,000/- to the appellant. Considering the financial background of the appellant and further 6 considering the fact that he is a member of Scheduled Tribe and involved in agricultural work and now he has been convicted for offence under Section 304 Part II of the IPC, fine amount is reduced from Rs.25,000/- to Rs.1,000/-. However, default sentence shall remain intact.
14. Since the appellant has also been convicted for offence under Section 323 of the IPC and sentenced to undergo RI for one year, but the trial Court has not directed that both the sentences for offence under Sections 304 Part-I and 323 of the IPC shall run concurrently.
15. At this stage, it would be appropriate to notice Section 31(1) of the CrPC which states as under:-
"31. Sentence in cases of conviction of several offences at one trial.-(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments, prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. "
16. The Supreme Court in the matter of Sunil Kumar alias Sudhir Kumar and another v. State of Uttar Pradesh 2 after reviewing the entire case on the point summarized legal position in para 10.2 as under:-
"10.2. Thus, it is beyond a shadow of doubt that Section 31(1) CrPC vests complete discretion with the court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise 2 (2021) 5 SCC 560 7 of such discretion by the court; but this discretion has to be judiciously exercised with reference to the nature of the offence(s) committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the court may direct. "
Their Lordships also issued the caution for the sentencing Court as under:-
"24. While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao 3, that it is legally obligatory upon the court of first instance, while awarding multiple punishments of imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the court of first instance causes unnecessary and avoidable prejudice to the parties, be it the accused or be it the prosecution."
17. Reverting to the facts of the present case in light of Section 31(1) of the CrPC and the principles of law laid down by their Lordships of the Supreme Court in Sunil Kumar (supra), since the appellant has not been convicted for imprisonment for life and the learned trial Court has not directed to run the sentences concurrently, it is directed that sentences would run concurrently.
18. Criminal Appeal is allowed in part to the extent indicated hereinabove.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/-
3 Nagaraja Rao v. CBI, (2015) 4 SCC 302