Chattisgarh High Court
Chandrakumar vs State Of Chhattisgarh on 25 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 209 of 2016
Chandrakumar S/o Chainuram Patel, Aged about 37
years, R/o Village Thakurtola Khadgaon, Police
Station Khadgaon, Distt. Rajnandgaon, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Police Station
Khadgaon, Distt. Rajnandgaon, Chhattisgarh.
Respondent
For Appellant : Mr. Suresh Tandan, Advocate
For State : Mr. Ashish Tiwari, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
24/08/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
is directed against the impugned judgment dated
21/04/2015 passed in Special Case No. 05/2013
whereby learned Special Judge (Atrocitiy)
Rajnandgaon has convicted the appellant/accused for
offences punishable under Sections 302 and 323 of
IPC and Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,
1989 and sentenced for the period as shown in the
table below :
Conviction Sentence
U/s 302 of Indian Penal R.I. for life and fine of
Code,1860 Rs. 100/ in default of
payment of fine further
R.I. for 6 months
U/s 323 of Indian Penal R.I. for 3 months and fine
Code,1860 of Rs. 100/ in default of
payment of fine further
R.I. for 3 months
U/s 3(2)(v) of Scheduled R.I. for life and fine of
Castes and Scheduled Tribes Rs. 100/ in default of
(Prevention of Atrocities) payment of fine further
Act, 1989 R.I. for 6 months.
2. Case of the prosecution, in brief, is that on
23/11/2012 at about 09:00 PM at Village Thakurtola,
the appellant herein assaulted Chhabilal with a
laathi with the intention of causing his death
knowing fully well that he was a member of
Scheduled Tribes due to which Chhabilal suffered
grievous injury on his head and died
instantaneously. The appellant also assaulted Arjun
Yadav (P.W.1), who tried to intervene, and
inflicted simple injuries upon him and thereby,
committed the aforesaid offences.
3. Further case of the prosecution, in brief, is that
on 23/11/2012, Arjun Yadav (P.W.1) lodged merg
intimation (Ex. P/1A) at Police Station Khadgaon
stating that at about 9 PM, when he reached the
house of Dhiraji (P.W.2) he found that Dhiraji and
deceased Chhabilal were sitting together outside
his house and with regard to the encroachment made
by the appellant in the land in front of Dhiraji's
house, the deceased was taunting him as to why he
let the appellant encroach the said land.
Thereafter, suddenly appellant came therein from
the fields after crossing the wooden barrier armed
with a teakwood laathi and with the intention of
causing death, assaulted deceased Chhabilal on his
head and inflicted grievous injury due to which he
died instantaneously. When Arjun Yadav (P.W.1)
tried to intervene, the appellant also assaulted
him and inflicted injury on his knees. On the basis
of the merg intimation, FIR for offence punishable
under Section 302 of IPC was registered against the
appellant vide Ex. P/1 and thereafter, inquest was
conducted vide Ex. P/3 and the dead body of
deceased Chhabilal was sent for postmortem to
Primary Health Center, Mohla wherein postmortem was
conducted by Dr. S.R. Mandavi (P.W.4) and the
postmortem report has been filed as Ex. P/8 in
which cause of death is shock due to excessive
haemorrhage as a result of rupture of brain and
fracture of bone of skull and the nature of death
is homicidal. Nazri naksha was prepared vide Ex.
P/10 and pursuant to the memorandum statement of
appellant/accused vide Ex. P/5, recovery of
teakwood laathi was made from his possession vide
Ex. P/6. The seized articles were though sent for
chemical examination but no FSL report has been
brought on record. After recording the statements
of the witnesses and after due investigation, the
appellant/accused was chargesheeted for offences
punishable under Sections 302 and 323 of IPC and
Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,
1989 which was committed to the Court of Session
for hearing and disposal in accordance with law.
The appellant/accused abjured his guilt and entered
into defence.
4. In order to bring home the offence, prosecution
examined as many as 12 witnesses and brought into
record 13 documents. Statement of the
appellant/accused was recorded under Section 313 of
CrPC wherein he denied guilt but examined none,
however, he exhibited 6 documents in his defence.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict him for offences punishable under Sections
302 and 323 of IPC and Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
6. Mr. Suresh Tandan, learned counsel for the
appellant, would submit that Arjun Yadav (P.W.1)
and Dhiraji (P.W.2) have not really seen the
appellant assaulting the deceased, therefore, his
conviction cannot rest on the basis of their
testimonies. He would further submit that even if
the appellant is held to be the perpetrator of the
crime, looking to the dispute between the parties,
the present case is covered with Exception 4 to
Section 300 of IPC and since the appellant is in
jail since 24/11/2012 i.e. more than 9 years,
therefore, he be sentenced for the period already
undergone.
7. Per Contra, Mr. Ashish Tiwari, learned State
counsel, would support the impugned judgment and
submit that in view of the statements of Arjun
Yadav (P.W.1) and Dhiraji (P.W.2), who are eye
witnesses of the incident, the appellant has
rightly been convicted for the aforesaid offences,
therefore, this appeal deserves to be dismissed as
argued by learned counsel for the appellant, it is
not a case which is covered by Exception 4 to
Section 300 of IPC.
8. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. The first question is whether the death of deceased
Chhabilal was homicidal in nature ?
10. Learned trial Court has recorded an affirmative
finding in this regard relying upon the medical
opinion of Dr. S.R. Mandavi (P.W.4) who has
conducted postmortem of the deceased, in which he
has clearly stated in the postmortem report (Ex.
P/8) that cause of death is shock due to excessive
haemorrhage as a result of rupture of brain and
fracture of bone of skull and the nature of death
is homicidal. Taking consideration of the entire
evidence available on record as well as looking to
the grievous injury sustained by the deceased on
his head and relying upon the medical opinion of
Dr. S.R. Mandavi (P.W.4) as well as postmortem
report (Ex. P/8), we are of the considered opinion
that learned trial Court has rightly held the death
of deceased Chhabilal to be homicidal in nature.
Moreover, the fact that the deceased was not
homicidal in nature has not even been seriously
questioned by learned counsel for the appellant. As
such, we hereby affirm the said finding recorded by
the trial Court that the death of deceased
Chhabilal is homicidal in nature.
11.The next question for consideration is whether the
appellant is the perpetrator of the crime in
question ?
12.Learned trial Court has also recorded an
affirmative finding in this regard relying upon the
testimonies of eyewitnesses Arjun Yadav (P.W.1)
and Dhiraji (P.W.2). Arjun Yadav (P.W.1) is the
injured witness and he has proved merg intimation
vide Ex. P/1A wherein he has clearly stated that on
the fateful day, at about 09:00 PM, he was
returning to his house and when he reached
Dhiraji's house, he found that Dhiraji (P.W.2) was
sitting outside with deceased Chhabilal. Arjun
Yadav (P.W.1) also joined them and they started
chatting and with regard to the land encroached by
the appellant in front of Dhiraji's house, the
deceased was taunting Dhiraji (P.W.2) as to why he
let the appellant encroach the said land when
suddenly appellant came therein from the fields
after crossing the wooden barrier armed with a
teakwood laathi and assaulted the deceased and
inflicted grievous injuries on his head on account
of which, deceased died instantaneously.
Thereafter, when Arjun Yadav (P.W.1) tried to
intervene, the appellant also assaulted him and
caused simple injuries on his knees after which,
being afraid, he ran away along with Dhiraji (P.W.
2).
13.Similarly, Dhiraji (P.W.2) has also made a similar
statement and has supported the case of the
prosecution and moreover, pursuant to the
memorandum statement of the appellant vide Ex. P/
5, recovery of teakwood laathi has also been made
vide Ex. P/6. In that view of the matter, we are of
the considered opinion that learned trial Court has
rightly held the appellant to be the perpetrator of
the crime in question.
14.The aforesaid finding brings us to the next
question for consideration, which is, whether the
trial Court is justified in convicting the
appellant for offence punishable under Section 302
of IPC or his case is covered with Exception 4 to
Section 300 of IPC and as such as contended by
learned counsel for the appellant ?
15.In the matter of Sukhbir Singh v. State of
Haryana1, Their Lordships of the Supreme Court have
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 Sukhir 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
1 (2002) 3 SCC 327
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.Thereafter, in the matter of Gurmukh Singh v. State
of Haryana2, Their Lordships of the Supreme Court
have laid down certain factors which are to be
taken into consideration before awarding
appropriate sentence to the accused 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;
(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;
2 (2009) 15 SCC 635
(g) Whether the injury was caused with
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
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.Further, the Supreme Court in the matter of Arjun
v. State of Chhattisgarh3 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
3 (2017) 3 SCC 247
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, 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".
18. 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
PartI 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
PartII IPC.
19. Reverting to the facts of the present case in light
of the aforesaid principle of law laid down by
Their Lordships of Supreme Court, it is quite vivid
from the merg intimation (Ex. P/1A) which has been
duly proved by Arjun Yadav (P.W.1) that when
deceased Chhabilal taunted Dhiraji (P.W.2) as to
why he let the appellant encroach the land opposite
to his house, the appellant suddenly came therein
and out of sudden anger and in heat of passion,
assaulted the deceased on his head with teakwood
laathi. From a careful perusal of the testimonies
of eyewitnesses Arjun Yadav (P.W.1) and Dhiraji
(P.W.2) it is quite clear that the dispute
pertaining between the appellant and the deceased
was with regard to the land opposite of the house
of Dhiraji. Moreover, when the deceased was sitting
with Dhiraji outside his house along with Arjun
Yadav standing with them, the appellant came
therein already armed with a laathi and without
uttering a single word, he straightway inflicted a
blow on the head of the deceased which goes to show
that appellant had the intention to cause the death
of the deceased and looking to the nature of injury
sustained by the deceased, that too, on his head
which is a vital part of the body, the appellant
must have had the knowledge that it would likely
cause the death of the deceased. Therefore, all the
four ingredients of Exception 4 to Section 300 of
IPC are satisfied and in that view of the matter,
conviction of the appellant under Section 302 of
IPC is altered to Section 304 Part I of IPC and
since he is in jail since 24/11/2012 i.e. for more
than 9 years, we hereby sentence him to the period
already undergone.
20. So far as the conviction of appellant for offence
punishable under Section 323 of IPC is concerned,
neither it has been seriously questioned by learned
counsel for the appellant nor do we find any
infirmity with the findings recorded by the trial
Court, as such, his conviction for offence
punishable under Section 323 of IPC is hereby
maintained.
21. Now the next question for consideration is whether
the trial Court was justified in convicting the
appellant for offence punishable under Section 3(2)
(v) of the SC and ST Act, 1989 ?
22. Section 3(2)(v) of the SC and ST Act (Prevention of
Atrocities) Act, 1989 prior to its amendment w.e.f.
26/01/2016 by SC and ST Act (Prevention of
Atrocities) Act, 2015, stood as under :
"3. Punishments for offences of atrocities -
(1) XXX XXX XXX
(2) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe,
(I) to (iv) XXX XXX XXX
(v) commits any offence under the Indian
Penal Code punishable with imprisonment for a
term of ten years or more against a person or
property on the ground that such person is a
member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such
member, shall be punishable with imprisonment
for life and with fine; "
23. The Supreme Court in the matter of Patan Jaman Vali
v. State of Andhra Pradesh4 noticing Section 3(2)
4 AIR 2021 SC 2190
(v) of the Act of 1989 (unamended) considered the
issue of proving the offence under Section 3(2)(v)
of the Act of 1989 against a person on the ground
that such person is a member of Scheduled Caste or
Scheduled Tribe or such property belongs to such
member and held that it is to be established by the
prosecution on the basis of evidence at the trial
and held as under :
"58. We agree with the Sessions Judge that
the prosecution's case would not fail merely
because PW1 did not mention in her statement
to the police that the offence was committed
against her daughter because she was a
Scheduled Caste woman. However, there is no
separate evidence led by the prosecution to
show that the accused committed the offence
on the basis of the caste identity of PW2.
While it would be reasonable to presume that
the accused knew the caste of PW2 since
village communities are tightly knit and the
accused was also an acquaintance of PW2's
family, the knowledge by itself cannot be
said to be the basis of the commission of
offence, having regard to the language of
Section 3(2)(v) as it stood at the time when
the offence in the present case was
committed. As we have discussed above, due to
the intersectional nature of oppression PW2
faces, it becomes difficult to establish what
led to the commission of the offence -
whether it was her caste, gender or
disability. This highlights the limitation of
a provision where causation of a wrongful act
arises from a single ground or what we refer
to as the single axis model.
59. It is pertinent to mention that Section
3(2)(v) was amended by the Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015, which came
into effect on 26 January 2016. The words
"on the ground of" under Section 3(2)(v)
have been substituted with "knowing that
such person is a member of a Scheduled Caste
or Scheduled Tribe". This has decreased the
threshold of proving that a crime was
committed on the basis of the caste identity
to a threshold where mere knowledge is
sufficient to sustain a conviction.
61. However, since Section 3(2)(v) was
amended and Clause (c) of Section 8 was
inserted by Act 1 of 2016 with effect from 26
January 2016 these amendments would not be
applicable to the case at hand. The offence
in the present case has taken place before
the amendment, on 31 March 2011. Therefore,
we hold that the evidence in the present case
does not establish that the offence in the
present case was committed on the ground that
such person is a member of a SC or ST. The
conviction under Section 3(2)(v) would
consequently have to be set aside."
24. Reverting to the facts of the present case in light
of the principle of law laid down by Their
Lordships of the Supreme Court in the matter of
Patan Jaman Vali (supra), it is quite vivid that as
per Article A attached with the paperbook which is
a copy of caste certificate of deceased Chhabilal,
it is evident that he was a member of the Scheduled
Tribe but since the offence was committed on
23/11/2012 i.e. prior to the incorporation of the
amendment inserted under Section 3(2)(v) of the Act
of 1989 w.e.f 26/01/2016, it was entirely upon the
prosecution to establish and prove that the offence
was committed because deceased was a member of
Scheduled Tribe. From the perusal of entire
evidence available on record, it is quite clear
that prosecution has failed miserably to prove that
appellant committed the offence on the basis of the
caste identity of deceased Chhabilal, being a
member of Scheduled Tribe. There is no separate
evidence led on behalf of the prosecution to
establish that appellant committed the offence on
the basis of caste identity of the deceased. While
it can be presumed that appellant knew that
deceased belonged to Scheduled Tribe category as
both the appellant as well as the deceased were
residents of same village, but the mere knowledge
of the same cannot be said to be the basis of the
commission of offence and it had to be proved by
the prosecution by leading separate evidence as
held by Their Lordships of the Supreme Court in the
matter of Patan Jaman Vali (supra). In absence of
any such independent evidence led by the
prosecution establishing that appellant assaulted
the deceased and caused his death only on the
ground that he belonged to Scheduled Tribe
category, we are of the considered opinion that
learned trial Court has legally erred in convicting
the appellant for offence punishable under Section
3(2)(v) of the Act of 1989. Accordingly, his
conviction for offence punishable under Section
3(2)(v) of the Act of 1989 is hereby set aside.
25. In conclusion of the aforesaid legal discussion,
the conviction recorded and the sentence awarded to
the appellant for offence punishable under Section
302 of IPC as well as for offence punishable under
Section 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act,
1989 is hereby set aside, rather he is convicted
for offence punishable under Section 304 Part I of
IPC and since he is in jail since 24/11/2012, we
hereby sentence him for the period already
undergone by him. So far as his conviction for
offence punishable under Section 323 of IPC is
concerned, it is hereby maintained. The appellant
be released forthwith, if not required in any other
case.
26. Accordingly, this criminal appeal is allowed to the
extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
