Chattisgarh High Court
Gajanand And Ors vs State Of Chhattisgarh on 14 December, 2022
Cr.A.No.809/2015
Page 1 of 12
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.809 of 2015
{Arising out of judgment dated 26-5-2015 in Sessions Trial No.56/2015 of
the 2nd Additional Sessions Judge, Janjgir}
1. Gajanand, aged about 23 years, S/o Shri Ramkhilawan
Suryavanshi,
2. Sunil, aged about 21 years, S/o Shri Narayan Prasad Suryavanshi
3. Gaurishankar @ Laalu, aged about 21 years, S/o Shri Ramkrishna
Suryavanshi
4. Ashwani, aged about 20 years, S/o Shri Ramkhilawan Suryavanshi,
All are resident of Village Aurayeekala, Police Outpost Naila, P.S.
Janjgir, Civil and Revenue District Janjgir-Champa (C.G.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, through the District Magistrate, Janjgir-
Champa (C.G.)
---- Respondent
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For Appellants No.1 and 4: Mr. Yogeshwar Sharma, Advocate.
For Appellant No.2: Mr. Neeraj Mehta, Advocate.
For Appellant No.3: Mr. Rajesh Kumar Jain, Advocate.
For Respondent / State: Ms. Ruchi Nagar, Deputy Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
Judgment On Board
(14-12-2022)
Sanjay K. Agrawal, J.
1. The appellants herein, four in number, have preferred this appeal
under Section 374(2) of the CrPC against the impugned judgment
of conviction recorded and sentence awarded by the learned 2 nd
Additional Sessions Judge, Janjgir in Sessions Trial No.56/2015 by
Cr.A.No.809/2015
which they have been convicted and sentenced as under: -
Conviction Sentence
Section 302 of the IPC Imprisonment for life & fine of ₹ 5,000/-
each, in default, additional simple
imprisonment for five months
Section 307 of the IPC Rigorous imprisonment for ten years &
fine of ₹ 3,000/- each, in default,
additional simple imprisonment for three
months
Section 449 of the IPC Rigorous imprisonment for seven years
& fine of ₹ 3,000/- each, in default,
additional simple imprisonment for three
months
Section 294 of the IPC Fine of ₹ 500/- each, in default, simple
imprisonment for fifteen days
2. Case of the prosecution, in brief, is that on 1-2-2015 at Village
Aurayeekhurd, Vijay Sahu - brother of Ajay Sahu (PW-2), has
outraged the modesty of the daughter of Ramkhilawan Suryavanshi
and on that account, dispute erupted between Vijay Sahu,
Ramkhilawan Suryavanshi and others including the accused
persons. Thereafter, on 1-2-2015, in the night between 09.30 p.m.
and 10.00 p.m., Ajay Sahu (PW-2) came out from his house and
started abusing the appellants herein and assaulted them, then the
appellants in furtherance of their common object, abusing Ajay
Sahu forcefully entered into the house of Ajay Sahu and assaulted
Chameli Bai Sahu - aunt of Ajay Sahu (PW-2), by wooden log &
belt on head by which she suffered grievous injuries. Chameli Bai
was rushed to Care & Cure Hospital, Bilaspur where she
succumbed to the injuries sustained by her and died. FIR was
registered and pursuant to inquest, dead body of Chameli Bai was
Cr.A.No.809/2015
sent for postmortem which was conducted by Dr. P.C. Banerjee
(PW-13) and his postmortem report is Ex.P-23. Cause of death is
haemorrhage and shock resulting from head injury and death was
homicidal in nature. Memorandum statement of Sunil (A-2) was
recorded vide Ex.P-12 pursuant to which belt was seized vide Ex.P-
16. Memorandum statement of Gajanand (A-1) was recorded vide
Ex.P-10 pursuant to which wooden log was seized vide Ex.P-15.
Memorandum statement of Gaurishankar @ Laalu (A-3) was
recorded vide Ex.P-13 pursuant to which belt was seized vide Ex.P-
17. Memorandum statement of Ashwani (A-4) was recorded vide
Ex.P-11 pursuant to which belt was seized vide Ex.P-14. Seized
articles were sent for chemical examination to the FSL, but no FSL
report was brought on record.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC. After due investigation, the appellants were charge-
sheeted along with three accused persons namely, Vishnu Prasad,
Bharat & Bhagwat Prasad and charge-sheet was filed before the
jurisdictional criminal court and the case was committed to the
Court of Sessions from where the learned Additional Sessions
Judge received the case on transfer for conducting trial and hearing
and disposal in accordance with law.
4. The accused persons abjured the guilt and entered into defence. In
order to bring home the offence, the prosecution examined as many
as twenty-four witnesses and exhibited 47 documents. The
defence has examined none, but exhibited one document Ex.D-1 -
statement of Smt. Kamod Bai Sahu.
Cr.A.No.809/2015
5. The trial Court after appreciating oral and documentary evidence
available on record, convicted and sentenced the appellants herein
in the manner mentioned in the opening paragraph of this judgment
against which the instant appeal under Section 374(2) of the CrPC
has been preferred and acquitted Vishnu Prasad, Bharat &
Bhagwat Prasad.
6. Learned counsel appearing for the appellants would submit that
only on the basis of the evidence of Smt. Kamod Bai Sahu (PW-1),
Ajay Sahu (PW-2) & Smt. Ramkumari (PW-3), the appellants have
been convicted. No blood was found on the weapons seized i.e.
wooden log and belt, as no FSL report has been brought on record.
They would further submit that even if the prosecution case is taken
as it is, the case of the appellants would fall under Exception 4 to
Section 300 of the IPC considering the nature of injury. The
appellants are already in jail since 8-2-2015, therefore, it is a fit
case where conviction of the appellants can be converted/altered to
an offence under Section 304 Part-II of the IPC. Therefore, taking
into consideration the period already undergone by the appellants, the
appellants be released from jail forthwith by partly allowing the appeal.
7. Learned Deputy Government Advocate appearing for the State /
respondent, would support the impugned judgment and oppose the
appeal and would submit that the prosecution has been able to
bring home the offence and the appellants have rightly been
convicted and sentenced, as such, no case is made out for
conversion / alteration of the offence against the appellants to an
offence under Section 304 Part-II of the IPC.
Cr.A.No.809/2015
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
9. The first question whether the death of the deceased was homicidal
in nature has been answered by the trial Court in affirmative
considering the postmortem report Ex.P-23, which has been proved
by Dr. P.C. Banerjee (PW-13) in which cause of death was stated
to be haemorrhage and shock resulting from head injury and death
was stated to be homicidal in nature. The finding recorded by the
trial Court that death of deceased Chameli Bai was homicidal in
nature, is a finding of fact based on the evidence available on
record, it is neither perverse nor contrary to the record and we
hereby affirm the said finding.
10. Now, the question for consideration would be, whether the
appellants are the perpetrators of the crime in question?
11. The trial Court has relied upon the testimonies of Smt. Kamod Bai
Sahu (PW-1) - wife of Ajay Sahu, Ajay Sahu (PW-2) & Smt.
Ramkumari (PW-3). They are eyewitnesses and clearly supported
the case of the prosecution. They have seen the appellants
assaulting the deceased by wooden log and belt. They have been
subjected to certain length of cross-examination, but nothing has
been brought out to hold that they have not seen the appellants
assaulting the deceased and they have falsely implicated the
appellants. Furthermore, recovered articles - weapons of offences
i.e. wooden log & belt have been sent to FSL for chemical analysis,
but no FSL report has been brought on record. Therefore, the
Cr.A.No.809/2015
appellants are held author of crime with the testimonies of the
above three eyewitnesses and it is clearly established that they are
the authors of the crime in question.
12. 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 of the IPC or
their case is covered within Exception 4 to Section 300 of the IPC
vis-a-vis culpable homicide not amounting to murder and, thus,
their conviction can be converted to Section 304 Part-II of the IPC,
as contended by learned counsel for the appellants?
13. The Supreme Court in the matter of Sukhbir Singh v. State of
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."
14. The Supreme Court further, in the matter of Gurmukh Singh v.
State of Haryana2 has laid down certain factors which are to be
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
Cr.A.No.809/2015
taken into consideration before awarding appropriate sentence to
the accused with reference to Section 302 or Section 304 Part II of
the 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 from 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;
(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;
Cr.A.No.809/2015
(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."
15. Likewise, in the matter of State v. Sanjeev Nanda3, their 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.
16. 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 as under :-
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
Cr.A.No.809/2015
"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, 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
Cr.A.No.809/2015
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".
17. In 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
the 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 of the IPC.
18. Further, the Supreme Court in the matter of Rambir v. State (NCT
of Delhi)5 has laid down four ingredients which should be tested for
bringing a case within the purview of Exception 4 to Section 300 of
the IPC, which read 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.
xxx xxx xxx"
19. Reverting to the facts of the present case in light of the above
principles of law laid down by their Lordships of Supreme Court, it
5 (2019) 6 SCC 122
Cr.A.No.809/2015
is quite vivid that brother of Ajay Sahu (PW-2) namely, Vijay Sahu
is said to have outraged the modesty of sister of Gajanand (A-1) &
Ashwani (A-4) and daughter of Ramkhilawan Suryavanshi on
account of which dispute erupted between the parties and on 1-2-
2015, late night, brother of Vijay Sahu - Ajay Sahu (PW-2) came
out of his house and started abusing the appellants herein and
thereafter, the appellants entered into the house of Ajay Sahu and
said to have assaulted Chameli Bai - aunt of Ajay Sahu (PW-2) by
which she suffered single injury on head. Considering the nature of
injury on head it can be held that the appellants must have had the
knowledge that such injury inflicted by them on the body of the
deceased would likely to cause her death, however, considering that
the deceased sustained single injury, it can safely be inferred that
there is no premeditation on the part of the appellants to cause
death of the deceased. Considering the fact that the injury caused
upon the deceased is on account of a sudden quarrel that erupted
between the parties due to outraging the modesty of the sister of
appellants No.1 & 4 and daughter of Ramkhilawan Suryavanshi,
however, the appellants have not taken undue advantage and have
not acted in unusual manner, in our considered opinion, this case
would fall within the purview of Exception 4 to Section 300 of the IPC.
20. In view of the aforesaid discussion, conviction of the appellants under
Section 302 of the IPC as well as the sentence awarded to them by
the learned trial Court is hereby set aside. Considering that there was
no premeditation on the part of the appellants to cause death of the
deceased but the injury caused by them was sufficient in the ordinary
course of nature to cause death, the appellants are convicted for
Cr.A.No.809/2015
offence punishable under Section 304 Part-II of the IPC. Since the
appellants are in jail from 8-2-2015 more than 7 years 11 months,
taking into consideration the period they had already undergone, we
award them the sentence already undergone by them and the fine
sentence imposed by the learned trial Court shall remain intact. The
appellants have been convicted for offence under Section 307 of the
IPC and sentenced to RI for ten years, their conviction is maintained,
however, we award them the sentence for the period already
undergone by them in view of material avialable on record. However,
their conviction and sentences under Sections 449 & 294 of the IPC
would remain intact being well merited. Accordingly, the appellants be
released from jail forthwith, if their detention is not required in any
other offence.
21. The criminal appeal is party allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma
