Khemu Verma & Others vs State Of Chhattisgarh
2022 Latest Caselaw 699 Chatt

                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.790 of 2015

                    Judgment Reserved on :       3.2.2022
                    Judgment Delivered on :    10.2.2022


   1. Khemu Verma, son of Late Bharatlal Verma, aged about 23 years,
      occupation Agriculturist, resident of Village Dharampura, Police Station
      Dhamdha, Civil and Revenue District Durg, Chhattisgarh
   2. Shatrughan Verma, son of Late Narsingh Verma, aged about 57 years,
      occupation Labour, resident of Village Dharampura, Police Station
      Dhamdha, Civil and Revenue District Durg, Chhattisgarh
   3. Gaukaran Patel, son of Mannu Patel, aged 34 years, occupation
      Labour, resident of Village Dharampura, Police Station Dhamdha, Civil
      and Revenue District Durg, Chhattisgarh
   4. Bhagwani Verma, son of Shatrughan Verma, aged about 26 years,
      occupation Labour, resident of Village Dharampura, Police Station
      Dhamdha, Civil and Revenue District Durg, Chhattisgarh
                                                             ---- Appellants
                                   versus
      State of Chhattisgarh through the Police Station Dhamdha, Civil and
      Revenue District Durg, Chhattisgarh
                                                              --- Respondent


For Appellants        :         Shri B.P. Singh, Advocate
For Respondent        :         Shri Himanshu Kumar Sharma, Panel Lawyer


           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT

Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 12.5.2015

passed by 2nd Additional Sessions Judge, Durg in Sessions Trial

No.175 of 2012, whereby all the Appellants have been convicted

and sentenced as under:

Conviction Sentence

Under Section 147 of the Rigorous Imprisonment for 2 Indian Penal Code years and fine of Rs.200, in default of payment thereof, additional rigorous imprisonment for 2 months Under Section 148 of the Rigorous Imprisonment for 2 Indian Penal Code years and fine of Rs.200, in default of payment thereof, additional rigorous imprisonment for 2 months Under Section 325 of the Rigorous Imprisonment for 2 Indian Penal Code years and fine of Rs.200, in default of payment thereof, additional rigorous imprisonment for 2 months Under Section 302 of the Imprisonment for Life and fine Indian Penal Code of Rs.500, in default of payment thereof, additional rigorous imprisonment for 1 year

All the sentences are directed to run concurrently

2. Name of deceased, in this case, is Bharatlal Verma. Appellant No.1,

Khemu Verma is son of the deceased born from first wife of the

deceased. Appellant No.2, Shatrughan Verma is brother of the

deceased and Appellants No.3 and 4, namely, Gaukaran Patel and

Bhagwani Verma, respectively are Bhanja and Bhatija (nephews) of

the deceased, respectively. According to the case of prosecution,

on 7.6.2012 at about 6:30 p.m., Anita (PW4), daughter of the

deceased was at home along with her father/deceased and her

cousin Godawari (PW8). At that time, mother of Anita (PW4),

namely, Saroj (PW7), brother of the deceased, namely, Mohanlal

(PW1) and younger sisters of Anita (PW4) had gone to the market.

At that time, all the Appellants and co-accused Bhola (juvenile)

came in front of the house of the deceased and abused the

deceased. At that time, they were armed with lathis and dandas.

When the deceased came out of the house and asked the accused

persons not to abuse, Appellants Khemu and Shatrughan telling

that the deceased had grabbed the whole land and was not giving

them any part of the land, assaulted the deceased with lathi and

danda. Other co-accused persons assaulted the deceased with

hands and fists. The assailants dragged the deceased towards a

Bargad tree. Anita (PW4) and Godawari (PW8) shouted for rescue,

but no one came to rescue them. At that time, wife of the deceased

Saroj (PW7) and brother of the deceased Mohanlal (PW1) reached

the spot and intervened. Then all the Appellants assaulted

Mohanlal (PW1) also with the help of lathis, dandas, hands and

fists. Anita (PW4) went to the house of Village Kotwar Ramkali

(PW6) and informed her about the incident. She also informed the

incident to Police Station Dhamdha. Her information was recorded

in Rojnamcha Sanha (Ex.P25). Immediately thereafter, police

reached the spot. They took injured Bharatlal and Mohanlal to the

hospital. Meanwhile, injured Bharatlal died on the way. Dehati

Nalishi (Ex.P17) and Morgue Intimation (Ex.P18) were recorded as

per information given by Anita (PW4). Spot-Map (Ex.P19) was

prepared. First Information Report (Ex.P24) was registered.

Inquest proceeding of the dead body of deceased Bharatlal was

conducted and the dead body was sent for post mortem

examination. Post mortem examination was conducted by Dr.

Sanjeev Kumar Agrawal (PW3). He found following injuries in post

mortem examination of the dead body:

(1) Fracture in lower jaw,

(2) Lacerated wound over left temporal region at scalp measuring 6x4x3 cms.,

(3) Big haematoma over anterior aspect of whole neck measuring 10x6 cms.,

(4) Fracture of internal parts of both clavicle bones (collar bone),

(5) Contusion with haematoma over back of lower part of chest lying obliquely from left to right measuring 10x3 cms.,

(6) Contusion with haematoma over back of upper part of chest lying obliquely from left to right measuring 10x3 cms.,

(7) Two contusions with haematoma over upper part of anterior aspect of chest lying obliquely across each other from left to right and right to left making "X" shape measuring 10x3 cms. each,

(8) Contusion over medial aspect of upper part of left forearm measuring 4x2 cms. with fracture of left ulna bone and

(9) Contusion over medial aspect of dorsal of left hand measuring 2x2 cms. with fracture of left 4th metacarpal bone.

In internal examination, he found that spleen and left kidney were

ruptured. He opined that the mode of death was asphyxia as well

as syncope due to trachea and larynx injury and heavy internal

haemorrhage caused by rupture of spleen and left kidney. He

further opined that nature of the death was homicidal. The post

mortem report is Ex.P14. He also examined injured Mohanlal

(PW1) and found two injuries over his body, namely, (i) lacerated

wound over occipital region of scalp (middle) measuring 2x2x2

cms. and (ii) swelling over right wrist joint measuring 3x2x2 cms.

His report is Ex.P16. During the course of investigation, on the

basis of disclosure statements of Appellants Khemu, Gaukaran and

Shatrughan recorded under Section 27 of the Evidence Act, total 3

dandas, which were used by them for the assault, were seized.

Statements of witnesses were also recorded under Section 161 of

the Cr.P.C. On completion of the investigation, a charge-sheet was

filed against the Appellants and a separate charge-sheet was filed

against juvenile accused Bhola in the Juvenile Court. The Trial

Court framed charges against the Appellants.

3. In support of its case, the prosecution examined as many as 11

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellants denied the guilt and pleaded

innocence. No witness was examined in their defence.

4. On completion of the trial, vide the impugned judgment, the Trial

Court convicted and sentenced the Appellants as mentioned in first

paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellants argued that there

are four eyewitnesses, namely, Mohanlal (PW1), Anita (PW4), Saroj

(PW7) and Godawari (PW8), but all these eyewitnesses are close

relatives of the deceased and, therefore, they are interested

witnesses and their statements are not reliable. There are material

contradictions and omissions in their statements. All these

eyewitnesses have developed their statements on material points

during trial and, therefore also, their statements are not reliable.

From the evidence adduced by the prosecution and from the

admissions made by the witnesses, it is well established that all the

Appellants and the deceased are close relatives and there was a

land dispute between them. Independent witnesses were available,

but despite that, their statements were not recorded. It was further

argued that in any case if the Court comes to a conclusion that the

Appellants are guilty, their guilt should be held to be a culpable

homicide not amounting to murder because there was no intention

on their part to kill the deceased. From the evidence, it is

established that due to a previous land dispute, at the time when

the Appellants demanded their shares in the land, the assault took

place in a sudden quarrel. The Appellants admittedly used only

lathis and there is no specific opinion given by the doctor that due

to which injury the deceased died. Therefore, Section 304 Part II

IPC is clearly attracted to this case. The Appellants are in jail since

8.6.2012. They have completed more than 9 years of jail sentence.

Hence, their sentence may be restricted to the period already

undergone by them. Reliance was placed on (2014) 3 SCC 366

(Badal Murmu v. State of West Bengal) and (2017) 14 SCC 291

(Baliraj Singh v. State of Madhya Pradesh).

6. Opposing the above contentions, Learned Counsel appearing for

the State supported the impugned judgment of the Trial Court. He

submitted that though the eyewitnesses are close relatives of the

deceased, their statements cannot be discarded for this reason

only. From their statements, it is well established that they were

present at the spot at the time of incident. Immediately after the

incident, the matter was telephonically informed to the police station

and immediately thereafter named Dehati Nalishi (Ex.P17) was

lodged by Anita (PW4). All the eyewitnesses remained firm during

their cross-examination. Their statements are duly corroborated by

medical evidence also. Blood stains were also found on the seized

lathis. Therefore, the prosecution has duly proved its case beyond

reasonable doubt. Looking to the injuries sustained by the

deceased, it is also established that the injuries were caused by the

Appellants with intention to cause his death. Therefore, it is not a

case where conviction of the Appellants could be converted to

Section 304 Part II IPC. Reliance was placed on (2002) 8 SCC 45

(Bodhraj alias Bodha v. State of Jammu and Kashmir) and AIR

2008 SC 927 (Ramesh Krishna Madhusudan Nayar v. State of

Maharashtra).

7. We have heard Learned Counsel appearing for the parties and

perused the statements of the witnesses and other evidence

available on record with utmost circumspection.

8. It is not in dispute that Anita (PW4), Saroj (PW7) and Mohanlal

(PW1) are daughter, wife and brother of the deceased, respectively.

It is also not in dispute that Godawari (PW8) is daughter of

Mohanlal (PW1). It is also not in dispute that Appellant Khemu is

son of the deceased born from first wife of the deceased and he

was residing separately since his childhood along with his maternal

uncle in other village. It is also not in dispute that Appellant

Shatrughan is real brother of the deceased and rest two of the

Appellants are nephews of the deceased.

9. Anita (PW4), daughter of the deceased is the witness who

immediately after the incident telephonically informed the incident

to the police and lodged named Dehati Nalishi (Ex.P17). She

deposed that at the time of incident, she was at home along with

the deceased and her cousin Godawari (PW8). At that time, her

mother, younger sisters and uncle Mohanlal (PW1) had gone to

Barhapur Market. She further deposed that all the Appellants and

juvenile co-accused Bhola came to them and assaulted them and

assaulting the deceased with lathis, dandas, hands and fists,

dragged him towards a Bargad tree. There also, they assaulted

him as a result of which he died. She further deposed that at that

time, her uncle and mother reached the spot. When uncle

Mohanlal (PW1) tried to intervene and rescue the deceased, all the

Appellants assaulted Mohanlal (PW1) also with dandas, hands and

fists as a result of which Mohanlal (PW1) also sustained injuries

and he fled from the spot to rescue himself. Corroborating the

statement of Anita (PW4), Mohanlal (PW1) and Saroj (PW7) stated

that at the time of incident when they reached the spot, they saw

that the Appellants were assaulting the deceased. According to the

statement of Mohanlal (PW1), the Appellants had cut half of the

neck of the deceased by a hansiya. When he tried to rescue the

deceased, the Appellants assaulted him also due to which he also

sustained injuries on his head and right hand. Other eyewitness

Godawari (PW8) also supported the statement of Anita (PW4).

10. During cross-examination, Mohanlal (PW1) admitted the fact that

there was a previous land dispute between them and regarding that

land a case was also pending in the Court. Anita (PW4) also, in

paragraph 7 of her cross-examination, admitted that in the name of

Appellant Khemu, 4-5 acres of land was situated in their village on

which the deceased himself was cultivating. She further admitted

that they were not in talking terms with Appellant Khemu and

whenever Appellant Khemu came to their village he stayed at the

house of Appellant Shatrughan. Saroj (PW7) also, in paragraphs

13 and 14 of her cross-examination admitted that they had no

cordial relation with the Appellants and they were not in talking

terms. In paragraph 25 of her cross-examination, she further

admitted that at present they are in possession of the lands of the

Appellants in the village and are cultivating on those lands.

11. On a minute examination of the statements of all the eyewitnesses

of the case, it reveals that the eyewitnesses have developed their

statements on some points, but they remained firm during their

cross-examination on the point that the deceased and Mohanlal

(PW1) were assaulted by the Appellants with the help of dandas,

hands and fists. Their statements are duly corroborated by the

entries of Rojnamcha Sanha (Ex.P25) and Dehati Nalishi (Ex.P17).

In Ex.P25, information of quarrel in the village is mentioned and

immediately after the incident when police reached the spot, named

Dehati Nalishi (Ex.P17) was lodged by Anita (PW4). Therefore,

only on the ground that the eyewitnesses have developed their

statements on some points, their whole statements cannot be

discarded. Though they are close relatives of the deceased, their

statements are natural and inspires confidence of the Court.

Therefore, we are of the view that from the statements of the

eyewitnesses, it is well established that Bharatlal (deceased) and

Mohanlal (PW1) were assaulted by the Appellants and juvenile co-

accused Bhola with the help of dandas, hands and fists.

12. Now the question remains for consideration is whether the act of

the Appellants will be considered as an offence under Section 302

IPC or under Section 304 Part I IPC or under Section 304 Part II

IPC.

13. It is not in dispute that all the Appellants, the deceased and injured

Mohanlal (PW1) are close relatives. From the evidence on record,

it is established that Appellant Khemu, who is son of the deceased

from his first wife, was living separately since his childhood along

with his maternal uncle in other village. As admitted by Anita

(PW4), daughter of the deceased, the deceased himself was

cultivating on the 4-5 acres of land of Appellant Khemu situated in

their village. As admitted by Saroj (PW7) also, presently, they are

cultivating on the lands of the Appellants situated in their village. It

is the case of the prosecution itself that at the time of incident,

Appellants Khemu and Shatrughan demanded their shares in the

land and, therefore, the quarrel took place. Though the deceased

suffered 9 external injuries over his body, out of them only the

injuries No.2, 3 and 4 were on vital parts of the body. According to

the post mortem examination report (Ex.P14), his spleen and left

kidney were ruptured. None of the eyewitnesses has disclosed that

who among the Appellants assaulted on which part of the body of

the deceased. Admittedly, the assault was caused by dandas,

hands and fists. On appreciation of the evidence on record, we

also find that the Appellants had no intention to commit murder of

the deceased. It appears that due to a previous land dispute, at the

time of incident, when Appellants Khemu and Shatrughan

demanded their shares in the land, the sudden quarrel took place in

which the deceased was assaulted by the Appellants in a heat of

passion. Therefore, in our considered view, the act of the

Appellants is covered by Exception 4 of Section 300 of the Indian

Penal Code. Since their intention was not to commit murder of the

deceased, looking to the injuries caused by them to the deceased,

it can be considered that they were aware of the fact that those

injuries could cause death of the deceased. Therefore, in our

considered view, the Appellants are liable to be punished for the

offence under Section 304 Part II read with Section 149 of the IPC

for causing homicidal death of Bharatlal. Hence, conviction of the

Appellants is altered from Section 302 IPC to Section 304 Part II

read with Section 149 of the IPC. Rest of the conviction imposed

upon the Appellants by the Trial Court are affirmed. The sentence

awarded thereunder are also affirmed.

14. As regards sentence for the offence under Section 304 Part II read

with Section 149 of the IPC, considering the facts and

circumstances of the case, particularly that the assault took place in

a sudden quarrel, the Appellants are in jail since 8.6.2012 and

facing the lis since then, they have completed more than 9 years of

jail sentence, they have no criminal antecedent, they are rustic

villagers, we are of the view that restricting their sentence to the

period already undergone by them would be in the interest of

justice. Ordered accordingly. They shall also be liable to pay fine

of Rs.500 each and in default of payment thereof they shall suffer

additional rigorous imprisonment for 1 year. The fine already

deposited shall be adjusted in the amount of fine imposed today.

15. In the result, the appeal is allowed in part to the extent indicated

above.

                            Sd/-                                 Sd/-

              (Rajendra Chandra Singh Samant)          (Arvind Singh Chandel)
                         Judge                                 Judge

Gopal