Ramsingh Gond vs State Of Chhattisgarh
2022 Latest Caselaw 4601 Chatt

                                    1

                                                                        NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                 Criminal Appeal No.1568 of 2017

     Ramsingh Gond S/o Shri Jagannath Gond, Aged about
     36   years,      R/o    Village­Junapara           Morga,     Police
     Station­Bango, District­Korba (CG)

                                                        ­­­Appellant

                                 Versus

     State of Chhattisgarh Through the Station House
     Officer, Police Station­Pasan, District­Korba (CG)

                                                       ­­­Respondent


For Appellant        :­      Mr.Rishi Rahul Soni, Advocate
For State            :­      Mr.Avinash Singh, Panel Lawyer

           Hon'ble Shri Justice Sanjay K. Agrawal
          Hon'ble Shri Justice Sanjay S. Agrawal
                          Judgment on Board
                              20/07/2022
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 13.1.2016

passed by learned Additional Sessions Judge,

Katghora in Sessions Trial No.68/2013, whereby the

learned Additional Sessions Judge while acquitting

Smt.Santara Bai, convicted the appellant herein

for offence punishable under Section 302 of the

IPC and sentenced him to undergo imprisonment for

life and fine of Rs.2,000/­, in default of payment

of fine to further undergo R.I. for two months.

2. The case of the prosecution, in brief, is that

24.4.2013 at about 8 p.m. at village Koilar Jadra

Paterapara the appellant along with his wife

Smt.Santara Bai (now acquitted) caused death of

Samelal and also caused disappearance of the body

and thereby committed the aforesaid offence. It is

further case of the prosecution that deceased

Samelal was teacher in Binzwar Government Primary

School, Koilar Gadra. On the date of offence, when

Samelal, Kanthram @ Devsingh Dhanuhar who was

serving as cook in that school and his wife

Ranjanibai were returning back to their home near

the house of Ganesh Gond the appellant herein and

his wife Smt.Santara Bai met Samelal, the

appellant asked him whether he is Samelal, which

Samelal replied affirmative, then the appellant

again asked Samelal do you know me, I am also

resident of Morga, which Samelal answered in

negative, then all of sudden the appellant took

out axe (pickaxe) and caused injury over the head

of Samelal, by which he suffered injury and died.

The appellant also tried to assault Kanthram

(PW­3), but it was snatched by Kanthram and

thereafter appellant Ramsingh absconded towards

Hasdeo river. Thereafter on the next day on

25.4.2013 Kanthram (PW­3) reported the matter to

Police Chowki Korbi and offence under Section 302

of the IPC was registered. Merg was registered

vide Ex.P­8 and on the basis of merg, FIR (Ex.P­

9) was registered. Inquest was conducted over the

body of the deceased. Dead body of deceased

Samelal was sent for postmortem to Community

Health Center, Pondi Uprodha, where Dr. Deepak

Singh (PW­10) conducted postmortem vide Ex.P­34

and opined that cause of death was hemorrhagic

sock and death was homicidal in nature. Pursuant

to memorandum statement of the appellant (Ex.P­7,

bloodstained axe and bloodstained shawl were

recovered from the spot vide Ex.P­4 and Ex.P­5.

After completion of investigation, charge­sheet

was filed before the Judicial Magistrate First

Class, Katghora, who in turn, committed the case

to the Court of Session, Korba, from where the

Additional Sessions Judge, Katghora received the

case on transfer for trial. The appellant/accused

abjured his guilt and entered into defence.

3. In order to bring home the offence, the

prosecution examined as many as 10 witnesses and

brought into record 34 documents. Statement of the

appellants/accused were recorded under Section 313

of CrPC wherein they denied their guilt, however,

they examined none in his defence. However, Exs.D­

1 to D­4 were brought on record as defence

documents.

4. Learned trial Court, after appreciating the oral

and documentary evidence on record, by its

judgment dated 13.1.2016, while acquitting

Smt.Santara Bai has convicted appellant Ramsingh

Gond for offence under Section 302 of the IPC and

sentenced him as aforesaid which has been called

in question by way of the instant appeal.

5. Mr.Rishi Rahul Soni, learned counsel for the

appellant, would submit that conviction of the

appellant is based on conjectures and surmises and

only on the issue of acquaintance, the offence is

said to have been committed and therefore, the act

of the appellant would fall under Exception 4 to

Section 300 of the IPC and as such, the appeal

deserves to be allowed in toto or in part.

6. On the other hand, Mr.Avinash Singh, learned Panel

Lawyer for the respondent/State, would submit that

Kanthram (PW­3) and Smt.Rajnibai (PW­4) both

husband and wife are eyewitnesses to the incident

and as such, the trial Court has rightly convicted

the appellant herein for offence under Section 302

of the IPC. He would further submit that it is not

a case where offence under Section 302 of the IPC

can be converted under Section 304 Part I of the

IPC and as such, appeal deserves to be dismissed.

7. We have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

8. The first question for consideration would be,

whether death of deceased Samelal was homicidal in

nature.

9. The trial Court after appreciating medical

evidence particularly the statement of Dr.Deepak

Singh (PW­10) and considering postmortem report

(Ex.P­34) came to the conclusion that death of

deceased Samelal was homicidal in nature.

Considering the nature of injuries and other

evidence available on record, we are of the

considered opinion that the trial Court is

absolutely justified in holding the death of the

deceased to be homicidal in nature. We affirm the

said finding recorded by the trial Court. Even

otherwise, it has not been seriously disputed by

the learned counsel for the appellant.

10. The next question for consideration would be,

whether the appellant was author of crime in

question or whether the trial Court has rightly

convicted him under Section 302 of the IPC ?

11. Kanthram (PW­3) is eyewitness. He has clearly

stated before the Court that on issue of

acquaintance the appellant assaulted deceased

Samelal by which he suffered grievous injury and

died. Kanthram (PW­3) has clearly stated that when

he, his wife Rajnibai and deceased Samelal were

returning back to their house, the appellant and

his wife Smt.Santara Bai met them, the appellant

asked Samelal whether he is Samelal, on being

replied by Samelal in affirmative, the appellant

again asked Samelal do you know me and when

Samelal said that he does not identify him, then

the appellant took out axe and caused blow on

sharp edged side of axe on his head. Similar

statement has been made by Smt.Rajnibai (PW­4).

Apart from that, axe has been recovered from the

spot vide Ex.P­4 from Kanthram (PW­3) and

bloodstained shawl was also recovered from

possession of the appellant vide Ex.P­5, which was

sent to FSL, but FSL report has not been brought

on record. As such, on the basis of evidence of

eyewitnesses Kanthram (PW­3) and Smt.Rajnibai (PW­

4) it is established that it is the appellant who

has caused axe blow to Samelal by which he

suffered injuries and died.

12. Now the question for consideration would be,

whether the appellant is guilty for offence under

Section 302 of the IPC or his case would fall

under Section 304 Part I of the IPC ?

13. The trial Court in para­13 of its judgment has

recorded the finding that the dispute between

deceased Samelal and the deceased was on account

of acquaintance and on being asked by the

appellant to Samelal whether know him and whether

he can identify him or not and on being replied by

Samelal as negative, the appellant caused death of

Samelal. The trial Court has clearly recorded the

finding that there was no preplan or common

intention to cause death of deceased Samelal and

thereby acquitted Smt.Santraa Bai and proceeded to

convict the appellant herein on the basis of

testimonies of Kanthram (PW­3) and his wife

Smt.Rajnibai (PW­4).

14. The Supreme Court in the matter of Arjun v. State

of Chhattisgarh1 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, 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 1 (2017) 3 SCC 247

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".

15. 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.

16. The Supreme Court in the matter of Sukhbir Singh

v. State of Haryana2 has observed as under:­

2 (2002) 3 SCC 327

"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."

17. Reverting to the facts of the present case in

light of principle of law laid down by the Supreme

Court in the above­stated judgments (supra), it is

quite vivid that there was no motive for

commission of said offence as the trial Court has

clearly recorded the finding in para­13 of its

judgment, which has even not been assailed by

other side and further taking into account that

there was no previous enmity between the appellant

and deceased Samelal except some complaint made by

appellant's wife Santara Bai about outraging her

modesty by deceased Samelal, which finds place in

merg intimation (Ex.P­8) and memorandum statement

of the appellant (Ex.P­7) and considering the

injury which was caused by the appellant over head

of the deceased, which is vital part of the body,

we are of the considered opinion that the

appellant has intention as well as the appellant

had the knowledge that injury caused is likely to

cause death of Samelal. Thus, the act of the

appellant would fall under Section 304 Part I of

the IPC and as such, conviction of the appellant

under Section 302 of the IPC can be converted

under Section 304 Part I of the IPC.

18. Accordingly, conviction of the appellant under

Section 302 of the IPC is set aside and he is

convicted for offence under Section 304 Part I of

the IPC and sentenced to undergo R.I. for 10 years

and fine of Rs.2000/­, in default of payment of

fine to further undergo R.I. for 2 months.

19. The criminal appeal is allowed to the extent

indicated hereinabove.

                  Sd/­                                     Sd/­
         (Sanjay K. Agrawal)                    (Sanjay S. Agrawal)
                 Judge                                    Judge


B/­