Devnath Rohidas And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 6546 Chatt

                                    1

                                                              NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR



                          CRA No. 795 of 2013

      1. Devnath Rohidas S/o Shyamnath Aged About 42 Years R/o
         Gondlihapara Lafa, Police Station Pali, Civil And Revenue
         Distt. Korba Chhattisgarh

      2. Krishna Rohidas S/o Salikram, Aged About 30 Years R/o
         Village Sapalwa, Police Station Pali, Civil And Revenue
         Distt. Korba Chhattisgarh

                                                    ---- Appellants

                                Versus

       State Of Chhattisgarh, Through Station House Officer,
        Police Station Pali, Distt. Korba (CG)

                                                   ---- Respondent



  For Appellants                 Mr. Dharmesh Shrivastava,
                                 Advocate
  For Respondent /State          Mr. Animesh Tiwari, Dy. AG


                           DIVISION BENCH

                    Hon'ble Shri Sanjay K. Agrawal &
                   Hon'ble Shri Deepak Kumar Tiwari, JJ.

Judgment on Board 03/11/2022

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of Cr.PC is directed

against the impugned judgment of conviction and order of

sentence dated 27.07.2013 passed in Sessions Trial No.90/2012,

whereby, learned Additional Sessions Judge, Katghora, District

Korba (CG) has convicted the appellants under Section 302/34 of

the IPC and sentenced to undergo life imprisonment and pay fine

of Rs.1000/- , in default of payment of fine, to undergo further RI

for 6 months

2. Case of the prosecution, in brief, is that on 19.7.2012 at 7:30 p.m.,

at village Lafa, Police Station Pali, District Kabirdham (CG), the

appellants herein and accused Savitribai (now acquitted by the

trial Court) in furtherance of their common intention assaulted

deceased Bedram and also abused and assaulted Kunti Bai, wife

of the deceased (PW-2) and Raju, son of the deceased (PW-3), by

means of Tangi (axe) and Danda (club) on account of which, the

deceased sustained various injuries and after three days of the

incident i.e. on 22.7.2012, he died. In the above scuffle, Kunti Bai,

wife of the deceased (PW-2) and Raju (PW-3), son of the

deceased also received injury. Accordingly, the accused persons

were charged for the offence under Section 302/34 of the IPC.

Further case of the prosecution is that deceased Bedram was

referred to the CIMS Hospital, but he was not admitted in the

said hospital instead he was escorted to a private hospital at

Bilaspur. However, since the deceased was not recovering and his

chances of survival was less, the Doctor of the said hospital asked

his family members to take him back home, but on the way, he

died. Raju (PW-3) lodged a merg intimation vide Ex-P/2 in the

Police Station Pali. On the recommendation of the Panchas, the

postmortem of the deceased was conducted by Dr. P. Agrawal

(PW-10). The Postmortem Report has been prepared vide Ex.

P/17, according to which, the cause of death was coma on

account of the head injury and the death was homicidal in nature.

Pursuant to the memorandum statement-Ex.-P/5 of appellant

No.1 -Devnath Rohidas, the material object/weapon of offence-

axe was seized vide Ex.P/6 and pursuant to the memorandum

statement - Ex.-P/7 of appellant No.2 - Krishna Rohidas, club was

seized vide Ex.-P/8 . Thereafter, the seized articles i.e. axe and

club were sent for examination to the Community Health Centre,

Pali, where Dr. P. Agrawal (PW-10), examined the said axe and

club and as per his report, no opinion can be given regarding

human blood found on the seized articles and for ascertaining

the same, the Doctor advised for chemical analysis by the

Forensic Expert. The seized articles were sent for chemical

examination to the Forensic Science Laboratory, Raipur, however,

the report of the FSL is not brought on record for the reasons

best known to the prosecution.

3. After usual investigation, all the three accused persons were

charge-sheeted for offence under Section 302/34 of the IPC and

the same was filed before the jurisdictional criminal court and

the case was committed to the Court of Sessions from where the

Additional Sessions Judge, Katghora District Korba (CG) received

the case on transfer for hearing and disposal in accordance with

law.

4. The accused/appellants abjured the guilt and entered into

witness. In order to bring home the offence, the prosecution

examined as many as 11 witnesses and exhibited 37 documents.

5. The trial Court upon appreciation of oral and documentary

evidence on record, proceeded to convict and sentence

appellants 1 & 2 under Section 302/34 of the IPC in the manner

mentioned in the opening paragraph of the judgment against

which the instant appeal under Section 374 (2) of the Cr.P.C. has

been preferred. However, the trial Court vide the impugned

judgment acquitted accused - Savitribai.

6. Mr. Dharmesh Shrivastava, learned counsel for the appellants,

would submit that Smt. Kuntibai (PW-2), Raju (PW-3) and

Sarjunram, who is the cousin brother of the deceased (PW-4), are

related witnesses and their testimonies does not inspire

confidence as on the report of the appellant No.1 Devnath

Rohidas vide Ex.-D/1A, an offence under Sections 341, 294, 506,

323 of the IPC was registered against Bedram (deceased) on the

same date of the incident. However, subsequently, since the

deceased died, Final Report-Ex.-D/2 was filed. Furthermore, from

appellants Devnath Rohidas and Kishna Rohidas, only axe and

club have been seized, which have not been proved beyond

doubt by Ramkumar (PW-6) and no FSL report has been brought

on record by the prosecution to prove that these two material

objects were the weapons of offence. He submits that in that

view of the matter, the conviction deserves to be set-aside. In

alternative, learned counsel would further submit that in view of

Ex.-D/1A (FIR) & Ex.D/2 (Final Report) and the evidence of Pal

(PW-1), it appears that there was previous enmity between

deceased Bedram and appellant No.1 Devnath Rohidas and the

deceased has brutally beaten appellant No.1. and he even threw

his body on the assumption that he is dead. Learned counsel

submits that the case of the appellants is squarely covered

under Exception 4 to Section 300 of IPC and therefore, their

conviction for offence punishable under Section 302/34 of IPC be

altered to Section 304 Part II of IPC since they are in custody

w.e.f. 23.7.2012 i.e. more than 10 years. Hence, the appeal

deserves to be allowed.

7. Per contra, Mr.Animesh Tiwari, Dy. AG for the State would submit

that Kunti Bai (PW-2), Raju (PW-3) and Sarjunram (PW-4) have

clearly supported the case of the prosecution. Though they are

related, but are eye-witnesses to the incident. Merely because,

the offence was registered against deceased Bedram, who was

the husband of Kunti Bai (PW-2), father of Raju (PW-3) and

cousin brother of Sarjunram (PW-3), it cannot be held that they

are the interested witnesses and therefore, the appeal deserves

to be dismissed.

8. We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through

the records with utmost circumspection.

9. The first question for consideration is whether the death of the

deceased was homicidal in nature?

10.The trial Court has recorded an affirmative finding in this regard

relying on the Postmortem Report-Ex.-P/17 and referring to the

evidence of Dr. P. Agrawal (PW-10), who was examined pursuant

to the order passed by this Court. In view of the above, the trial

Court has rightly held that the death of the deceased was

homicidal in nature, which is a correct finding of fact based on

evidence available on record and is neither perverse nor contrary

to the record and we hereby affirm the said finding.

11. Now, the next question for consideration is whether the trial

Court has rightly held that the appellants 1 & 2 are the

perpetrators or authors of the crime in question ?

12. The trial Court has relied on the testimonies of PW-2 - Smt.

Kuntibai, wife of the deceased, PW-3 - Raju, son of the deceased.

and PW-4 -Sarjunram, cousin brother of the deceased, to rest the

conviction on the appellants. Learned State Counsel has drawn

out attention to the testimonies of these three eye-witnesses.

After going through the testimonies of these three witnesses, we

are of the opinion that they inspire confidence and have rightly

been accepted by the trial Court. Upon close scrutiny, we do not

find any infirmity in their evidence to hold that the appellants

have not caused injury to the deceased and they have not seen

the incident. Accordingly, we hold that the appellants have

caused the injuries and on account of the said injuries inflicted by

them, the deceased died. Though pursuant to the statements of

the appellants, axe and club respectively have been recovered

but Ramkumar (PW-6) has not supported the recovery and

seizure. Moreover, the FSL report has not been brought on record

to demonstrate that the weapons of offence so seized were

actually used for commission of the aforesaid offence by the

appellants yet we hold that the appellants have assaulted the

deceased Bedram, on account of which, he died.

13. This takes us to the question as to whether the appellants have

rightly been convicted under Section 302 of the IPC or their case

would fall under Exception 4 to Section 300 of the IPC.

14.In order to consider whether the case of the appellants/accused

is covered with Exception 4 to Section 300 of IPC, it would be

appropriate to notice the decision rendered by the Supreme

Court in the matter of Sukhbir Singh v. State of Haryana 1

wherein it has been 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 1 (2002) 3 SCC 327

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."

15.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;

2 (2009) 15 SCC 635

(f) The age and general health condition of the accused;

(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."

16. 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 is

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.

17. 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, 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

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

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 Part-I 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.

19. Further, the Supreme Court in the matter of Rambir vs.

State (NCT of Delhi) {(2019) 6 SCC 122} has laid down four

ingredients which should be tested to bring a case within the

purview of Exception 4 to Section 300 of IPC, which reads 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."

20.Reverting back to the facts of the present case, in light of the

parameters laid down by the Hon'ble Supreme Court, it is

established on record that deceased Bedram and appellant No.1

Devnath Rohidas had previous enmity, which is apparent from

the evidence of PW-1 Pal, who has clearly stated that Bedram

had brutally beaten appellant No.1 Devnath Rohidas and thrown

him. Furthermore, on the same day, within a gap of half an hour,

on the report of appellant No.1 Devnath Rohidas, an offence

under Section 341, 294, 506, 323 of the IPC has been registered

against deceased Bedram. The dispute arose between the

parties on the ground that the appellants stood as sureties for

one Shyamlal and made a report against Jagat (one of the

villagers). In view of the above, it can safely be inferred that

there was no premeditation on the part of the appellants to

cause death of the deceased, which is apparent from Ex.D/1-A -

FIR also, but the appellants have had knowledge that the injury is

likely to cause death of the deceased since he had received the

injury on his head. In our opinion, all the four of ingredients of

Exception-4 to Section 300 would apply in the present case and

the offence would fall under Exception-4 to Section 300 IPC and

is punishable under Section 304 Part-II of the IPC and as such, he

is guilty of committing offence under Section 304 Part-II of the

IPC.

21.For the foregoing discussion, conviction and sentence imposed

on the appellants under Section 302 /34 of the IPC are set aside

and they are acquitted of the said charge. Instead, the appellants

are convicted under Section 304 Part-II/34 of the IPC. The

appellants are in jail since 23.7.2012 and thereby, they have

already served more than 10 years of RI. Therefore, the ends of

justice would be served if both are appellants are sentenced to

the period already undergone by them. Ordered accordingly. He

be released forthwith if not required to be detained under any

other process of law. The fine amount imposed on the appellants

by the trial Court shall remain intact.

22. Accordingly, the appeal is party allowed.

                   Sd/-                                    Sd/-

           (Sanjay K. Agrawal)                      ( Deepak Kumar Tiwari)
                 Judge                                    Judge



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