Sudru Barsa vs State Of Chhattisgarh
2022 Latest Caselaw 6158 Chatt

                                            1

                                                                                 NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 146 of 2017

      1. Sudru Barsa S/o Pandru Barsa, Aged about 28 years,
         Occupation           Agriculture,             Caste      Madiya,        R/o
         Patelpara,          Peena    Bacheli,         P.S.     Bacheli,    Distt.
         Dantewada, Chhattisgarh.

      2. Somaru    @    Banda        Hure   S/o       Lakhma,    Aged    about   35
         years, Occupation Agriculture, Caste Madiya, R/o
         Kotwarpara,         Peena     Bacheli,         P.S.    Bacheli,    Distt.
         Dantewada, Chhattisgarh.

                                                                  ­­­Appellants

                                        Versus

         State     of    Chhattisgarh                through    Police     Station
         Bacheli, Distt. Dantewada, Chhattisgarh.

                                                                  ­­­Respondent



    For Appellants            :­      Mr. Shrawan Agrawal, Advocate
    For State                 :­      Mr. Sudeep Verma, Dy. G.A.




             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Deepak Kumar Tiwari
                        Judgment on Board
                            10/10/2022


Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC

has been preferred by the two appellants/accused

persons namely Sudru Barsa (A­1) and Somaru (A­2)

against the impugned judgment dated 26/08/2016

(Annexure A/1) passed by learned Session Judge,

South Bastar, Dantewada in Sessions Trial No.

260/2011 whereby both of them have been convicted

for offence punishable under Section 302/34 of IPC

and sentenced to undergo imprisonment for life and

appellant Sudru Barsa (A­1) has also been convicted

for offence punishable under Section 324 of IPC and

sentenced to undergo rigorous imprisonment for 3

years.

2. Case of the prosecution, in brief, is that on

09/05/2011 at about 5 PM at Village Peena, Bacheli,

Distt. Dantewada, the appellants herein, in

furtherance of their common intention to cause

death of Hunga Barsa, assaulted him with knife and

caused grievous injuries on his neck and stomach

due to which he succumbed to death on the spot and

further assaulted the son of the deceased namely

Bheema Barsa (P.W.­6) and caused injuries on his

back and left thumb and thereby, committed the

aforesaid offences.

3. Further case of the prosecution, is that, on

09/05/2011, the villagers were celebrating the soil

festival (local festival). Complainant Bheema Barsa

(P.W.­6) (son of the deceased) had gone to

Lakhmapara for some work and while he was returning

to his village, the appellants/accused persons came

with a knife and assaulted him on his back and when

he tried to save himself, he suffered injury on his

left thumb. Thereafter, both the appellants/accused

persons ran away. When Bheema Barsa (P.W.­6)

reached his home, his wife Sukdi Bai (P.W.­5)

informed him that both the appellants/accused

persons, suspecting deceased Hunga Barsa to be

involved in the act of witchcraft, had come to

their home and while deceased Hunga Barsa was

sleeping in a wooden cot near the bamboo trees,

Somaru (A­2) caught hold of him and Sudru Barsa (A­

1) assaulted him with a knife and caused injuries

on his stomach and neck due to which he succumbed

to death. Thereafter, complainant Bheema Barsa

(P.W.­6) saw his father Hunga Barsa lying dead in

the wooden cot and his intestine had come out from

the injury suffered by him on his stomach.

4. On the next day, i.e. on 10/05/2011, complainant

Bheema Barsa (P.W.­6) registered merg intimation

vide Ex. P/11 and lodged FIR against the

appellants/accused persons vide Ex. P/10 pursuant

to which wheels of investigation started running.

Summons were issued to the witnesses vide Ex. P/13

and P/14 and in the presence of the witnesses,

inquest was conducted vide Ex. P/15 and the dead

body of deceased Hunga Barsa was sent for

postmortem, which was conducted by Dr. K. Gautam

(P.W.­10), and as per the postmortem report (Ex.

P/20), cause of death is said to be syncope due to

rupture and tear of vital organs like lungs and

liver which caused excessive blood loss and

cardiorespiratory arrest and the nature of death is

said to be homicidal. Plain soil as well as blood

stained soil was seized from the spot vide Ex. P/8

and the blood stained banyan worn by the deceased

was seized vide Ex. P/9. Pursuant to the memorandum

statement of appellant Sudru Barsa (A­1) vide Ex.

P/6, knife stained with blood was seized from his

possession vide Ex. P/7. The said seized articles

were sent to Dr. K. Gautam (P.W. ­ 10) for query,

but vide query report (Ex. P/21), he has not given

any confirmed opinion and has advised to send the

articles for further chemical microscopic

conformation investigation. However, the said

articles were not sent for chemical examination as

no FSL report has been brought on record. After due

investigation, the appellants were charge­sheeted

for offences punishable under Sections 307, 302/34

of IPC which was committed to the Court of Session

for hearing and disposal in accordance with law.

5. In order to bring home the offence, prosecution

examined as many as 12 witnesses and brought on

record 23 documents. The statements of

appellants/accused persons was recorded wherein they

denied guilt and examined 1 witness in their defence,

however, they did not bring any document in their

defence.

6. Learned trial Court, after appreciation of oral and

documentary evidence on record, finding the death of

deceased Hunga Barsa to be homicidal in nature and

further finding the appellants to be the perpetrators

of the crime, proceeded to convict them for offence

punishable under Section 302/34 of IPC and further

convicted Sudru Barsa (A­1) for offence punishable

under Section 324 of IPC and sentenced them as

aforesaid.

7. Mr. Shrawan Agrawal, learned counsel for the

appellants, would make the following submissions :­

(i) Learned trial Court is absolutely unjustified in

convicting appellant Sudru Barsa (A­1) for offence

punishable under Section 302 of IPC on the basis of

the self­serving statement of Sukdi Bai (P.W.­5), who

is a related witness, as well as on the seizure of

knife from the appellant pursuant to his memorandum

statement, particularly when both the memorandum

witnesses namely Buska Barsa (P.W.­1) and Koya (P.W.­

8) have turned hostile and the knife seized vide Ex.

P/7 has not been sent for chemical examination as no

FSL report has been brought on record, therefore,

conviction of the appellant Sudru Barsa (A­1)

deserves to be set aside.

(ii) So far as appellant Somaru (A­2) is concerned,

there is no evidence available on record to connect

him with the aforesaid offence except for the self­

serving statement of Sukdi Bai (P.W.­5) who has

stated that while Somaru (A­2) had caught hold of the

deceased, Sudru Barsa (A­1) had assaulted him with

knife. In absence of any other corroborative evidence

available against the appellant Somaru (A­2), it

would be unsafe to convict him as Sukdi Bai (P.W.­5)

did not even inform to her husband Bheema Barsa

(P.W.­6) about the involvement of Somaru (A­2) in the

crime in question. Moreover, no seizure has been made

from Somaru (A­2), as such, his conviction for

offence punishable under Section 302/34 of IPC.

(iii) In alternative, he would submit that if it is

held that the appellants are the perpetrators of the

crime in question, then their conviction for offence

punishable under Section 302/34 of IPC be altered to

Section 304 Part II of IPC as the appellants

assaulted the deceased because he was involved in the

act of witchcraft and their act would fall within

Exception 4 of Section 300 of IPC and since the

appellants/accused persons are in jail since

10/05/2011 i.e. for more than 11 years, they be

sentenced to the period already undergone by them.

8. Per contra, Mr. Sudeep Verma, learned State counsel,

would support the impugned judgment and submit that

learned trial Court has rightly convicted the

appellants herein for offence punishable under

Section 302/34 of IPC and it is not a case which is

covered with Exception 4 to Section 300 of IPC, as

such, the conviction of the appellants cannot be

converted to either Part I or Part II of Section 304

of IPC, therefore, the instant appeal deserves to be

dismissed.

9. We have heard learned counsel for the parties,

considered their rival submissions made herein­above

and went through the records with utmost

circumspection.

10. The first question for consideration is whether the

death of deceased Hunga Barsa was homicidal in

nature ?

11. Learned trial Court has recorded an affirmative

finding in this regard on the basis of medical

opinion of Dr. K. Gautam (P.W.­10) as well as

postmortem report (Ex. P/20) wherein it has

categorically been held that cause of death is said

to be syncope due to rupture and tear of vital

organs like lungs and liver which caused excessive

blood loss and cardiorespiratory arrest and the

nature of death is said to be homicidal . Taking

consideration of the entire evidence available on

record as well as looking to the injuries sustained

by the deceased on his neck and on his stomach and

relying upon the medical opinion of Dr. K. Gautam

(P.W.­10) as well as postmortem report (Ex. P/20),

we are of the considered opinion that learned trial

Court has rightly held the death of deceased Hunga

Barsa to be homicidal in nature. Moreover, the fact

that death of the deceased was homicidal in nature

has also not been seriously disputed by learned

counsel for the appellants. As such, we hereby

affirm the said finding recorded by the trial Court

that the death of deceased Hunga Barsa was

homicidal in nature.

12. The next question for consideration would be

whether the appellants are the perpetrators of the

crime in question ? In order to consider this we

will take up the case of each of the

appellants/accused persons one by one.

Case of Sudru Barsa (A­1) :­

13. It is the case of the prosecution that on the

fateful day, both the appellants/accused persons,

in furtherance of their common intention to cause

the death of deceased Hunga Barsa, went to his

house and while he was sleeping in the wooden cot,

Somaru (A­2) caught hold of him and Sudru Barsa (A­

1) assaulted him with knife and caused injuries on

his stomach and on his neck due to which he died

instantaneously.

14. The incident is said to have been witnessed by

Sukdi Bai (P.W.­5), who is the daughter­in­law of

the deceased. In her statement before the Court,

she has clearly stated that on the fateful day at

about 3 PM, while her father­in­law deceased Hunga

Barsa was sleeping, the appellants/accused persons

Sudru Barsa (A­1) and Somaru (A­2) came to their

home and while Somaru (A­2) held the deceased,

Sudru Barsa (A­1) attacked him with a knife and

inflicted two blows on the neck of the deceased and

three blows on his stomach due to which her father­

in­law deceased Hunga Barsa died on the spot and

when she asked the appellants/accused persons as to

why they were killing the deceased, they also

showed knife to her and threatened her. She has

then stated that when she was going to inform her

husband Bheema Barsa (P.W.­6) about the incident,

the appellants/accused persons also assaulted her

husband and caused him injuries pursuant to which

he was hospitalized for a week. In her cross­

examination, Sukdi Bai (P.W.­5) has stated that the

relationship between the appellants and her family

was not cordial and deceased Hunga Barsa was

involved in the act of witchcraft which had led to

the death of 3­4 villagers due to which all the

villagers were unhappy and upset with him.

15. Bheema Barsa (P.W.­6), son of deceased Hunga Barsa

and husband of Sukdi Bai (P.W.­5), has also been

examined before the Court and he has clearly stated

that on the fateful day, while he was returning

from Lakhmapara to his village, on the way, the

appellants/accused persons came before him and

Sudru Barsa (A­1), who was hiding a knife behind

his back, assaulted him on his back and thereafter,

Bheema Barsa came to his home. Thereafter, he has

stated that when he went to the hospital, his wife

Sukdi Bai (P.W.­6) informed him that Sudru Barsa

(A­1) had assaulted the deceased with knife due to

which he has died. In paragraph 6 of his statement,

he has clearly stated that Sukdi Bai (P.W.­5) did

not inform him about the role of Somaru (A­2) in

the incident.

16. Kumari Phulo (P.W.­7), daughter of Sukdi Bai (P.W.­

5) and Bheema Barsa (P.W.­6), has clearly admitted

in her statement before the Court that she has not

witnessed the incident and while the incident

happened, she was at her brother's house and when

her mother Sukdi Bai (P.W.­5) informed her that

Sudri Barsa (A­1) has killed her grandfather Hunga

Barsa, she came to her house and found her

grandfather lying dead with injuries on his neck

and chest.

17. The memorandum statement of the appellant/accused

Sudru Barsa (A­1) was recorded vide Ex. P/6 and

pursuant thereof, recovery of knife was made from

him vide Ex. P/7. Though the memorandum and seizure

witnesses namely Buska Barsa (P.W.­1) and Koya

(P.W.­8) have turned hostile and have not supported

the case of the prosecution, but the said knife was

sent for query to Dr. K. Gautam (P.W.­10), who had

conducted postmortem of the deceased. In the query

report (Ex. P/21), Dr. K. Gautam (P.W.­10) has

clearly stated that the knife seized from the

possession of appellant/accused Sudru Barsa (A­1)

could very well have been used to inflict injuries

on the deceased and the said knife also had blood

spots.

18. Taking consideration of the entire evidence

available on record including the statement of eye­

witness Sukdi Bai (P.W.­5) as well as the statement

of her husband injured witness Bheema Barsa (P.W.­

6) and seizure of knife made from the possession of

appellant Sudru Barsa (A­1) vide Ex. P/7 pursuant

to his memorandum statement vide Ex. P/6 which has

also been supported by the medical evidence of Dr.

K. Gautam (P.W.­10), we are of the considered

opinion that appellant/accused Sudru Barsa (A­1) is

indeed the perpetrator the crime in question.

Case of Somaru (A­2) :­

19. So far as the case of appellant/accused Somaru (A­

2) is concerned, after going through the entire

evidence available on record, we do not find any

incriminating evidence against him except for the

testimony of Sukdi Bai (P.W.­5) who has stated that

Somaru (A­2) had caught hold of the deceased and

Sudru Barsa (A­1) inflicted injuries on him with

knife. However, Sukdi Bai (P.W.­5) did not inform

about the role of Somaru (A­2) to her husband

Bheema Barsa (P.W.­6), which he has clearly

admitted in his statement that his wife did not

inform him as to what Somaru (A­2) had done.

Moreover, no seizure has been made from

appellant/accused Somaru (A­2). As such, there is

no legal evidence to hold that the

appellant/accused Somaru (A­2) was the perpetrator

of the crime in question and in the considered

opinion of this Court, learned trial Court has

erred in convicting him for offence punishable

under Section 302/34 of IPC. We hereby acquit the

appellant/accused Somaru (A­2) from the charges

levelled against him and he be released forthwith,

if not required in any other case.

20. The aforesaid finding brings us to the next

question for consideration, which is, whether the

trial Court was justified in convicting the

appellant/accused Sudru Barsa (A­1) for offence

punishable under Section 302 of IPC or his case is

covered with Exception 4 to Section 300 of IPC, as

contended by learned counsel for the appellants ?

21. Sukdi Bai (P.W.­5), who is the sole eye­witness of

the incident, has admitted in her cross­examination

that the relationship between the appellants and

her family were not cordial and since her father­

in­law Hunga Barsa practiced witchcraft due to

which 3­4 villagers had died, the villagers were

unhappy and upset with him. It is stated at the Bar

that Village Peena Bacheli, Police Station Bacheli,

District Dantewada is a backward area and it is a

fact of common knowledge that the appellants as

well as the deceased belong to under­developed

community and most of them are illiterate and they

believe in superstitions. It is a common phenomena

in the community dominated areas to practice magic

and many other type of witchcrafts to achieve their

object whether good or bad. They hold many

superstitions responsible for any misfortune and

mis­happenings in their life and sometimes they

become revengeful for no other reason but for their

own doubts that someone is playing witchcrafts on

them or something wrong has happened in their life

or with their family due to witchcraft played by

someone.

22. In order to consider whether the case of the

appellant/accused Sudru Barsa (A­1) 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 Haryana1 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 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."

23. Thereafter, in the matter of Gurmukh Singh v. State

of Haryana2, Their Lordships of the Supreme Court

1 (2002) 3 SCC 327 2 (2009) 15 SCC 635

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;

(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."

24.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.

25. 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 :­

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

"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 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".

26.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.

27. Reverting to the facts of the present case in light

of the aforesaid principle of law laid down by

Their Lordships of the Supreme Court, it is quite

vivid from the statement of eye­witness Sukdi Bai

(P.W.­5) that the relationship between the

appellants and her family were not cordial because

her father­in­law deceased Hunga Barsa used to

practice witchcraft and the appellant, suspecting

the deceased to be involved in the act of

witchcraft, assaulted him with knife and caused his

death, as such, the appellant/accused Sudru Barsa

(A­1) had the intention to cause the death of the

deceased and looking to injuries suffered by the

deceased on his neck and stomach, the

appellant/accused must have had the knowledge that

his act is likely to cause the death of the

deceased. Thus, the conviction of the

appellant/accused Sudru Barsa (A­1) for offence

punishable under Section 302 of IPC is altered to

Section 304 Part I of IPC as his case is covered

with Exception 4 of Section 300 of IPC and since he

is in jail since 10/05/2011, he is sentenced to the

period already undergone. He be released forthwith,

if not required in any other case. So far as the

conviction of appellant/accused Sudru Barsa (A­1)

for offence punishable under Section 324 of IPC is

concerned, it is hereby maintained. Somaru @ Banda

Hure is acquitted from the charges levelled against

him.

28.Accordingly, this criminal appeal is allowed to the

extent indicated herein­above.

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

Harneet