Resham Lal And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 6257 Chatt

                                     1

                                                                    NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 1169 of 2013

      1. Resham Lal S/o Narayan Lahre, Aged About 55 Years

      2. Ajay Kumar S/o Resham Lal Lahre Aged About 22 Years

         Both R/o Jaistambh Chowk, Kaurinbhatha, Police Station
         Basantpur, Distt. Rajnandgaon Chhattisgarh

                                                           ---- Petitioner

                                  Versus

       State Of Chhattisgarh Through           PS   Basantpur,   District
        Rajnandgaon Chhattisgarh

                                                        ---- Respondent




   For Appellants           Mr. Sanjay Agarwal, Advocate
   For Respondent /State    Ms. Ruchi Nagar, Dy. GA



                               DIVISION BENCH

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

Judgment on Board 14/10/2022

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

4.10.2013 passed in Sessions Trial No.3/2013, whereby, learned

Second Additional Sessions Judge, Rajnandgaon (CG) has convicted

appellant - Ajay Kumar under Section 302 of the IPC and sentenced to

undergo life imprisonment and pay fine of Rs.500/- , in default of

payment of fine, to undergo additional RI for 3 months. Appellant

Resham Lal has been convicted under Section 302/34 of the IPC and

sentenced to undergo life imprisonment and pay fine of Rs.500/-, in

default of payment of fine, to undergo additional RI for 3 months.

2. Case of the prosecution, in brief, is that on 15.11.2012, at Jay Stambh

Chowk, Kaurinbhatha, Basantpur, Rajnandgaon, the appellants and co-

accused Gokul (now acquitted by the trial Court) assaulted deceased

Goldie alias Golu alias Komal with Sabbal (crowbar) and Ustara (Razor)

respectively and on account of the injuries sustained by the deceased,

he died. Further case of the prosecution, in brief, is that on the said

date, at 9.00 p.m., deceased Goldie @ Golu, Deepak Yadav (PW-2),

Hemlal (PW-3), Shravan Kumar Yadav (PW-4), Vijay Yadav (PW-6) and

others came near the house of appellant No.1 Resham Lal performing

Raut Nach (a dance form). At that juncture, appellant No.2 Ajay Kumar,

who is the son of appellant No.1, asked them not to dance in front of

their house and also abused them, on which, a dispute arose between

the deceased and appellant No.2 Ajay Kumar and in a fit of anger, he

went into his house and came along with appellant No.1 Resham Lal

and co-accused Gokul carrying deadly weapons. Appellant No.1 was

armed with crowbar and appellant No.2 was armed with razor. Further

case of the prosecution is that deceased Goldie, Deepak Yadav (PW-2),

Hemlal (PW-3), Shravan Kumar Yadav (PW-4) and Vijay Yadav (PW-6)

were all in an inebriated condition and suddenly, appellant No.1

Resham Lal assaulted the deceased by a crowbar and appellant No.2

Ajay Kumar assaulted him by a sharp edged weapon i.e. razor.

Thereafter, the appellants ran away. Goldie @ Golu was taken to the

hospital, but the Doctor declared him brought dead. The Merg

intimation was registered vide Ex. P/1 on the information given by one

Jhaduram and a copy of the same was sent to the SDM, Rajnandgaon

and thereafter, FIR-Ex-P/2 was registered against the appellants.

Inquest was conducted vide Ex. P/5 and the dead body of deceased

[email protected] Golu was sent for the postmortem examination, which was

conducted by Dr. B.L. Kumre (P.W.-10) and the Postmortem Report has

been prepared vide Ex. P/10, according to which, the mode of death is

shock due to cut across the neck vessels, artery and jugular veins and

cut across the two levels of the trachea anteriorly. Thereafter, on the

memorandum statement of appellant Resham Lal, a crow bar was

seized vide Ex.P/19 and on the memorandum statement of appellant

No.2 Ajay Kumar, a razor was seized vide Ex.-P/20, which were sent for

FSL examination. In the FSL report-Ex.P/34, on crowbar (recovered

from appellant No.1), no human blood was found, whereas, on razor

(recovered from appellant No.2), human blood was found. Similarly,

on the shirt and pant of appellant No.2 Ajay Kumar, which were sent

for FSL examination along with other articles, human blood was found.

3. After usual investigation, the accused/appellant No.2 was charge-

sheeted for offence under Section 302 of the IPC and appellant No.1

was 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 Second

Additional Sessions Judge, Rajnandgaon received the case on transfer

for hearing and disposal in accordance with law.

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

In order to bring home the offence, the prosecution examined as many

as 16 witnesses and exhibited 34 documents. The defence has

examined none and no document has been exhibited on their behalf.

5. The trial Court upon appreciation of oral and documentary evidence

on record, proceeded to convict and sentence appellant No.1 under

Section 302/34 of the IPC and appellant No.2 under Section 302 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 appellant - Gokul.

6. Mr. Sanjay Agrawal, learned counsel for the appellants would submit

that all the three eye-witnesses i.e. PW-2 Deepak Yadav (PW-2),

Hemlal (PW-3), Shrawan Kumar Yadav (PW-4) and Vijay Yadav (PW-6)

were in a state of intoxication. He would further submit that they

along with the deceased were performing Raut Nach in front of the

house of appellant No.1 Resham Lal, to which, appellant No.2 Ajay

Kumar objected and a dispute erupted. In view of the above, learned

counsel for the appellants would submit that the case of appellant

No.2 is squarely covered under Exception 4 to Section 300 of IPC. With

regard to appellant No.1, learned counsel would submit that

appellant No.1 was armed with a crowbar and there is no injury by the

said weapon on the neck of the deceased. Therefore, at the most,

appellant No.1 could have been convicted with the aid of Section 304

Part II of IPC. The prosecution is unable to bring home the offence

under Section 302 & 302/34 of the IPC and hence, the conviction of the

appellants/accused may be altered from Section 302 to Section 304

Part I or Part II of IPC. Hence, the present appeal deserves to be partly

allowed.

7. Per Contra, Ms. Ruchi Nagar, learned Dy. GA , would support the

impugned judgment and submit that there is ample evidence available

on record to connect the appellants with the crime in question. and

the appellants' case is not covered with Exception 4 to Section 300 of

IPC and as such, their conviction cannot be altered to Section 304 Part I

or Part II of IPC, therefore, the instant appeal, being devoid of merits,

is liable to be dismissed.

8. We have heard learned counsel for the parties, considered their rival

submissions made herein-above and also went through the records

with utmost circumspection.

9. The first question for consideration would be whether the death of

deceased Goldie @ Golu was homicidal in nature?

10.Learned trial Court has recorded an affirmative finding with regard to

this question on the basis of postmortem report (Ex. P/10), wherein,

Dr. B.L. Kumre (P.W.-10), who has conducted the postmortem, has

clearly stated that the death of deceased was homicidal in nature. As

such, after hearing learned counsel for the parties and after going

through the postmortem report (Ex. P/10), we are of the opinion that

the finding recorded by the trial Court that death of deceased Goldie

@ Komal is homicidal in nature is a correct finding of fact based on

evidence available on record which is neither perverse nor contrary to

the record and we hereby affirm the said finding.

11.Now, the next question for consideration would be whether the

appellants are the author of the crime in question ?

12.The trial Court has heavily relied on the evidence of eye-witnesses

Deepak Yadav (PW-2) , Hemlal (PW-3), Shrawan Kumar Yadav (PW-4)

and Vijay Yadav (PW-6). After minutely going through the evidence of

these witnesses, it appears, they have seen appellant No.2 Ajay Kumar

assaulting the deceased with a sharp edged weapon on his neck, due

to which, he suffered grievous injury and it has also been proved by

Dr. B.L. Kumre (PW-10). On the memorandum statement of appellant

No.2 Ajay Kumar, a sharp edged weapon i.e. razor was seized, which

was sent for FSL examination and vide FSL report-Ex.P/34, human

blood has been found on the said weapon. Further, on the shirt and full

pant of appellant No.2 also, human blood was found. Though from

appellant No.1 Resham Lal, a crowbar has been seized but no human

blood was found on it. As per the evidence of Dr. B.L. Kumre (PW-10),

the injury sustained by the deceased on his neck did not appear to be

caused by a crowbar, therefore, the fact remains that the neck injury

has been caused by a razor, seized from appellant No.2, on which,

human blood was also found. As such, looking to the entire evidence

available on record, it is duly established that appellant No.2 Ajay

Kumar is the author of the crime in question, which has rightly been

held by the trial Court, and appellant No.1 Resham Lal, though was

present on the spot, has also been convicted with the aid of Section

34 of the IPC.

13.Now the next question is whether the offence in question would fall

under Exception 4 to Section 300 of the IPC?

14.The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana {(2002) 3 SCC 327} 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."

15. The Supreme Court in the matter of Gurmukh Singh v. State of

Haryana {(2009) 15 SCC 635} has laid down certain factors which are to

be taken into consideration before awarding appropriate sentence to

the accused with reference to Section 302 or Section 304 Part II of 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 fro 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;

(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 Nanda {(2012) 8

SCC 450}, 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.

17. Further, the Supreme Court in the matter of Arjun v. State of

Chhattisgarh {(2017) 3 SCC 247} 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 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

if there is intent and knowledge, the same would be case of Section 304

Part-I of 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 for 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 the light of

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

that there was no intention on the part of the appellants to cause

death of the deceased. On the fateful day, when deceased - Goldie @

Komal Yadav, Deepak Yadav (PW-2) , Hemal (PW-3) and Shrawan

Kumar Yadav (PW-4) along with others were performing Raut Nach in

front of the house of appellants 1 & 2, appellant No.1 asked them to

not to do so, but they did not listen and continued to dance, which led

to a dispute between them. Thereafter, the appellants along with the

co-accused came armed with deadly weapons and appellant No.2

caused single injury on his neck, which was grievous, as the trachea was

cut. The deceased was taken to the hospital, but he died. In view of

the above, it can safely be inferred that there was no intention on the

part of the appellants to cause death of the deceased and there was a

sudden quarrel between the appellant and the deceased and in the

said fight, the above injury was caused by appellant No.2 to the

deceased by a sharp edged weapon.

21. Since the injury has been caused by a sharp edged weapon on

the vital part of the body of the deceased by appellant No.2, he have

had knowledge that the injury is likely to cause death of the deceased

and considering the role of appellant No.1, in our opinion, the offence

committed by the appellants would fall under Exception-4 to Section

300 IPC and is punishable under Section 304 Part-II of the IPC and as

such, they are guilty of committing offence under Section 304 Part-II of

the IPC.

22. For the foregoing discussion, conviction and sentence imposed

on the appellants under Section 302 & 302/34 of the IPC respectively

are set aside and they are acquitted of the said charges. Instead, the

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

impugned judgment would reflect that both the appellants are in jail

since 17.11.2012 and thereby, they have already served more than 9

years 10 months 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. They be released forthwith unless required

to be detained in any other case. The fine amount imposed on the

appellants by the trial Court shall remain intact.

23. The appeal is allowed in part.

                      Sd/-                                        Sd/-

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




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