Baba @ Vishal Das Mahant vs State Of Chhattisgarh
2023 Latest Caselaw 848 Chatt

                                   1



                                                                  NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                    Criminal Appeal No. 1792 of 2018
Baba @ Vishal Das Mahant, S/o. Bisahu Das, Aged About 26 Years,
R/o. Near Ice Factory, Purani Basti Korba, District Korba,
Chhattisgarh.
                                                       ---- Petitioner
                               Versus
State Of Chhattisgarh, Through Police Station Kotwali, Korba,
District : Korba, Chhattisgarh
                                                    ---- Respondent

                  Criminal Appeal No. 404 of 2019
Nirmal Das Manikpuri, S/o. Uttamdas, Aged About 29 Years, R/o.
Ahed Chitra Talkies, Purani Basti, Korba, District Korba Chhattisgarh.
                                                       ---- Petitioner
                               Versus
State Of Chhattisgarh, Through The Station House Officer, Police
Station Kotwali, Korba, District Korba, Chhattisgarh.
                                                    ---- Respondent

                 Criminal Appeal No. 1813 of 2019
Goludas @ Vikash Das Mahant, S/o. Mukrit Das, Aged About 19
Years, R/o. Near Neem Chowk Shitala Mandir, Purani Basti Korba,
Tahsil & District- Korba Chhattisgarh.
                                                       ---- Petitioner
                               Versus
State Of Chhattisgarh, Through D.M. Korba, District- Korba,
Chhattisgarh
                                                    ---- Respondent


For Appellant - Baba @ Vishal Das       :    Mr. Arvind Shrivastava,
Mahant.                                      Advocate
For Appellant - Nirmal Das Manikpuri    :    Mr. J.K.Saxena,
                                             Advocate
For Appellant - Golu Das @ Vikas        :    Mr. Vineet Kumar Pandey
Das Mahant                                   Advocate
For State - Respondent                  :    Mr. Sudeep Verma,
                                             Dy. Govt. Advocate
                                   2



            Hon'ble Shri Justice Sanjay K. Agrawal
           Hon'ble Shri Justice Radhakishan Agrawal

                        Judgment on Board
                           (10.02.2023)

Sanjay K. Agrawal, J.

1. Since common question of law and fact is involved, these

appeals have been clubbed together, heard together and are

being disposed of by this common judgment.

2. Appellants Baba @ Vishal Das Mahant (A-1), Nirmal Das

Manikpuri (A-2) and Golu Das @ Vikas Das Mahant (A-3) have

preferred three separate appeals challenging the impugned

judgment dated 18.09.2018, passed by Second Additional

Sessions Judge, Korba, in Sessions Trial No.09/2017, by which

they have been convicted for the offence under Section 302 of

I.P.C. and sentenced to imprisonment for life and fine of

Rs.500/- each, in default of payment of fine, additional rigorous

imprisonment for 6 months.

3. Case of the prosecution, in short, is that on 12.10.2016 near

Chitra Talkies, P.S. Kotwali, in front of the shop of Sanju Pahuja,

Purani Basti Korba, the appellants assaulted the deceased

Salauddin by hand & fist, iron rod and stone in furtherance of

their common intention by which he suffered grievous injuries

and succumbed to death. Thereafter, in order to screen

themselves from the offence, they threw the dead body into

nearby place and thereby committed the aforesaid offence. It is

further case of the prosecution that Alauddin (PW-7) reported

the matter to Police Station- City Kotwali, Korba, that the

appellants and some other persons assaulted his brother

Salauddin and he has been admitted to Trauma Center Korba,

pursuant to which, the FIR (Ex.P-11) was registered for offence

under Section 307 read with Section 34 of I.P.C. and Najri-

naksha was prepared vide Ex.P-12 and since the deceased

Salauddin died during course of treatment, inquest was

conducted and on recommendation of panchas, dead body was

sent for post-mortem, which was conducted by Dr. O.S.Kanwar

(PW-16) and the post-mortem report is Ex.P-10 & P-34,

according to which, cause of death is coma due to fracture of

left side parietal region and death was homicidal in nature.

Thereafter, pursuant to memorandum statement of appellant

No.1, Baba @ Vishal on 13.10.2016, piece of stone was seized

from the spot, which was used as weapon of offence by co-

accused Vikas vide Ex.P-5. Similarly from the memorandum

statement of the appellant No.3 vide Ex.P-7, iron rod was seized

at his instance, which was used as weapon of offence by Baba

@ Vishal. After due investigation, the appellants were charge-

sheeted for the aforesaid offence under Sections 302 and 201 of

I.P.C. to the jurisdictional criminal court, which was ultimately

committed to the Court of Sessions for hearing and disposal in

accordance with law, in which the appellants abjured their guilt

and entered into defence stating that they have not committed

the offence and they have been falsely implicated.

4. In order to bring home the offence, prosecution examined as

many as 16 witnesses and exhibited 35 documents and the

appellant-accused in support of their defence has examined

Sanjay Pahuja (DW-1) and the documents Ex.D-1 to D-2 were

brought on record.

5. The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellants herein for the

offence under Section 302 of I.P.C. and sentenced them as

mentioned in the opening paragraph of the judgment, against

which these appeals have been preferred. All the appellants

have already been acquitted from the offence under Section 201

of I.P.C. One juvenile co-accused Jumman has been separately

tried.

6. Mr. Arvind Shrivastava, Mr. J.K.Saxena & Mr. Vineet Kumar

Pandey, learned counsels appearing for three appellants

respectively would submit that the trial Court is absolutely

unjustified in convicting the appellants for the aforesaid offence

by relying upon the sole testimony of alleged eye-witness Mohd.

Parvez (PW-6), who is not reliable and trustworthy and, as such,

the conviction based on sole testimony of Mohd. Parvez is liable

to be set aside. In alternative they would submit that their case

would fall under Exception 4 to Section 300 of I.P.C. and since

they are in jail since 13.10.2016 / 24.10.2016, they have

suffered jail sentence for more than 6 years and 3 months,

therefore, they be appropriately sentenced and the appeal be

allowed in part.

7. Mr. Sudeep Verma, learned State counsel, would submit that

the trial Court is absolutely justified in convicting the appellants

for the offence in question considering the testimony of eye-

witness Mohd. Parvez (PW-6), who was present on the spot and

seen the incident. Furthermore, considering the other piece of

evidence available on record, the trial Court is absolutely

justified in convicting the appellants for offence under Section

302 of I.P.C., as such, all the three appeals deserve to be

dismissed.

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

rival submissions made herein-above and went through the

records with utmost circumspection.

9. The first question for consideration as to whether the death of

deceased Salauddin was homicidal in nature, has been

answered by the trial Court in affirmative relying upon the post-

mortem report Ex.P-10 & P-34 proved by Dr. O.S.Kanwar (PW-

16). In our considered opinion, the finding recorded by the trial

Court holding the death of Salauddin to be homicidal in nature is

correct finding of fact based on evidence available on record, it

is neither perverse nor contrary to the record and accordingly

we hereby affirm the said finding.

10. Now, the next question is, whether the appellants are the

authors of the crime ?

11. The prosecution has mainly relied upon the testimony of eye-

witness Mohd. Parvez (PW-6), who is stated to have seen the

incident, which the trial Court has accepted and conviction of

three appellants is mainly on the basis of statement of Mohd.

Parvez, who has witnessed the incident.

12. A careful perusal of the statement of Mohd. Parvez (PW-6)

would show that on the date of incident in the late night, he and

Salauddin, deceased, both were moving to whom Jumman met

near the shop of Samant Das and complained indicating

towards the appellants that they are beating him, then he

enquired, then Jumman informed them that Sandeep Bihari (not

an accused) had beaten him and meanwhile the appellants

came on the spot and altercation took place and appellant No.1

is said to have assaulted by iron rod on the head of the

deceased and appellant No.3 assaulted by stone on the head of

the deceased by which he suffered injury and during course of

his treatment he succumbed to death. As such, though he has

been subjected to lengthy cross-examination, but nothing has

been extracted to hold that he has not seen the incident and

telling a lie or he is a pocket witness of the police, as such, the

trial Court has rightly held on the basis of testimony of Mohd.

Parvez that he is the eye-witness and seen the appellants

assaulting the deceased by which he suffered injuries and died.

Though from the memorandum statements of the appellant No.1

& 3, some recovery of iron rod and stone have been made, but

the trial Court has not accepted the same, as such, on the basis

of the statement of eye-witness Mohd. Parvez (PW-6), it is held

that the appellants are authors of the crime, which the trial Court

has rightly held and we hereby endorse that the appellants are

authors of the crime.

13. Now, the question would be whether the case of the appellants

would fall under Exception 4 to Section 300 of I.P.C. as

contended by the learned counsel for the appellants ?

14. In order to consider whether the case of the appellants is

covered under Exception 4 to Section 300 of I.P.C., 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 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."

1 (2002) 3 SCC 327

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

Haryana2, 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,

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;

2 (2009) 15 SCC 635

(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.

3 (2012) 8 SCC 450

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 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 4 (2017) 3 SCC 247

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 v. State

(NCT of Delhi)5 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:

5(2019) 6 SCC 122

"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 to the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme

Court, it is quite vivid that there was no premeditation on the

part of the accused/appellants to cause death of Salauddin, as

dispute arose on a complaint made by Jumman to Salauddin

and Mohd. Parvez (PW-6), which Salauddin came to the spot to

intervene and to make the appellants understand as to why they

and one Sandeep were assaulting him and in that context, the

appellants after brief altercation in a sudden dispute and quarrel

erupted assaulted the deceased by iron rod and stone by which

he suffered injuries and died during course of treatment. As

such, considering the nature of injury and considering the

manner in which the offence is said to have been committed in a

sudden dispute and sudden quarrel and they have not taken

undue advantage and not acted in unusual manner, but the

appellants must have had knowledge that the injury caused by

them is likely to cause death of Salauddin. As such, the offence

would fall under Exception 4 to Section 300 of I.P.C. and the

conviction of the appellants for offence under Section 302 is

altered to Section 304 Part-II of I.P.C. and they are sentenced

to rigorous imprisonment for 7 years.

21. In conclusion, the appeals of three appellants are partly allowed.

Their conviction for offence under Section 302 of I.P.C. is

converted to Section 304 Part-II of I.P.C. and they are

sentenced for 7 years rigorous imprisonment and the fine

sentence imposed by the trial Court would remain intact.

                         Sd/-                            Sd/-
                   (Sanjay K. Agrawal)          (Radhakishan Agrawal)
                        Judge                          Judge

Ashok