Gaindu Satnami And Ors vs State Of Chhattisgarh
2023 Latest Caselaw 191 Chatt

                                                                            CRA-788-2015
                                       Page 1 of 16


                                                                                     NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Appeal No. 788 of 2015
1.     Gaindu Satnami.... [died and deleted by Court order dated
       09.01.2023]
2.     Rohit Satnami, S/o Gaindu Satnami, aged about 27 years,
3.     Shatroghan Satnami, S/o Gaindu Satnami, aged about 45 years,
4.     Mohit Satnami, S/o Gaindu Satnami, aged about 35 years,
5.     Goutriha Satnami, S/o Shatroghan Satnami, aged about 30
       years,
6.     Mohan Satnami, S/o Gaindu Satnami, aged about 30 years,
       [All Resident of Danganiya (B), Police Station Dhamdha, District
       Durg (Chhattisgarh)
                                                                         ---- Appellants
                                         Versus
State of Chhattisgarh, through Station House Officer, Police of Police
Station Dhamdha, District- Durg (Chhattisgarh)
                                                                       ---- Respondent
---------------------------------------------------------------------------------------------

For Appellants                         :      Mr. B.P. Singh, Advocate
For Respondent-State                   :      Mr. Afroz Khan, Panel Lawyer

-----------------------------------------------------------------------------------------------

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ

Judgment on Board (11.01.2023) Sanjay K. Agrawal, J

(1) By way of this criminal appeal filed under Section 374(2) of

Cr.P.C. the appellants-accused are calling in question the legality, CRA-788-2015

validity and correctness of the impugned judgment of conviction and

order of sentence dated 21.04.2015, passed by the Court of learned

Addl. Sessions Judge, Durg, District Durg (C.G.) in S.T. No.145/2013,

whereby the appellants-accused have been convicted for offences:

under Section 148 of IPC and sentenced to undergo rigorous

imprisonment for 03 years (each); under Section 302 read with

Section 149 of IPC and sentenced to undergo life imprisonment with

fine of Rs.100-100/- (each) and, in default of payment of fine,

additional rigorous imprisonment of 10 days (each) and also under

Section 307 read with Section 149 of IPC and sentenced to undergo

rigorous imprisonment for 10 years with fine of Rs.100-100/- (each)

and, in default of payment of fine, additional rigorous imprisonment for

10 days (each).

(2) Before proceeding further, it is important to note here that during

the pendency of present appeal, accused-appellant No.1- Gaindu

Satnami has died and, therefore, his name has been deleted from this

appeal vide order of this Court dated 09.01.2023.

(3) The case of the prosecution, in short, is that on 24.03.2013,

between 07:00 to 07:30, within the ambit of Police Station Dhamdha,

near the house of Anandram Kotwar (PW-01) and in front of the house

of Suritram (PW-03), the accused-appellants herein armed with deadly

weapons i.e. 'lathi' and axe constituted unlawful assembly and, in

furtherance thereof, assaulted complainant- Upkaran Das's sons, CRA-788-2015

namely, Dev Kumar (PW-02), Santosh Kumar (PW-06) and Rajesh

Chaturvedi (deceased), due to which they suffered injuries and Rajesh

Chaturvedi (hereinafter referred to as the "deceased") succumbed to

death and, thereby, committed aforementioned offences.

(4) The admitted facts in the present case are that: field belonging

to the accused-appellants herein is adjoining to the field belonging to

the complainant, namely, Upkaran Das (PW-04); Dev Kumar (PW-02),

Santosh Kumar (PW-06) and Rajesh Chaturvedi (deceased) are sons

of Upkaran Das (PW-04); accused-appellant No.01- Gaindu (who died

and his name stands deleted from this appeal) has admitted before

the Court that he is the only person who has committed the crime in

question and rest of the accused-appellants No.02 to 06 herein are

innocent; two days' prior to the date of incident i.e. on 22.022013,

accused-Gaindu (A-1) had visited the house of the complainant-

Upkaran Das (PW-04) and informed him that he is digging his fields

and wanted to keep the digged soil on his field, upon which, Upkaran

Das (PW-04) permitted him to keep the digged soil in his fields.

(5) The further case of the prosecution, in nutshell, is that accused-

Gaindu (A-1) had digged his field (agricultural land) under the Land

Reformation Yojana and kept the digged soil in the fields of

complainant- Upkaran Das (PW-04). On 22.03.2013, Upkaran Das

(PW-04) visited the fields and requested accused- Gaindu (A-1) to

remove the digged soil kept in his field, on which accused- Gaindu (A-

CRA-788-2015

1) refused to do so, thereafter, complainant- Upkaran Das (PW-04)

went back to his house and informed about the said incident to his

sons, namely, Devkumar Chaturvedi (PW-02) and Santosh Kumar

Chaturvedi (PW-06). Thereafter, on the fateful day i.e. on 24.03.2013

Devkumar Chaturvedi (PW-02) and Santosh Kumar Chaturvedi (PW-

06) went to the house of Kotwar of the village, namely, Anandram

Sahu (PW-01) for giving him information with regard to aforesaid

dispute, but Kotwar was not in his house, therefore, Devkumar

Chaturvedi (PW-02) and Santosh Kumar Chaturvedi (PW-06) returned

back to their house and, while they were returning to their house, the

accused-appellants herein armed with deadly weapons i.e. 'lathi' and

axe met them and on the said dispute of removing the digged soil

from the fields assaulted them by means of 'lathi' and axe and, at that

juncture, deceased- Rajesh Chaturvedi was going from the same way,

who upon seeing his brothers being assaulted by the accused-

appellants, tried to intervene, upon which appellants assaulted

deceased- Rajesh Chaturvedi also by means of 'lathi' and axe, due to

which he suffered grievous injuries and succumbed to death.

(6) Thereafter, marg intimation and FIR were registered vide

Ex.P/48 and Ex.P/49. Inquest proceedings were conducted vide Ex.P/

02 and Nazari Naksha was prepared vide Ex.P/03. Dehati Nalsi was

also recorded vide Ex.P/04. The dead-body of deceased was sent for

postmortem examination and in the postmortem examination report CRA-788-2015

(Ex.P/40), conducted by Dr. Sanjeev Kumar Agrawal (PW-11), it was

opined that the cause of death of deceased is due to asphyxia on

account of multiple injuries and nature of death is homicidal. Further,

MLC reports of injured persons, namely, Devkumar Chaturvedi (PW-

02) and Santosh Kumar Chaturvedi (PW-06) were obtained vide Ex.P/

50 & P/51 respectively. Appellants-accused were arrested vide

Ex.P/31 & P/36 respectively and their memorandum statements were

recorded. Pursuant to the memorandum statements of the accused-

appellants herein following articles were seized:

Sr. No. Name of accused (memorandum Property seized (exhibit) statement)

1. Gaindu (A-1) [Ex.P/11] Lathi (Ex.P/12)

2. Rohti (A-2) [Ex.P/15] Iron axe (Ex.P/16)

3. Shatroghan (A-3) [Ex.P/19] Lathi (Ex.P/20)

4. Mohit (A-4) [Ex.P/17] Lathi (Ex.P/18)

5. Goutriha (A-5) [Ex.P/13] Iron axe (Ex.P/14)

6. Mohan (A-6) [Ex.P/21] Lathi (Ex.P/22)

Further, blood stained clothes of the deceased were also seized

vide Ex.P/09. Thereafter, the aforesaid seized articles were sent for

FSL examination vide Ex.P/56 & 57 and in the FSL report (Ex.P/58) it

has been opined that in the 'lathis' and iron axe seized pursuant to the

memorandum statements of the accused-appellants No.01 to 05,

namely, Gaindu (A-1), Rohit (A-2), Shatroghan (A-3), Mohit (A-4) and

Goutriha (A-5) respectively and on the clothes of the deceased etc.

blood has been found, but in the 'lathi' seized pursuant to the

memorandum statement of accused-appellant No.06 Mohan (A-6) no CRA-788-2015

blood has been found. Thereafter, statements of witnesses were

recorded and, after due investigation, the police filed charge-sheet in

the Court of Judicial Magistrate First Class, Durg and, thereafter, the

case was committed to the Court of Sessions for trial in accordance

with law, in which the appellants/accused abjured their guilt and

entered into defence by stating that they are innocent and have been

falsely implicated.

(7) The prosecution in order to prove its case examined as many as

16 witnesses and exhibited 58 documents, whereas the appellants-

accused in support of their defence have examined 03 witnesses, but

have not exhibited any document.

(8) The learned trial Court after appreciating the oral and

documentary evidence available on record proceeded to convict the

appellants for offences under Section 148, 302/149 & 307/149 of IPC

and sentenced him as mentioned herein-above, against which this

appeal has been preferred by the appellants-accused questioning the

impugned judgment of conviction and order of sentence.

(9) Mr. B.P. Singh, learned counsel appearing for the appellants

submits that the learned trial Court is absolutely unjustified in

convicting the appellants for the offences mentioned herein-above, as

the prosecution has failed to prove the offence beyond reasonable

doubt. In alternative, he submits that though the death of the

deceased is said to be homicidal in nature, but there was no intention CRA-788-2015

on the part of the appellants herein to cause death of the deceased

and only on account of a petty dispute of removing the digged soil

from the fields, out of sudden quarrel and under heat of passion, the

accused-appellants assaulted deceased and other injured persons.

Hence, the case of the present appellants fall within the purview of

Exception 4 to Section 300 of IPC and the act of the appellants is

culpable homicide not amounting to murder and, therefore, it is a fit

case where the conviction of the appellants can be converted/altered

to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the

present appeal deserves to be allowed in full or in part.

(10) Per-contra, Mr. Afroz Khan, learned State counsel supported the

impugned judgment of conviction and order of sentence and submits

that the prosecution has proved the offence beyond reasonable doubt

by leading evidence of clinching nature. The learned trial Court has

rightly convicted the appellants for the offences mentioned herein-

above. Exception 04 to Section 300 of IPC is not attracted in this case

and it is not a case where conviction of the appellants requires to be

altered to Section 304 Part-I or Part-II of IPC, thus, the present appeal

deserves to be dismissed.

(11) We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the records

with utmost circumspection.

(12) The first and foremost question is as to whether the death of the CRA-788-2015

deceased was homicidal in nature, which the learned trial Court has

recorded in affirmative by taking into consideration the postmortem

report (Ex.P/40), wherein it has been opined that the cause of death of

deceased is due to asphyxia on account of multiple injuries and nature

of death is homicidal, which is duly proved by the statement of Dr.

Sanjeev Kumar Agrawal (PW-11), who has conducted the postmortem

of the dead-body of the deceased. Accordingly, taking into

consideration the postmortem report (Ex.P/10) and the statement of

Sanjeev Kumar Agrawal (PW-11), we are of the considered opinion

that the learned trial Court is absolutely justified in holding that the

death of deceased is homicidal in nature, as the same is correct

finding of fact based on evidence and same is neither perverse nor

contrary to the record. Accordingly, we hereby affirm the said finding.

(13) Now the next question would be whether the accused-appellants

No.02 to 06 herein are the perpetrator of the crime in question, which

the learned trial Court has recorded in affirmative by relying upon the

statements of Dev Kumar (PW-02), Upkaran Das (PW-04) and

Santosh Kumar (PW-06) as also on the fact that pursuant to

memorandum statements of accused-appellants herein 'lathi' and axe

have been seized in which blood stains are found vide FSL report

(Ex.P/58) and recorded a finding that it is the appellants herein who

have assaulted the deceased by means of 'lathi' and axe, due to

which he suffered grievous injuries and succumbed to death. Thus, CRA-788-2015

considering the aforesaid fact coupled with other evidence available

on record, the learned trial Court has rightly held that the appellants-

accused herein are the perpetrator of the crime in question.

Accordingly, we hereby affirm the finding recorded by the learned trial

Court that the appellants-accused are the perpetrator of the crime in

question, as the same is neither perverse nor contrary to the record.

(14) The aforesaid finding brings us to the next question for

consideration i.e. whether the trial Court has rightly convicted the

appellants for offences punishable under Sections 302/149 of IPC or

their case is covered under Exception 4 to Section 300 of IPC vis-a-

vis culpable homicide not amounting to murder and, thus, their

conviction can be converted to Section 304 Part-I or Part-II of IPC, as

contended by learned counsel for the appellants ?

(15) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 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

1 (2002) 3 SCC 327 CRA-788-2015

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."

(16) 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 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

2 (2009) 15 SCC 635 CRA-788-2015

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."

(17) 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 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

3 (2012) 8 SCC 450 CRA-788-2015

that such act of his is likely to cause death.

(18) 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

4 (2017) 3 SCC 247 CRA-788-2015

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".

(19) 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.

(20) Further, the Supreme Court in the matter of Rambir vs. 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 CRA-788-2015

"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."

(21) Reverting to the facts of the present case in light of above

principles of law laid down by their Lordships of Supreme Court, it is

quite vivid that on account of a dispute of removing the digged soil

from the fields of complainant- Upkaran Das (PW-04), which he earlier

permitted to accused- Gaindu (A-1) to keep the said digged soil in his

field, the accused appellants No.02 to 06 assaulted Dev Kumar (PW-

02), Santosh Kumar (PW-06) and Rajesh Chaturvedi (deceased),

sons of complainant- Upkaran Das, by means of 'lathi' and axe that

too after brief altercation, as such, there was no premeditation on the

part of the appellants No.02 to 06 to cause death of the deceased, but

only on account of petty dispute of removing the digged soil from the

fields of the complainant- Upkaran Das (PW-04), out of sudden

quarrel and under heat of passion, the accused-appellants No.02 to

06 assaulted deceased and other injured persons, due to which they

suffered injuries and deceased succumbed to death. However, looking

to the injuries sustained by deceased, the appellants No.02 to 06 must

have had the knowledge that such injuries inflicted by them on the

body of the deceased would likely to cause his death, hence, this is a CRA-788-2015

case which would fall within the purview of Exception 4 of Section 300

of IPC, as the act of the appellants herein completely satisfies the four

necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not

taken any undue advantage or acted in a cruel or unusual manner

and, accordingly, the conviction of the appellants No.02 to 06 under

Section 302/149 of IPC can be altered/converted to Section 304 (Part-

II)/149 of IPC.

(22) In view of the aforesaid discussions, the conviction of the

appellants No.02 to 06 herein for offence punishable under Section

302/149 of IPC as well as the sentence of life imprisonment awarded

to them by the learned trial Court is hereby set aside. Considering that

there was no premeditation on the part of the appellants No.02 to 06

to cause death of the deceased but the injuries caused by them were

sufficient in the ordinary course of nature to cause death of the

deceased, the appellants No.02 to 06 are convicted for offence

punishable under Section 304 (Part II) read with 149 of IPC. Since the

appellants No.02 to 06 are in jail from 25.02.2013 i.e. almost 10 years,

taking into consideration the period they have already undergone, we

award them sentence already undergone by them, but the fine

sentence imposed by the learned trial Court shall remain intact. The

remaining conviction of the appellants No.02 to 06 awarded by the CRA-788-2015

learned trial Court under Section 148 and 307/149 of IPC and their

respective sentences i.e. rigorous imprisonment for 03 years (each)

and rigorous imprisonment for 10 years (each) are hereby maintained/

affirmed. Consequently, since the accused-appellants No.02 to 06 are

in jail since 25.02.2013 i.e. almost 10 years, they be released from jail

forthwith, if not required in any other matter.

(23) This criminal appeal is party allowed to the extent indicated

herein-above.

                  Sd/-                                            Sd/-
           (Sanjay K. Agrawal)                           (Rakesh Mohan Pandey)
                 Judge                                          Judge
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