Chattisgarh High Court
Sameer Kumar Kshetriya vs State Of Chhattisgarh on 3 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 534 of 2019
Judgment reserved on 03/11/2022
Judgment delivered on 03/01/2023
Sameer Kumar Kshetriya, Aged about 40 years, S/o K.B.
Kshetriya, R/o Village Dulaljot, Police Station Naksalwadi,
District Darjeeling, (West Bengal), Presently R/o 3 rd Batallion,
"A" company, Post Dharmapenta, Police Station Kistaram,
District Sukma, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Kistaram, District Sukma, Chhattisgarh.
---Respondent
For Appellant :- Ms. Fouzia Mirza, Senior Advocate with
Ms. Smita Jha, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been
preferred by the appellant herein assailing the impugned
judgment dated 14/02/2019 passed by learned Additional
Sessions Judge, Special Court (Naxal) Dantewada, District
South Bastar in Sessions Trial No. 139/2015 whereby he has
been convicted for offence punishable under Section 302 of
IPC and sentenced to undergo imprisonment for life with fine
of Rs. 100/-, in default of payment of fine, further R.I. for 30
days.
2. Case of the prosecution, in brief, is that on 06/03/2015 at
about 03:15 PM, the appellant herein, with the intention of
causing death of head constable Ayodhya Prasad, shot him in
his stomach with A.K.-47 rifle, but number 170 baadi number
51-8540 and caused his death, and thereby, committed the
aforesaid offence.
3. Further case of the prosecution is that on the date of the
incident, at about 03:15 PM, sound of gunshot was heard and
Kamal Narayan Patel (P.W.-13), Sub-Inspector, P.S. Kistaram,
who was posted in the camp, came on the place of the incident
and saw that head constable Ayodhya Prasad had been shot
by someone and enquired constable Robin Tigga (P.W.-1) who
was present at the spot at that time. Robin Tigga (P.W.-1)
informed him that after completing his duty, he was going to
his tent when the appellant also came behind him armed with
his A.K.-47 rifle and went inside the tent of head constable
Ayodhya Prasad. Robin Tigga (P.W.-1) further informed that he
was changing his uniform when the sound of gunshot came
from inside the tent of the deceased and he went inside the
said tent, he saw that appellant was standing there holding
his A.K.-47 rifle in his hand and deceased Ayodhya Prasad
was sleeping inside the mosquito net and blood was oozing out
of his stomach. In the meanwhile, after hearing the gunshot,
other officers also reached there. On account of suffering from
the gunshot wound, deceased Ayodhya Prasad succumbed to
death on 04:15 PM. Thereafter, when the appellant was
enquired therein, he admitted that he had shot the deceased
with his rifle and caused his death. On the basis of the said
information, Kamal Narayan Patel (P.W.-13) lodged dehati
nalishi (Ex. P/1) and presented before the Kistaram Police
Station by Robin Tigga (P.W.-1) on the basis of which first
information report was lodged vide Ex. P/17 and merg
intimation was registered vide Ex. P/2. Inquest was conducted
vide Ex. P/22 and dead body of the deceased was subjected to
postmortem, which was conducted by Dr. S.K. Bagh (P.W.-11)
and as per the postmortem report (Ex. P/16), cause of death is
said to be firearm injury, mode of death is said to be
hemorrhage and shock. Nazri naksha was prepared vide Ex.
P/3 and the clothes worn by the deceased were seized vide Ex.
P/15. From the spot, appellant's A.K.-47 rifle was seized vide
Ex. P/7 and plain soil, blood stained soil empty cartridge of
the rifle, bullet sunken in the ground were seized vide Ex. P/8.
The seized articles were sent for FSL and as per the FSL report
(Ex. P/18, blood was found on the mosquito net and the
clothes of the deceased. The A.K.-47 rifle as well as bullets
and cartridges seized were also sent for FSL and as per the
FSL report (Ex. P/20A), firearm discharge residues were
detected from the rifle and the four cartridges were
successfully test fired through the rifle on the basis of which,
it was opined that the rifle was found to be in working
condition and the cartridges were found to be live. On
examination of the empty cartridges, it was found that the
empty cartridge case had been fired through the said rifle.
Statements of the witnesses were taken under Section 161 of
CrPC and after due investigation, the appellant was charge-
sheeted for offence punishable under Section 302 of IPC which
was committed to the Court of Session for trial in accordance
with law.
4. In order to bring home the offence, prosecution examined as
many as 13 witnesses and brought on record 26 documents.
The statement of appellant/accused person was recorded
wherein he denied guilt and he examined one witness and
exhibited one document in his defence.
5. Learned trial Court, after appreciation of oral and
documentary evidence on record, holding the death of
deceased Ayodhya Prasad to be homicidal in nature and
further holding the appellant to be the perpetrator of the crime
in question, proceeded to convict him for offence punishable
under Section 302 of IPC and sentenced him as aforesaid.
6. Ms. Fouzia Mirza, learned counsel for the appellant, would
submit that learned trial Court is absolutely unjustified in
convicting the appellant for offence punishable under Section
302 of IPC as there was no previous enmity between the
appellant and the deceased and there was no intention or
premeditation on the part of the appellant to cause the death
of the deceased and the incident happened in heat of passion
and the appellant neither acted in a cruel manner nor took
any undue advantage as only one bullet was shot, as such,
the ingredients of Exception 4 to Section 300 are satisfied and
at the most, the appellant could have been convicted for
offence punishable under Section 304 Part II of IPC. In
support of her submission, she would rely upon the judgment
of the Supreme Court in the matters of Sadhu Singh vs. State
of Pepsu1, Dayanand vs. State of Haryana 2; Shankar
Narayan Bhadolkar vs. State of Maharashtra 3; Mankeram
vs. State of Haryana4; Bhagwan Singh vs. State of
Uttarakhand5; State of Madhya Pradesh vs. Mohar Singh 6;
Budhi Singh vs. State of Himachal Pradesh7; Sarghroj
Bhogappa Kamble vs. State of Maharashtra 8; State of
Rajasthan vs. Daud Khan9 and Radha Kishan vs. State of
Haryana10.
7. Per contra, Mr. Sudeep Verma, learned State counsel, would
support the impugned judgment and submit that prosecution
has been able to bring home the offence and the trial Court
has rightly convicted the appellant for offence punishable
under Section 302 of IPC, as such, the instant appeal deserves
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.
1 AIR 1954 SC 271
2(2008) 15 SCC 717
3 (2005) 9 SCC 71
4 (2003) 11 SCC 238
5 (2020) 14 SCC 184
6 (2019) 15 SCC 57
7 (2012) 13 SCC 663
8 (2010) 13 SCC 651
9 (2016) 2 SCC 607
10 (1987) 2 SCC 652
9. The first question for consideration, is whether the death of
deceased Ayodhya Prasad was homicidal in nature ?
10. Learned trial Court has recorded an affirmative finding in this
regard holding the death of deceased Ayodhya Prasad to be
homicidal in nature relying upon the expert medical opinion of
Dr. S.K. Bagh (P.W.-11) as well as the postmortem report (Ex.
P/16) in which it has been clearly recorded that the cause of
death is due to gunshot injury and mode of death is
hemorrhage and shock. However, so far as the nature of death
is concerned, the Doctor has not given an express opinion that
the death was homicidal in nature. However, looking to the
injury suffered by the deceased and further looking that no
such evidence has been brought on record that the deceased
suffered the said injury accidentally, we are of the considered
opinion that the trial Court has rightly held the death of
deceased to be homicidal in nature. We hereby affirm the said
finding recorded by the trial Court, more so, when it has not
been seriously questioned by learned counsel for the
appellant.
11. The next question for consideration is, whether the appellant
is the perpetrator of the crime in question ?
12. Prosecution case rests upon the evidence of testimonies of
Robbin Tigga (P.W.-1), Umashankar Dube (P.W.-5), Omkumar
Mandloi (P.W.-6), Ramchandra Koma (P.W.-7), Kamlesh Verma
(P.W.-8), Chuiram Bhagat (P.W.-9), Kamal Narayan Patel
(P.W.-13) and medical evidence given by Dr. S.K. Bagh (P.W.-
11) who has proved the postmortem report (Ex. P/16) as well
as the FSL report (Ex. P/20A). However, the trial Court has
convicted the appellant mainly on the basis of the testimonies
of Robin Tigga (P.W.-1), Umashankar Dube (P.W.-5),
Omkumar Mandloi (P.W.-6), Ramchandra Koma (P.W.-7),
Kamlesh Verma (P.W.-8), Chuiram Bhagat (P.W.-9), Kamal
Narayan Patel (P.W.-13) as the aforesaid witnesses have
clearly deposed before the Court that after hearing the sound
of the gunshot that had been fired, they reached the spot and
found that the appellant was standing with his A.K.-47 rifle
and when they asked him, the appellant confessed that he has
killed the deceased by firing him with his A.K.-47 rifle, which
has also been confirmed by Sharad Tamrakar (P.W.-12), who
sent the said rifle along with cartridges for examination and
from the FSL report (Ex. P/20A), it is vividly clear that
gunshot injury suffered by the deceased was on account of
firing from the A.K.-47 rifle of the appellant and moreover, the
injury suffered by the deceased was fatal as he had suffered
gunshot injury on his chest i.e. vital part of the body.
13. Learned trial Court has also recorded a categorical finding
that the tent in which the deceased was sleeping and in which
the incident happened, it was also shared by Robin Tigga
(P.W.-1) as well as Sumit Kumar Lakda (P.W.-2) along with the
deceased and at the time when the gunshot was fired, Sumit
Kumar Lakda (P.W.-2) and the deceased were sleeping inside
the tent after completing their duty.
14. At this stage, it would be appropriate to notice clause 'thirdly'
of Section 300 of IPC which states as under :-
"300. Murder - Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or -
Secondly - XXXX XXXX
Thirdly - If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature
to cause death."
15. The appellant herein has made gunshot injury on the chest of
the deceased which is a vital part of the body and if a gunshot
injury is made in the chest of the human body which in its all
probability will result into death particularly, when the
weapon used in the offence i.e. A.K.-47 rifle is so lethal that
gunshot injury will surely result in death in high degree of
probabilities.
16. The Supreme Court in the matter of Virsa Singh v. State of
Punjab11 has held in paragraphs 11, 12 and 13 as under :-
"11. In considering whether the intention was to inflict
the injury found to have been inflicted, the enquiry
necessarly proceeds on broad lines as, for example,
whether there was an intention to strike at a vital or a
dangerous spot, and whether with sufficient force to
cause the kind of injury found to have been inflicted. It
is, of course, not necessary to enquire into every last
detail as, for instance, whether the prisoner intended
to have the bowels fall out, or whether he intended to
penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy
could never be convicted, for, if he does not know that
there is a heart or a kidney or bowels, be cannot be
said to have intended to injure them. Of course, that is
not the kind of enquiry. It is broadbased and simple
and based on common sense: the kind of enquiry that
" twelve good men and true could readily appreciate
and understand.
11 AIR 1958 SC 465
12. To put it shortly, the prosecution must prove the
following facts before it can bring a case under s. 300,
thirdly " ;
First, it must establish, quite objectively, that a
bodily injury is present ;
Secondly, the nature of the injury must be
proved; These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional, or
that some other kind of injury was intended.
Once these three elements are proved to be
present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of
the type just described made up of the three elements
set out above is sufficient to cause death in the
ordinary course of nature. This part of the enquiry is
purely objective and inferential and has nothing to do
with the intention of the offender.
13. Once these four elements are established by the
prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under
Section 300 thirdly. It does not matter that there was
no intention to cause death. It does not matter that
there was Do intention even to cause an injury of a
kind that is sufficient to cause death in the ordinary
course of nature (not that there is any real distinction
between the two). It does not even matter that there is
no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest
of the enquiry is purely objective and the only
question is whether, as a matter of purely objective
inference, the injury is sufficient in the ordinary
course of nature to cause death. No one has a licence
to run around inflicting injuries that are sufficient to
cause death in the ordinary course of nature and
claim that they are not guilty of murder. If they inflict
injuries of that kind, they must face the
consequences; and they can only escape if it can be
shown, or reasonably deduced that the injury was
accidental or otherwise unintentional."
17. As such, in the instant case, it is quite vivid that on the fateful
day, the deceased was sleeping in his tent after completing his
duty along with Sumit Kumar Lakda (P.W.-2) and at about
03:15 PM, the appellant entered their tent armed with his
A.K.-47 rifle and shot the deceased on his chest by which the
deceased suffered fatal injury and succumbed to death after
about an hour. When everyone heard the sound of gunshot,
they reached the said tent and found that deceased was
sleeping with blood oozing out of his chest and the appellant
was standing their holding his A.K.-47 rifle. As such, we are of
the considered opinion, that prosecution has brought ample
evidence on record to prove that appellant is the perpetrator of
crime in question which has also been rightly held by the trial
Court.
18. Now, the submission that has been vehemently raised on
behalf of the appellant is that the case of the appellant would
fall within Exception 4 to Section 300 of IPC and he is liable to
be convicted for offence punishable under Section 304 Part II
of IPC and not under Section 302 of IPC.
19. In order to consider the plea raised by learned counel for the
appellant, it would be appropriate to notice Exception 4 to
Section 300 of IPC, which states as under :-
"Exception 4 - Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or
acted in a cruel or unusual manner."
20. In the matter of Gurmukh Singh v. State of Haryana 12, 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 :-
12 (2009) 15 SCC 635
"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."
21. Further, the Supreme Court in the matter of Arjun v. State of
Chhattisgarh13 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
13 (2017) 3 SCC 247
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".
22. Reverting to the facts of the present case in light of the
decision rendered by the Supreme Court in Arjun (supra), it is
quite vivid that exception 4 to Section 300 of IPC would be
invoked if the four requirements are found proved, which are,
(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. In the instant case, although there is no such
evidence brought on record with regard to the existing relation
between the appellant and deceased and neither any evidence
of previous enmity or previous dispute existing between them
has been brought on record, however, the appellant assaulted
the deceased and shot him with his A.K.-47 rifle on his chest
while the deceased was sleeping in his tent and was
defenceless which goes to show that the appellant must have
had premeditation and intention on his part to cause death of
the deceased and there was no sudden quarrel/fight that took
place between them, as such, the incident did not happen in
heat of passion. Moreover, since the deceased was sleeping,
the appellant took full advantage of the situation and
assaulted him and inflicted gunshot injury by AK-47, a deadly
and dangerous weapon, that too, on his chest knowing fully
well that the deceased would die. Considering the entire
evidence available on record, we are of the considered opinion
that the four requirements of Exception 4 to Section 300 of
IPC are not present in the instant case, and in vies of above-
stated findings, the judgments relied upon by the learned
counsel for the appellant in the matters of Sadhu Singh
(supra), Dayanand (supra), Shankar Narayan Bhadolkar
(supra), Mankeram (supra), Bhagwan Singh (supra), Mohar
Singh (supra), Budhi Singh (supra), Sarghroj Bhogappa
Kamble (supra), Daud Khan (supra) and Radha Kishan
(supra) relating to applicability of Section 304 (Part-I/II) of
IPC, are clearly distinguishable to the facts of the present
case. As such, the trial Court has rightly convicted the
appellant for offence punishable under Section 302 of IPC. In
that view of the matter, we do not find any merit in this
appeal. We hereby affirm the judgment of conviction and
sentence recorded by the learned trial Court.
23. Accordingly, this criminal appeal stands dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Harneet
