Chattisgarh High Court
Jaipal Chand Basor vs State Of Chhattisgarh on 23 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 209 of 2014
Jayant Kumar Surya, S/o Charku Das Surya, aged about 33
Years, R/o Tikarkala, PS Gaurela, Civil and Rev. Distt.
Bilaspur, C.G.
----Appellant
Versus
State of Chhattisgarh, Through SHO, PS Pendra, Distt.
Bilaspur, C.G.
---- Respondent
For Appellant Mr. Rishi Rahul Soni, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
CRA No. 289 of 2014
Jaipal Chand Basor, S/o Moti Lal Basor, aged about 25 Years,
R/o Village Tikarkala Bartola, PS Gourella, Tah. - Gaurella,
Distt. Bilaspur C.G.
----Appellant
Versus
State of Chhattisgarh Through PS Incharge, PS Gaurella,
Distt. Bilaspur C.G.
---- Respondent
For Appellant Mr. Ankit Singhal, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
CRA No. 346 of 2014
Gajju @ Sumeet Kumar, S/o Mohit Ram, aged about 20
Years, R/o Village Tikarkala, P.S. Gaurela, Distt. Bilaspur, C.G.
----Appellant
Versus
The State of Chhattisgarh, Through SHO, P.S. Pendra, Civil
and Rev. Distt. Bilaspur, C.G.
---- Respondent
For Appellant Mr. Roop Naik, Advocate.
For State Mr. Sudeep Verma, Government Advocate.
2
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
23.01.2023
Sanjay K. Agrawal, J.
1. All these appeals under Section 374(2) of Cr.P.C. have been
filed against the judgment of conviction and order of sentence
dated 20.12.2013 passed by the Additional Sessions Judge,
Pendra Road, District Bilaspur, C.G. in Sessions Trial
No.03/2013, therefore, they are being disposed by this
common judgment. By the impugned judgment, the appellants
are convicted and sentenced as under:-
Conviction Sentence
Under Section 302 read Life Imprisonment and fine of
with 34 of Indian Penal Rs.200/-, in default of payment
Code of fine amount to undergo
further additional R.I. for two
months
2. Case of the prosecution, in short, is that on 02.10.2012 at
about 9:00 pm, at Village Jhorki within the ambit of Police
Station Gaurela, District Bilaspur, C.G., the appellants-
accused assembled in the house of PW-7 Patram Singh and
due to some previous dispute, assaulted Santosh Kumar
(herein after referred to as the "deceased") with axe, due to
which he suffered grievous injuries and succumbed to the
same. Further case of the prosecution, in nutshell, is that PW-
1 Hemvati, wife of the deceased, reported the matter to the
police station Gaurela stating that in the night of 02.10.2012,
dead body of her husband was found, pursuant to which merg
intimation was registered vide Ex.P/01 and FIR was registered
against unknown persons vide Ex.P/2. On recommendation of
panchas, the dead body was sent for postmortem which was
conducted by PW-10 Dr. A.I. Minj, who has proved the
postmortem report Ex.P-13. According to postmortem report,
the cause of death is due to head and throat injury and the
death is homicidal in nature. Pursuant to the memorandum
statement of the appellant No.1 Jayant Kumar Surya vide
Ex.P-12, axe was seized vide Ex.P-13 and sent to FSL but no
FSL report has been received.
3. Statements of the witnesses were recorded under Section 161
of Cr.P.C. After due investigation, the appellants were charge-
sheeted before the jurisdictional criminal Court and the case
was committed to the trial Court for hearing and disposal in
accordance with law, in which appellants/accused abjured
their guilt and entered into defence by stating that they have
not committed the offence.
4. The prosecution in order to prove its case examined as many
as 11 witnesses and exhibited 28 documents. Defence has not
examined any witness in its support, however, exhibited two
documents Ex.D-1 and Ex.D-2. Accused/appellants were
examined under Section 313 of Cr.P.C.
5. The learned trial Court after appreciating the oral and
documentary evidence available on record proceeded to
convict the appellants for offence under Section 302/34 of IPC
and sentenced them as mentioned herein-above, against
which these appeals have been preferred by the appellants-
accused questioning the impugned judgment of conviction and
order of sentence.
6. Mr. Rishi Rahul Soni, learned counsel appearing for the
appellant in CRA No.209 of 2014 submits that the learned trial
Court is absolutely unjustified in convicting and sentencing the
appellant for the offence under Section 302/34 of IPC, as the
prosecution has failed to prove the offence beyond reasonable
doubt. He further submits that PW-6 Devan Singh, PW-7
Patram Singh and PW-8 Smt. Girajabai are not the eye-
witnesses in this case and they have also not seen the
incident, therefore, appellant's conviction is bad in law. There
was no intention on the part of the appellant- Jayant Kumar
Surya to cause death of the deceased. Hence, the case of the
present appellant- Jayant Kumar Surya falls within the purview
of Exception 4 to Section 300 of IPC and the act of the
appellant- Jayant Kumar Surya is culpable homicide not
amounting to murder and, therefore, it is a fit case where the
conviction of the appellant- Jayant Kumar Surya 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.
Alternatively, he submits that if this Court ultimately
comes to the conclusion that the appellant- Jayant Kumar
Surya is guilty of the offence under Section 304 Part-I or Part-
II of IPC, considering the fact that the incident took place in the
year 2012 and the fact that the appellant is in jail since
10.05.2012, the accused/appellant Jayant Kumar Surya be
sentenced to the period already undergone by him.
7. Counsel for the appellants- Jaipal Chand Basor and Gajju @
Sumeet Kumar in CRA No. 289 of 2014 and CRA No.346 of
2014 submit that the appellants-Jaipal Chand Basor and Gajju
@ Sumeet Kumar have been convicted under Section 302 of
Indian Penal Code with the aid of Section 34 of Indian Penal
Code but considering the evidence available on record, their
conviction is bad in law and they deserve to be acquitted of
the charge levelled against them.
8. Per-contra, learned State counsel supporting the impugned
judgment of conviction and order of sentence 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 offence under Section
302/34 of IPC. Exception 4 to Section 300 of IPC is not
attracted in this case and it is not a case where conviction of
the appellants under Section 302/34 of IPC requires to be
altered to Section 304 Part-I or Part-II of IPC, thus, the present
appeals deserve to be dismissed.
9. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went through
the records with utmost circumspection.
10. The first and foremost question is as to whether the death of
the deceased was homicidal in nature, which the learned trial
Court has recorded in affirmative by taking into consideration
the oral and documentary evidence available on record and
particularly considering the postmortem report (Ex.P/13),
wherein it has been opined that the cause of death of deceased
is due to head and throat injury and nature of death is homicidal,
which is duly proved by the statement of Dr. A.I. Minj (PW-10),
who has conducted the postmortem of the dead-body of the
deceased. Accordingly, taking into consideration the
postmortem report (Ex.P/13) and the statement of Dr. A.I. Minj
(PW-10), 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.
CRA No. 209 of 2014
11. Now, the next question would be, whether the accused-
appellant Jayant Kumar Surya herein is the perpetrator of the
crime in question?
12. Case of the prosecution is based on the testimony of PW-7
Patram Singh and PW-8 Smt. Girjabai as the said incident took
place in the house of PW-7 and PW-8. It is the case of the
prosecution that on 02.10.2012, firstly the appellant- Gajju @
Sumeet Kumar came to the house of PW-7 Patram and
thereafter appellants- Jaipal Chand Basor and Jayant Kumar
Surya also came there and started consuming liquor and took
cannabis (Ganja). After some time, the deceased also reached
the house of PW-7 Patram Singh and he also expressed his
desire to consume cannabis (Ganja) which was in the hands of
appellant Jayant Kumar Surya. Appellant- Jayant Kumar Surya
refused to pass the cannabis (Ganja) to the deceased saying
that deceased is his enemy. There was also a dispute regarding
Rs.30/- between the appellant Jayant Kumar Surya and
deceased because of which some altercation took place
between them where PW-7 Patram had to intervene.
Thereafter, appellants- Jaipal Chand Basor and Gajju @
Sumeet Kumar took the deceased out of the house of PW-7
Patram and in the field, appellant- Jayant Kumar Surya
assaulted upon the deceased- Santosh Kaul with axe, as a
result of which he suffered grievous injuries and succumbed to
the same. The said version is also supported by PW-8 Smt.
Girjabai. Pursuant to the memorandum statement Ex.P-12 of
the appellant- Jayant Kumar Surya, axe was seized from the
place indicated by appellant- Jayant Kumar Surya, though no
blood has been found, but considering the statements of PW-7
Patram Singh and PW-8 Smt. Girjabai, it can be said that the
appellant- Jayant Kumar Surya assaulted the deceased with
axe by which he suffered grievous injuries and died. As such,
the appellant- Jayant Kumar Surya had caused injury to the
deceased with axe.
CRA No. 289 of 2014 & CRA No. 346 of 2014
13. The allegation against the appellants- Jaipal Chand Basor and
Gajju @ Sumeet Kumar is that they have taken the deceased
out of the house of PW-7 Patram Singh and PW-8 Smt. Girjabai
and they have been convicted under Section 302 of Indian
Penal Code with the aid of Section 34 of Indian Penal Code.
14. The aforesaid finding brings us to the next question for
consideration, whether the trial Court has rightly convicted the
appellants for offence punishable under Section 302/34 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 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 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;
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
(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."
17. Likewise, in the matter of State v. Sanjeev Nanda3, their
3 (2012) 8 SCC 450
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.
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,
4 (2017) 3 SCC 247
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".
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:
"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 the above
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 appellant- Jayant Kumar Surya to cause death of the
deceased as the accused-appellants were assembled in the
house of PW-7 Patram Singh where they consumed liquor and
cannabis (Ganja), all of a sudden, deceased came to the house
of PW-7 and asked for cannabis (ganja) along with smoking
pipe which was not given by the appellant Jayant Kumar Surya
and on account of some previous enmity, the appellants Jaipal
Chand Basor and Gajju @ Sumeet Kumar took the deceased
out of the house of PW-7 and the appellant- Jayant Kumar
Surya is said to have assaulted the deceased with axe.
5 (2019) 6 SCC 122
22. Considering the nature of injury and further considering the
fact that on a sudden quarrel, the appellant- Jayant Kumar
Surya assaulted the deceased with axe, it is clear that there
was no premeditation on the part of the appellant- Jayant
Kumar Surya to cause death of the deceased and only because
of a previous dispute, out of sudden anger, in heat of passion,
the appellant- Jayant Kumar Surya assaulted deceased, due to
which he died. However, looking to the injuries sustained by
deceased, the appellant- Jayant Kumar Surya must have had
the knowledge that such injuries inflicted by him on the body of
the deceased would likely to cause his death, as such, this is a
case which would fall within the purview of Exception 4 to
Section 300 of IPC, as the act of the appellant- Jayant Kumar
Surya 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,
therefore, the conviction of the appellant- Jayant Kumar Surya
under Section 302/34 of IPC can be altered/converted to
Section 304 (Part-II) of IPC.
23. In view of the aforesaid discussions, the conviction of the
appellant- Jayant Kumar Surya for offence punishable under
Section 302/34 of IPC as well as the sentence of life
imprisonment awarded to him by the learned trial Court is
hereby set aside. Considering that there was no premeditation
on the part of the appellant- Jayant Kumar Surya to cause
death of the deceased but the injuries caused by him were
sufficient in the ordinary course of nature to cause death, the
appellant- Jayant Kumar Surya is convicted for offence
punishable under Section 304 (Part II) of IPC and sentenced to
imprisonment for 10 years and 3 months. Since the appellant-
Jayant Kumar Surya is in jail since 05.10.2012, taking into
consideration the period he has already undergone, we award
him sentence already undergone by him, but the fine sentence
imposed by the learned trial Court shall remain intact. Since the
appellant- Jayant Kumar Surya in CRA No.209/2014 is
reported to be in jail, therefore, he is directed to be released
forthwith, if not required to be detained in connection with any
other offence.
24. Considering the evidence available on record, the role of
appellants Jaipal Chand Basor and Gajju @ Sumeet Kumar and
in light of the decisions of the Supreme Court in the matters of
Shyamal Ghosh vs. State of West Bengal 6, Mrinal Das v.
State of Tripura7 and Suresh Sankharam Nangare v. State
of Maharashtra8, we find no evidence against the appellants
Jaipal Chand Basor and Gajju @ Sumeet Kumar to convict
them with the aid of Section 34 of Indian Penal Code. The
6 AIR 2012 SC 3539
7 (2011) 9 SCC 479
8 2012 (9) JT 116
prosecution has neither been able to prove prior concert nor
pre-arranged plan and even no overt act has been proved by
the prosecution so far as appellants- Jaipal Chand Basor and
Gajju @ Sumeet Kumar are concerned. As such, in absence of
pre-arranged plan and further in absence of participation in
crime in question, the finding recorded by the learned trial Court
invoking Section 34 of the IPC to convict the appellants- Jaipal
Chand Basor and Gajju @ Sumeet Kumar under Section 302 of
the IPC is liable to be set aside and, accordingly, they are
acquitted of the said charge. Since the appellants- Jaipal Chand
Basor and Gajju @ Sumeet Kumar in CRA Nos.2892014 &
346/2014 respectively are already on bail, they need not
surrender before the learned trial Court. However, their bail
bonds shall remain in force for a period of six months in view of
the provision contained in Section 437-A of CrPC.
25. In the result, CRA No.209/2014 filed by the appellant- Jayant
Kumar Surya is partly allowed to the extent indicated herein-
above whereas the CRA No.289/2014 & CRA No.346/2014
filed by the appellants Jaipal Chand Basor and Gajju @
Summet Kumar are allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Akhilesh
