Chattisgarh High Court
Shivlal vs State Of Chhattisgarh on 24 June, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:21231-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.175 of 2018
1. Shivlal S/o Ramdev Harijan, Aged About 48 Years,
Caste Agriculture, R/o Village Kakna, Navapara, Police
Chowki, Bariyon Police Station Rajpur, Revenue
District Balrampur Ramanujganj Civil District Surguja
Chhattisgarh, District: Surguja (Ambikapur),
Chhattisgarh
2. Devprasad Giri S/o Sundar Giri Aged About 41 Years
Caste Agriculture, R/o Village Kakna, Navapara, Police
Chowki, Bariyon Police Station Rajpur, Revenue
District Balrampur Ramanujganj Civil District Surguja
Chhattisgarh, District: Surguja (Ambikapur),
Chhattisgarh
3. Rajkumar Harijan S/o Shivratan Harijan Aged About
31 Years R/o Village Kakna, Navapara, Police Chowki,
Bariyon Police Station Rajpur, Revenue District
Balrampur Ramanujganj Civil District Surguja
Chhattisgarh, District : Surguja (Ambikapur),
Chhattisgarh
---- Appellants/Accused (In Jail)
Versus
State Of Chhattisgarh Through District Magistrate
Ambikapur District (Revenue And Civil) Surguja
Chhattisgarh, District : Surguja (Ambikapur),
Chhattisgarh
---- Respondent/Prosecutor
For Appellants : Shri Ashok Kumar Swarnkar, Advocate
For Respondent/State: Shri Afroz Khan, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Neutral Citation
2024:CGHC:21231-DB
2
Judgment on Board
(24/06/2024)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by appellants herein
under Section 374(2) of the CrPC is directed against the
impugned judgment of conviction and order of sentence
dated 14.12.2017 passed by the Second Additional Judge to
the Court of Additional Sessions Judge, Ramanujganj in
Sessions Trial No.44/2016, by which, they have been
convicted and sentenced as below :-
Sl. Name of Conviction Sentence
No. Accused
01. Shivlal S/o Section Imprisonment for life and fine of
Ramdev Harijan 302/34 IPC Rs.25,000/-
Section Rigorous Imprisonment for seven
307/34 IPC years and fine of Rs.15,000/-
02. Rajkumar Section Imprisonment for life and fine of
Harijan S/o 302/34 IPC Rs.25,000/-
Shivratan
Section Rigorous Imprisonment for seven
307/34 IPC years and fine of Rs.15,000/-
03. Devprasad Giri Section Imprisonment for life and fine of
S/o Sundar Giri 302/34 IPC Rs.25,000/-
Section Rigorous Imprisonment for seven
307/34 IPC years and fine of Rs.15,000/-
Sentences awarded to the appellants/accused under
Neutral Citation
2024:CGHC:21231-DB
the original sections were ordered to run concurrently. In
default of payment of fine under the afore-stated sections,
each of the appellants have to undergo additional rigorous
imprisonment for one year on each default, which will run
separately one by one.
2. The case of the prosecution, in brief, is that on
21.03.2016 at 10 PM at Village Amadipara, there was an
altercation which took place between the appellants herein
and Shivram, Kamla Prasad and Parmanand regarding
cutting of trees and thereafter, the appellants herein
assaulted the deceased-Shivram with the help of a sharp-
edged weapon i.e. axe (tangi), by which, he suffered grievous
injuries and died. The appellants herein have also caused
grievous injury to Kamla Prasad (PW-10), which will be
sufficient to cause death and thereby committed the
offence. Merg Intimation was recorded by Parmanand vide
Ex.P-1. Parmanand (PW-1) reported the matter to the Police
Chowki-Bariyon, Police Station-Rajpur, District Balrampur-
Ramanujganj and FIR (Ex.P-18) was lodged against the
appellants herein, pursuant to which, offence under
Sections 302, 307, 120-B & 34 of the IPC was registered
against them and the wheels of investigation started
Neutral Citation
2024:CGHC:21231-DB
running. Thereafter, inquest was conducted vide Ex.P-4.
Pursuant to memorandum statement of the Appellants
herein vide Ex.P-11, Ex.P-12, Ex.P-13, axe (tangi) and their
clothes were seized vide Ex.P-14, Ex.P-15, Ex.P-16. The
seized articles were subjected to forensic examination, but,
the FSL report has neither been exhibited nor has been put
to notice seeking their explanation. Dead body of the
deceased-Shivram was subjected to postmortem and
postmortem of the dead body of the deceased-Shivram was
conducted by Dr. Asrita Kachhap (PW-12) and his report is
Ex.P-17 and cause of death was shock as a result of
excessive hemorrhage due to head injury and all other
injuries and it was stated to be homicidal in nature. The
jurisdictional police carried out the investigation and
charge-sheeted the appellants under Sections 302, 307,
120-B & 34 of the IPC. The appellants abjured the guilt and
entered into defence by stating that they have not
committed the offence and they have been falsely implicated
in the offence in question.
3. In order to bring home the offence, the prosecution
has examined as many as 17 witnesses and exhibited 31
documents (Ex.P-1 to Ex.P-31). Statement of the appellants-
Neutral Citation
2024:CGHC:21231-DB
accused were recorded under Section 313 of the Cr.P.C.,
wherein they denied guilt and examined one Bandhan Ram
(DW-1) in their defence.
4. The learned trial Court, after appreciating oral and
documentary evidence on record, convicted and sentenced
the appellants under Sections 302, 307 read with Section
34 of the IPC in the manner mentioned in the opening
paragraph of this judgment, against which, the instant
appeal has been preferred.
5. Mr. Ashok Kumar Swarnkar, learned counsel
appearing for the appellants submits that conviction of the
appellants is based on the testimony of eye-witness
Parmanand (PW-1) and injured witness Kamla Prasad (PW-
10), according to which, the appellants herein have
assaulted the deceased-Shivram with the help of an axe
(tangi) and caused grievous injuries, as a result of which, he
died and they have also caused grievous injuries to Kamla
Prasad (PW-10). It is further submitted that taking the
prosecution case as it is and considering the nature of
injury and that death has occurred, to which, the
appellants had knowledge, but there was no intention or
Neutral Citation
2024:CGHC:21231-DB
motive to cause death, at the most, the case of appellants
would fall under Exception 4 to Section 300 of I.P.C. and
the alleged offence is liable to be converted to Part-II of
Section 304 of I.P.C. and appellants be sentenced for the
period already undergone by them, as they are in jail since
23.03.2016, and as such, the appeal be allowed in part.
6. Mr. Afroz Khan, learned State counsel, would submit
that the learned trial Court has rightly convicted the
appellants herein for the aforesaid offence and it is not a
case where the sentence of the appellants can be converted
to Section 304 Part-II of I.P.C. and, as such, the instant
appeal deserves to be dismissed.
7. We have heard learned counsel for the parties,
considered their rival submissions made herein-above and
went through the records with utmost circumspection.
8. The first question for consideration as to whether the
death of deceased-Shivram was homicidal in nature, has
been answered by the trial Court in affirmative relying upon
the postmortem report Ex.P-17 proved by Dr. Asrita
Kachhap (PW-12), according to which, cause of death was
shock as a result of excessive hemorrhage due to head
Neutral Citation
2024:CGHC:21231-DB
injury and all other injuries and it was stated to be
homicidal in nature, which in our considered opinion is a
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.
9. Now, the next question is, whether the appellants have
assaulted Shivram by tangi (axe) and caused death of the
deceased-Shivram?
10. Conviction of the appellants is based on the statement
of eye-witness Parmanand (PW-1) as also injured eye-
witness Kamla Prasad (PW-10), who has clearly stated that
on the date of incident, when they are working along with
the deceased-Shivram in their field, as they are members of
Van Raksha Samiti, at that time, when they heard voice of
cutting trees and reached to the spot and seen that the
appellants herein were cutting the teak wood, to which,
they all objected for the same, but, the appellants didn't
agree and they caused grievous injuries to Kamla Prasad
(PW-10) as also caused grievous injuries to the deceased-
Shivram with the help of an axe, due to which, he died. To
some extent, Kamla Prasad (PW-10) was subjected to cross-
Neutral Citation
2024:CGHC:21231-DB
examination, but, nothing has been extracted to hold that
he has seen the appellants causing grievous injuries to the
deceased-Shivram with the help of an axe, which was seized
and subjected to forensic examination, but, FSL report has
not been brought on record. As such, the trial Court has
rightly recorded a finding that it is the appellants, in
furtherance of their common intention, who have caused
death of the deceased-Shivram, which is a correct finding of
fact based on evidence available on record and accordingly,
we hereby affirm the said finding.
11. Now, the question would be whether the case of the
appellants would fall under Exception 4 to Section 300 of
IPC and, as such, their conviction can be altered either to
Part-I or Part-II of Section 304 of IPC, as contended by
learned counsel for the appellants ?
12. In order to consider whether the case of the appellants
is covered under Exception 4 to Section 300 of IPC, it would
be appropriate to notice the decision rendered by the
Supreme Court in the matter of Sukhbir Singh v. State of
Haryana1 wherein it has been observed as under :-
1 (2002) 3 SCC 327
Neutral Citation
2024:CGHC:21231-DB
"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."
13. 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
2 (2009) 15 SCC 635
Neutral Citation
2024:CGHC:21231-DB
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;
Neutral Citation
2024:CGHC:21231-DB
(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."
14. Likewise, in the matter of State v. Sanjeev Nanda3,
their Lordships of the Supreme Court have held that once
3 (2012) 8 SCC 450
Neutral Citation
2024:CGHC:21231-DB
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.
15. 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
4 (2017) 3 SCC 247
Neutral Citation
2024:CGHC:21231-DB
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
Neutral Citation
2024:CGHC:21231-DB
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".
16. In the matter of Arjun (supra), the Supreme Court has
held that when and if there is intent and knowledge, the
Neutral Citation
2024:CGHC:21231-DB
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.
17. 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:
"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."
18. Bearing in mind the aforesaid principles of law laid
down by their Lordships of the Supreme Court and further
considering the charge levelled upon the appellants, it is
quite vivid as per the statement of eye-witness Parmanand
(PW-1) as also injured eye-witness Kamla Prasad (PW-10),
who has clearly stated that on the date of incident, when he
was working along with the deceased-Shivram in their field,
5 (2019) 6 SCC 122
Neutral Citation
2024:CGHC:21231-DB
as they are members of Van Raksha Samiti, at that time,
when they heard voice of cutting trees and reached to the
spot, they seen that the appellants herein were cutting the
teak wood, to which, they all objected for the same, but, the
appellants didn't agree and in a sudden heat of passion,
they caused grievous injuries to Kamla Prasad (PW-10) as
also to the deceased-Shivram with the help of an axe, as a
result of which, he died thereafter, but, there was no
premeditation or motive to cause death and they must have
had knowledge that those injuries would likely to cause
death and the appellants had not taken any undue
advantage and have not acted in unusual manner; thus, the
case of the appellants would fall under Exception 4 to
Section 300 of I.P.C.
19. In view of the above, the impugned judgment of
conviction and order of sentence dated 14.12.2017 passed
by the Second Additional Judge to the Court of Additional
Sessions Judge, Ramanujganj in Sessions Trial No.44/2016
is hereby set aside. The conviction of appellants for
commission of offence punishable under Section 302 of
I.P.C. is altered to Section 304 Part-II of I.P.C. and they are
sentenced to the period already undergone by them.
Neutral Citation
2024:CGHC:21231-DB
Conviction and sentence awarded to the appellants under
Section 307 read with Section 34 of the IPC shall remain
intact. Appellants have already completed more than eight
years in jail as they are in jail since 23.03.2016, therefore,
they shall be released forthwith from jail, unless they are
required in any other offence.
20. In view of the above, this criminal appeal is partly
allowed.
21. Let a certified copy of this judgment along with the
original record be transmitted to the trial Court concerned
for necessary information and action, if any. A certified copy
of the judgment may also be sent to the concerned Jail
Superintendent forthwith wherein the appellants are
suffering the jail sentence.
SD/- SD/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Tumane
