Sandeep Yadav Alias Chotu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Criminal Appeal No.1187/2016 has been preferred by appellant Usha Bai (A-1) and Satvan alias Shatrudhan alias Guddu (A-2) and Criminal Appeal No.978/2016 has been filed by appellant Sandeep Yadav alias Chotu (A-3).

Both the appeals have been filed assailing the legality, validity and correctness of the common judgment and order dated 25/07/2016 passed by Second Additional Sessions Judge, Janjgir, District Janjgir Champa (CG) in Sessions Trial No.57/2016, by which, the appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-each, in default of payment of fine amount to further undergo additional R.I. for 6 months.

Since common question of law and fact is involved in both these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

Case of the prosecution, in nutshell, is that all the three appellants, on 07.01.2016 in between 3 to 4 p.m. near B.T.I. Chowk at Village Janjgir, behind the house of Dhaniram Suryavanshi, in furtherance of their common intention assaulted him, Usha Bai (A-1) assaulted by iron rod, Satvan (A-2) assaulted by crow bar and Sandeep Yadav (A-3) assaulted by hands and fists, by which, he suffered grievous injuries on head, hand and legs and died; thereby committed the offence of murder punishable under Section 302 of IPC.

The matter was reported to the police and merg intimation was registered vide Ex.P-22. FIR was registered vide Ex.P-23. Inquest on the dead body of the deceased was prepared vide Ex.P-16 and the dead body was subjected to postmortem, which was conducted by Dr. R.S. Sidar (PW-7), who opined that the cause of death was due to hemorrhage and shock as a result of injuries and death was homicidal in nature. Postmortem report is Ex.P-18. Pursuant to the memorandum statements (Exs. P-2 and P-4), iron rod was seized from the possession of Usha Bai (A-1) and crow bar was seized from Satvan (A-2) vide Exs. P-3 and P-5. Samples of plain soil and blood stained soil were collected vide Ex. P-12. One sari, full shirt and one full pant of the deceased were seized vide Ex.P-13. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur, but no F.S.L. report has been brought on record for the reasons best known to the prosecution.

After due investigation, the appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants herein abjured their guilt and entered into defence and prayed for trial.

In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 28 documents and the defence in support of its case has not examined any witness.

The trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants/accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

Mr. V.K. Pandey and Mr. Deepak Kumar Jain, learned counsels appearing for the appellants would jointly submit that the appellants have been falsely implicated in the instant case. They further submit that Usha Bai (A-1) is the wife of the deceased and Satvan (A-2) is the son of the deceased. On the date of incident, the deceased was under the influence of intoxicant and on a sudden quarrel, he was chasing the appellants with an iron rod to kill them, and as such, there was no intention of the appellants to cause death and the appellants in heat of passion have assaulted the deceased, which resulted into his death. Therefore, the case of the appellants would 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 at the most, it falls under Section 304 Part-II of the IPC, as the act was committed without premeditation in heat of passion on the act of the deceased, who was chasing the appellants with an iron rod to kill them. They also submit that Usha Bai (A-1) and Satvan (A-2) are in jail since 08.01.2016 and thereby, they have completed the jail sentence for more than 7 years and 10 months, therefore, they be awarded the sentence for the period already undergone by them and there is no evidence at all against Sandeep Yadav (A-3), therefore, he is entitled for acquittal.

Per contra, Mr. Sudeep Verma, learned Deputy Government Advocate appearing on behalf of the State, would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond reasonable doubt that the death of the deceased is homicidal in nature and it is not a case where the appellants’ conviction under Section 302/34 of IPC can be altered/converted under Section 304 Part II of IPC, as such, the instant appeals are liable to be dismissed.

We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

Considering the nature of offence, we will firstly consider the case of appellants Usha Bai (A-1) and Satvan (A-2) and thereafter, consider the case of appellant Sandeep Yadav (A-3).

The first question as to whether the death of Dhaniram was homicidal in nature, has been answered in affirmative by the trial Court relying upon the postmortem report (Ex.P-18) proved by Dr. R.S.Sidar (PW-7) which is the correct finding of fact based upon the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the next question is as to whether the appellants A-1 and A-2 herein are the perpetrators of crime. The case of the prosecution is based on the testimonies of two eye-witnesses i.e. Rajkumari (PW-9) and Karan Sharma (PW-10). Karan Sharma (PW-10) is the son of Rajkumari (PW-9), who has seen the incident immediately after hearing the hue and cry. They have clearly deposed that Usha Bai (A-1) had assaulted the deceased with iron rod and Satvan (A-2) had assulted the deceased with crow bar, as a result of which, Dhaniram sustained grievous injuries and died, as such, they have supported the case of prosecution. We, therefore, affirm the said finding of the trial Court holding that A-1 and A-2 have caused grievous injuries to Dhaniram and he died due to those injuries and his death was homicidal in nature, is a correct finding of fact.

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 the learned counsel for the appellants ?

The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 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.”

The Supreme Court in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 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 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.”

Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, 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 that such act of his is likely to cause death.

Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 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.”

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”.

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.

Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) (2019) 6 SCC 122 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.”

Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above cited decisions, admittedly, in the case in hand, there is recovery of iron rod from appellant Usha Bai (A-1) and crow bar from appellant Satvan (A-2) pursuant to their memorandum statements respectively, but no FSL report is brought on record to establish that the weapon of offence were stained with human blood. Usha Bai (A-1) is the wife and Satvan (A-2) is the son of deceased- Dhaniram and on the date of incident Dhaniram was under the influence of intoxication and as per the statement of Karan Sharma (PW-10), it was the deceased, who has firstly assaulted the appellants (A-1 and A-2) with stone, abusing them and was chasing to kill them, and therefore, the two appellants have assaulted him with iron rod and crow bar to save themselves. The incident had happened in a sudden provocation in a heat of passion and as such, there was no premeditation or intention on the part of the appellants (A-1 and A-2) to cause death of the deceased Dhaniram, but, they have had the knowledge that such injuries inflicted by them would likely to cause death of Dhaniram. In that view of the matter, conviction of the appellants (A-1 and A-2) under Section 302/34 IPC is converted to Section 304 Part II/34 IPC. Usha Bai (A-1) and Satvan (A-2) are in jail since 08.01.2016, i.e. for more than 7 years and 10 months, therefore, they are sentenced for the period already undergone by them. They be released forthwith, if not required in any other case. Their appeal is allowed.

Insofar as appellant Sandeep Yadav (A-3) is concerned, it has already been held that the death of the deceased- Dhaniram is homicidal in nature; there is no evidence against him. As per the statement of Rajkumari (PW-9), who is an eye-witness, Sandeep Yadav (A-3) intervened and tried to settle the dispute between A-1 and A-2 and the deceased. Similarly, Karan Sharma (PW-10) is also the eye-witness, but he did not name A-3 as the assailant in the offence. Therefore, in that view of the matter, conviction of appellant Sandeep Yadav (A-3) for the offence under Section 302/34 of IPC is hereby set-aside. He is acquitted of the charge. He is on bail. He need not surrender. His bail bond shall continue for a period of 6 months in view of Section 437-A Cr.P.C.

In the result, appeal of appellants Usha Bai (A-1) and Satvan (A-2) is partly allowed and appeal of appellant Sandeep Yadav (A-3) is allowed. All the three appeals are accordingly disposed of.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellants are presently lodged and suffering jail sentence, forthwith for necessary information and action, if any.