Santosh Kumar Kenvat vs State Of Chhattisgarh

This criminal appeal filed by the appellant-accused under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 19.4.2007 passed by the learned Additional Sessions Judge, Janjgir, in Sessions Trial No.136/2006, whereby the appellant-accused has been convicted for offence punishable under Sections 302 and 323 (two times) of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine, to further undergo R.I. for three months and R.I. for one year under Section 323 of the IPC in relation to injured Jagdish and R.I. for one year under Section 323 of the IPC in relation to injured Buddhsen.

Case of the prosecution, in brief, is that complainant Jagdish used to reside at village Butrabhawar Karumahu with his wife Budhni Bai (since deceased) and uncle-in-law Buddhsen, he got 50 decimals of land for fruit garden, in which he has planted trees. Above the said land, there was the land of father of the appellant namely, Motilal Kenvat. They had previous enmity. On 16.07.2005, when complainant Jagdish was in his house, at that time, the appellant came in his house holding a lathi and started assaulting Jagdish, deceased Budhni Bai tried to intervene, at that time, the appellant assaulted Budhni Bai with lathi on her head, due to which, Budhni Bai fell down and died on the spot. The appellant also assaulted Jagdish and Buddhsen and caused injuries to them. Merg intimation (Ex.P-28) was recorded by Jagdish Kumhar (PW-4) at Police Station Akaltara and on the basis of merg intimation, FIR (Ex.P-6) was registered for offence under Section 302 and 323 of the IPC. After registering the FIR, the injured Jagdish and Buddhsen were examined by the doctor. Dead body of deceased Budhni Bai was sent for postmortem to Primary Health Center, Akaltara vide Ex.P-1(A), where Dr. Ramayan Singh (PW-1) conducted postmortem over the body of the deceased vide Ex.P-1 and found following injuries:-

Lacerated wound 12 x 3 cm over the right posterior occipital region up to occipital bone in fracture site.

Haematoma frontal to maxillary region parietal to ear with lacerated wound 1x½ cm oozing to wound bleeding through right ear [11x12 cm with Haematoma).

Bruise 32 x 5 cm right shoulder towards limb.

Bruise + abrasion 8 x 3 cm left side just lateral to spin.

Bruise over left side back 11 x 3 cm.

Bruise over left side back region 7 x 7 cm.

Bruise 15 x 5 cm. left knee joint lateral site

Bruise right knee joint medial aspect 10 x 5 cm.

Bruise 13 x 5 cm lateral site right elbow joint.

Bruise 14 x 6 cm right elbow joint medial site.

Bruise right breast upper part 6 x 2 cm.

Bruise left on lateral shoulder joint 26 x 6 cm upper region 3 cm and lower region 3 cm.

Bruise left forearm 15 x 5 cm.

Dr. Ramayan Singh (PW-1) opined that cause of death was shock & haemorrhage due to injury over the head and death was homicidal in nature. Inquest was prepared vide Ex.P-11. Clothes of the deceased were seized vide Ex.P-13. Bloodstained and plain soil were seized from the spot vide Ex.P-19. Memorandum statement of the appellant-accused was recorded vide Ex.P-18 and on the basis of his memorandum statement, lathi was seized from the appellant-accused vide Ex.P-20. Injured Jagdish was sent for examination to Primary Health Center, Akaltara, where Dr. C.P.Singh (PW-2) examined him vide Ex.P-2 and found lacerated wound on right parietal region of head 5 x .2 cm. Injured Budhsen was also sent for examination to Primary Health Center, Akaltara, where Dr. C.P.Singh (PW-2) examined him vide Ex.P-3 and found lacerated wound over left occipital region 4x.2 cm and swelling on upper part of left chest. He was advised for x-ray and his x-ray report is Ex.P-4. The appellant was arrested vide arrest memo Ex.P-32.

Statements of the witnesses were recorded. Bloodstained soil, lathi, baniyan, fullshirt, sari, blouse and petticoat were sent for chemical examination, but on examination by Serologist vide Ex.P-34, it could not be ascertained that it was human blood. Only blood found on sari was found to be of “B” group. After due investigation, the police filed the charge-sheet in the Court of Judicial Magistrate First Class, Janjgir, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the Additional Sessions Judge, Janjgir received the case on transfer for trial. The appellant-accused abjured his guilt and entered into defence that he has not committed any offence and he has falsely been implicated in crime in question.

In order to bring home the offence, the prosecution examined as many as 20 witnesses and exhibited 34 documents. The appellant-accused examined none in his defence, however, exhibited statements of Dau Ram, Budhsen Kumhar and Ranju Kumari as Exs.D/1 to D/3 in support of his case.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 19.04.2007, convicted the appellant for offence under Sections 302 and 323 (two times) of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

Mr.Hanuman Prasad Agrawal, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 and 323 (two times) of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. There was no motive to commit murder of deceased Budhni Bai. Moreover, two injured eyewitnesses namely, Jagdish Kumhar (PW-4) and Buddhsen (PW-8) are highly interested and pertinent witnesses, hence, their evidence is not a reliable one and the conviction of the appellant by the trial Court is liable to be set aside on this ground alone. He further submits that single injury was caused over the vital part i.e. head of deceased Budhni Bai and other injuries were on non-vital parts. He also submits that no blood was found on lathi, which was seized from the possession of the appellant. Lastly, on the question of sentence, he submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to Budhni Bai (deceased) in spur of moment. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused her death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as the appellant is in jail since 18.07.2005 and has completed near about 18 years of jail sentence, therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

On the other hand, Mr. Wasim Miyan, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Sections 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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

The first question for consideration would be, whether death of deceased Budhni Bai was homicidal in nature ?

The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the evidence of Dr.Ramayan Singh (PW-1), who conducted postmortem of Budhni Bai, has come to the conclusion that cause of death was sock & haemorrhage due to injury over the head and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Budhni Bai was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

Now, the next question for consideration would be, whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of injured eyewitnesses Jagdish Kumhar (PW-4), Buddhsen (PW-8) and child eyewitness Ranju Kumari (PW-9), who is daughter of deceased Budhni Bai and at the relevant point of time was present on the spot where the incident took place. Thus, on the basis of testimonies of Jagdish Kumhar (PW-4), Buddhsen (PW-8) and Ranju Kumari (PW-9), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to Budhni Bai, due to which, she died on the spot. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the head of the deceased and caused her death. Accordingly, we hereby affirm the said finding.

The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be altered/converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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 the 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.

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 the 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 of the IPC.

Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) (2019) 6 SCC 122 has laid down four ingredients which should be tested to 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.”

In the present case, Jagdish Kumhar (PW-1) is injured eyewitness. In para-1 of his evidence, he has stated that he and Buddhsen (uncle-in-law) came to their house from market at 7-8 p.m., he came into his house and his uncle-in-law was sitting in varanda, after sometime, he came out from his house and was standing in his varanda, at that time, the appellant came to there and said bade babu you came out, then he came out, the appellant told him to give bidi, when he went inside the house for bringing bidi, the appellant assaulted him from back. When his uncle-in-law shouted, the appellant also assaulted him, by which he fell down. Thereafter, the appellant-accused dragged his wife Budhni from inside and killed her. In para-2 of his evidence, he has stated that he went to the house of Sarpanch, Sarpanch told him to go to the house of Kotwar, thereafter he went to the house of Kotwar and narrated the incident to him, then Kotwar reached to the spot.

Thereafter, he went to the police station and lodged merg and FIR. On the next day, police came to the spot, he also came along with police party. In para 9 of his cross-examination, he has stated that on account of dragging of his wife Budhni from inside, injuries were caused on her hands and legs. When his wife was dragged by the appellant, at that time, Buddhsen was lying on the floor. In para 12 of his cross-examination, he has stated that firstly he went to the house of Sarpanch, at that time, his wife was dead. It is true that he had told Ramlal that his uncle-in-law Buddhsen and his wife had been killed by someone, in which his wife had already died. Buddhsen (PW-8) is also injured eyewitness. He has also received the injuries which have been proved by Dr.C.P.Singh (PW-2) vide Ex.P-3. He has also stated stated the same version as stated by Jagdish Kumhar (PW-4).

The Supreme Court in the matter of State of Uttar Pradesh v. Naresh and others (2011) 4 SCC 324 has held that the evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted and observed in paragraph 27 as under:-

“27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107, Balraje v. State of Maharashtra (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211 and Abdul Sayeed v. State of M.P. (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262)

Ranju Kumari (PW-8) is the daughter of deceased Budhni Bai and injured Jagdish Kumar (PW-4). In para 1 of her evidence, she has stated that on the date of incident, she was present in her house, at about 7 p.m. his father and grandfather came to the house, when the accused-appellant called her father out, her father came out, at that time, the accused demanded patta, her father told him that he is not having patta and patta was submitted to police station, at that time, the accused told her father to give bidi, when her father came to his house for bringing bidi, the accused assaulted him from back, her father fell down. When her grandfather came out, the appellant also assaulted him, her grandfather also fell down, both were shouted, at that time, her mother was feeding milk to her younger sister in the house, the appellant-accused dragged her out and killed her. When the accused was killing the mother, she was shouting that don't kill her mother, on her shouting the accused said that don't shout otherwise I will kill you too. In para 4 of her cross-examination, she has stated that the appellant came to the house and demanded patta, when her father told that he is not having patta, then the appellant demanded bidi from his father and when her father went for bringing bidi, the appellant assaulted her father from back. In para 5 of her cross-examination, she has stated that when her mother was feeding the sister, the accused dragged her and killed her, but she cannot tell the reason why it is not written in ExD-3. It is incorrect to say that the appellant has not assaulted her father, grandfather and mother. It is also incorrect to say that she is not knowing the assailant and she is giving false statement on the basis of doubt as taught by her father.

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of injured eyewitnesses Jagdish Kumhar (PW-4), Buddhsen (PW-8) and child eyewitness Ranju Kumari (PW-9), on the date of incident, the appellant came to their house and assaulted Jagdish Kumhar (PW-4) and Buddhsen (PW-8) and also caused lathi blow over the head of deceased Budhni Bai, by which she died. There was no premeditation on the part of the appellant to cause death of deceased Budhni Bai and only because of land dispute, quarrel took place between the appellant and injured Jagdish Kumar (PW-4) and out of that anger and in heat of passion, the appellant assaulted Budhni Bai by lathi by which she died. The appellant did not have any intention to cause death of deceased Budhni Bai, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Budhni Bai, as such, his case would falls within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant 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.

Considering the above-stated facts, also considering the evidence of injured eyewitnesses Jagdish Kumhar (PW-4), Buddhsen (PW-8) and child eyewitness Ranju Kumari (PW-9), taking into consideration that only single injury was caused over head of deceased Budhni Bai and other injuries were on non-vital parts of the body and no blood was found on lathi, which was seized from the possession of the appellant and there was no motive to commit murder of deceased Budhni Bai and also considering that the appellant is in jail since 18.07.2005 and has completed near about 18 years of jail sentence, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC.

Accordingly, conviction of the appellant under Section 302 of the IPC is set aside and now he is convicted under Section 304 Part-I of the IPC and sentenced to undergo for the period already undergone by him i.e. since 18.07.2005 till today (near about 18 years of jail sentence). However, his conviction and sentence under Section 323 (two times) of the IPC are hereby maintained.

The appellant is stated to be in jail, he be released forthwith if not required in any other case.

The criminal appeal is partly allowed to the extent indicated herein-above.

Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.