Veeru Kol vs State Of Chhattisgarh

Sanjay K. Agrawal, J

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

Criminal Appeal No. 491/2019 has been preferred by appellants Veeru Kol (A-1) and Rajjan Kol (A-2) and Criminal Appeal No. 437/2015 has been preferred by two appellants Ashok Goutam [since died, substituted by his wife Smt. Archana Goutam (A-3)] and Dilip @ Dillu Kol (A-4) against impugned judgment dated 18/03/2015 passed by learned Additional Session Judge, Pendraroad, District Bilaspur in Sessions Trial No. 12/2014 whereby they have been convicted for offence punishable under Section 302/34 of IPC and have been sentenced to undergo life imprisonment with fine of Rs. 200/- each and in default payment of fine, further R.I. for two months and for Section 326/34 of IPC and sentenced to undergo R.I. for 5 years with fine of Rs. 100/- each and in default of payment of fine, further R.I. for one month, with a direction to run both the sentences concurrently.

Case of the prosecution, in brief, is that on 03/11/2013 at about 11 PM at Village, Dabrikhar, Choubepara within the ambit of Police Station Pendra, the appellants herein, in furtherance of their common intention of causing of one Ganesh Prasad, assaulted him with deadly weapons like sword, laathi (wooden stick), spade and bricks on account of which he suffered grievous injuries and died and the appellants further assaulted one Gokul Rathor (P.W.-1), who also suffered grievous injuries and they, thereby, committed the aforesaid offence.

Further case of the prosecution is that on 04/11/2013, complainant Gokul Rathor (P.W.-1) lodged a report at the Police Station that on the previous night of Diwali, his maternal uncle Ganesh Prasad had gone to play cards and to gamble with some people including the four appellants herein. In the meanwhile, complainant (P.W.-1) and the deceased were winning, however, the appellants did not pay money to them. When they asked the appellants for money, they abused the complainant and the deceased and went from the spot saying that they will return with money. At about 11 PM, appellants Veeru Kol (A-1), Rajjan Kol (A-2) and Dilip @ Dillu Kol (A-4) returned armed with sword, laathi and spade, respectively, and Veeru Kol (A-1) attacked the complainant (A-1) with sword. When the deceased tried to interfere, the appellants assaulted him with the said weapons. Thereafter, the complainant ran away from the spot and informed about the incident to Nathu Rathor (P.W.-11) and Baddulal Rathor (P.W.-12) and took them to the spot and they found that Ganesh Prasad was lying in an unconscious condition and he had suffered injuries on his head and right ear from which blood was oozing. They took Ganesh Prasad to the Hospital wherein he succumbed to his injuries and died on 04/11/2013.

On the basis of the said report, first information report was lodged against the appellants vide Ex. P/2 and morgue intimation was registered vide Ex. P/1. Summons were issued to the witnesses and inquest was conducted vide Ex. P/12 and thereafter, the dead body of Ganesh Prasad was subjected to postmortem which was conducted by Dr. Hemant Tawar (P.W.-10) and as per the postmortem report (Ex. P/15), cause of death is said to be coma and shock due to fracture of right parietal bone of skull and nature of death is said to be homicidal. Complainant Gokul Rathor was also medically examined vide MLC report (Ex. P/14). Pursuant to the memorandum statement of appellant Veeru Kol (A-1) vide Ex. P/5, recovery of sword was made vide Ex. P/8, pursuant to the memorandum statement of appellant Rajjan Kol (A-2) vide Ex. P/6, laathi was seized vide Ex. P/9 and blood stained trousers worn by him were seized vide Ex. P/11 and pursuant to memorandum statement of appellant Dilip @ Dillu Kol (A-4) vide Ex. P/9, recovery of spade was made vide Ex. P/10. The said seized articles were sent for forensic examination and as per the FSL report (Ex. P/25), blood was said to be found on the trousers seized from appellant Rajjan Kol (A-2) and on the spade seized from appellant Dilip @ Dillu Kol (A-4). After due investigation, the appellants were charge-sheeted which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined 13 witnesses and brought on record 25 documents. Statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt, however, the did not examine any one in their defence and brought on record 4 documents only.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Ganesh Prasad to be homicidal in nature and further finding the appellants to be authors of crime in question, proceeded to convict them for offence punishable under Sections 302/34 and 326/34 of IPC and sentenced them as aforesaid.

Mrs. Ranjana Jaiswal, learned counsel for appellants Veeru Kol (A-1) and Rajjan Kol (A-2) appearing in Criminal Appeal No. 491/2019, would submit that the trial Court is absolutely unjustified in convicting the appellants for offences punishable under Sections 302/34 and 326/34 of IPC relying upon the sole testimony of Gokul Rathor (P.W.-1), who is though cited as an eye-witness, but his testimony is not trustworthy as he is the nephew of the deceased and thus, is a related witness. Apart from that, there is no other evidence available on record as though pursuant to the memorandum statements of the appellants (A-1 and A-2), seizure of sword and laathi has been made from them vide Ex. P/8 and P/9, however, in the FSL report (Ex. P/25), no human blood has been found on the said articles and in view of the decision rendered by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, recovery would be of no use to the prosecution. At the most, the appellants can be convicted for offence punishable under Section 304 Part I of IPC as their case falls within Exception 4 to Section 300 of IPC and since they have been in jail since 04/11/2013, they be sentenced to the period already undergone.

Mr. Kamrul Aziz, learned counsel for the appellants Ashok Goutam (deceased, through wife) (A-3) and Dilip @ Dillu Kol (A-4) appearing in Criminal Appeal No. 437/2015, would submit that there is no memorandum statement available on record with regard to both of these appellants and only seizure of spade has been made at the instance of appellant Dilip @ Dillu Kol (A-4) vide Ex. P/11 but then again prosecution has not been able to prove whether human blood was found on it, thus, they could not have been convicted with the aid of Section 34 of IPC.

Per contra, Mr. Animesh Tiwari, learned Deputy Advocate General appearing on behalf of respondent/State, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and as such, the trial Court has rightly convicted the appellants for the offence in question relying upon the testimony of eye-witness Gokul Rathor (P.W.-1) and it is not a case which would be covered with Exception 4 to Section 300 of IPC, as such, the instant appeal deserves to be dismissed.

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

The first question for consideration would be whether the death of deceased Ganesh Prasad is homicidal in nature ?

Learned trial Court has answered this question in affirmative and held the death of deceased Ganesh Prasad to be homicidal in nature relying upon the expert medical opinion of Dr. Hemant Tawar (P.W.- 10) who has proved the postmortem report (Ex. P/15) in which cause of death is said to be coma and shock due to fracture of right parietal bone of skull and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/15) as well as the statement of Dr. Hemant Tawar (P.W.-10) and looking to the grievous injury suffered by the deceased on his head, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Ganesh Prasad is homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellants assaulted the deceased Ganesh Prasad with weapons like sword, laathi, spade and bricks on account of which he suffered grievous injuries and died ?

It is the case of the prosecution that Gokul Rathor (P.W.-1) is an eye-witness as he was present on the spot along with the appellants as well as the deceased at the time of offence and he was also assaulted by the appellants. In his statement before the Court, injured witness Gokul Rathor (P.W.-1) has clearly stated that on the night of Diwali festival, some people were gambling and playing cards behind the house of appellant Ashok Goutam (A-3) and Gokul Rathor (P.W.-1) and his maternal uncle deceased Ganesh Prasad also went there to play cards wherein the four appellants herein were already playing cards. While playing cards, some dispute arose between the appellants and Gokul Rathor (P.W.-1) and the appellant Viru Kol (A-1) assaulted him with sword, appellant Rajjan Kol (A-2) assaulted him with laathi, appellant Ashok Goutam (A-3) assaulted him with bricks and appellant Dilip @ Dillu Kol assaulted him with spade. Thereafter, the appellants also assaulted deceased Ganesh Prasad, who fell in an unconscious condition and meanwhile, Gokul Rathor (P.W.-1) ran away from the spot and when he came back along with Nathu Rathor (P.W.-11) and Baddulal Rathor (P.W.-12), he found that appellants had already assaulted Ganesh Prasad and thereafter, Gokul Rathor (P.W.-1) took the deceased to the hospital, however, he died on the way. Though Gokul Prasad has been subjected to some extent of cross-examination but nothing has been brought on record to show that he has made false statements and that his testimony cannot be relied upon, especially when MLC report (Ex. P/14) has also been brought on record to show that he was also assaulted by the appellants.

Moreover, seizure of sword, laathi and spade has also been made from the appellants Veeru Kol (A-1), Rajjan Kol (A-2) and Dilip @ Dillu Kol (A-3), respectively, which has been proved by the Investigating Officer D.S. Netam (P.W.-13). Thus, we are of the considered opinion that the trial Court has rightly relied upon the testimony of eye-witness Gokul Rathor (P.W.-1) as well as on the other corroborative evidence available on record to hold that appellants have assaulted the deceased by which he suffered grievous injuries and died. We affirm the said finding recorded by the trial Court.

The third and last question for consideration would be whether the trial Court has rightly convicted the appellants for offence punishable under Section 302/34 of IPC or their case would be covered wtih Exception 4 to Section 300 of IPC, as contended by learned counsel for the appellants ?

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.”

With regard to the issue in hand, in the matter of Felix Ambrose D'Souza v. State of Karnataka (2009) 16 SCC 361, the Supreme Court has held in paragraph 7 as under :-

“7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 Part II IPC alone could have been rendered possible. Though the learned counsel for the respondent State strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. AS noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature. Irrespective of the silent nature of ill feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the storeroom by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with a hammer in his hand and attempts made by the appellant to physically prevent the deceased from doing so, and use of physical force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps, neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of the moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 Part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him under Section 304 Part II IPC.”

The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue at hand 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 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 when and if there is intent and knowledge, the 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.

Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in the matter of Felix Ambrose D'souza (supra) and Arjun (supra), it is quite vivid that on the night of Diwali festival, Gokul Rathor (P.W.-1) and deceased Ganesh Prasad joined the appellants herein in playing cards and on account of some dispute, the appellants assaulted the deceased as well as injured witness Gokul Rathor (P.W.-1) with sword, laathi, bricks and spade due to which Ganesh Prasad suffered grievous injuries and died. It is evident that there was no premeditation on the part of the appellants to commit the crime in question as they had all gathered to play cards on the night of Diwali and only on account of sudden quarrel and in heat of passion, some dispute arose and appellants assaulted the deceased as well as Gokul Rathor (P.W.-1). Thus, their case would be covered with Exception 4 to Section 300 of IPC. However, looking to the injuries suffered by the deceased on his head, which is a vital part of the body, the appellants must have had the intention as well as knowledge that their act would likely cause the death of the deceased. Thus, conviction of the appellants for offence punishable under Section 302/34 is altered to Section 304 Part I of IPC and appellants Veeru Kol (A-1), Rajjan Kol (A-2) and Dilip @ Dillu Kol (A-4) are sentenced to undergo R.I. for 10 years and since appellant Ashok Goutam (A-3) has already died and the appeal on behalf of him has been contested by his wife, therefore, we need not award any sentence. The conviction of the appellants for offence under Section 326/34 is well-merited and it is hereby maintained along with the sentence imposed by the trial Court.

Accordingly, these criminal appeals are allowed to the extent indicated herein-above.

Let a certified copy of this order along with the original record be transmitted to trial Court concerned for necessary information and action, if any.