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2022 DIGILAW 145 (CHH)

Gangaram, S/o Late Kirtan Sav v. State of Chhattisgarh Through Police Station Civil Line, District Bilaspur Chhattisgarh

2022-03-25

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

body2022
JUDGMENT : R.C.S. Samant, J. 1. These two criminal appeals have been preferred against the judgment of conviction and order of sentence dated 25-08-2015 passed by the 5th Additional Session Judge, District-Bilaspur, Chhattisgarh in Sessions Trial No.313/2001 convicting the accused/appellants for commission of offence under Sections 302 r/w Section 34 and 307 r/w Section 34 of the Indian Penal Code (for short 'the IPC') and sentencing them to undergo life imprisonment with fine of Rs.1,000/-, RI for 7 years with fine of Rs.500/- respectively with default stipulations. 2. The prosecution case, in brief, is this that on 06-6-2001 the appellants in both the cases had quarreled and manhandeled with Ratna Mahana (PW-2) who is sister of Lalit Mahana (PW-1), on the morning on 06-6-2001. Ratna Mahana (PW-2) informed about this incident to her elder brother Raghuveer and then went to the Mahila Thana to lodge a report. On the evening of the same day, the complainant Lalit Mahana (PW-1) along with Sanyasi (deceased) went to the house of the appellants and were standing in front of the house, they were giving advise to the appellants to not to interfere in the life of their sister Ratna. The appellants then argued with the complainant and deceased Sanyasi, then manhandled them. During this manhandling, appellant Santosh Sao, who was carrying a knife stabbed Sanyasi on his back. Lalit Mahana (PW-1) attempted to intervene who was also injured with knife by appellant Santosh Sao. The other appellants assaulted the complainant with hands and fists. FIR (Ex.-P/1) was lodged by Lalit Mahana (PW-1), who informed police that his brother Sanyasi was alive and lying injured on the spot. The police got Sanyasi admitted in hospital, who died later on. The police conducted the inquest procedure. Body of deceased was subjected to postmortem examination. Dr. G.L. Arora (PW-12) has opined vide his report Ex.-P/16 that the death of the deceased Sanyasi was homicidal. The police has conducted the investigation in which blood stained cloth were seized from Ratna Mahana (PW-2) vide Ex.-P/5. Spot map was prepared vide Ex.-P/6. Appellant Santosh Sao was apprehended and interrogated by the police, who made a statement of discovery regarding the knife which he had concealed vide memorandum Ex.-P/10. At the instance of appellant Santosh Sao, the knife was recovered and seized vide Ex.-P/11. The seized knife was examined by Dr. Spot map was prepared vide Ex.-P/6. Appellant Santosh Sao was apprehended and interrogated by the police, who made a statement of discovery regarding the knife which he had concealed vide memorandum Ex.-P/10. At the instance of appellant Santosh Sao, the knife was recovered and seized vide Ex.-P/11. The seized knife was examined by Dr. Lakhan Singh (PW-10) who vide his report Ex.-P/13 had opined that this weapon could have been used to cause injury to Sanyasi and Lalit Mahana. Blood stained shirt of appellant Santosh Sao was seized vide Ex.-P/18. A wooden club was seized from appellant Gangaram Vide Ex.-P/19. A blood stained shirt was also seized from appellant Gangaram vide Ex.-P/20. A wooden club was seized from appellant Savita Sao vide Ex.-P/21 and a blood stained Chuneri and Kurta were also seized from appellant Savita Sao vide Ex.-P/22. A Saree having blood stains was seized from appellant Ram Bai vide Ex.-P/23. The cloths of the deceased which were preserved by the doctor conducting autopsy was seized vide Ex.-P/24. The appellants were formally arrested. All the seized articles were sent for FSL examination. Vide report Ex.-P/33, presence of blood was found on the knife, cloths and other articles. The statement of witnesses were recorded under Section 161 of CrPC. After completion of investigation, chargesheet was filed before the Court. 3. After the committal procedure, the learned Sessions Judge took cognizance in the case and charged the appellants under Section 307 and 302 of IPC. The prosecution examined 13 witnesses. On completion of the prosecution evidence, the appellants/accused persons were examined under Section 313 Cr.P.C., in which they denied all the incriminating evidence present against them. No witness was examined in defence. After giving opportunity of hearing to the prosecution and defence, the learned Sessions Judge delivered the judgment dated 5.7.2003 acquitting the appellants from all the charges against them. Complainant Lalit Mahana PW-1 filed a Criminal Revision No.358/2003 before this Court which was decided by order dated 27.1.2015. The revision petition was allowed. Case was remanded to the trial Court with direction to make re-appreciation of the evidence and grant further opportunity of hearing to the parties before deciding the case afresh. The learned trial Court granted additional opportunity of hearing in which Lalit Mahana (PW-1), Ratna (PW-2) were recross-examined. Dr. Lakhan Singh (PW-10) and Inspector V.K Mishra (PW-13) were also recross-examined. Case was remanded to the trial Court with direction to make re-appreciation of the evidence and grant further opportunity of hearing to the parties before deciding the case afresh. The learned trial Court granted additional opportunity of hearing in which Lalit Mahana (PW-1), Ratna (PW-2) were recross-examined. Dr. Lakhan Singh (PW-10) and Inspector V.K Mishra (PW-13) were also recross-examined. One witness Smt. Savita (DW-1) was examined in defence. The learned trial Court has after giving opportunity of hearing to the prosecution and defence passed the impugned judgment in which all the appellants stand convicted and sentenced as mentioned hereinabove. 4. It is submitted by learned counsel for the appellant that the impugned judgment has been delivered by learned trial court being prejudiced by the order of the High Court dated 27-01-2015 passed in Criminal Revision No.358/2003 by which the earlier judgment of acquittal dated 05-07-2003 passed by the 5th Additional Sessions Judge, Bilaspur in S.T. No.313/2001 was set aside and the case was remanded with direction to decide the same afresh. 5. It is submitted by learned counsel for the appellants in CRA No.1111 of 2015 submits that conviction against the appellants is totally erroneous and unsustainable. According to the evidence that was brought in the trial neither offence under Section 302 of the IPC is made out nor offence under Section 307 of the IPC is made out. It had been a case of sudden fight without any premeditation which resulted in unfortunate death of deceased Sanyasi. In fact, the facts in the case represent that the complainant and the deceased party were the aggressors, things happened all of sudden, therefore, reaction given by the appellants cannot be said to be based on any premeditation. Lalit Mahana (PW-1) is injured witness who has stated about the history of the incident that has occurred in the morning of the same day and that he himself and deceased Sanyasi had been present in front of the house of the appellants to quarrel with the appellants. Lalit Mahana (PW-1) and Sanyasi both started manhandling with the appellants and subsequent to which, the appellants exercised their right of private defence. It is submitted that the conviction recorded by the trial Court against the appellants is on the higher side. There are no ingredients present to hold conviction under Section 302 or 307 of the IPC. Lalit Mahana (PW-1) and Sanyasi both started manhandling with the appellants and subsequent to which, the appellants exercised their right of private defence. It is submitted that the conviction recorded by the trial Court against the appellants is on the higher side. There are no ingredients present to hold conviction under Section 302 or 307 of the IPC. The case against the appellants is covered under one of the Exceptions under Section 300 of the IPC. Reliance has been placed on the judgment of this Court in the matter of Chottan @ Hudda Vs. The State of Chhattisgarh in CRA No.368 of 2014 decided on 30-07-2019 and another judgment of this Court in the matter of Alekho and others Vs. State of M.P., 2015 (2) CgLJ 428 . It is submitted by learned counsel for the appellants that conviction against the appellants be reduced and accordingly the sentence against the appellants may also be reduced to the period of detention already undergone by them in jail. 6. Learned counsel for the appellant in CRA No.1139 of 2015 submits that it were Lalit Mahana (PW-1) and Sanyasi (deceased) who were the aggressors who had come in front of the house of the appellants to quarrel and assault them. Appellant Gangaram had suffered injuries in the same incident. Faguram Patel (PW-8) has made a statement in his cross-examination, that he saw the victim and the deceased who had come to the house of the appellant Gangaram armed with knife and they were hurling abuses, subsequent to which, the incident took place. Therefore, the case against this appellant is clearly of self defence and the act of this appellant may fall under one of the Exceptions under Section 300 of the IPC. Hence, this appellant has also a fit case for conversion of conviction against him and also for reduction of sentence imposed upon him. 7. The State counsel opposes the grounds raised in both the appeals and submits that the prosecution has proved its case beyond reasonable doubt, that the appellants were assailants who inflicted fatal injuries upon the deceased Sanyasi which resulted in his death and they also attempted to cause death of Lalit Mahana (PW-1). 7. The State counsel opposes the grounds raised in both the appeals and submits that the prosecution has proved its case beyond reasonable doubt, that the appellants were assailants who inflicted fatal injuries upon the deceased Sanyasi which resulted in his death and they also attempted to cause death of Lalit Mahana (PW-1). Apart from oral evidence present in the case, there is scientific evidence on the basis of the FSL report (Ex.-P/33) showing presence of blood on the clothes of the appellants and also the knife seized from the appellant Santosh Sao and batta and wooden club seized from appellants Gangaram and Kumari Savita Sav. Hence, conviction against the appellants is well founded which needs no interference. 8. Heard learned counsel for the appellants and perused the record of the trial Court. 9. Ratna Mahana (PW-2) is sister of deceased Sanyasi and Lalit Mahana (PW-1). She has stated in her deposition before the Court that on the date of incident at about 6:00 a.m. in the morning, she had a quarrel with appellant Savita subsequent to which, she was beaten by appellant Savita and other appellants Sahodra Bai, Kanti Bai and Ram Bai who injured her. She narrated about this incident to her brother Raghuveer and subsequent to that she also lodged the report in Mahila Thana. She has further stated that she narrated about the incident to Lalit Mahana (PW-1) and Sanyasi (deceased) in the evening, who met with appellant Sahodra Bai and gave her advise not to interfere with life of Ratna Mahana (PW-2). She saw that appellant Sahodra Bai called the other appellants who then started beating Lalit Mahana (PW-1) and Sanyasi. Only one appellant Santosh Sao was armed with knife and other appellant Savita Sav was armed with wooden club. Her statement has remained unrebutted in the whole cross-examination. 10. She saw that appellant Sahodra Bai called the other appellants who then started beating Lalit Mahana (PW-1) and Sanyasi. Only one appellant Santosh Sao was armed with knife and other appellant Savita Sav was armed with wooden club. Her statement has remained unrebutted in the whole cross-examination. 10. Lalit Mahana (PW-1) is the injured witness who has stated about the narration given by the Ratna Mahana (PW-2) of the previous quarrel with appellant Savita Sav and others and that he along with Sanyasi were on their way and were crossing the house of the appellants, when they were stopped by the appellants who complained about Ratna Mahana (PW-2), that she is abusing them, on which Sanyasi replied that it was the appellants who were interfering in the life of Ratna Mahana (PW-2), then they quarreled with each other and the appellants started manhandling with Lalit Mahana (PW-1) and Sanyasi (deceased). It was during this time appellant Satosh Sao who was carrying a knife inflicted injury on the back of Sanyasi with that knife and he also inflicted knife injury on the witness himself on his back. He stated that rest of the appellants continued assaulting Sanyasi with wooden club and hands and fists. Lalit Mahana (PW-1) went to the police station with Ratna Mahana (PW-2) and lodged the FIR (Ex.-P/1). Sanyasi was left lying on the spot, the police admitted him to the hospital. In his cross-examination, he has remained firm on this statement and also stated that he was also sent to hospital where he remained admitted for two to three days. Some discrepancies has been pointed out, but the same are not material in any sense to consider that Lalit Mahana (PW-1) was making false statement before the Court. 11. Other witness examined as witness of incident, namely, Kadambani Bai (PW-6), is mother of Sanyasi (deceased) and Lalit Mahana (PW-1). She is a hearsay witness who was not present on the spot. 12. Chandani Patel (PW-7) is a child witness and she has not supported the prosecution case. 13. Faguram Patel (PW-8) has also turned hostile and not supported the prosecution case. 14. Other witnesses examined are the witnesses of investigation procedure. 15. Doctor Lakhan Singh (PW-10) had examined Sanyasi on the date of incident itself, i.e., 06-06-2001 and found four stabbed wound on his back caused by hard, sharp pointed object. 13. Faguram Patel (PW-8) has also turned hostile and not supported the prosecution case. 14. Other witnesses examined are the witnesses of investigation procedure. 15. Doctor Lakhan Singh (PW-10) had examined Sanyasi on the date of incident itself, i.e., 06-06-2001 and found four stabbed wound on his back caused by hard, sharp pointed object. Sanyasi was unconscious, his pulse and blood pressure was not measurable. Therefore, he had given written information Ex.- P/12 to the police station and on his information and the information given by Lalit Mahana (PW-1), the FIR (Ex.-P/1) was lodged registering offence under Section 294, 506, 323/34 of the IPC only. Doctor Lakhan Singh has also examined injured Lalit Mahana (PW-1) and found injuries on his body vide report Ex.-P/34 opining that the injuries was caused by sharp penetrating object. Sanyasi (deceased) died on the same day, i.e., on 06-06-2001. The morgue intimation has not been exhibited in this case. Inspector V.K. Mishra (PW13) has stated that he received information regarding death of the deceased on 06-06-2001 on which basis he recorded the morgue intimation and conducted inquest procedure. Doctor G.L. Arora (PW-12) has conducted the postmortem examination of the deceased on 07-06-2001 who found one stab wound on the left side of the back of size 1 x 0.5 cm., on left infrascapular area, another penetrating wound was of size 1 x 0.7 cm., on right infrascapular area, another penetrating wound of size 1.2 x 0.5 cm. present on the right lumber area, another penetrating wound of size 1.0 x 0.6 cm. near LG spinal region, one abrasion of size 1.3 x 0.5 cm. which was below the chin and one abrasion of size 2 x 2 cm. on lateral aspect of the right elbow. On internal examination both the chest cavities were found full of blood. Both the lungs were punctured. He has opined that cause of death had been cardio respiratory arrest resulting from the injuries in the lungs and that nature of death was homicidal vide PM report Ex.-P/16. 16. Learned trial Court has examined this evidence and held proved that death of deceased Sanyasi was caused by fatal injuries inflicted upon him. The appellants are not specifically challenging the cause of death of the deceased and also that the same was homicidal. 16. Learned trial Court has examined this evidence and held proved that death of deceased Sanyasi was caused by fatal injuries inflicted upon him. The appellants are not specifically challenging the cause of death of the deceased and also that the same was homicidal. The only ground raised by them are these that it had not been a case of culpable homicide amounting to murder. 17. Considered the arguments of the appellants and made scrutiny of the evidence present on record regarding fact situation. According to the testimony of Lalit Mahana (PW-1) and Ratna Mahana (PW-2) the place of incident had been the front of the house of the appellants. As stated Sanyasi (deceased) and Lalit Mahana (PW-1) had been present there to give advise to the appellants for not interfering in the life of Ratna Mahana (PW-2), which converted into arguments and then both the parties started quarreling with each other. On this basis, it can be said that Lalit Mahana (PW-1) and Sanyasi (deceased) had went to the place of the appellants to pick a quarrel with the appellants. Manhandling went on and it was during this manhandling appellant Santosh Sao inflicted four knife injuries on Sanyasi (deceased) which resulted in his death. As argued that it was a case of self defence, we do not hold such opinion. The appellants who were six in numbers who had clearly outnumbered the victim Lalit Mahana (PW-1) and Sanyasi who were only two persons present on the spot. Therefore, it was a case of show off muscle power by the appellants. However, this incident can be regarded as a case of sudden fight which was invited by the victim and the deceased themselves and they also gave provocation to the appellants to react accordingly as they have reacted. There is statement of Chandani Patel (PW-7) who in cross-examination has stated that Lalit Mahana (PW-1) and Sanyasi were armed with knife who forced their entry into the house of Gangaram claiming that they will either kill appellant Savita or ravish her. Faguram (PW-8) has also made similar statement in cross-examination. Although both these witnesses have been declared hostile by the prosecution for not supporting the prosecution case, but on their making such statement in cross-examination it was necessary for the prosecutor to reexamine these witnesses for clarifying the statement that they have made in cross-examination. Faguram (PW-8) has also made similar statement in cross-examination. Although both these witnesses have been declared hostile by the prosecution for not supporting the prosecution case, but on their making such statement in cross-examination it was necessary for the prosecutor to reexamine these witnesses for clarifying the statement that they have made in cross-examination. Although these witnesses are not reliable witnesses in any sense on account of their hostility and denying the statement given to the police, however, their statement creates a circumstance in favour of the appellants that the incident had not been one sided. Therefore, this appears to be a case of sudden fight. Savita Charan (DW-1) is appellant who has examined herself under Section 315 of the Cr.P.C. when she has stated that on the date and time of the incident when was at home Lalit Mahana (PW-1) and Sanyasi both came to her house armed with knife, they quarreled and they also had intended to rape her by pulling her clothes. In cross-examination by the prosecution she admitted that she has never made any complaint to any authority regarding this incident. Lalit Mahana (PW-1) is the person against whom Savita Charan (DW-1) has made allegatory statement. On scrutiny of the cross-examination of Lalit Mahana (PW1), it appears that no such suggestion was given to him that he had forcefully entered into the house of Savita and acted and attempted to rape her in association with Sanyasi, i.e, deceased. Therefore, the statement of Savita Charan (DW-1) appears to be afterthought and which cannot be taken into consideration. However, there is one evidence present regarding presence of injuries on the body of appellant Gangaram. The injury report in defence is Ex.- D/3. The application for MLC for examination mentions that the injuries were suffered by appellant Gangaram on 06-06-2001 in the fight with deceased Sanyasi, on which basis it can be inferred that it were Lalit Mahana (PW-1) and Sanyasi (deceased) who also made some assault upon the appellants side. 18. Fourth Exception of Section 300 of the IPC mentions that 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. In the present case there is no presence of premeditation or intention. In the present case there is no presence of premeditation or intention. Secondly, it was clearly a sudden fight and also it was in the heat of passion which made the appellants to act as they have acted. The exception to this rule that the offender has not taken any undue advantage. According to the evidence of Lalit Mahana (PW-1) and Ratna Mahana (PW-2), the injuries were inflicted upon the deceased during continuation of fight, it was not a case that the deceased had fell down on the ground and was incapacitated to act when the injuries was inflicted upon him. Therefore, it was not a case of taking any undue advantage, neither of acting in cruel or unusual manner. It appears that appellant Santosh Sao was inflicting injuries on the deceased in the heat of passion and there is no such evidence to show that he had acted in cruel manner or in any unusual manner. As per the evidence, blows were coming and blows were being returned, however, the appellants had exceeded in returning the blows and also making use of a knife by which the fatal injuries were caused to deceased Sanyasi. Hence, on the basis of his analysis, we are of the view that present case is clearly covered under Exception 4 of Section 300 of the IPC and therefore, conviction against the appellants under Section 302 read with Section 34 of the IPC is clearly not made out, which is fit to be converted into conviction of offence under Section 304 Part II of the IPC. As regards conviction against the appellants under Section 307 read with Section 34 of the IPC, after having considered on the evidence in this regard we are of the view that this conviction against the appellants needs no interference. 19. After considering on the facts, circumstances, evidence and submissions made by the appellants side and the State, we find that both the appeals are fit to be allowed for the purpose of modifying the conviction against the appellants. Both the appeals are allowed in part. Conviction of the appellants under Section 302 read with 34 of the IPC is set aside and instead all the appellants are now convicted for offence under Section 304 Part II/34 of the IPC. The conviction of the appellants under Section 307/34 of the IPC is upheld. Both the appeals are allowed in part. Conviction of the appellants under Section 302 read with 34 of the IPC is set aside and instead all the appellants are now convicted for offence under Section 304 Part II/34 of the IPC. The conviction of the appellants under Section 307/34 of the IPC is upheld. The appellants were arrested on 07-06-2001 and continued in detention for some time and by first judgment dated 05-07-2003 they were acquitted. CRR No.358/2003 filed by Lalit Mahana (PW-1) was decided by the High Court on 27-01-2015 which was allowed and the judgment of acquittal was set aside. As mentioned in the impugned judgment, till 25-08-2015 appellant Santosh Sao had completed jail sentence of period 897 days, appellant Ram Bai had completed jail sentence of period 70 days, appellant Savita Sav had completed jail sentence of period 298 days, appellant Subhadra @ Sahodra Bai had completed jail sentence of period 14 days, appellant Smt. Kanti Bai had completed the jail sentence of period 27 days and appellant Gangaram had completed the jail sentence of period 90 days. During pendency of these appeals appellants Subhadra @ Sahodra Bai, Kumari Savita Sav, Smt. Kanti Bai and Ram Bai were granted bail by this Court on 06-10-2020 and till then they had completed more than five years of jail sentence. Therefore, appellant Kumari Savita Sav has completed about six years of jail sentence and appellants Subhadra @ Sahodra Bai, Smt. Kanti Bai and Ram Bai have completed more than five years of jail sentence. Appellant Santosh Sao has completed jail sentence of period about 9 years and appellant Gangaram has completed jail sentence of period about 6 years and 9 months. All the appellants are sentenced with jail sentence of the period already undergone in jail for the offence under Section 304 Part II/34 of the IPC and the sentence of imprisonment imposed upon the appellants for offence under Section 307/34 of the IPC is modified to the jail sentence of the detention period already undergone by them. No fine is imposed for any of the conviction. The appeals stand disposed off.