Anand Ram Jaiswal vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellants-accused herein is directed against the impugned judgment of conviction and order of sentence dated 04.07.2016 passed by the Sessions Judge, Janjgir Champa, Chhattisgarh in Sessions Trial No.187/2015, by which, the 2 appellants herein 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 pay fine of Rs.1,000/-each; in default of payment of fine to further undergo additional rigorous imprisonment for three months.

Case of the prosecution, in short, is that on 22.07.2015 at about 4.00 pm, in village Kikirda, Police Station Birra, District Janjgir Champa, the 2 appellants, in furtherance of their common intention, assaulted Ramprakash (since deceased) with bamboo stick and wooden stick (blunt side of axe), by which, he received grievous injuries and died in the hospital during the course of treatment; thereby committed the offence of murder punishable under Section 302 read with Section 34 of the IPC.

Appellant No.1 and PW-4, Manaram are real brothers. Deceased- Ramprakash is son of Manaram (PW-4) and appellant No.2 is son of appellant No.1. As per Manaram (PW-4), the agricultural land has already been partitioned between them by their father and prior to the date of offence, some quarrel took place between PW-4 and appellant No.1. It is the further case of prosecution that on the date of offence, at about 04-4.30 pm, deceased-Ramprakash came to the shop of Annu Kumar Jaiswal (PW-1), named as ‘Shringar Sadan’ and was eating some mixture (eatable), then the 2 appellants came there and assaulted the deceased by bamboo stick and wooden stick (blunt side of axe), by which, he suffered grievous injuries on head. Thereafter, the deceased was taken to District Hospital, Janjgir, where he died during the course of treatment at about 9.00 pm. Panchanama was conducted vide Ex.P-8 and merg intimation was registered vide Ex.P-15. F.I.R. was lodged vide Ex.P-22. The dead body was subjected to postmortem, which was conducted by Dr. Vijay Shrivastava (PW-9), who opined that the cause of death was shock and hemorrhage as a result of head injury and its complication and the death was homicidal in nature. Postmortem report is Ex.P-18. Pursuant to the memorandum statements of the appellants/accused vide Exs. P-12 and P-13, one bamboo stick and one wooden stick (blunt side of axe) were seized vide Exs.P-11 and Ex. P-14, respectively. Sample of plain floor cement and blood stained floor cement were taken vide Ex.P-10. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur. Blood stains were found on the bamboo stick, seized from appellant No.1- Anand Ram, but on the other articles, no blood stains were found as per the FSL report and it is of no use 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 11 witnesses and exhibited 28 documents and the defence in support of its case has examined one defence witness and has exhibited 2 documents.

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. Rishi Rahul Soni, learned counsel appearing for the appellants would submit that the appellants have been falsely implicated in the instant case. He further submits that Appellant No.1 and PW-4-Manaram both are real brothers and deceased-Ramprakash was son of Manaram (PW-4). The agricultural land was partitioned by their father and there was some dispute in respect of property between them. On the date of incident, deceased-Ramprakash was sitting in the shop of PW-1, Annu Kumar Jaiswal and eating some mixture, at that time, the 2 appellants came there and some quarrel took place between them and the appellants have assaulted the deceased by bamboo stick and wooden stick (blunt side of axe), by which, the deceased received grievous injuries and died, as such, there was no intention or premeditation on the part of the appellants. Therefore, the case of the appellants would fall within the purview of Exception 4 to Section 300 of the 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. He also submits that the appellants are in jail since 24.07.2015 and thereby, they have completed the jail sentence for more than 8 years and 5 months, therefore, they be sentenced to the period already undergone by them.

Per contra, Mr. Ashish Tiwari, learned 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 and death of the deceased is homicidal in nature and it is not a case where the appellants’ conviction under Section 302 read with Section 34 of IPC can be altered/converted under Section 304 Part II of IPC, as such, the instant appeal is liable to be dismissed.

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

The first question as to whether the death of deceased- Ramprakash was homicidal in nature, has been answered in affirmative by the trial Court relying upon the postmortem report (Ex.P-18) proved by Dr. Vijay Shrivastava (PW-9), 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 herein are the perpetrators of crime ?

The case of the prosecution is based on the testimonies of three eye-witnesses i.e. Annu Kumar Jaiswal (PW-1), Rajesh Kumar Jaiswal (PW-2) and Ram Kumar Jaiswal (PW-3). Annu Kumar Jaiswal (PW-1) is the Shop Keeper of Shringar Sadan, in whose shop the deceased- Ramprakash was eating mixture. He stated that deceased- Ramprakash came to his shop and started eating mixture, at that time, the 2 appellants came there and assaulted him with the bamboo stick and wooden stick (blunt side of axe). Rajesh Kumar Jaiswal (PW-2) has also stated that the deceased was eating mixture in the shop of PW-1, at that time, the 2 appellants came there and assaulted him with bamboo stick and wooden stick. Similarly, Ramkumar Jaiswal (PW-3) has stated regarding the assault mady by the 2 appellants with bamboo stick and wooden stick on the deceased. We, therefore, affirm the said finding of the trial Court holding that the 2 appellants herein have caused grievous injuries to Ramprakash 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 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 bamboo stick from appellant No.1- Anand Ram and wooden stick (blunt side of axe) from appellant No.2-Arvind Kumar pursuant to their memorandum statements and in the FSL report, blood stains were found on the bamboo stick, however, no blood was found on the wooden stick (blunt side of the axe). Appellant No.1- Anand Ram is the father of appellant No.2- Arvind Kumar. The deceased was son of Manaram (PW-4), who is real brother of appellant No.1- Anand Ram. Thus, the deceased was nephew of appellant No.1 and cousin of appellant No.2. The agricultural land was partitioned between appellant No.1 and Manaram (PW-4), two brothers, by their father and 5-6 years prior, there was some property dispute between them. On the date of offence, deceased -Ramprakash was eating some mixture in the shop of Annu Kumar Jaiswal (PW-1), where the 2 appellants reached and assaulted the deceased with bamboo stick and wooden stick (blunt side of axe), by which, he sustained grievous injuries on head and died in the hospital during the course of treatment. It appears that on account of previous enmity, the incident had taken place on account of the property dispute between them and the appellants, on the spur of moment have assaulted the deceased, by which, he sustained grievous injuries and died, as such, there was no premeditation or intention on the part of the appellants to cause death of the deceased Ramprakash, but they have had the knowledge that such injuries inflicted by them would likely to cause death of Ramprakash. In that view of the matter, conviction of the appellants under Section 302 read with Section 34 IPC is converted to Section 304 Part II/34 IPC. The appellants are in jail since 24.07.2015, i.e. for more than 8 years and 5 months, therefore, they are sentenced for the period already undergone by them. However, the fine amount imposed by the learned trial Court shall remain intact. They be released forthwith, if not required in any other case.

In the result, the appeal is partly allowed.

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.