Anandram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 29/08/2019 passed in Sessions Trial No. 08/2019 whereby learned Additional Session Judge, Gharghoda, Distt. Raigarh has convicted the appellant/accused for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 500/­ and in default of payment of fine, additional R.I. for two months.

Case of the prosecution, in brief, is that on 16/09/2018 at about 12:00 PM at Village Bartangartola, the appellant herein alongwith two co­accused persons namely Thandaram (acquitted) and Baratram (convicted for offence punishable under Section 323 of IPC), in furtherance of their common intention to cause death of Jagatram, assaulted him with hands and fists due to which he suffered grievous injuries and succumbed to death on 17/09/2018.

Further case of the prosecution is on 16/09/2018, complainant Shankar Ram (P.W.­1) had organized pooja on the occasion of Nawakhai festival and had invited the Witch doctor to perform the said pooja as well as other villagers including the appellant and the two co­accused persons. When preparation was going on for the pooja, appellant/accused Anandram, all of a sudden, urinated on the place where the pooja was to be performed due to which the pooja could not be commenced and the witch doctor as well as the other villagers went to their homes, but the appellant and the two co­accused persons remained therein and thereafter, when Shankar Ram (P.W.­1) asked the appellant for explanation behind his unholy act, out of anger, the appellant and the co­accused persons started quarreling with Shankar Ram (P.W.­1). In between the said dispute, deceased Jagatram (father of Shankar Ram) as well as Devmati (P.W.­2) (wife of Shankar Ram) tried to intervene, but co­accused Baratram assaulted Devmati (P.W.­2) with a wooden stick and caused injury on her left hand and co­ accused Thandaram as well as the appellant pushed Jagatram (deceased) on the ground and thereafter, all the three accused persons assaulted Jagatram with hands and fists and legs, due to which Jagatram suffered grievous injuries on his chest and succumbed to death on the next day.

The said incident was reported by Shankar Ram (P.W.­1) to Police Station Lailunga on the basis of which First Information Report was lodged against the appellant and two co­accused persons for offence punishable under Section 302/34 of IPC vide Ex. P/1. Police reached the spot and in the presence of two witnesses namely Shyamlal (P.W.­6) and Jailal (P.W.­7), nazri naksha was prepared vide Ex. P/2 and after conducting inquest vide Ex. P/4, the dead body of Jagatram was sent for postmortem to Community Health Center, Lailunga, which was conducted by Dr. Gulshan Sidar (P.W.­10) and the postmortem report has been filed as Ex. P/6 in which cause of death is said to be hemorrhagic shock caused as a result of excessive blood loss due to internal injuries and the nature of death is said to be homicidal. Similarly, injured witness Devmati (P.W.­2) was also subjected to MLC vide Ex. P/9. After recording the statements of the witnesses and after due investigation, the appellant and co­accused persons were charge­ sheeted for offences punishable under Sections 302/34 and 323/34 of IPC. The appellant and the accused persons abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 10 witnesses and brought into record 11 documents. Statements of the appellant and co­accused persons were recorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in defence.

Learned trial Court, after appreciating the oral and documentary evidence on record, though acquitted co­accused Thandaram for offences punishable under Sections 302/34 and 323/34 of IPC but convicted the appellant herein for offence punishable under Section 302 of IPC as well as co­ accused Baratram for offence punishable under Section 323 of IPC, against which this appeal has been preferred by the appellant Anandram for his conviction for offence under Section 302 of IPC.

Mr. A.S. Kachhwaha, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC. The case of the appellant is covered with Exception 4 of Section 300 of IPC as there was no premeditation on the part of the appellant to cause the death of deceased Jagatram and only in sudden quarrel, out of anger and in heat of passion, the appellant assaulted him due to which he suffered injuries and died on the next day of the incident, as such, at the best, he can be convicted for offence under Section 304 Part II of IPC.

Per Contra, Mr. Ashish Tiwari, learned State counsel, would support the impugned judgment and submit that prosecution has proved the offence against the appellant beyond reasonable doubt and learned trial Court is absolutely justified in convicting the appellant for offence punishable under Section 302 of IPC relying upon the testimonies of Shankar Ram (P.W.­1) and Devmati (P.W.­2), who are eye­witnesses to the incident. He would further submit that this is not a case which would be covered by Exception 4 to Section 300 of IPC and the conviction of the appellant cannot be altered to Section 304 Part II 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 is whether the death of deceased Jagatram was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. Gulshan Sidar (P.W.­10) who has conducted postmortem of the deceased and he has clearly stated in the postmortem report (Ex. P/6) that cause of death is haemorrhagic shock due to excessive blood loss from the internal injuries suffered by the deceased and the nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased all over his body, mainly on his chest and relying upon the medical opinion of Dr. Gulshan Sidar (P.W.­10) as well as postmortem report (Ex. P/6), we are of the considered opinion that learned trial Court has rightly held the death of deceased Jagatram to be homicidal in nature. Moreover, the fact that death of the deceased was homicidal in nature has not even been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Jagatram is homicidal in nature.

The next question for consideration is whether the appellant is the perpetrator of the crime in question ?

Learned trial Court has also recorded an affirmative finding in this regard relying upon the testimony of eye­witness Devmati (P.W.­2), who is also injured witness. A careful perusal of the statement of Devmati (P.W.­2) would show that she has categorically stated before the Court that on the fateful day, at about 12:00 noon, her husband Shankar Ram (P.W.­1) had organized a pooja on the occasion of nawakhai festival at their home and had invited a witchdoctor as well as all the villagers including the appellant and two co­accused persons. All of sudden, the appellant urinated in the place where the said pooja was going to be performed due to which the witchdoctor and all the other villagers except the appellant and co­accused persons went to their homes since the pooja could not be commenced. Thereafter, appellant Anandram got into a dispute with her father­in­law Jagatram (deceased) and co­accused persons Thandaram and Baratram also joined in and the appellant pushed the deceased on the ground and assaulted him on his chest with hands and fists and legs. When she tried to intervene, co­accused Baratram assaulted her with a wooden stick and caused injury on her left arm. Due to the injuries suffered by Jagatram on his chest, he succumbed to death on the morning of 17/09/2018. Despite being subjected to cross­ examination, Devmati (P.W.­2) has remained consistent in her version. As such, it is duly established that appellant is the perpetrator of the crime in question. We hereby affirm the said finding recorded by the trial Court.

The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or their case is covered with Exception 4 to Section 300 of IPC ?

In the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327, Their Lordships of the Supreme Court have 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 Sukhir 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.”

Thereafter, in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused 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 for 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 with 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 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 is 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 when and if there is intent and knowledge, the same would be case of Section 304 Part­I 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 Part­II IPC.

Reverting to the facts of the present case in light of the aforesaid principle of law laid down by Their Lordships of Supreme Court, it is quite vivid that on the fateful day, dispute erupted between the parties when all of a sudden appellant urinated on the place where pooja was to be performed at the house of Shankar Ram (P.W.­1). When Jagatram (deceased) and Devmati (P.W.­2) tried to intervene and settle the dispute, then co­ accused Baratram assaulted Devmati (P.W.­2) with a wooden stick due to which she suffered injury on her left arm, and appellant out of sudden anger and in heat of passion, pushed the deceased on the ground and thereafter, assaulted him with hands and fists and legs due to which he suffered grievous injuries on his chest and succumbed to death on the next morning. From the consideration of the prosecution story as well as the entire evidence available on record, it is evident that there was no existing dispute between the parties and they had a cordial relationship as the complainant Shankar Ram (P.W.­1) himself had invited the appellant and the co­accused persons to participate in the pooja which was to be performed in his house on the occasion of Nawakhai festival and since the appellant urinated on the place of pooja, sudden dispute erupted between them and out of sudden anger and in heat of passion, the appellant assaulted the deceased with hands and fists and legs. However, looking to the nature of the injuries suffered by the deceased on his chest which is a vital part of the body, the appellant must have had the knowledge that his act would likely cause the death of the deceased. Therefore, all the four ingredients of Exception 4 to Section 300 of IPC are satisfied and since there was no premeditation on the part of the appellant to cause the death of the deceased but he must have had the knowledge that his act would cause the death of the deceased, the conviction of the appellant under Section 302 of IPC is altered to Section 304 Part II of IPC and in view of the decision rendered by the Supreme Court in the matters of Willie (William) Slaney v. State of Madhya Pradesh5 as well as in Joseph v. State of Kerala6, the appellant is sentenced to undergo R.I. for five years. The fine sentence as imposed by the trial Court shall remain intact.

Accordingly, this criminal appeal is allowed to the extent indicated herein­above.