Baliram Mandavi vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC emanates from the impugned judgment of conviction and order of sentence dated 22/04/2015 passed in Sessions Trial No. 2/2014 whereby learned Sessions Judge, North Bastar Kanker has convicted the appellant for offence punishable under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs. 3,000/­ in default of payment of fine additional R.I. for 1 year.

The case of the prosecution, in brief, is that on 22/09/2013 at about 12 noon at Village Badal, P.S. Narharpur, the appellant herein assaulted his sister­in­law Sagantin bai (wife of his brother Budharuram – P.W. 13) with a wooden stick on her head and caused grievous injuries due to which she died instantaneously and he thereby, committed the aforesaid offence.

Further case of the prosecution, in brief, is that on 22/09/201, deceased Sagantin bai was going to the canal to catch crabs along with her niece Ku. Priti, daughter of Jailal (P.W.­3) and Sagaro bai (P.W.­12), aged about 10 years and when she was crossing through the field of the appellant, he was sleeping in his badi (courtyard) and when the deceased abused him, the appellant collected wooden stick lying therein and assaulted the deceased and caused injuries on her head on account of which she fell to the ground and died immediately. Meanwhile, Ku. Priti (P.W.­5) ran away and told about the incident to her mother Sagaro bai (P.W.­12) and then to her father Jailal (P.W.­3) when he came home, who then informed about the incident to Arjun Singh Markam (P.W.­4).

The said incident was reported by Arjun Singh Markam (P.W.­4) at Police Station Narharpur on the basis of which merg intimation was registered vide Ex. P/7 and thereafter, FIR was registered against the appellant for offence punishable under Section 302 of IPC vide Ex. P/8. Inquest was conducted vide Ex. P/10 and the dead body of deceased Sagantin bai was sent to Government Hospital, Narharpur for postmortem, which was conducted by Dr. Bhoj Kumar Sahu (P.W.­11) and the postmortem report has been filed as Ex. P/23 according to which the cause of death is multiple head injuries and nature of death is homicidal. From the spot, two wooden sticks lying near the dead body were seized vide Ex. P/11 and pursuant to memorandum of the appellant/accused vide Ex. P/4, wooden stick was seized from the possession of the appellant vide Ex. P/5 which was sent for chemical examination and as per FSL report (Ex. P/20), blood has been found on it. After recording the statements of the witnesses and after due investigation, the appellant/accused was charge­sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 13 witnesses and brought into record 23 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt however, he examined none in his defence.

Learned trial Court, after appreciating the oral and documentary evidence on record, finding the death of deceased Sagantin bai to be homicidal in nature and further finding the appellant to be the author of the crime, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid which has been called in question by way of this appeal.

Mr. Vikash Pandey, learned counsel for the appellant, would submit that there is no evidence available on record to connect the appellant from the offence in question and trial Court has gravely erred in convicting the appellant for offence punishable under Section 302 of IPC. He would further submit that at the most, the appellant could have been convicted for offence punishable under Section 304 Part II of IPC as his case is covered with Exception 4 to Section 300 of IPC as the appellant had no intention of causing the death of the deceased and only because she abused him, the appellant, out of sudden anger and heat of passion, assaulted her with wooden stick. As such, the conviction of the appellant be altered from Section 302 of IPC to Section 304 Part II of IPC and since he is in jail since 23/09/2013, his sentence be awarded for the period already undergone.

Per Contra, Mr. Soumya Rai, learned State counsel, would support the impugned judgment and submit that there is ample evidence available on record to connect the appellant from the said offence and learned trial Court has rightly convicted him for offence punishable under Section 302 of IPC relying upon the testimony of child eye­witness Ku. Priti (P.W.­5) and further relying upon the medical evidence of Dr. Bhoj Kumar Sahu (P.W.­11) who has clearly stated that death of deceased was homicidal in nature. He would further submit that appellant's case is not covered with Exception 4 to Section 300 of IPC and as such, his conviction cannot be altered to Section 304 Part II of IPC, therefore, the instant appeal, being devoid of merits, is liable 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 Sagantin bai was homicidal in nature ?

Learned trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/23) wherein Dr. Bhoj Kumar Sahu (P.W.­11), who has conducted postmortem, has clearly stated that the cause of death is multiple injuries suffered by the deceased on her head and the death of deceased was homicidal in nature. Moreover, the death of deceased is homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, after hearing learned counsel for the parties and after going through the postmortem report (Ex. P/20) as well as going through the evidence of Dr. Bhoj Kumar Sahu (P.W.­11), we are of the opinion that the finding recorded by the trial Court that death of deceased Sagantin bai is homicidal in nature is a correct finding of fact based on evidence available on record which is neither perverse nor contrary to the record. We hereby affirm the said finding.

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

It is the case of the prosecution that on the fateful day, the appellant was sleeping in his badi (courtyard) and since deceased Sagantin bai, who was crossing appellant's field along with Ku. Priti (P.W.­5) to go towards the canal for catching crabs, abused the appellant, he picked up a wooden stick lying therein and assaulted the deceased on her head with anger and caused multiple head injuries on account of which she fell to the ground and died immediately.

The statement of Ku. Priti (P.W.­5), daughter of Jailal (P.W.­3) and Sagaro bai (P.W.­12) is quite relevant and must be noticed at this stage. In her statement before the Court, Ku. Priti (P.W.­5) has clearly stated that appellant was sleeping in his badi (courtyard) and while crossing the appellant, deceased Sagantin bai abused him and on that note, the appellant came with an axe (tangiya) and with the intention of killing him, assaulted her with axe. Thereafter, out of fear, she ran away from the spot and after reaching her home, informed about the incident to her mother Sagaro bai (P.W.­5). Moreover, the incident has also been proved by Rajesh Mandavi (P.W.­7) who is said to have witnessed the appellant assaulting deceased Sagantin bai with a wooden stick from a distance of about 100 steps.

Furthermore, pursuant to the memorandum of the appellant/accused vide Ex. P/4, wooden stick has been seized from the possession of the appellant vide Ex. P/5 and it was sent for chemical examination wherein blood has been found on it as per the FSL report (Ex. P/20). As such, looking to the entire evidence available on record, it can safely be inferred that appellant is the author of the crime, which has rightly been held by the trial Court.

The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC and thus, his conviction can be converted to Section 304 Part II of IPC ?

At this stage, it would be appropriate to notice Exception 4 of 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.”

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 principle of law laid down by the Supreme Court in the matter of Arjun (supra), it is quite vivid that the appellant was simply sleeping in his badi (courtyard) and since deceased Sagantin bai, who was crossing his field to reach to the canal for catching crabs, abused him, out of sudden anger and in heat of passion, the appellant picked up a wooden stick lying therein and assaulted the deceased on her head due to which she suffered multiple injuries and died immediately. As such, it is quite apparent that there was no premeditation on the part of the appellant to cause death of the deceased and only because she abused him, out of sudden anger and in heat of passion, appellant assaulted the deceased and caused her death. However, looking to nature of the injuries suffered by the deceased on her head which is a vital part of the body, the appellant must have had the knowledge that such injuries inflicted by him on the head of the deceased would likely cause her death, as such, this is a case which would fall under Exception 4 of Section 300 of IPC.

In view of the aforesaid discussion, conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence awarded to him is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 as well as in Joseph v. State of Kerala 1995 SCC (Cri.) 165, the appellant is convicted for offence punishable under Section 304 Part II of IPC. Since he is in jail since 23/09/2013 i.e. for more than 8 years, we hereby award the sentence for the period already undergone. The appellant be released forthwith if not required in any other case.

The criminal appeal is allowed to the extent indicated herein­above.