Beer Singh Dhruv vs State Of Chhattisgarh

Sanjay K. Agrawal, J

By way of this appeal filed under Section 374(2) of the Code of Criminal Procedure the appellant has assailed the judgment impugned dated 30.04.2014 passed by Sessions Judge, North Bastar, Kanker in Sessions Trial No. 90/2013 convicting him under Section 302 IPC and sentencing to undergo imprisonment for life with fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for 01 year.

Facts of the case in brief are that on 05.08.2013 (wrongly mentioned in the charge as 20.08.2013) the appellant asked his wife Sukhmin Bai (the deceased) to accompany him to the field but she refused for that. Thereafter, at about 9:00 AM the accused/appellant and his son Krishna Kumar (PW-1) went to the field. At about 2:30 PM when the accused/appellant and his son were sitting under a tree and mother of the accused/appellant was grazing the cattle at a little distance, the deceased came there after getting free for her work at Anganwadi Centre and asked the accused/appellant if he had taken food. The accused/appellant however being in anger did not give any reply to that but kept on staring at her. He then suddenly picked up the axe and inflicted injury on the back of the deceased. As the axe had got stuck on her back, the accused/appellant took out the same, threw it nearby, and ran away towards the forest. Subsequently, Krishna Kumar (PW-1) informed Nohruram (PW-2), Jethuram (PW-3) and others about the incident. Sukhmin Bai was given water to drink and then she died. On 05.08.2013 at about 06:10 PM Merg (Ex.P-1) followed by FIR (Ex.P-2) was registered for the offence under Section 302 IPC. Inquest was made under Ex. P-5 and the body was sent for postmortem examination to Government Hospital, Kodekurse, which was conducted by Dr. Manoj Kishore (PW-7) who gave his report Ex. P-20. On the memorandum of the accused/appellant (Ex.P-7), seizure of axe was made under Ex.P-8. After completion of investigation charge-sheet was filed against the accused/appellant under Section 302 IPC followed by framing of charge accordingly.

So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 07 witnesses. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. Defence however has not examined any witness in support of its case.

After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Additional Sessions Judge has convicted and sentenced the accused/appellant as detailed in paragraph No. 1 of this judgment. Hence this appeal.

Learned counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, the conviction of the accused/appellant under Section 302 IPC is not made out. He further submits that act attributed to the appellant if seen in the light of the evidence collected by the prosecution, falls within the purview of Exception 4 to Section 300 IPC and therefore, he at the most, can be convicted under Section 304 (Part-II) IPC. Lastly, he submits that as the appellant is in jail since 06.08.2013 and thereby has served the jail sentence of more than nine and a half years, the sentence imposed on him may be reduced to the period already undergone.

On the other hand, learned counsel appearing for the State supports the judgment impugned and submits that the findings recorded by the Sessions Judge holding the accused/appellant guilty under Section 302 IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal, and being so the appeal is liable to the dismissed.

Heard counsel for the parties at length and went through the evidence on record with utmost care and caution.

The first question to be decided by this Court is whether the death of the deceased was homicidal in nature or not? Dr. Manoj Kishore (PW-07) who conducted the postmortem examination on the body of the deceased and gave his report Ex.P-20 has stated that he noticed a cut wound on back side of neck in the size of 8 x 2 x 6 inch, and C-6 and C-7 vertebrae were found to be fractured. On internal examination he found that ribs, trachea, and both lungs were found congested, and half digested food was there in the stomach. This witness has opined that cause of death was vagal inhibition which occured due to fracture of C-6 and C-7 vertebrae followed by cardio respiratory arrest, and the death was homicidal in nature. Thus from the evidence of doctor (PW-07) it is established that death of the deceased was homicidal in nature.

Now the second question to be answered by this Court is whether it is the accused/appellant who was involved in causing the death of the deceased? Admittedly, the appellant has been convicted on the sole testimony of Krishna Kumar (PW-01) who is the eyewitness to the incident. He has stated that at about 2:00 PM his mother (the deceased) came to the filed and asked his father (the accused/appellant) whether he had taken food or not. To this, the appellant did not give any reply as he was in anger. He has stated, that the accused/appellant had asked him to go and drive away the oxen from the field but he remained there itself. Thereafter, the accused/ appellant picked up the axe kept nearby and inflicted injury on the back of Sukhmin Bai as a result of which her spinal bone got fractured. After causing injury, the accused/appellant threw the axe and ran towards the forest. Thereafter, he informed Nohruram (PW-2) and Dhansingh (PW-5) about the incident and went to the police station and lodged the report. Nohruram (PW-2) has corroborated the testimony of Krishna Kumar (PW-1) and stated that PW-1 had informed him about the incident where the appellant had caused injuries to Sukhimin Bai with axe. This apart, on the memorandum of accused/appellant (Ex.P-7) seizure of axe containing blood-like stains was made under (Ex.P-8). Seized articles were sent to Forensic Science Laboratory for chemical examination and the report received therefrom is Ex. P-19. As per the FSL report, there was no blood on the axe though blood was there on the article-A (the earth seized). The doctor (PW-7) while answering the query vide (Ex.P-15) has stated that death could be caused by the axe produced before him for examination.

From the aforesaid factual discussion made in the light of the evidence of the witnesses, it is thus apparent that the death of the deceased was caused by the accused/appellant alone.

Now the point to be considered is whether the act attributed to the accused/appellant is covered with Exception 4 to Section 300 IPC vis-a-vis culpable homicide not amounting to murder, and thereby his conviction under Section can be converted into Section 304-II IPC, as put forth by the counsel for the appellant.

If a factual recapitulation is resorted to at the cost of repetition, it is revealed that the appellant and the deceased are the husband and wife and that the deceased was an Anganwadi worker at the relevant time. On the date of incident the accused/appellant had asked his wife to accompany him to the field but she refused for that. Thatereafter, at about 2:00 PM when the accused/appellant was in the field, Sukhmin Bai came there and asked him whether he had taken food or not. Since the accused/appellant was already in anger, he stared at her and after picking up the axe lying nearby he dealt a single blow at her back which ultimately proved fatal to her life. The entire material does not disclose that there was any premediation on the part of the appellant to cause the death of the deceased, rather all that appears to have happened on the spur of moment and in the heat of passion. However, the knowledge on the part of the accused that his act of assault with axe might prove fatal to the deceased, cannot ruled out.

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.

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 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 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 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.”

In view of the aforesaid factual and legal position, this Court is of the considered opinion that the conviction of the appellant under Section 302 of IPC and the resultant sentence of life imprisonment imposed on him by the learned trial Court is liable to be and is hereby set aside. Considering the fact 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, the appellant is convicted under Section 304 Part II of IPC. Since the appellant is in jail from 06.08.2013 i.e. more than nine and a half years, we award him the jail sentence of RI for 10 years. The fine sentence imposed by the learned trial Court shall however remain intact.

Accordingly, the appeal is allowed in part.