Bhaiya Lal @ Khaisa vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal preferred by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 13.10.2014, passed by the Court of Sessions Judge, Surajpur, District Surajpur (Chhattisgarh) in Sessions Case No.87 of 2013 (State of Chhattisgarh vs. Bhaiya Lal @ Khaisa), whereby he has been convicted for offences: under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 03 months and also under Section 323 of IPC and sentenced to undergo 06 months’ rigorous imprisonment.

(2) The case of the prosecution, in short, is that on 26.04.2012, at about 05:00 PM in the evening, at Village Parvatipur within the ambit of Police Station Jay Nagar, the accused-appellant assaulted Khelu @ Khelsaiy (hereinafter referred to as the “deceased”) by means of wooden stick, due to which he suffered grievous injury and died and further assaulted complainant, namely, Jiramani (PW-01) by means of wooden stick, due to which she suffered voluntary hurt, and, thereby, the appellant is said to have committed offences under Sections 302 & 323 of IPC.

(3) It is further case of the prosecution that on 26.04.2012 complainant- Jiramani (PW-01) lodged complaint/report at Police Station Jay Nagar to the effect that she is resident of Village Pachira. The marriage of her elder daughter, namely, Samina (PW-03) was solemnized with Ashok (PW-02) of Village Parvatipur and, 15 days’ prior, her daughter- Samina was blessed with a child and, on that account, she alongwith her husband (deceased) and younger daughter, namely, Sonakshi (PW-04) had visited the house of her son-in-law- Ashok (PW-02) and, in the evening, some dispute arose between Ashok (PW-02) and Samina (PW-03) and they both started quarreling, pursuant to which, their neighbour (appellant herein) reached there and he being annoyed of said quarreling, started abusing them, upon which, the complainant- Jiramani (PW-01) and her husband alongwith other family members intervened and asked him to go from the house. Thereafter, in the evening at about 05-06 PM, while the complainant- Jiramni (PW-01) alongwith her husband (deceased herein) and daughter- Sonakshi (PW-

4) left the house of Ashok (PW-02), at that juncture, the accused-appellant came from behind and started assaulting them by means of wooden stick, due to which, Jiramani suffered voluntary hurt and her husband (deceased) caused grievous injuries on his head and died. Thereafter, on the basis of report so lodged by Jiramni (PW-01), the police registered marg. intimation (Ex.P/01) and FIR (Ex.P/02) against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/04 and inquest proceedings were conducted vide Ex.P/05. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/09), conducted by Dr. J.S. Saruta (PW-08), it was opined that the cause of death of deceased is shock due to skull fracture and extradural hemorrhage and nature of death is homicidal. Injured/complainant- Jiramani (PW-01) was also subjected to medical examination and in her MLC report (Ex.P/10) one simple injury has been found. The appellant-accused was arrested and his memorandum statement was recorded vide Ex.P/06. Pursuant to the memorandum statement of the appellant, the weapon of the offence i.e. wooden stick has been seized vide Ex.P/07. However, the aforesaid seized wooden stick has not been sent for FSL examination for the reasons best known to the prosecution. Thereafter statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Chief Judicial Magistrate, Surajpur and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 15 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Sumit Shrivatava, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. There are material contradictions in the statements of eye-witnesses, namely, Jiramani (PW-01), Samina Agariya (PW-03) and Sonakshi (PW-04) and, therefore, their testimonies are not trustworthy and cannot be relied upon. He further submits that if the entire prosecution case is accepted as it is, then also the appellant is said to have committed murder of the deceased in spur of the moment and there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused assaulted deceased by means of wooden stick, due to which he suffered grievous injuries and died. Therefore, the case of present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and as the appellant is in jail since 28.04.2012 i.e. more than 11 years, he be awarded the sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of statements of various prosecution witnesses especially the eye-witnesses, namely, Jiramani (PW-01), Samina Agariya (PW-03) and Sonakshi (PW-04) coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed.

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

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has been opined that cause of death of deceased is shock due to skull fracture and extradural hemorrhage and nature of death is homicidal, which is duly proved by the statement of Dr. J.S. Saruta (PW-08). Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. J.S. Saruta (PW-08), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(10) Now, the next question would be whether the accused-appellant herein has caused injury to the deceased, which the learned trial Court has recorded in affirmative by relying upon the testimonies of the eye-witnesses, namely, Jiramani (PW-01), Samina Agariya (PW-03) and Sonakshi (PW-04), who were also present on the spot at the time of incident alongwith the appellant and the deceased. All the eye-witnesses have supported the case of the prosecution and have stated before the Court that on the date and time of the incident the accused-appellant herein assaulted the deceased and Jiramani (PW-01) by means of wooden stick, due to which deceased suffered grievous head injuries and died and Jiramani suffered one simple injury. Further, pursuant to the memorandum statement of the appellant recorded vide Ex.P/06, the weapon of the offence i.e. wooden stick has been seized vide Ex.P/07. Thus, on the basis of aforesaid statements of the eye-witnesses coupled with seizure memo (Ex.P/07) and MLC report of Jiramani (Ex.P/10) and other material available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and Jiramani, due to which deceased died and Jiramani suffered one simple injury. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injury over the body of the deceased and Jiramani, due to which deceased died and Jiramani suffered one simple injury, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

(11) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-à-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant ?

(12) 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.”

(13) 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.”

(14) 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.

(15) 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”.

(16) 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.

(17) 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 to 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.”

(18) 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 above-mentioned judgments, it is quite vivid that on the date of offence, while the injured/complainant, namely, Jiramani (PW-01) alongwith her husband (deceased) and younger daughter- Sonakshi (PW-04) had visited the house of her elder daughter- Samina (PW-03) at Village Parvatipur, as she has delivered a baby child, on that day some dispute arose between Samina and her husband- Ashok (PW-02), on account of which, the appellant who was their neighbour, became angry and came to their house and tried to intervene, but Jiramani (PW-01), her husband (deceased) and others asked him to go back to his house, upon which, he felt annoyed and while Jiramani (PW-01) alongwith her husband (deceased) and daughter- Sonakshi (PW-04) were going back to their house, at that juncture, the accused-appellant herein came from behind armed with wooden stick and started assaulting the deceased and Jiramani by means of said wooden stick, due to which, the deceased sustained grievous head injury and died and Jiramani sustained one simple injury. As such, there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellant caused injuries over the body of the deceased and Jiramani, due to which deceased died and Jiramani (PW-01) sustained one simple injury. However, looking to the injury sustained by the deceased, the appellant must have had knowledge as well as intention that such injury inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-I) of IPC.

(19) In view of the aforesaid discussions, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court 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, the appellant is convicted for offence punishable under Section 304 Part-I of IPC. Considering that the appellant is in jail since 28.04.2012 i.e. more than 11 years, he is awarded the sentence for the period already undergone by him, however, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. The conviction and sentence of the appellant for offence under Section 323 of IPC as recorded by the learned trial Court is hereby affirmed. As the appellant is reported to be in jail since 28.04.2012, he be released from jail forthwith, if not required in any other matter/crime.

(20) This criminal appeal is party allowed to the extent indicated herein-above.

(21) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.