Bheera Narwas vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 03.03.2015 passed in Sessions Trial No.20/2014 by the Sessions Judge, North Bastar, Kanker (C.G.), by which the appellant stands convicted & sentenced as under:-

Conviction

Sentence

Under Section 302 of Indian Penal Code

Imprisonment for life with fine of Rs.3,000/- and in default to pay fine amount, additional RI for one year.

Case of the prosecution, in brief, is that, on 15.01.2014 at 6:00 pm, appellant herein assaulted his neighbour – Dhanuram Baghel (hereinafter called as 'deceased') by wooden log as a result of which, deceased suffered grievous injuries over his body and died and thereby committed the offence. Further case of the prosecution is that the appellant and deceased both were neighbours. On 15.01.2014 at about 6:00 pm, the deceased, under the influence of liquor, came to the house of the appellant to leave appellant's son Kailash, who was intoxicated and at that time the appellant was sitting near the fire in the courtyard. Dhanuram started abusing the appellant in the name of his wife, but the appellant said don't abuse and asked him to leave and by saying so, the appellant took Dhanuram to his house but Dhanuram again followed the appellant and started hitting him with stick, upon which, the appellant, out of anger and in a fit of rage, assaulted the deceased Dhanuram with a wooden log causing single injury to the deceased, resulting into Dhanuram's death. The incident was witnessed by P.W.2 Basanta Bai, wife of deceased, who reported the matter to Police Station Partapur, where F.I.R. vide Ex.P.1 was lodged against the accused/appellant so also merg intimation was recorded vide Ex.P.1-A. Investigating Officer Naresh Deshmukh (P.W.11) prepared inquest proceedings vide Ex.P.5 and the dead body of deceased Dhanuram was sent to the Civil Hospital, Pakhanjur where Dr. Sukhdev Shende (P.W.8) conducted the post-mortem and gave his report vide Ex.P.8 opining that the cause of death was homicidal in nature due to severe hemorrhagic and neurogenic shock and excessive bleeding. Memorandum statement of the appellant was made vide Ex.P.3, on the basis of which, seizure memo vide Ex.P.4 was prepared, based on which, wooden log was recovered at his behest. This apart, spot maps were prepared vide Ex.P.11, Ex.P.11-A and 11-B. Seized articles were sent for examination to the F.S.L. vide Ex.P.16 and F.S.L. report vide Ex.P.19 was brought on record, according to which, blood was found on the wooden log. Query report has also been obtained vide Ex.P-10 and as per the said report, injury found on the body of the deceased could have been caused by the seized wooden log. During course of investigation, the appellant was arrested vide arrest memo Ex.P.14.

After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

In order to bring home the offence, prosecution has examined as many as 11 witnesses and brought on record 19 documents whereas the appellant-accused person in support of his defence has exhibited one document Ex.D.1, statement of Nageshwar @ Noge @ Oku recorded under Section 161 Cr.P.C.

The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellant would submit that in fact, the sole eye-witness to the incident, namely, Basanta (P.W.2) had not seen the actual occurrence and had seen the accused/appellant fleeing from the spot. He would next submit that the appellant caused injury to the deceased by a wooden log after consuming liquor. If the case of the prosecution is taken as it is, no offence under Section 302 of IPC can be made out against the present appellant as it is not the case of murder. He would further submit that the appellant is in jail since 17.01.2015 and thus has incarcerated jail sentence for more than 8 years and he may be sentenced to the period already undergone by him. He would next submit that at the most, case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C. Thus, the present appeal deserves to be allowed in full or in part.

Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to Part-II of Section 304 of IPC, therefore, 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 would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-8) proved by Dr. Sukhdev Shende (PW-8), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question would be, whether the appellant is the author of the crime in question ?

Conviction of the appellant is based on the evidence of PW-1 Smt. Kalita Bai, P.W.2 Basanta Bai, P.W.3 Nageshwar and P.W.4 Nikhil Bagel. who are eye-witnesses to the incident. P.W.1 Smt. Kalita is the daughter-in-law of the appellant, who has stated that the deceased, under the influence of liquor, came to the house of the appellant to leave appellant's son Kailash, who was intoxicated and at that time the appellant was sitting near the fire in the courtyard. Dhanuram started abusing the appellant in the name of his wife, but the appellant said don't abuse and asked him to go away and leave him and by saying so, the appellant took Dhanuram to his house but Dhanuram again followed the appellant and started hitting him with stick, upon which, the appellant, out of anger and in a fit of rage, assaulted the deceased Dhanuram with a wooden log. Both the appellant and deceased were assaulting with each other and out of fear she went inside and then the appellant ran away from the spot. She has further deposed that Basanta Bai (P.W.2) reached to the spot and with the help of Nageshwar (P.W.3), Nikhil (P.W.4) and other persons, Dhanuram was brought to his house in an injured condition and later Dhanuram has died. Basanta Bai (P.W.2) is the wife of the deceased, who testified that incident had happened at 6.00 pm and Dhanuram was yelling taking the name of his son Nageshwar and when they came out of the house, they saw the appellant running away leaving the wooden log. Thereafter, this witness, with the help of Nageshwar, Santlal and Lachhinder, brought Dhanuram to the Police Station where he has died. Similar is the statement of Nageshwar (P.W.3), son of the deceased, who has stated that upon hearing the sound, he came out and saw his father lying in front of the house and the appellant running away from there. This witness has further deposed that his father was unable to speak out on account of injury over head and blood was oozing. Likewise, Nikhil Baghel (P.W.4), who is another son of the deceased, has also stated that when he was watching T.V. in the house of one Vijay Diwan, he was informed by grandmother of Santlal that his father was assaulted by the appellant, then and there he rushed to the spot and the appellant ran away. From their evidence, it is clear that on the date of incident, appellant and the deceased were quarelling each other, in which, the deceased was abusing the appellant in the name of his wife, upon which, the appellant advised him to leave the place, but the deceased again come back to the house of the appellant and started quarrelling with him, on this, appellant assaulted the deceased with wooden log and caused one injury over his head, resulting into the death of deceased on account of injuries sustained by him. Their evidence with respect to appellant assaulting the deceased and fleeing away from the spot cannot be discarded. Furthermore, at the behest of the appellant, wooden log has been recovered. As such, considering the statements of PW-1 Smt. Kalita Bai, P.W.2 Basanta Bai, P.W.3 Nageshwar and P.W.4 Nikhil Bagel and further considering the fact that wooden log (weapon of offence) has been recovered at the behest of the appellant, we are of the considered opinion that the trial Court has rightly come to the conclusion that the appellant is the perpetrator of crime in question, which is a pure and simple finding of fact based  on  the  evidence  available  on  record,  it  is  neither perverse nor contrary to the record.

Now, the question that requires for our consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 wherein it has been 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.”

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, 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 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 when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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 aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that on the date of incident, the deceased, under the influence of liquor, came to the house of the appellant to leave appellant's son Kailash, who was intoxicated and at that time the appellant was sitting near the fire in the courtyard. Dhanuram started abusing the appellant in the name of his wife, but the appellant said don't abuse and asked him to leave and by saying so, the appellant took Dhanuram to his house but Dhanuram again followed the appellant and started hitting him with stick, upon which, the appellant, out of anger and in a fit of rage, assaulted the deceased Dhanuram with a wooden log causing single injury to the deceased, resulting into Dhanuram's death. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of his neighbour Dhanuram, but on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with wooden log, as a result of which he suffered injuries leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased but no intention of causing his death can be attributed to him.

In that view of the matter, we are of the considered opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. The appellant is in jail since 17.01.2014 and thus has incarcerated jail sentence for a period of more than 9 years. He is sentenced to the period already undergone by him. The fine and default sentence will remain as it is.

In the result, the criminal appeal is partly allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Superintendent of Jail forthwith for necessary information and action, if any.