Budh Singh Baiga vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal filed 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 13.02.2015, passed by the Court of learned Additional Sessions Judge, Pendra Road, District Bilaspur (Chhattisgarh) in Sessions Trial No.09/2014 (State of Chhattisgarh vs. Budh Singh Baiga), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.200/- and, in default of payment of fine, additional rigorous imprisonment for 02 months and also under Section 323 of IPC and sentenced to undergo rigorous imprisonment for 03 months with fine of Rs.100/- and, in default of payment of fine, additional rigorous imprisonment for 01 month and both the sentences were directed to run concurrently.

(2) The case of the prosecution, in short, is that on 17.11.2013 in the midnight at about 12:00, at Village Amadob (Kuba Nayagaon), within the ambit of Police Station Gaurela, District Bilaspur (Chhattisgarh), the accused-appellant herein assaulted his wife, namely, Smt. Kamla Bai (hereinafter referred to as “deceased”) and also injured witness-Baisakhiya Bai (PW-04) by means of ‘lathi’, due to which they both suffered injuries, but Kamla Bai (deceased) succumbed to death, 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 Semlal (PW-05) lodged report at Police Station Gaurela stating that on the fateful day he alongwith his wife- Baisakhiya Bai (PW-04) and sister- Kamla Bai (deceased) had gone for drinking liquor at Gond Mohalla and at about 12 in the midnight while they all were returning to their respective homes, he reached to his house first in time, but after some time when his wife- Baisakhiya Bai did not reach to the house, he again went outside to inquire about her wife and Kamla Bai and saw that appellant-accused was assaulting Kamla Bai (deceased) by means of ‘lathi’ and his wife- Baisakhiya Bai was missing, upon which he asked the appellant about Baisakhiya Bai, to which, he did not inform anything and, thereafter, on search, Baisakhiya Bai (PW-04) was found ahead lying injured on ground. Upon asking from Baisakhiya Bai (PW-04), it was informed by her that the appellant had assaulted both of them (i.e. Baisakhiya Bai and Kamal Bai) by means of ‘lathi’ and, thereafter, Baisakhiya Bai was taken to her house with the help of other villagers. In the morning at about 06 AM, daughter of the deceased and the appellant, namely, Ku. Kaleshwari Bai (PW-08) came and informed Semlal (PW-05) that her father (appellant) had caused death of her mother (deceased) by committing ‘marpeet’ with her by means of ‘lathi’, upon which, he alongwith Bal Singh Baiga visited the house of the appellant and saw deceased lying dead on the floor.

(4) Pursuant to lodging of said report by Semlal (PW-05), the police registered marg intimation (Ex.P/08) and FIR (Ex.P/07) and, thereafter, wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/01. Nazari naksha and spot panchnama were prepared vide Ex.P/05 & P/06 respectively. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/12), conducted by Dr. H.P. Singh (PW-07), it was opined that the cause of death of deceased is shock and hemorrhage due to excessive bleeding and nature of death is homicidal. Injured witness, namely Baisakhiya Bai (PW-04) was sent for medical examination and her MLC report is Ex.P/10, wherein it has been opined that all the injures sustained by Baisakhiya Bai (PW-04) are simple in nature. Thereafter, appellant-accused was arrested vide Ex.P/16 and his memorandum statement was recorded vide Ex.P/03. Pursuant to the memorandum statement of the appellant, blood stained ‘lathi’/wooden stick has been seized vide Ex.P/04. The said ‘lathi’ has been sent for FSL examination vide Ex.P/17, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Pendra Road and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence by submitting that he is innocent and has been falsely implicated.

(5) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 19 documents, whereas the appellant-accused in support of his defence has not examined any witness, but exhibited 02 documents.

(6) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offences under Sections 302 & 323 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.

(7) Mr. Shailendra Kumar Sharma, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 302 & 323 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the appellant is said to have assaulted his wife (deceased) and injured witness- Baisakhiya Bai (PW-04) in spur of the moment, as he was annoyed from the habit of his wife (deceased) of consuming liquor alongwith others, as such, 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 out of sudden anger the appellant assaulted deceased and injured witness, due to which they both suffered injuries and deceased succumbed to death. Hence, the case of the 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. He also submits that the appellant is in jail since 25.11.2013 i.e. almost 9 years 03 months, therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

(8) Per-contra, Mr. Wasim Miya, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of Baisakhiya Bai (PW-04) and Semlal (PW-05) coupled with other evidence available on record i.e. memorandum statement of the appellant recorded vide Ex.P/03, pursuant to which blood stained ‘lathi’/wooden stick has been seized vide Ex.P/04 and MLC report (Ex.P/10) of the injured witness, namely, Baisakhiya Bai, wherein injuries have been found on her body, the learned trial Court has rightly convicted the appellant for offences under Sections 302 & 323 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a 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.

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

(10) 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/12), wherein it has been opined that cause of death of deceased is shock and hemorrhage due to excessive bleeding and nature of death is homicidal, which is duly proved by the statement of Dr. H.P. Singh (PW-07), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statement of Dr. H.P. Singh (PW-07), 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.

(11) Now, the next question would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of injured witness, namely, Baisakhiya Bai (PW-04) and Semlal (PW-05), who is bother-in-law of the appellant-accused and further pursuant to the memorandum statement of the appellant recorded vide Ex.P/03, blood stained ‘lathi’ has been seized vide Ex.P/04. Thus, on the basis of said facts coupled with other evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injury over the body of the deceased. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injury over the body of the deceased, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

(12) 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-a-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 ?

(13) 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.”

(14) 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.”

(15) 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.

(16) 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”.

(17) 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.

(18) 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.”

(19) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased, but only on account of sudden dispute arose between the appellant and the deceased that deceased- Kamla Bai had consumed liquor alongwith Baisakhiya Bai (PW-04) and the appellant was annoyed from their habit of consuming liquor, which is clearly apparent from the statement of Nadiyo Bai (PW-11), the appellant, who is husband of deceased and brother of Baisakhiya Bai (PW-04), in sudden anger and under heat of passion assaulted them by means of ‘lathi’, due to which deceased suffered grievous injuries and succumbed to death and Baisakhiya Bai (PW-4) suffered simple injuries. As such, there was no premeditation on the part of the appellant to cause death of the deceased and only because of sudden quarrel, in anger and under heat of passion, the appellant assaulted deceased and caused her death. However, looking to the injuries sustained by deceased, the appellant must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her 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-II) of IPC.

(20) In view of the aforesaid discussion, 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-II of IPC and sentenced to undergo 10 years rigorous imprisonment, however the fine sentence imposed by the learned trial Court shall remain intact. But, the conviction and sentence of the appellant for offence under Section 323 of IPC is hereby affirmed and the direction of the learned trial Court that all the sentences awarded to the appellant to run concurrently are also hereby affirmed.

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