Deonarayan Pando vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 11.08.2015 passed by Third Additional Sessions Judge, Surajpur, District: Surajpur (C.G.) in Sessions Trial No. 48/2015 by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 100/- and in default of payment of fine amount, additional R.I. for 5 months.

Case of the prosecution, in brief, is that on 03.03.2015, at 03:00 pm, at Village: Laxmipur, Police Station: Premnagar, the appellant assaulted his younger brother Chhatarpal by iron crowbar, by which he suffered grievous injury and died. Further case of the prosecution, is that on the date of offence, a doctor has come to the house of deceased for treating his son and when the doctor was returning after treating the son of the deceased, the appellant also requested the doctor to give him medicine for itching. Thereafter, the doctor had given the tablet and the deceased asked the appellant to give the amount of medicine to the doctor, on account of which the appellant became angry and assaulted the deceased with crowbar by which the deceased suffered injuries and died. Thereafter, FIR and Merg Intimation was registered vide Ex.P/1 and Ex.P/8. Inquest was conducted vide Ex.P/4. The dead body of the deceased was sent for autopsy. Postmortem was conducted by Dr. Sashikant (PW-11) and his report is Exhibit-P/14 wherein, he has opined the death of the deceased as homicidal which was due to head injuries. Pursuant to the memorandum statement of the appellant crowbar was recovered from his possession. Seized articles were sent for FSL vide Ex.P/12, but no FSL report has been brought on record.

After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC 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 examined as many as 12 witnesses and exhibited 17 documents. The defence has examined none and not exhibited any document.

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

Learned counsel for the appellant submits that at the most, offence under Section 304 Part-II of the IPC is made out against the appellant as it is the dispute between two brothers and on the amount of medicine not given by the appellant to the doctor, quarrel took place between the deceased and appellant by which the appellant became angry and assaulted the deceased. She further submits that offence committed by 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 either to Part-I or Part-II of Section 304 of I.P.C. and the appellant is in jail since 05.03.2015, therefore, the appeal be allowed 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 either Part-I or 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 is, whether the death of deceased Chhatarpal was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex.P/14) proved by Dr. Sashikant (PW-11) 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 ?

Considering the statement of PW-4 Urimala, who is the eye witness to the incident and who has clearly seen the appellant assaulting the deceased with crowbar and has remained consistent in her statement before the Court below and further pursuant to the memorandum statement of the appellant, crowbar has been seized from his possession of the appellant, it is quite vivid that the appellant has caused the death of the deceased which is finding of fact based on evidence available on record and which is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question that requires consideration is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or their 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 is 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)5 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.”

Bearing in mind the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in above stated judgments, it is quite vivid that there was no premeditation on the part of the appellant to cause death, but only on account of request made by the deceased Chhatarpal to pay the amount of medicine to the doctor, the appellant became angry and assaulted the deceased with crowbar by which the deceased suffered injuries and died. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased.

In that view of the matter, we are of the 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 and he is sentenced to RI for 9 years, however, the sentence of fine amount as imposed by the trial Court is hereby maintained.

Accordingly, this criminal appeal is partly allowed.

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