Dhani Ram vs State Of Chhattisgarh

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 9.8.2023, passed by the learned First Additional Sessions Judge, Ambikapur in Sessions Trial No.02/2021, whereby the appellant-accused has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.500/-, in default of payment of fine, to further undergo additional imprisonment for three months.

Case of the prosecution, in brief, is that on 24.11.2020 at about 7 P.M. Dhani Ram with regard to his marriage started quarrel with his father and assaulted with hands, fists and stick on the temporal region and face, due to which, his father got injured and thereafter started treatment at home itself using dehati jadi-buti. Thereafter, on 29.11.2020 Sukhlal died during his treatment at home. Thereafter on the basis of report lodged by Horilal (PW-4) at Police Station Udaipur, FIR in Crime No.158/2020 for offence under Section 302 of the IPC was registered against the appellant vide Ex.P-20. Inquest was prepared over the body of the deceased vide Ex.P-1. Memorandum statement of the accused-appellant was recorded vide Ex.P-3 and on the basis of his memorandum statement, slippers and stick were seized from the possession of the appellant vide Ex.P-4. The applicant was arrested on 01.12.2020 vide arrest memo Ex.P-5. Dehati nalishi was registered vide Ex.P-8. Spot map was prepared by investigating officer vide Ex.P-9. Patwari also prepared spot map vide Ex.P-10. Dehati merg intimation was registered vide Ex.P-12. Clothes of the deceased were recovered vide Ex.P-15. Dead body of deceased Sukhlal was sent for postmortem to Community Health Center, Udaipur, where Dr.Arpit Sikarwar conducted postmortem over the body of the deceased vide Ex.P-21 and found following injuries:-

lacerated wound present over the left lateral side of the head behind the upper part of pinna of dimension 3x2cm, caused by hard & blunt object. Skull bone showed linear fracture present over left temporal bone of length 4 cm with subdural & subarachoid hemorhage present over the left temporal bone.

Linear abrasion over the left chest, 8 cm below the left nipple of midclavicular line of length 6 cm with black scab.

Abrasion over right side scapular region of dimension 3x2cm with black scab.

Dr.Arpit Sikarwar opined that cause of death was due to cardio respiratory arrest as a result of head trauma & its complication and nature of death will depend upon circumstantial evidence. In query report (Ex.P-22), Dr.Arpit Sikarwar has opined that injury over left lateral side of head behind the upper part of pinna of dimension 3x2cm caused by hard & blunt object. Lathi brought by constable Ramprasad Paikra 861 can cause above injury and lacerated wound over left lateral side of head behind the upper part of pinna can lead to death.

Statements of the witnesses were recorded. Slippers, clothes of the deceased and stick were sent to Forensic Science Laboratory for examination, however, FSL report has not been received till date. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Ambikapur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where the First Additional Sessions Judge, Ambikapur received the case on transfer for trial. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has falsely been implicated in crime in question.

In order to bring home the offence, the prosecution examined as many as 07 witnesses and exhibited 22 documents. The appellant-accused examined none in his defence nor exhibited any document in his support.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 9.8.2023, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

Mr.Alok Kumar Dewangan, 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 the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to his father (deceased) in spur of moment. 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 injuries to the deceased, which caused his death. Therefore, 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 the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part.

On the other hand, Dr.Surendra Kumar Dewangan, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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

The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr.A.R.Jayant (PW-7), has come to the conclusion that cause of death was due to cardio respiratory arrest as a result of head trauma & its complication. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that cause of death of the deceased was due to cardio respiratory arrest as a result of head trauma & its complication of deceased Sukhlal is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

Now, the question for consideration 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 testimony of Dr.A.R.Jayant (PW-7). The trial Court in para-11 of its judgment has recorded the finding that the the evidence of Dr.A.R.Jayant (PW-7) shows that the cause of death of the deceased has been attributed to head trauma & its complication. The doctor has opined that there were torn wounds on the body of the deceased, which were caused by hard and blunt object and temporal bone was broken and there were abrasion marks on the chest and other parts of the body. Considering all the above facts, it is proved that death of deceased Sukhlal was homicidal in nature.

Jhabulia (PW-3), who is mother of the accused and wife of the deceased, has stated in her Court statement that her husband died due to injury due to fall. He was treated in the village and died three-four days after his injury. Her husband had fallen near the door of the house, due to which he was injured. The police had come to the village and after investigation recorded her statement. Although the prosecution has declared this witness hostile due to some contradiction between her police statement and the Court statement, but after being declared hostile, this witness has clearly admitted in her statement that on 24.11.2020 he had gone with her husband Sukhlal and son Dhani Ram in the house of Anil Majhwar for Chhathi programme. On the date of incident at about 7 P.M. the accused started arguing with her father under the influence of alcohol over the issue of marriage. The accused had assaulted her husband by hands, fists and stick on his temporal region and other parts of the body and after being beaten, the accused ran away from there. She was getting her husband’s treatment in the village itself and on 29.11.2020 at about 7 P.M. her husband Sukhlal died. In the cross-examination held after the above statement, although this witness has again stated contrary to her statement that there was no fight between the deceased and the accused. The statement of this witness fully supportes the prosecution story that the accused has killed his father.

Horilal (PW-4), who is elder brother of the accused and son of deceased Sukhlal, has deposed in his Court statement that his father had died due to fall in the house about a year ago. After getting his father treated in the village, he was brought to Ambikapur hospital, his father died two days after the injury. After his father’s death, he went to Udaipur Police Station and recorded dehati nalsihi (Ex.P-8). Although this witness was declared hostile by the prosecution due to some contradictions between his police statement and the Court statement, but after being declared hostile, this witness has clearly admitted in his statement that on the date of incident, there was Chhati programme in the house of Anil Majhwar and his father Sukhlal and younger brother Dhaniram were invited and his father had fallen near the door after being beaten by the accused. He went to Udaipur Police Station and told that accused Dhaniram had ran away after beating him with stick and his father had died three-four days after being beaten by the accused. In subsequent cross-examination, although this witness has stated that he did not see any quarrel or fight.

Dr.A.R.Jayant (PW-7) has opined that cause of death was cardio respiratory arrest due to head injury and complications. Death is likely to occur within 12 to 24 hours of postmortem. The cause of death  has  been  mentioned  to  be  dependent  on  circumstantial evidence. On 11.12.2020 Constable No.761 Ramprasad Paikra of Police Station Udaipur sent a query report regarding the seized stick and an opinion was sought as to whether the injuries caused to the deceased could  have  come  from the  seized  slippers and  stick mentioned in the postmortem report. In his query report, the doctor has opined that the above injuries could have been caused by stick seized from the appellant.

The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the 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 the IPC, as contended by learned counsel for the appellant ?

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 the 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 the 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 of the IPC.

Further, the Supreme Court in the matter of Rambir v. 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.”

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of Jhabulia (PW-3), on 24.11.2020 she had gone to Chhati programme in the house of Anil Majhwar along with her husband and son Dhaniram. On the date of incident, at about 7 P.M. the accused started arguing with her husband under the influence of alcohol over the issue of marriage and assaulted her husband by hands, fists and stick and then ran away and her husband died on 29.11.2020 after four days of the incident. There was no premeditation on the part of the appellant to cause death of deceased Sukhlal and quarrel took place between the appellant & the deceased with regard to marriage of the appellant and out of that anger and in heat of passion, the appellant assaulted his father Sukhlal by hands, fists and stick by which he died after four days of the incident. The appellant did not have any intention to cause death of deceased Sukhlal, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Sukhlal, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfied 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.

Considering the above-stated facts, also considering the evidence of Jhabulia (PW-3), wife of the deceased and mother of the appellant and Horilal (PW-4), son of the deceased and brother of the appellant, also considering the evidence of Dr.A.R.Jayant (PW-7), nature of injuries caused by the appellant to the deceased, postmortem report (Ex.P-21) and the fact that the appellant is in jail since 01.12.2020, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC.

Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 5 years.

The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court.

The criminal appeal is partly allowed to the extent indicated herein-above.

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.