Dila Ram Manjhi, vs State Of Chhattisgarh

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 21.12.2015, passed by the learned Sessions Judge, Raigarh, in Sessions Trial No.84/2015, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.5000/-, in default of payment of fine, 1 year additional rigorous imprisonment.

Case of the prosecution, in brief, is that on 17.04.2015, at about 1:00 p.m., at village Auraimuda, Police Station Gharghora, District Raigarh, the appellant herein assaulted his wife Gulapi Bai (now deceased) by burnt wood and axe, by which, she suffered grievous injuries and died and in order to screen himself from the offence, the appellant hide the burnt wood from the place of incident; thereby, offence has been committed. The matter was reported to the police, pursuant to which, merg intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-12, inquest was conducted vide Ex.P-3 and dead body of deceased Gulapi Bai was subjected to post-mortem, which was conducted by Dr. A.K.Minj (PW-8), who proved the post-mortem report Ex.P-13, according to which cause of death was due to cardio respiratory arrest as a result of hemorrhagic shock due to excessive blood loss and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-7, burnt wood was seized vide Ex.P-8, which was sent for examination to FSL, but FSL report has not been brought on record. After due investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 & 201 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 20 documents and the appellant-accused in support of his defence has neither examined any witness nor has exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

Mr. Anil Tripathi, learned counsel for the appellant, would submit that taking into consideration the finding of the trial Court as it is, the case of appellant would fall under Exception 4 to Section 300 of I.P.C. and therefore his conviction under Section 302 of I.P.C. can be altered either to Part-I or Part-II of Section 304 of I.P.C. and appellant be sentenced for the period already undergone, as he is in jail since 18.04.2015.

Mr. Ali Asgar, learned State counsel, would support the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of I.P.C. He further submits that it is not a case wherein the offence can be converted either to Part-I or Part-II of Section 304 of I.P.C., as such, the 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 as to whether the death of deceased Gulapi Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-13 proved by Dr. A.K. Minj (PW-8), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the next question for consideration is, whether the appellant has caused the death of his wife deceased Gulapi Bai, which the trial court has recorded a finding in paragraph 19 that dead body of deceased was found in the house and the appellant assaulted his wife on the ground that she used to consume liquor. As such, the finding recorded by the trial Court that the appellant had caused injury to his wife, by which, she died is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of I.P.C., as contended by learned counsel for the appellant ?

In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of I.P.C., 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 I.P.C., 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 is it 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 I.P.C. 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 I.P.C.

In the matter of Rambir v. State of NCT, Delhi (supra), the accused therein killed his wife by strangulating her neck by iron rod, the argument was that it is a barbaric act and therefore, Exception 4 to Section 300 would not be attracted, which their Lordships of the Supreme Court have held that incident is nothing but act committed in heat of passion, Exception 4 to Section 300 would attract and observed in para 13 & 14 as under :-

“13. 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.”

By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a ‘saria’ and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife’s neck also depicts an act of extreme cruelty. From the evidence on record it is clear that incident occurred in a sudden fight and there was no pre-meditation. Even the primary witness PW-7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother - deceased - with the ‘saria’ when she had taken out some money from the appellant’s wallet. It is not as if ‘saria’ was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria) is picked up at the spur of the moment at the time of incident and used to compress the neck forcefully. In that view of the matter it is nothing but an act committed by the appellant in a heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section 300 IPC on the ground that appellant compressed his wife’s neck also depicts an act of extreme cruelty. Having regard to nature and manner of incident it cannot be said that act of the appellant was extremely cruel. Unless it is barbaric,torturous and brutal, strangulation of the appellant’s wife cannot be said to be an act of extreme cruelty for denying the benefit of Exception 4 to Section 300 IPC.

Having regard to evidence on record, we are of the view that the case of the appellant falls within Exception 4 to Section 300 IPC. Further, the judgment in the case of Surinder Kumar v. Union Territory, Chandigarh [(1989) 2 SCC 217] also supports the case of the appellant. In the aforesaid case, the knife blows were inflicted in the heat of the moment, one of which caused death of the deceased, this Court has held that accused is entitled to the benefit of Exception 4. In the aforesaid judgment, this Court further held that in a sudden quarrel, if a person, in the heat of the moment, picks up a weapon which is handy and causes injuries one of which proves fatal, accused would be entitled to the benefit of Exception 4. We are of the view that the said judgment supports the case of the appellant and further having regard to evidence on record we are of the view that all the four ingredients which are required to extend the benefit of Exception 4 to Section 300 IPC, apply to the facts of the case on hand. Since the occurrence in sudden quarrel and there was no premeditation, the act of the appellant-accused would fall under Exception 4 to Section 300 IPC. As such, the conviction recorded against the appellant under Section 302 IPC is liable to be set aside and is accordingly set aside and the conviction of the appellant-accused under Section 302 IPC is modified, as the one under Section 304 Part II, IPC and we impose a sentence of 10 years’ simple imprisonment on the accused.”

Bearing in mind the aforesaid 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 his wife, but since the wife of appellant/deceased used to consume liquor, therefore, some altercation took place between the husband and wife and the appellant is said to have assaulted the deceased by burnt wood, by which, she suffered grievous injuries and died. Though there was no premeditation, but appellant must have had knowledge that the assault made by him is likely to cause the death of deceased and the appellant had not taken any undue advantage and has not acted in an unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

In view of the above, the conviction of the appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he is in jail since 18.04.2015 i.e. for more than 8 years.

Accordingly, this 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 for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.