Dilbandhu Korwa vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal preferred 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 31.03.2016, passed by the Sessions Judge, Jaspur in Sessions Case No.101 of 2015, whereby he has been convicted for offence under Section 302 of IPC and sentenced to imprisonment for life with fine of Rs.3,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months.

(2) The case of the prosecution, in short, is that on 09.08.2015, at about 08:00 PM, at Village Peta Uparpara, within the ambit of Police Station Bagicha, Jaspur, the accused-appellant herein assaulted his real brother, namely, Bifaiya Korwa (for short the “deceased”) by means of ‘tangiya’ (axe), due to which he suffered grievous injuries and died, and, thereby, the appellant is said to have committed offence under Section 302 of IPC.

(3) The further case of the prosecution is that the appellant and the deceased both were real brothers and they lost their father, namely, Anand Korwa, on account of which, Rs.20,000/- was given by the Government as compensation to the family for funeral expenses, which the appellant herein has kept. However, when the deceased demanded Rs.5,000/- from the said amount of compensation for construction of his house, the appellant refused to give by stating that he has already utilized the said amount and no balance amount is with him, pursuant to which, dispute arose between them followed by brief quarrel, in which, the appellant herein assaulted the deceased by means of axe, due to which, he suffered grievous injuries and died. Thereafter, on the report so lodged by Atwari Bai (PW-07), the police registered marg intimation (Ex.P/05) and FIR (Ex.P/06) against the appellant and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/10 and summons under Section 175 of CrPC were sent vide Ex.P/09. Nazari naksha was also prepared vide Ex.P/01. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/03), conducted by Dr. C.R. Bhagat (PW-05), it was opined that the cause of death of deceased is cardio-respiratory arrest due to excessive blood loss and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/12. Pursuant to the memorandum statement of the accused-appellant, the weapon of the offence i.e. ‘tangiya’ (axe) has been seized vide Ex.P/13. The aforesaid seized axe along with other seized articles were sent for chemical examination and as per FSL report (Ex.P/25) it has been opined that stains of blood have been found on the axe seized pursuant to the memorandum statement of the appellant. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Chief Judicial Magistrate, Bagicha and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 25 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 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.

(6) Mr. Keshav 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 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the appellant has been falsely implicated. The testimonies of witnesses, namely, Dashoti Bai (PW-02), Pano (PW-03), Baijnath (PW-04) and Rupan Ram (PW-12) are not trustworthy, as they are interested witnesses. They have not seen the incident and, therefore, cannot be relied upon. In alternative, learned counsel submits that even if the prosecution story is accepted as it is, then also the appellant is said to have committed murder of the deceased in spur of the moment and there was no motive or premeditation on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under anger and in heat of passion, the appellant assaulted the deceased by means of wooden stick, due to which he suffered grievous injuries and died. 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 IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and as the appellant is in jail since 11.08.2015 i.e. more than 8 years 03 months, he be awarded the sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of various prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the 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.

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

(9) 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/03), wherein it has been opined that cause of death of deceased is cardio-respiratory arrest due to excessive blood loss and nature of death is homicidal, which is duly proved by the statement of Dr. C.R. Bhagat (PW-05). Accordingly, taking into consideration the postmortem report (Ex.P/03) and the statement of Dr. C.R. Bhagat (PW-05), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the 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.

(10) Now, the next question would be whether the accused-appellant herein has caused injury to the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statements of Dashoti Bai (PW-02), Pano (PW-03), Baijnath (PW-04) and Rupan Ram (PW-12). All the aforesaid witnesses have stated before the Court that on the date and time of the offence, on account of money dispute, the appellant herein assaulted the deceased by means of axe, due to which he suffered grievous injuries and died. All the aforesaid witnesses were subjected to cross-examination, but nothing could be extracted from them to hold that they have not seen the incident or telling lie before the Court or they are falsely implicating the appellant herein. As such, their testimonies are reliable and trustworthy. Further, pursuant to the memorandum statement of the appellant, the weapon of the offence i.e. ‘tangiya’ (axe) has been seized vide Ex.P/13, in which, as per FSL Report (Ex.P/25) blood has been found. Thus, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant- accused who has caused injuries over the body of the deceased, due to which he died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which he died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

(11) 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 ?

(12) 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”.

(13) 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.

(14) 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.”

(15) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the instant case, on account of death of the father of the appellant and the deceased, and amount of Rs.20,000/- was given by the Government as compensation to the family for funeral expenses, which the appellant herein has kept and, when the deceased demanded Rs.5,000/- from the said amount of compensation for construction of his house, the appellant herein refused to give by stating that he has already utilized the said amount and no balance amount is with him, pursuant to which, dispute arose between them followed by brief quarrel, in which, the appellant herein assaulted the deceased by means of axe, due to which, he suffered grievous injuries and died. As such, there was no premeditation on the part of the appellant to cause death of the deceased, but only because of money dispute between the appellant and the deceased followed by sudden quarrel erupted between them, in anger and under heat of passion, the appellant assaulted the deceased by means of axe, due to which he suffered grievous injuries and died. However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his 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.

(16) 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 since the appellant is in jail from 11.08.2015 i.e. all most 08 years 03 months, he is awarded sentence to the period already undergone by him. Consequently, he be released from jail, if not required in any other crime/matter.

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

(18) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.