Dilharan Varma Alias Hetu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Both these appeals under Section 374(2) of Cr.P.C. have been filed against the judgment of conviction and order of sentence dated 08.10.2015 passed by the 1st Additional Sessions Judge, Baloda-bazar, District Baloda-bazar, C.G. in Sessions Trial No.35/2014, therefore, they are being disposed by this common judgment.

By the impugned judgment, the appellants are convicted and sentenced as under:-

Conviction

Sentence

Under Section 302 read with Section 149 of Indian Penal Code

Imprisonment for life and fine of Rs.2,000/- to each appellants, in default of payment of fine additional imprisonment for six months

Under Section 294 of Indian Penal Code

Rigorous Imprisonment for one month to each appellants

Under Section 323 of Indian Penal Code

Rigorous Imprisonment for one month and fine of Rs.200/- to each appellants, in default of payment of fine additional imprisonment for 15 days

Under Section 506-Part II of Indian Penal Code

Rigorous Imprisonment for one month and fine of Rs.500/- to each appellants, in default of payment of fine additional imprisonment for two months

Under Section 148 of Indian Penal Code

Rigorous Imprisonment for one year and fine of Rs.500/- to each appellants, in default of payment of fine additional imprisonment for one month

(All sentences were directed to run concurrently)

Case of the prosecution, in brief, is that in the intervening night of 21-22.11.2013 in between 1:00 am to 1:30 am, the present appellants along with acquitted co-accused persons, in furtherance of their common intention, assaulted Suresh Verma (hereinafter called as 'deceased) with the help of lathi, by which deceased suffered grievous injuries over his body and during treatment in the hospital, he died on 25.11.2013. The appellants and other acquitted co-accused persons also assaulted PW-4 Bhupendra, who too suffered grievous injuries over his body and thereby committed the aforesaid offences. Further case of the prosecution is that PW-4 Bhupendra/complainant was engaged in the work of light decoration as well as sound service and in the night of 21.11.2013, in the village, Ramayan programme was organised by PW-12 Badri Prasad Verma as he has purchased a Tractor, for that, function was organised in which PW-4 Bhupendra had installed the lights, mike and sound system in front of the house of appellants (by using as a common place). In the late night of 22.11.2013 at about 1:30 am, while PW-4 Bhupendra was dismantling the sound system, at that time, appellants came there, abused him in filthy language and assaulted him with lathi, by which he suffered simple injury. When deceased (father-in-law of PW-4 Bhupendra) and PW-3 Smt. Girja Verma tried to intervene in the matter, appellants along with acquitted co-accused persons assaulted them with lathi, by which deceased suffered grievous injuries over his body and PW-3 Smt. Girja Verma also suffered injuries over her body. Thereafter, they were taken to the hospital for treatment and during treatment in the hospital, deceased- Suresh Verma succumbed to the injuries on 25.11.2013. The matter was reported to the Police by PW-13 Dilip Kumar, pursuant to which merg intimation Ex.P-24 was recorded, FIR Ex.P-9 was registered against the appellants and spot map was prepared vide Ex.P-23. Inquest proceeding was conducted vide Ex.P-11 and dead body was sent for postmortem examination which was conducted by PW-15 Dr. S.K. Bagh, who has proved the postmortem report Ex.P-21. According to postmortem report, cause of death of the deceased was due to cardio-respiratory failure as a result of head injuries and their complications and death was homicidal in nature. From the possession of the appellants, lathi were seized vide Exs.P-6, P-7 & P-8 respectively. Seized articles were sent to FSL for chemical examination but no FSL report has been brought on record.

Statements of witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellants were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused abjured their guilt and entered into defence by stating that they have not committed the offence.

In order to bring home the offence, prosecution has examined as many as 19 witnesses and brought on record 43 documents. The defence has examined none and exhibited eight documents i.e. Ex.D-1 to D-8.

The trial Court after appreciation of oral and documentary evidence on record, acquitted the co-accused persons namely Bodhin Bai, Rajkumari and Kiran Bai and convicted the appellants for the offence under Sections 294, 323, 506 Part-II, 148 & 302/149 of IPC and sentenced them as above against which the present appeals have been preferred.

Learned counsel for the appellants submits that the appellants had no intention to cause the death of Suresh Varma/deceased and during scuffle between the parties, a solitary blow on the deceased is said to have been given as a result of which he died. He further argued that the appellants have been convicted with the aid of Section 149 of IPC, however, considering the number of assailants who are three in number, the appellants cannot be convicted with the aid of Section 149 of IPC. It has been further argued that eye-witnesses namely, Smt. Girja Verma (PW-3), Bhupendra (PW-4), Jitendra (PW-6) and Dilip Kumar (PW-13) have not fully supported the case of prosecution. It has been further argued that even if the case of the prosecution is taken as it is, no offence for the aforesaid Sections can be made out against the present appellants as it is not the case of murder. The appellants are in jail since 27.11.2013. As such, their conviction is liable to be set aside. In alternative, he would submit that the case of the appellants would fall within Exception 4 to Section 300 of I.P.C. and, therefore, their conviction under Section 302/149 of I.P.C. be altered to Part-II of Section 304/149 of I.P.C. Thus, the present appeals deserve to be allowed in full or in part.

Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted the appellants for the aforesiad offences and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellants cannot be converted to Part-II of Section 304/149 of IPC, therefore, the instant appeals deserve 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 would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-21) proved by Dr. S.K. Bagh (PW-15), 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 appellants are the authors of the crime in question ?

A perusal of the statements of PW-3 Smt. Girja Verma, PW-4 Bhupendra & PW-13 Dilip Kumar, who are the eye-witnesses to the incident and were present on the spot, would reveal that in fact the dispute was between the appellants and PW-4 Bhupendra with respect to the crops removed by the appellants, therefore, on the fateful day, in the early morning, while PW-4 Bhupendra and his wife PW-3 Smt. Girja Verma were dismantling the sound system installed in the Ramayan programme orgainsed by PW-12 Badri Prasad Verma, at that time, appellants came there, abused PW-4 Bhupendra and PW-3 Smt. Girja Verma in filthy language and assaulted them with lathi. After hearing the hue and cry of PW-4 and PW-13, deceased and PW-6 Jitendra reached the spot and tried to intervene the matter but appellants also assaulted them with lathi, by which deceased suffered grievous injuries and died during treatment in the hospital and that, lathi has been seized from the possession of the appellants. As such, we are of the considered opinion that the trial Court has rightly come to the conclusion that the appellants are the perpetrators of crime in question, which is a pure and simple finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.

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 his 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 (PartI) 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) 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.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that, as recorded by the trial Court, on the report of Kiran Bai, acquitted co-accused, offence under Sections 294, 323, 506B Part-II and 351A of IPC was registered against PW-4 Bhupendra, PW-6 Jitendra and PW-13 Dilip Kumar and they were prosecuted for the aforesaid offences in Sessions Trial No.34/2014 decided on 08.10.2015 and they have been convicted for the offence under Section 323 of IPC and sentenced to undergo rigorous imprisonment for two months and fine of Rs.200/- with default stipulations, which has also been decided by a separate order along with these appeals. It is the case of the appellants that applicants in CRR No.898/2015 i.e. PW-4 Bhupendra, PW-6 Jitendra and PW-13 Dilip Kumar entered the house of Kiran Bai and tried to outrage her modesty and that is the main reason for the applicants in CRR No.898/2015 that Kiran Bai in order to implicate them of outraging modesty, the dispute arose between the parties and in fact, there was no intention to cause the death of deceased and considering the statements of PW-3 Smt. Girja Verma, PW-4 Bhupendra and PW-13 Dilip Kumar and further considering the fact that on the report of acquitted co-accused Kiran Bai, PW-4 Bhupendra, PW-6 Jitendra and PW-13 Dilip Kumar have also been convicted for the offence under Section 323 of IPC and considering the above, it can safely be held that appellants must have had the knowledge that their act would likely to cause the death of the deceased but no intention of causing his death can be attributed to them and more particularly, deceased had reached to the spot to pacify the dispute between the appellants & PW-4 Bhupendra and PW-3 Smt. Girja Verma. In that view of the matter, we are of the opinion that the case of the appellants is covered within Exception 4 to Section 300 of IPC and since the appellants had no intention and premeditation to cause the death of the deceased, however, they must have had the knowledge that their act of assault would likely to cause the death of the deceased, their conviction for offence punishable under Section 302/149 of IPC is altered to Section 304 Part-II/149 of IPC and they are sentenced to undergo 10 years rigorous imprisonment, keeping the fine amount imposed thereunder by the trial Court intact. However, the conviction of the appellants under Sections 294, 323, 506B Part-II and 148 of IPC and sentence thereunder imposed by the trial Court directing to run sentences concurrently are hereby maintained being well-merited.

In the result, the criminal appeals are 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 and concerned Jail Superintendent for necessary information and action.