Fagni Bai vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) 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 11.09.2014, passed by the Court of learned Additional Sessions Judge, Kondagaon, District Kondagaon (C.G.), whereby the appellant-accused has been convicted for offence under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.1,000/- and, in default of fine, additional rigorous imprisonment of 03 months.

(2) The case of the prosecution, in brief, is that the appellant-accused on 11.06.2011 at about 12:00 PM, at Village Kasawahi within the ambit of Police Station Narayanpur, District Narayanpur (CG), has assaulted her husband, namely, Paresar (deceased) by means of an axe due to which Paresar (deceased) sustained mutliple grievous injuries and died on the spot and, thereby, committed the offence under Section 302 of IPC.

(3) The further case of the prosecution, in nutshell, is that: deceased-Paresar alongwith his wife- Fagni Bai (appellant-accused) and children, including Basant Kumar (PW-01) used to reside at Village- Kasawahi and used to do agriculture work; on 11.06.2011, in the afternoon, both husband and wife [i.e. Paresar (deceased) and Fagni Bai (appellant-accused)] came back to their home from fields and, thereafter, deceased- Paresar demand cooked vegetable from appellant- Fagni, but cooked vegetable was not available in the frying pan (utensil), on account of which, deceased- Paresar broke said frying pan (utensil) by means of an axe; thereafter, when appellant- Fagni Bai came and saw said frying pan (utensil) broken, she under anger assaulted deceased- Paresar by means of said axe multiple times on his neck, back, waist and leg, due to which, deceased- Paresar sustained multiple injuries and died on the spot; blood stains were found on the ‘sari’ of the appellant-accused; the said incident between the appellant-accused and the deceased was seen by their son- Basant Kumar (PW-01), who informed the same to his uncle, namely, Tiluram (PW-02) in his house; thereafter, Tiluram (PW-01) alongwith other villagers, namely, Agyaram (PW-03), Praveen Chand (PW-04), Sukkuram (PW-06) and Devshankar visited the place of occurrence and they saw deceased- Paresar lying on the floor near the door in bloodied condition and injuries were present on his neck, back and leg. Thereafter, on the basis of report lodged by Tiluram (PW-01), marg intimation (Ex.P/01) and FIR (Ex.P/02) were registered against the appellant-accused. Inquest proceedings were conducted vide Ex.P/04. Panchnama and Spot map were prepared vide Ex.P/06 & Ex.P/10 respectively. The dead-body of deceased- Paresar was sent for postmortem examination and in the postmortem examination report (Ex.P/11), Dr. Vinod Bhoyar (PW-07) opined that the cause of death of deceased- Paresar is shock, excessive bleeding and hemorrhage, due to multiple injuries and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/

Thereafter, a blood stained axe, which was used by the appellant in the incident, was seized vide Ex.P/07 and a blood stained ‘sari’ of appellant-accused was also seized vide Ex.P/08. However, said articles which have been seized vide Ex.P/07 & Ex.P/08 were not subjected to FSL examination for the reasons best known to the prosecution. Thereafter, statement of witnesses were recorded and after due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, District Narayanpur (CG) and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured her guilt and entered into defence.

(4) The prosecution in order to prove its case examined as many as 08 witnesses and exhibited 16 documents whereas, on the other hand, the appellant-accused in support of her 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 offences under Section 302 of IPC and sentenced her 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. Arun Kumar Shukla, learned counsel for the appellant submits that though the death of deceased- Paresar is said to be homicidal in nature, but there was no premeditation, motive or intention on the part of the appellant to  cause death of the deceased and only on account of sudden anger and under heat of passion on a petty dispute of non-availability of cooked vegetable followed by breaking of fry pan (utensil) by the deceased- Paresar by means of axe, the appellant-accused, who is wife of the deceased-Paresar, is said to have assaulted her husband- Paresar (deceased) by means of axe many times on his neck, back, waist and leg, due to which, deceased- Paresar sustained multiple injuries and died on the spot and thereby committed the offence. Thus, the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC vis-a-vis her act is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant can be converted/altered to an offence under Section 304 (Part-I) or (Part-II) of IPC and, further, since the appellant is in jail since 13.06.2011 i.e. more than 11 years, taking into consideration the period she has already undergone, the appellant-accused be released from jail forthwith. Hence, the present appeal deserves to be partly allowed.

(7) Per-contra, Mr. Smoya Rai, 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 statement of Basant Kumar (PW-01) coupled with other evidence available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 of IPC. Thus, Exception 04 to Section 300 of IPC is not attracted in this case and it is not a 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 oral and documentary evidence available on record, particularly considering the statement of child eye-witness, namely, Basant Kumar (PW-01) and the postmortem report (Ex.P/11), whereby it has been opined that cause of death of deceased-Paresar is shock, excessive bleeding and hemorrhage, due to multiple injuries and nature of death is homicidal, which is duly proved by Dr. Vinod Bhoyar (PW-07). Accordingly, taking into consideration the postmortem report (Ex.P/11) and the statement of Dr. Vinod Bhoyar (PW-07) coupled with the statement of child eye-witness, namely, Basant Kumar (PW-01), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased- Paresar 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. Accordingly, we hereby affirmed the said finding.

(10) Now the next question would be whether the accused-appellant herein is the author of the crime in question ?

(11) In the instant case, the incident took place when deceased- Paresar and his wife, namely, Fagni Bai (appellant-accused) came back to their home from fields and deceased- Paresar demand cooked vegetable from appellant- Fagni, but cooked vegetable was not available in the frying pan (utensil), on account of which, deceased- Paresar broke said frying pan (utensil) by means of an axe and, thereafter, when appellant- Fagni Bai came and saw said frying pan (utensil) broken, she under sudden anger assaulted deceased- Paresar by means of said axe multiple times on his neck, back, waist and leg, due to which, deceased- Paresar sustained multiple injuries and died on the spot. Further, in the statement of Basant Kumar (PW-01), who is son of the appellant and the deceased and the only eye-witness in the instant case, has clearly stated that on the fateful day his mother and father (i.e. appellant- Fagni Bai and deceased- Paresar) both were under the influence of liquor and a dispute arose between them, as his father i.e. deceased- Paresar asked for cooked vegetable, but the same was not available in the frying pan (utensil), upon which his father- Paresar broke the frying pan by means of axe and, in turn, his mother i.e. appellant- Fagni Bai upon seeing the frying pan broken, under sudden anger assaulted his father-Paresar by means of said axe, due to which he sustained injuries and died. The said eye-witness, namely, Basant Kumar (PW-01) was subjected to cross-examination to some extent, but he was consistent in his statement and, therefore, his statement remained un-controverted. Thus, it is crystal clear that it is the appellant-accused who on sudden anger and under heat of passion has assaulted the deceased- Paresar, due to which he suffered multiple grievous injuries and died. Accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

(12) The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 (Part-I) or (Part-II) of IPC, as contended by learned counsel for the appellant ?

(13) 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.”

(14) 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 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.”

(15) 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.

(16) 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”.

(17) 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.

(18) 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 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.”

(19) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased, but only on account of breaking of frying pan by the deceased-Paresar, as he was demanding cooked vegetable under the influence of liquor and the same was not available, the appellant- Fagni Bai, who is his wife, under sudden anger and under the influence of liquor assaulted deceased by means of axe multiple times over different parts of his body, due to which he sustained multiple grievous injuries and died on the spot, as such, there was no premeditation on the part of the appellant to cause death of the deceased- Paresar and only because of a petty dispute, out of sudden anger and in heat of passion, the appellant assaulted deceased- Paresar and caused his death. However, looking to the injuries sustained by deceased-Pareasr, as recorded by Dr. Vinod Bhoyar (PW-07), which are grievous, multiple in number and have been caused on the vital parts of the body of the deceased, the appellant must have had the intention and knowledge that such injuries inflicted by her 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 of 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-I) of IPC.

(20) In view of the aforesaid discussions, 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 his death, the appellant is convicted for offence punishable under Section 304 (Part-I). Since the appellant is in jail since 13.06.2011 i.e. more than 11 years, taking into consideration the period she has already undergone, we award her the sentence already undergone by her, but the fine sentence imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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