Firan Yadav vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellants have been convicted for offences under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced to undergo imprisonment for life & pay fine of  Rs.  1,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three months and to undergo rigorous imprisonment for six months, respectively, with a direction to run both the sentences concurrently.

Case of the prosecution, in brief, is that one and a half years prior to the date of incident, wife of accused / appellant No.1 Firan Yadav (A-1) died on account of which, the appellants used to suspect that Jethuram (since deceased) has played witchcraft upon her by which she died and on account of that, on 28-5-2015 at 8 a.m., the appellants have assaulted Jethuram by axe & lathi and tried to kill him which was witnessed by Shiv Prasad @ Shiva (PW-2) – brother of the deceased, who tried to intervene and he also suffered grievous injuries. Jethuram was escorted to the hospital where he died. The matter was reported to the police. Inquest was conducted vide Ex.P-13 and on the recommendation of panchas, the dead body was sent for postmortem which was conducted by Dr. Sandeep Kumar Sahu (PW-11) vide postmortem report Ex.P-29 in which cause of death was stated to be head injury due to hard & sharp object, mode of death is coma and death was homicidal in nature.

Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellants were charge-sheeted for offence under Sections 302 read with Section 34, 307 read with Section 34 of the IPC and Section 4 of the Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting the trial and hearing and disposal in accordance with law.

The accused / appellants abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 32 documents. The defence has examined none, however, exhibited two documents Exs.D-1 & D-2 – statements of Shiv Prasad Kaiwartya @ Shiva & Ramshila Bai recorded under Section 161 of the CrPC.

The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellants under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

Mr. C.R. Sahu, learned counsel appearing for the appellants, would submit that taking the prosecution case as it is, at the most, offence under Section 304 Part-II of the IPC would be made out against the appellants, as there was no intention on the part of the appellants to cause death of the deceased and there was only knowledge that the injuries are likely to cause death. He would further submit that the appellants are in jail since 28-5-2015 thereby they are already in jail since more than eight years, therefore, it is a fit case where conviction of the appellants can be converted/altered to an offence under Section 304 Part-II of the IPC and appeal be allowed.

Mr. Ashish Tiwari, learned Government Advocate appearing for the State / respondent, would support the impugned judgment and oppose the appeal and submit that the prosecution has been able to make out a case for conviction of the appellants under Section 302 of the IPC and the trial Court has rightly convicted them, it is not the case which should be converted to Section 304 Part-II of the IPC.

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

The first question whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-29 proved by Dr. Sandeep Kumar Sahu (PW-11), which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

The next question is whether the appellants are the authors of the crime in question, which has also been answered by the trial Court in affirmative. Taking into consideration the statement of Shiv Prasad @ Shiva (PW-2) – brother of the deceased, who is injured witness and who has clearly witnessed the incident by which the appellants assaulted the deceased by axe & lathi and by which the deceased suffered grievous injuries and died, we are of the considered opinion that the trial Court has rightly held that it is the appellants who have caused injuries to the deceased by hard & sharp object. We do not find any perversity in the said finding of the trial Court and we also affirm the finding that the appellants are the authors of the crime.

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

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 further, 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 from 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 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 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 for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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.

xxx xxx  xxx”

Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in the aforesaid cases, it is quite vivid that the appellants have no premeditation to cause the death of Jethuram, but since the wife of appellant No.1 Firan Yadav (A-1) died and the appellants alleged that Jethuram has played witchcraft upon her because of which she died, the appellants have assaulted Jethuram by hard & sharp object by which he suffered grievous injuries and died due to head injury as a result of coma which has been proved by Dr. Sandeep Kumar Sahu (PW-11), as such, the appellants have no intention, but only knowledge. The appellants must have had the knowledge that the injuries inflicted by them on the body of the deceased would likely to cause his death and further considering the dispute between the appellants and the deceased, in our considered opinion, this case would fall within the purview of Exception 4 to Section 300 of the IPC.

In view of the aforesaid discussion, conviction of the appellants under Section 302 read with Section 34 of the IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injuries caused by them were sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for ten years & pay fine of  Rs.  1,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three months. However, their conviction & sentence under Section 323 read with Section 34 of the IPC imposed by the trial Court shall remain as it is. The appellants are in jail since 28-5-2015.

The criminal appeal is party 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 appellants are suffering the jail sentence.