Ganesh Yadav vs State Of Chhattisgarh

Arvind Singh Chandel, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 27.09.2014, passed by the learned 3rd Additional Sessions Judge, Raipur, (C.G.) in Sessions Trial No.282/2013, by which the appellant herein has been convicted for the ofence punishable under Sections 302 & 201 of Indian Penal Code (hereinafter referred as ‘IPC’) and sentenced to imprisonment for life and fne of Rs.500/-and rigorous imprisonment for 5 years and fne of Rs.200/-respectively with default stipulations.

In the present case, name of the deceased is Radheshyam Yadav. Case of the prosecution, in brief, is that on 04.08.2013 at about 9.30 PM near an egg stall situated as Dabripara Katoratalab, Raipur, a dispute took place between the appellant and the deceased. It is alleged that at that time the appellant and some of his friends engaged in a quarrel with the Radheshyam (deceased) and appellant assaulted him in his neck with the help of steel jhara due to which the appellant sustained injuries and thereafter died. It is alleged that on the next day, the dead body of the deceased was found foating in the pond of that locality. On the basis of the Dehati Nalishi (Ex.P-18), Rajaram @ Golu Yadav (PW-14), who is the brother of the deceased lodged F.I.R. (Ex.P-21). Inquest proceedings vide Ex.P16 was conducted. Dead body of the deceased was sent for postmortem which was conducted by Dr. S.K. Bagh (PW-11) and the postmortem report is Ex.P-12. As per the report, total 13 injuries were found in the dead body of the deceased and it was opined by the Doctor that death of the deceased was caused due to Asphyxia as a result of compression on neck and associated injuries to body. However, nature of death of the deceased has not been stated by the Doctor. During course of investigation, memorandum statement (Ex.P-1) of the appellant was recorded under Section 27 of the Evidence Act and on the basis of which seizure memo (Ex.P-2) was prepared and one steel jhara was seized from the instance of the appellant. Statement of the witnesses were recorded under Section 161 of the Cr.P.C. After due investigation, appellant as well as co-accused Chhotu Yadav (acquitted) were charge-sheeted for the aforesaid ofence and committed to the Court of Sessions for hearing and disposal in accordance with law, in which the statement of the appellant under Section 313 of the Cr.P.C. was recorded wherein he abjured his guilt and pleaded innocence.

In order to bring home the ofence, prosecution examined as many as 16 witnesses and exhibited 31 documents and the appellant-accused in support of his defence examined two witnesses.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the ofence under Sections 302 & 201 of Indian Penal Code and sentenced him as mentioned in paragraph one of this judgment against which the present appeal has been preferred.

Shri Rajkumar Pali, learned counsel for the appellant would submit that without there being sufcient and clinching evidence available on record, the Trial Court has wrongly convicted the appellant. He further stated that there are eye witnesses namely Rakesh Nishad (PW-3) and Rahul Bose (PW-4) of the incident wherein these witnesses have only seen the incident of marpit committed with the deceased, thereafter, they all left the spot. These witnesses have not seen the appellant throttling or strangulating the deceased at the spot. Alternatively, it is argued that there was no intention of appellant to cause death and under the heat of passion on a dispute, the appellant assaulted the deceased, which would fall under Exception 4 to Section 300 of I.P.C. and the sentence awarded is liable to be converted to Section 304 Part-I of I.P.C. and he be sentenced for the period already undergone, as such, the appeal be allowed in part.

Shri Sameer Oraon, learned State counsel, would support the impugned judgment and submits that the trial Court has rightly convicted the appellant herein for ofence punishable under Section 302 & 201 of I.P.C. He further submits that it is not a case of conversion and it is a case of murder, therefore, the instant 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 frst question for consideration as to whether the death of deceased was homicidal in nature, which has been answered by the trial Court in afrmative relying upon the post-mortem report Ex.P-12 proved by Dr. S.K. Bagh (PW-11) wherein multiple injuries have been found on the body of the deceased and cause of death of the deceased was due to asphyxia as a result of compression on neck, which in our considered opinion is a correct fnding of fact based on evidence available on record, accordingly, we hereby afrm the said fnding.

Now, the next question for consideration is whether the appellant has caused the death of the deceased?

In this case, Rakesh Nishad (PW-3) and Rahul Bose (PW-4) are the eye witnesses of the incident. Rakesh Nishad (PW-3) in his Court statement has categorically deposed that on the date of incident, a dispute arose between the appellant and the deceased, and the appellant assaulted the deceased with the help of steel jhara. Statement of this witness is duly corroborated with the statement of Rahul Bose (PW-4). Though lengthy cross-examination has been conducted by the defence with these witnesses but they remained frmed during their cross-examination. There is nothing on their statements  on  the  basis  of  which  there  statements  can  be disbelieved. Thus, from the statements of these witnesses, it is established that at the time of incident, the appellant assaulted the deceased with the help of steel jhara and, thereafter, the dead body of the deceased was found in the pond at Katoratalab. Therefore, in our considered view, the Trial Court has rightly held that the appellant has assaulted the deceased due to which the deceased died.

Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered either to 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 under 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 ofence of culpable homicide without premeditation in a sudden fght 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 fnding of the courts below holding the aforesaid appellant guilty of ofence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of ofence 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 fne of Rs. 5000. In default of payment of fne, 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 inficting 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 fght;

(h) The nature and size of weapon used for inficting the injury and the force with which the blow was inficted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inficted was not sufcient 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 ofence. 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 fne or with both. It is further been held that to make out an ofence 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 fulflled 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 satisfed, namely, (I) it was a sudden fght; (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 ofered 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 ofender must have acted in a ft of anger. Of course, the ofender 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 beneft 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 fght; (c) without the ofender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fght 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 “fght” occurring in Exception 4 to Section 300 IPC is not defned in the Penal Code, 1860. It takes two to make a fght. 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 fght 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 sufcient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the ofender 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 v. 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 fght;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The ofender had not taken any undue advantage or acted in a cruel or unusual manner.”

Reverting to the facts and circumstances of the case, particularly, the statement of Rakesh Nishad (PW-3), it is quite vivid that there was no premeditation on the part of the appellant, the dispute arose between the appellant and the deceased and the appellant in a heat of passion assaulted the deceased due to which he sufered grievous injury and, thereafter, he died. As such, due to sudden provocation only, the alleged incident took place and appellant assaulted the deceased. Therefore, in our considered opinion, the act of the appellant does not fall within the purview of Section 302 of the Indian Penal Code, but would fall within the purview of Section 304 Part 1 of the I.P.C only. Accordingly, conviction of the appellant is altered from Section 302 of the IPC to Section 304 Part 1 of the IPC, as such, the case of the appellant would fall under Exception 4 to Section 300 of the IPC.

In view of the above, the conviction and sentence of the appellant awarded by the Trial Court for ofence punishable under Section 302 & 201 of the IPC is hereby set aside. Now his conviction for ofence punishable under Section 302 of IPC is altered to Section 304 Part-I of the IPC and the appellant is sentenced to 10 years rigorous imprisonment, as he is in jail since 05.08.2013; however, the fne amount imposed by the trial Court shall remain intact.

In view of the above, this criminal appeal is partly allowed to the extent indicated herein-above.

Let a certifed copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.