Ghana Bai vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellants/accused persons Ghana Bai (A-1), Lateliram (A-2), Omprakash (A-3), Punni Bai (A-4) and Bhagoli Banjare (A-5) under Section 374(2) of CrPC against the impugned judgment dated 11/07/2014 passed by learned First Additional Sessions Judge to the Second Additional Sessions Judge, Bilaspur in Sessions Trial No. 18/2013 whereby they have been convicted for offences punishable under Sections 147, 148, 302 in alternative 302/149 of IPC and each of the appellant/accused has been sentenced to undergo R.I. for 2 years and imprisonment for life with fine of Rs. 1000/- in default of payment of fine, additional S.I. for 3 months, respectively.

Case of the prosecution, in brief, is that on 27/11/2012 at about 07:30 PM at village Godhi, Dagouri within the ambit of Police Station Bilha, the appellants herein constituted an unlawful assembly armed with fatal weapons and in furtherance of their common intention, assaulted Sonuram Jangde with laathi and caused his death and thereby, committed the aforesaid offence.

Further case of the prosecution is that on 27/11/2012, deceased Sonuram Jangde had gone to his first wife Ghana Bai (A-1) for taking money that she had earned as wages, however, in front of her house, all the five appellants herein along with one juvenile Prempal (who is facing trial in juvenile court) assaulted Sonuram Jangde with laathis and caused his death. The incident was reported by witness Tijan Bai (P.W.-5) at Police Station Bilha upon which first information report was registered by the police vide Ex. P/20 and merg intimation was registered vide Ex. P/19. Summons were issued to the witnesses vide Ex. P/1 and inquest was conducted vide Ex. P/2. Thereafter, the dead body of Sonuram Jangde was subjected to postmortem which was conducted by Dr. Sunil Kumar (P.W.-9) and as per the postmortem report (Ex. P/26) cause of death is said to be hemorrhagic shock due to injury on vital organs brain and spleen and the nature of death is said to be homicidal. Pursuant to the memorandum statement of appellants/accused persons Bhagoli Banjare (A-5), Lateliram (A-2) and Ghana Bai (A-1) vide Ex. P/3 to P/5, seizure of laathis has been made from the possession of all the five appellants/accused persons (A-1 to A-5) vide Ex. P/8 to P/12. From the spot, plain soil as well as blood stained soil was seized vide Ex. P/6 and a rod was seized vide Ex. P/7. All the said seized articles were sent for forensic examination and as per the FSL report (Ex. P/33), human blood is said to be found on the laathis seized from all the five appellants/accused persons. After due investigation, the appellants/accused persons were charge-sheeted for offences punishable under Sections 147, 148, 302 in alternative 302/149 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 16 witnesses and brought on record 33 documents. Statements of the appellants were reocorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and only brought on record 5 documents.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Sonuram Jangde to be homicidal in nature and further finding the appellants to be the authors of the crime in question, proceeded to convict them for offence punishable under Sections 147, 148, 302 in alternative 302/149 of IPC and setenced them as aforesaid.

Ms. Sharmila Singhai, learned Senior counsel appearing for the appellants, would submit that the trial Court has erred in convicting the appellants for the aforesaid offences relying upon the testimonies of Santosh Kumar (P.W.-3), Rishik Narayan (P.W.-4), Tijan Bai (P.W.-5) and Punnu Lal Jangde (P.W.-13) as well as relying upon the FSL report (Ex. P/33) which has not been established by the prosecution in accordance with law, as such, the appellants are liable to be acquitted. In alternative, she would submit that this is a case which would be covered with Exception 4 to Section 300 of IPC and the conviction of the appellants for offence punishable under Section 302 of IPC is liable to converted to Section 304 Part II of IPC. Since appellants No. 3 and 5 are in jail since 29/11/2012 i.e. for more than 10 years and since appellants No. 1 and 4 are women and appellant No. 2 is aged about 80 years at present, they be sentenced to the period already undergone.

Per contra, Mr. Sudeep Verma, learned State counsel, would submit that considering the statements of Santosh Kumar (P.W.-3), Rishik Narayan (P.W.-4), Tijan Bai (P.W.-5) and Punnu Lal Jangde (P.W.-13) coupled with the fact that blood-stained laathis have been seized from the appellants pursuant to their memorandum statements and as per the FSL report human blood is said to have been found on these laathis, as such, prosecution has been able to bring home the offence beyond reasonable doubt and it is not a case which would fall within Exception 4 to Section 300 of IPC. Thus, the instant appeal is liable 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 the consideration would be whether the death of deceased Sonuram Jangde was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Sonuram Jangde to be homicidal in nature relying upon the expert medical opinion of Dr. Sunil Kumar (P.W.-9) who has proved the postmortem report (Ex. P/26) in which cause of death is said to be hemorrhagic shock due to injuries on vital organs like brain and spleen and nature of death is said to be homicidal. Considering the statement of Dr. Sunil Kumar (P.W.-9) as well as the postmortem report (Ex. P/26) and the grievous injury suffered by the deceased on his head, we are of the considered opinion that the trial Court has rightly held the death of deceased Sonuram Jangde to be homicidal in nature, more so, when it has not been seriously questioned by learned counsel for the appellants. We hereby affirm the said finding recorded by the trial Court.

This brings us to the next question for consideration, which is, whether the appellants assaulted the deceased Sonuram Jangde with laathis and thereby caused his death ?

Learned trial Court has relied upon the statements of Santosh Kumar (P.W.-3), Rishik Narayan (P.W.-4), Tijan Bai (P.W.-5) and Punnu Lal Jangde (P.W.-13) who have been cited as eye-witnesses by the prosecution, and held that appellants assaulted the deceased with laathis due to which he suffered grievous injuries and died.

Considering the statements of Santosh Kumar (P.W.-3), Rishik Narayan (P.W.-4), Tijan Bai (P.W.-5) and Punnu Lal Jangde (P.W.-13), we are of the considered opinion that they have seen the incident in which appellants assaulted the deceased with laathis and caused his death.

Apart from that, pursuant to the memorandum statements of the appellants, laathis have been seized from each of them vide Ex. P/8 to P/12 in which human blood has been found as per the FSL report (Ex. P/33) and in light of the decision rendered by the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh (2019) 7 SCC 781, prosecution has proved the seizure of laathis beyond reasonable doubt. Thus, we are of the considered opinion that the trial Court has rightly held that it is the appellants who have assaulted deceased Sonuram Jangde with laathis due to which they suffered grievous injuries and died on the spot.

The last question for consideration would be whether the trial Court is justified in convicting the appellants for offence punishable under Section 302 of IPC or their conviction is liable to be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellants ?

In order to consider the plea raised by learned counsel for the appellant, it would be appropriate to notice Exception 4 to Section 300 of IPC, which states as under :-

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

With regard to the issue in hand, in the matter of Felix Ambrose D'Souza v. State of Karnataka (2009) 16 SCC 361, the Supreme Court has held in paragraph 7 as under :-

“7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 Part II IPC alone could have been rendered possible. Though the learned counsel for the respondent State strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. AS noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature. Irrespective of the silent nature of ill feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the storeroom by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with a hammer in his hand and attempts made by the appellant to physically prevent the deceased from doing so, and use of physical force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps, neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of the moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 Part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him under Section 304 Part II IPC.”

The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue at hand 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 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.

Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in the matter of Felix Ambrose D'souza (supra) and Arjun (supra), it is quite vivid that on the date of the incident, deceased Sonuram Jangde had gone to the house of his first wife Ghana Bai (P.W.-1) to take money that she had earned as wages, however, the appellants assaulted the deceased with laathis due to which he suffered greivous injuries and died on the spot. Although there was no premeditation or intention on the part of the appellants to cause death of deceased but looking to the injuries suffered by the deceased on his vital organs, we are of the considered opinion that the appellants must have had the knowledge that the injuries suffered by him would likely cause his death. Thus, the case of the appellants would fall within Exception 4 to Section 300 of IPC and the conviction of the appellants for offence punishable under Section 302 of IPC is hereby converted to Section 304 Part II of IPC. Siince appellants No. 3 and 5 are in jail since 29/11/2012 and they have already been in jail for more than 10 years, we hereby sentence them to the period already undergone. They be released forthwith, if their detention is not required in any other case. Since appellants No. 1 and 4 are women and since appellant No. 2 is aged about 80 years at present and since they already on bail, they need not surrender, however, their bail bonds shall remain in operation for a period of six months under the provisions of Section 437A of CrPC. The conviction of the appellants for offence punishable under Section 148 of IPC as well as the sentence imposed is not being interfered with and the fine imposed by the trial Court upon the appellants for offence punishable under Section 302 of IPC shall also remain intact.

Accordingly, this Criminal Appeal is allowed to the extent indicated herein-above.

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