Ghenvaram Nag vs State Of Chhattisgarh

This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 04.02.2022, passed by the learned Sessions Judge, Jagdalpur, District Bastar (C.G.) in Sessions Trial No. 12 of 2020, whereby the appellant/accused has been convicted for the offence punishable under Sections 323 and 302 of the Indian Penal Code (IPC) and sentenced to pay fine amount of Rs. 500/-, in default of payment of fine rigorous imprisonment for 01 month and undergo imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine additional rigorous imprisonment for 03 months (both the sentences run concurrently).

Case of the prosecution, in brief, is that the complainant, namely, Smt. Balmati (PW-6) lodged an oral complaint to Police Station Parpa that on 27.09.2019, she was at her house along with her husband Gonchu. On the faithful day when her hen not return to home she enquire about that from her neighbour and was murmuring herself. The accused/appellant got irritated at the point of time and abuses and fight with her and her husband. Due to his her husband received severe injuries on the head, thereafter, he was admitted in the Medical College, Nagarnaar, Jagdalpur where Doctor referred him to higher Medical Center, Raipur where her husband succumbed to death. On the basis of that information FIR (Ex.P-9) has been lodged. During investigation appellant was arrested and after completion of investigation Police of Police Station, Frezarpur, Parpa, District Bastar (C.G.) filed the charge-sheet against the accused/appellant. Dead body of the deceased was sent for postmortem to Pt. Jawaharlal Nehru Medical College, Raipur, where Dr. Shivnarayan Manjhi (PW-9) conducted postmortem over the body of the deceased vide Ex.P-15 and found following injuries:-

Dead body of an average built male. Wearing yellow color T-shirt, blue checked lungi, black color chaddi Rigor mortis present on all over body in strong phase. Hypostasis present on back of the body and fixed. Eyes closed, cornea hazy, mouth semi open, upper denture visible. Lips approximated. Blood stains present on right ear.

Injuries:

Blackish color ecchymosis present on left fronto-temporal-parietal region all over. Temporalis muscle contused. Skull showed fracture of left temporal & occipital bones 13 cm long which extends anteroposteriorly with 0.2 mm gapping. Subdural haemorrhage present on left frontal parietal and temporal lobe, thin EDH present U/n fracture. Contusion present on temporal parietal and occipital lobes 10X06 cm Antreposteriorly, contusion on also present on mid brain 2 cm diameter, on cerebullum left lobe 2 cm diameter, 3rd and 4th ventricle contains clotted blood.

Impacted abrasion present on left elbow posterior aspect 2 cm diameter with scab. Dr. Shivnarayan Manjhi (PW-9) opined that cause of death was due to cardio respiratory failure as a result of head injury & its complications and death was homicidal in nature. Inquest was prepared vide Ex.P-13. Appellant-Ghenvaram Nag was arrested on 18.11.2019 vide arrest memo Ex.P-3.

Statements of the witnesses were recorded. Bloodstained clothes of the deceased was sent to Forensic Science Laboratory for examination. After due investigation, the Police filed charge-sheet against the appellant before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial from where the learned Sessions Judge, Jagdalpur, District Bastar (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law.

The trial Court has framed charges against the appellant for offences punishable under Sections 323 and 302 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 31 documents. The appellant-accused examined none in their defence.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 04.02.2022, convicted the accused/appellant for the offences punishable under Sections 323 and 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

Mr. Vikas A. Shrivastava, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 323 and 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to has caused injuries to deceased in spur of moment, as they were fighting with each other; though no injury was caused to the appellant herein. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Sections 323 and 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as appellant is in jail since 18.11.2019 and he has completed near about 03 years 11 months 22 days, and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

On the other hand, Mr. Gagan Tiwari, learned Deputy Government Advocate, appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Sections 323 and 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

The first question for consideration would be, whether death of deceased Gonchu was homicidal in nature ?

The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Shivnarayan Manjhi (PW-9), who conducted postmortem, has come to the conclusion that cause of death was due to cardio respiratory failure as a result of head injury & its complications and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Gonchu was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eyewitness Smt. Balmati (PW-6), who is the wife of the deceased and at the relevant point of time was present on the spot where the incident took place. Thus, on the basis of testimony of Smt. Balmati (PW-6), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to the deceased, due to which he died. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding.

The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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 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 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.”

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, 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 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 to 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.”

In the present case, Smt. Balmati (PW-6) (wife of the deceased and the eyewitness of the incident) who lodged an oral complaint to the Police Station Parpa and on the basis of that information FIR (Ex.P-9) has been lodged. She has stated in his evidence that on the date of the incident, around 7.00 p.m., due to the disappearance of the chicken reared in her house, she told Ghenvaram that the chickens were disappearing from her house, then Ghenvaram started beating her and closed the door of her house. And her husband Gonchu, who was sleeping inside the house, took him outside and threw him on the road. Then she informed about the incident to the villagers, at that time the accused had gone to his home, a villager called for an ambulance to take her husband to the hospital, then when the ambulance arrived, her husband was taken to Dimrapal Hospital for treatment. An injury mark was visible on the back of her husband's head, his throat was swollen and signs of blood clotting were visible on his chest. Her husband was admitted in Dimrapal Medical College for 3-4 days, after which the Doctors referred her husband to Raipur Hospital for treatment. Then she took her husband along with her son to Raipur Hospital for treatment, where during the treatment her husband died.

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of eyewitness Smt. Balmati (PW-6), on the date of incident, Smt. Balmati (PW-6) was at her house along with her husband Gonchu. When her hen not return to home she enquire about that from her neighbour and was murmuring herself. The accused/appellant got irritated at the point of time and abuses and fight with her and her husband, at that time, some quarrel took place between them, then out of anger and on sudden quarrel, the appellant assaulted Gonchu by kicks and fists, by which he received grievous injuries and died during the treatment due to cardio respiratory failure as a result of head injury & its complications. There was no premeditation on the part of the appellant to cause death of deceased Gonchu. The appellant did not has any intention to cause death of deceased Gonchu, but by causing such injuries, he must has had the knowledge that such injuries inflicted by him would likely to cause death of Gonchu, as such, his case 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.

Considering the above-stated facts, also considering the evidence of eyewitness Smt. Balmati (PW-6), who is the wife of the deceased and taking into consideration that at present appellant-Ghenvaram Nag is aged about 32 years and he is in jail since 18.11.2019, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-I of the IPC.

Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 10 years.

The appellant is in jail and he shall served out the sentence as modified above.

The criminal appeal is partly allowed to the extent indicated hereinabove.

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.