Goverdhan Singh Gond vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This Criminal Appeal preferred by the accuse/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 27.2.2019 passed by the Additional Sessions Judge, Katghora, District Korba in ST No.59/2018 by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo RI for one month.

Case of the prosecution, in brief, is that on 18.7.2018 at about 3 pm the appellant caused the death of Pardeshi by assaulting him with hands, fists and club and thereby committed the offence. Further case of the prosecution is that on 18.7.2018 complainant Santram (PW-1) and the deceased had gone to their field for the purpose of ploughing and at around 2.45 pm they were returning to their home. Meanwhile, the appellant and his wife were quarrelling in front of their house, on which they asked the appellant not to quarrel, whereupon the appellant’s wife had gone somewhere else. Thereafter the complainant and the deceased had come to the house of Jaikaran (not examined by the prosecution) and immediately thereafter the appellant came to the house of Jaikaran and asked the whereabouts of his wife, on which they (i.e. complainant and the deceased) informed the appellant that they were not aware as to where she has gone. Thereafter the appellant assaulted the deceased by hands, fists and club, as a result the deceased fell unconscious. The deceased was brought to the hospital where he died. Merg intimation was registered in the Police Station Katghora vide Ex.-P/1. During enquiry, Panchanama was prepared and on the recommendation of the Panchas, the dead body was sent to the CHC, Katghora for postmortem examination, which was conducted by (PW-6) Dr. G.S. Kanwar, who gave his report (Ex.-P/10) and opined that the cause of death was internal haemorrhage of brain. Thereafter the appellant was arrested and on memorandum statement of the appellant, the club was seized, however, the same was not sent for FSL examination. The appellant was arrested for offence under Section 302 of the IPC and thereafter the case was committed to the Court of Sessions.

In order to bring home the charge, the prosecution examined as many as 7 witnesses and exhibited 15 documents. The appellant has abjured his guilt and examined two witnesses in his defence namely, Santram Gond and Kansram Gond, whose statements have been recorded vide Ex.-D/1 & D/2.

The learned trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above against which this Appeal has been preferred by the appellant.

Learned counsel for the appellant would submit that the trial Court has committed an illegality in holding that the appellant has committed the offence. He would further submit that the offence would fall under Exception 4 to Section 300 of the IPC. Hence the present appeal deserves to be partly allowed.

Per contra, learned State Counsel would support the impugned judgment of conviction and would submit that the appellant has rightly been convicted for offence under Section 302 of the IPC and it is not a case where conviction of the appellant under Section 302 of the IPC requires to be converted to Section 304 Part-II of the IPC. Thus the present appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection.

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 and particularly considering the postmortem report of (PW-6) Dr. G.S. Kanwar vide Ex.-P/10, wherein it was opined that the death was homicidal in nature, and we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record.

Now the next question would be whether the accused/appellant herein is the author of the crime in question?

10.In the case at hand, on the date of the incident, the complainant and the deceased had gone to plough their agricultural field. When they were returning, the appellant was quarrelling with his wife, on which the deceased and the complainant asked the appellant not to quarrel. Meanwhile, wife of the appellant had gone somewhere else, and the complainant and the deceased went to the house of Jaikaran. The appellant came there and enquired about his wife whereupon the complainant and the deceased informed the appellant that they were not aware as to where she has gone, on which the appellant started assaulting the deceased with hands, fists and club, as a result the deceased suffered injury and died. Accordingly, we affirm the finding recorded by the learned trial Court that the accused/appellant is the author of the crime in question.

11.Now the next question is whether the offence would fall under Exception 4 to Section 300 of the IPC?

12.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.”

13.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.”

14.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.

15.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 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 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.”

18.Reverting to the facts of the present case in the light of parameters laid down by the Hon’ble Supreme Court, it is quite vivid that on the date of the incident the complainant and the deceased were returning from the agricultural field at about 2.45 pm after performing the agricultural operations. Meanwhile, they saw that the appellant was quarreling with his wife and was chasing her by his motorcycle, however, they tried to persuade the appellant. In the meantime, wife of the appellant had gone somewhere else and hide herself. As the appellant could not trace his wife, he had developed a suspicion that it is the deceased who had concealed his wife and, therefore, he reached the house of Jaikaran where the complainant and the deceased were taking their food. The appellant enquired about his wife on which a sudden quarrel took place between them and the appellant assaulted the deceased with hands, fists and club. As the deceased was 65 years old and suffered internal haemorrhage of brain and his blood pressure was also high, he died in the hospital. In view of the above, it can safely be inferred that there was no premeditation on the part of the appellant to cause death, but the appellant have had knowledge that the injury is likely to cause death of the deceased. In our opinion, the offence would fall under Exception-4 to Section 300 IPC and is punishable under Section 304 Part-II of the IPC and as such, he is guilty of committing offence under Section 304 Part-II of the IPC

19.In the result, the appeal is partly allowed. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set aside and instead thereof, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 5 years. The fine sentence awarded by the trial Court shall remain intact.