Jeth Singh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 28/08/2014 passed by learned Sessions Judge, Korba in Sessions Trial No. 66/2013 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 25,000/-, in default of payment of fine, further R.I. for 1 year.

Case of the prosecution, in brief, is that on 11/05/2013, at about 12 PM, the appellant assaulted his near relative Kalashram with axe by which he suffered grievous injuries and died and the appellant, thereby, committed the aforesaid offence.

Further case of the prosecution is that on 11/05/2013 at about 10 AM, appellant sold firewood to Kalashram for Rs. 100/-, but immediately after two hours, the appellant went to the house of Kalashram and his wife Dilkunwar (P.W.-4) to give back the firewood he had already sold. Kalashram resisted and refused to give firewood back and on that account, a brief altercation took place between the appellant and Kalashram and the appellant assaulted Kalashram with axe due to which he suffered grievous injuries on his neck and back and died on the spot. When the other family members gathered therein, the appellant threw the axe on the spot and absconded. The said incident was informed to the Police by the village Kotwar pursuant to which dehati nalishi was registered vide Ex. P/9. On the report of Dilkunwar (P.W.-4) about her husband's death, merg intimation was registered vide Ex. P/8 and first information report was lodged against the appellant for offence punishable under Section 302 of IPC vide Ex. P/16. Inquest was conducted vide Ex. P/2 and the dead body of Kalashram was subjected to postmortem which was conducted by Dr. Virendra Kumar Singh (P.W.-8) and as per the postmortem report (Ex. P/13), cause of death is said to be shock due to massive hemmorhage and nature of death is said to be homicidal. From the spot, plain soil, blood-stained soil as well as blood-stained axe were seized vide Ex. P/3 and P/4 and the said axe was sent to Dr. Virendra Kumar Singh (P.W.-8) for query and as per the query report (Ex. P/17), the Doctor has opined that the injuries suffered by the deceased could have been caused by the said axe. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 18 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Kalashram to be homicidal in nature and further finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

Mr. Deepak Jain, learned counsel for the appellant, would submit that the appellant has falsely been implicated in the crime in question and in view of merg intimation (Ex.P/8), dehati nalishi (Ex. P/9) and first information report (Ex. P/16), at the most, offence under Section 304 Part II of IPC would be made out against him as his case is covered with Exception 4 to Section 300 of IPC and since the appellant is in jail since 28/7/2014, he be sentenced to the period already undergone.

Per contra, Mr. Soumya Rai, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for the offence in question relying upon the statement of Dilkunwar (P.W.-4), wife of the deceased, who is an eye-witness of the incident and she has clearly stated that she has seen the appellant assaulting her husband with axe, as such, the case of the appellant would not fall within Exception 4 to Section 300 of IPC and 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 first question for consideration would be whether the death of deceased Kalashram is homicidal in nature ?

Learned trial Court has answered this question in affirmative and held the death of deceased Kalashram to be homicidal in nature relying upon the expert medical opinion of Dr. Virendra Kumar Singh (P.W.-8) who has proved the postmortem report (Ex. P/13) in which cause of death is said to be shock due to massive hemorrhage and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/13) as well as the statement of Dr. Virendra Kumar Singh (P.W.-8) and looking to the injuries suffered by the deceased on his neck and back, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Kalashram is homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellant is the author of the crime in question ?

This question has also been answered in affirmative by the trial Court holding that appellant assaulted his near relative Kalashram with iron axe on his neck and back which has also been witnessed by Dilkunwar (P.W.-4), wife of the appellant.

Dilkunwar (P.W.-4) has clearly stated in her statement before the Court that on the date of the incident, appellant came to their house and sold firewood for Rs. 100/- and thereafter, left their house, however, he returned after two hours and asked to give back the firewood that he had sold earlier. When deceased Kalashram resisted and refused to give back the said firewood, appellant assaulted him with axe on his neck due to which Kalashram suffered grievous injury and died. The statement made by Dilunwar (P.W.-4) has also been supported by Harishankar (P.W.-5) and Shiv Singh (P.W.-6). As such, it is evident from the statement of eye-witness Dilkunwar (P.W.-4) that appellant assaulted the deceased with axe on his neck due to which he suffered grievous injuries and he died on the spot, therefore, the trial Court has rightly held the appellant to be the author of the crime in question.

The third and last question for consideration would be whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case would fall within Exception 4 to Section 300 of IPC, as contended by learned counsel for the appellant ?

In order to consider the plea raised by learned counel 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, at about 10 AM, appellant went to the house of deceased Kalashram and his wife Dilkunwar (P.W.-4) and he sold them firewood for Rs. 100/- and thereafter, left their house but at about 12 PM, he returned again and asked the deceased to give back the firewood he had sold them earlier which was resisted and refused by the deceased and on that petty dispute, some altercation took place between the appellant and deceased and in a spur of moment and in heat of passion, the appellant, out of sudden anger, assaulted the deceased with iron axe on his neck due to which he suffered grievous injuries and died on the spot. As such, it transpires from the evidence available on record that there was no premeditation on the part of the appellant to cause the death of the death as they were near relatives and were on good terms with each other, but since the deceased refused to return the firewood, appellant acted in spur of moment and assaulted him with axe. Moreover, he did not act in a cruel manner and did not take undue advantage of the situation. However, looking to the injuries suffered by the deceased, the appellant must have had the knowledge that his act would likely cause the death of the deceased. As such, in our considered opinion, the case of the appellant would fall within Exception 4 to Section 300 of IPC and his conviction for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him are set aside and he is rather convicted for offence punishable under Section 304 Part II of IPC and sentenced to R.I. for 10 years. The fine sentence of Rs. 25,000/- awarded by the trial Court is reduced to Rs. 2,000/-, however, the default sentence is maintained.

Accordingly, this criminal appeal is allowed to the extent indicated herein-above.