Jhandu Ram Korwa vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 29.01.2014 passed by the Sessions Judge, Jashpur, District: Jashpur, (C.G.) in Sessions Trial No. 46/2013 by which the appellants herein have been convicted for the offence under Section 302/34 of I.P.C. and sentenced for life imprisonment with fine of Rs.100/- and in default of payment of fine amount, R.I. for one month.

Case of the prosecution in short is that in the intervening night of 14-15.02.2013, at 03:00 AM at night, the appellant No. 2 herein assaulted Thuri Bai with the help of Tangi, due to which she sustained grievous injuries and died. Further case of the prosecution is that on the date of offence, in the house of the deceased, the appellants and Bikul (PW-7) were sitting on the eve of the festival in the house of appellants and the deceased. The appellant No. 1 had gone to the house of Ghanshyam to collect tobacco and when he came back at that time, the deceased Thori Bai taunted him as to whether he wish to have Lalo Bai wife of Ghanshyam as his wife. On that pretext, the appellant No. 1 started quarreling with Thori Bai and he started beating her by fist. In the meanwhile, the appellant No. 2 brought one Tangi and assaulted the deceased with it. The appellant No. 1 also assaulted her with wooden stick due to which she suffered greivous injuries and died. Thereafter, the matter was reported by Baljeet Ram (PW-6) vide Exhibit-P/9 and 10. Thereafter, Merg intimation was registered vide Exhibit-P/8. Panchnama was prepared vide Exhibit-P/2 and on the recommendation of the Panchas dead body of the deceased was sent for autopsy. Post Mortem was conducted by Dr. Sukhram Khalkho and his report is Exhibit-P/7, according to which the cause of death was excessive bleeding due to hemorrhage and death was homicidal in nature. Pursuant to memorandum statement of appellant No.1 vide Exhibit-P/3, axe was recovered from the possession of appellant No. 1 vide Exhibit-P/4 which was sent for FSL. Other articles were also seized and sent for FSL, but no FSL report has been brought on record.

After due investigation, the appellants were charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused abjured their guilt and entered into defence by stating that they have not committed the offence.

In order to bring home the offence, prosecution has examined as many as 10 witnesses and brought into record 21 documents. The defence has examined none and not exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the offence under Section 302 read with Section 34 of I.P.C. and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellants would submit that the prosecution has failed to bring home the offence under Section 302 of IPC against the appellants. The statements of Bikul Ram (PW-7) and Sortha Ram (PW-8) would show that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and therefore their conviction under Section 302 of I.P.C. be altered either to Part-I or Part-II of Section 304 of I.P.C. and the appeal be allowed in part.

Per contra, learned State counsel, would support the impugned judgment and submit that learned trial Court has rightly convicted the appellants for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, conviction of the appellants cannot be converted to either Part I or Part II of Section 304 of IPC, 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 first question for consideration is whether the death of deceased Thori Bai was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard relying upon the post mortem report (Ex.P-7) proved by Dr. Sukhram Khalkho (PW-4) which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question would be, whether the appellants are the authors of the crime in question ?

Taking into consideration the statements of Bikul Ram (PW-7) and Sortha Ram (PW-8), who are the eye witnesses and were present on the spot, we have no hesitation in holding that the trial Court has rightly held that the appellants are the authors of the crime.

Now, the question that requires consideration is, whether the trial Court is justified in convicting the appellants for offence punishable under Section 302 of IPC or their case is covered under Exception 4 to Section 300 of IPC and as such, their conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellants ?

In order to consider whether the case of the appellant is covered within 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 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, 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 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 with 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 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 is 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 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 vs. State (NCT of Delhi)5 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.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court and in view of the statement of Sortha Ram (PW-8), it is quite vivid that PW-7 and 8 both have assembled together in the house of the appellant No. 1 and the deceased. In the meanwhile, the appellant No. 1 gone to the house of Ghanshyam to collect tobacco and came with little delay and then the deceased Thuri Bai taunted as to why he has come late, and if he wished to have Lalo Bai, wife of Ghanshyam, as his wife, then the appellant No. 1 started assaulting the deceased Thori Bai and in the meanwhile, appellant No. 2 brought one Tangi and assaulted the deceased with it and the appellant No. 1 also assaulted him by wooden stick and all were in the influence of liquor. As such, there was no premeditation on the part of the appellants to cause the death of the deceased Thori Bai, on sudden quarrel erupted between them and out of sudden anger and in heat of passion, the appellants assaulted the deceased by which she suffered injuries. As such, the appellants must have had the knowledge that their act would likely to cause the death of the deceased.

In that view of the matter, we are of the opinion that the case of the appellants is covered within Exception 4 to Section 300 of IPC and since the appellants had no intention and premeditation to cause the death of the deceased, however, they must have had the knowledge that their act of assault would likely to cause the death of the deceased, their conviction for offence punishable under Section 302/34 of IPC is altered to Section 304 Part II/34 of IPC. Since the appellants are in jail since 18.02.2013, i.e. for more than 9 years, we hereby sentence them to the period already undergone, however, the sentence of fine amount as imposed by the trial Court is hereby maintained. We direct, the appellants be released forthwith, if not required in any other case.

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