Kamleshwar Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellants herein assailing the impugned judgment dated 06/08/2015 (Annexure A/1) passed by learned Additional Sessions Judge, Jashpur in Sessions Trial No. 13/2015 whereby they have been convicted for offences punishable under Section 302/34 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 2000/- each, in default of payment of fine, additional R.I. for 6 months and for offence punishable under Section 449 of IPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 2000/- each, in default of payment of fine, additional R.I. for 6 months.

Case of the prosecution, in brief, is that on 24/10/2014 in between 8-9 PM, at the house of Loharo Bai (P.W.-1) at village Balachhapar, School Para within the ambit of Police Station Jashpur, the appellants herein, in furtherance of their common intention, assaulted Maniram with hands and fists as well as with axe (tangi) and caused his death and thereby, committed the aforesaid offences.

Further case of the prosecution is that on 25/10/2014 at about 08:15 AM, Loharo Bai (P.W.-1) along with her son Muneshwar Ram (P.W.-13) and her nephew Mukesh Kumar (not examined) went to the Police Station and informed that she was living with her husband Maniram (deceased) and her mentally deranged son Sukhdev and on 24/10/2014 in between 8-9 PM, when she and her husband were sleeping, the appellants came to their house and asked where Maniram was ? She replied that he was sleeping inside and thereafter, the appellants dragged Maniram outside the house and committed maarpeet in the courtyard and then took him inside the room and left him there. In the morning, when Loharo Bai (P.W.-1) woke up her husband Maniram, she found that he has already died and there were injuries on his head. On the basis of the said information, merg intimation was registered vide Ex. P/17 and first information report was lodged against the appellants vide Ex. P/21 for offences punishable under Sections 450, 302, 34 of IPC. Summons were issued to the witnesses vide Ex. P/3 and inquest was conducted vide Ex. P/2. Nazri naksha was prepared vide Ex. P/5 and on the recommendation of the Panchas, the dead body was subjected to postmortem, which was conducted by Dr. Smt. Kumud Kerketta (P.W.-14) and as per the postmortem report (Ex. P/19), cause of death is said to be rupture of both the lungs due to fractured ribs and the nature of death is said to be homicidal. Pursuant thereof, plain soil as well as blood stained soil was seized from the spot vide Ex. P/6 and blood stained shirt and lungi worn by the deceased were seized vide Ex. P/7. On 27/10/2014, memorandum statement of appellant No. 1 Kamleshwar Ram was recorded vide Ex. P/8 and at his instance, an axe with wooden bait was seized vide Ex. P/9. The said seized articles were sent for chemical examination, and as per the FSL report (Ex. P/26), blood was not found on the axe, however, the said axe was also sent to Dr. Smt. Kumud Kerketta (P.W.-14) for query as to whether the injuries suffered by the deceased could have been caused by the said axe, to which the Doctor has opined in query report (Ex. P/23) that the injuries suffered by the deceased could have been caused by the said axe. After due investigation, the appellants were charge-sheeted for offences punishable under Sections 449 and 302/34 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 18 witnesses and brought on record 26 documents. The statement of appellants/accused persons was recorded wherein they denied guilt, however, they examined none in their defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, holding the death of deceased Maniram to be homicidal in nature and further holding the appellants to be the perpetrators of the crime in question, proceeded to convict them for offences punishable under Section 302/34 and 449 of IPC and sentenced them as aforesaid.

Ms. Fouzia Mirza, learned counsel for appellant No. 1, would make two-fold submission :-

i) that, sole eye-witness cited by the prosecution, Loharo Bai (P.W.-1), is not an actual eye-witness as she is the wife of deceased Maniram and is an interested witness, therefore, her testimony is required to be assessed with great caution and circumspection and she herself has stated that appellants assaulted the deceased in the courtyard whereas she was inside the house, as such, she has not seen the incident and merely on the basis of previous enmity, she has falsely implicated the appellants in the crime in question. Moreover, even though pursuant to memorandum statement of appellant No. 1, recovery of axe has been made vide Ex. P/9, but seizure witnesses namely Surendra Ram (P.W.-5) and Nirmal Khalkho (P.W.-6) have turned hostile and have not supported recovery and even if it is held to be proved by the Investigating Officer Indranath Nayak (P.W.-17), yet no blood was found on the said axe in FSL report (Ex. P/26), therefore, it would be unsafe to convict the appellants for offence punishable under Section 302/34 of IPC.

ii) in alternative, she would submit that the injuries said to have been inflicted by the appellants are on the non-vital parts of his body except of injuries No. 4 and 5, as such, the case of the appellants would fall within exception 4 to Section 300 of IPC and therefore, their conviction for offence punishable under Section 302/34 be altered to Section 304 Part II of IPC and since they are in jail since 27/10/2014, they be sentenced for the period already undergone.

Mr. Sushil Dubey, learned counsel for appellant No. 2, would principally adopt the submission made by learned senior counsel for appellant No. 1 and would additionally submit that there was no overt act caused by appellant No. 2 and he has been convicted only with the aid of Section 34 of IPC. Moreover, nothing has been seized from appellant No. 2 and except for the self-serving statement of Loharo Bai (P.W.-1), there is no legally admissible evidence against appellant No. 2, as such, appeal preferred on his behalf deserves to be allowed.

Per contra, Ms. Ruchi Nagar, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence and the trial Court has rightly convicted the appellants for the said offences on the basis of testimony of eye-witness Loharo Bai (P.W.-1), as such, 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 Maniram was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard holding the death of deceased Maniram to be homicidal in nature relying upon the postmortem report (Ex. P/19) which has been proved by Dr. Smt. Kumud Kerketta (P.W.-14) and in which it has been clearly recorded that the cause of death is rupture of both the lungs due to fractured ribs and the nature of death is homicidal. In her statement before the Court, the Doctor has opined that the injuries suffered by the deceased could have been caused by a sharp edged weapon. As such, We are of the considered opinion that the trial Court has rightly relied upon the statement of Dr. Smt. Kumud Kerketta (P.W.-14) as well as the postmortem report (Ex. P/19) to hold the death of deceased to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court, more so, when it has not been seriously questioned by learned counsel for the appellant.

The next question for consideration is, whether the appellants are the perpetrators of the crime in question ?

Learned trial Court has also recorded an affirmative finding in this regard. It is the case of the prosecution that appellants and their family members used to suspect the deceased of performing the act of witchcraft which is clear from the statement of Dhaneshwar Ram (P.W.-12) and also from the statement of Loharo Bai (P.W.-1) wherein from the cross-examination of Loharo Bai (P.W.-1), it appears that there was a dispute of land between the deceased and appellant No. 1. In paragraph 20, Loharo Bai (P.W.-1) has admitted that the house, in which they used to live and in which the incident took place, is constructed on the land of appellant No. 1 and he wanted to get the said land vacated from the deceased and his family and in that view of the matter learned trial Court has found the motive of offence established.

The testimony of Loharo Bai (P.W.-1) has been impeached on the ground that she has not seen the incident as in the merg intimation (Ex. P/17), she has not stated that she has actually seen the appellants assaulting the deceased though she has stated that both the appellants took deceased Maniram outside from the house in the night and assaulted him in the courtyard and thereafter, he was found dead.

A careful perusal of the statement of Loharo Bai (P.W.-1) would show that in the late night in between 8-9 PM, appellants No. 1 and 2 entered into the house of Loharo Bai and took her husband Maniram in the courtyard and assaulted him with hands and fists as well as with axe and when he died, they absconded from the spot. Though her testimony has been tried to be impeached on the ground that she has not seen the incident but in cross-examination in paragraph 14, she has clearly stated that she has seen the incident and appellant No. 1 firstly inflicted a blow with axe inside the house and thereafter, both the appellants took the deceased in the courtyard and further assaulted him till he succumbed to death. As such, except for minor omissions and contradictions, nothing has been brought out to hold that Loharo Bai (P.W.-1) has not actually seen the incident and is making false statement before the Court after the death of her husband. As such, we are of the considered opinion that learned trial Court has rightly held the appellants to be the perpetrators of the crime in question.

Now, the question for consideration is, whether the case of the appellants would fall within Exception 4 to Section 300 of IPC and whether their conviction under Section 302/34 of IPC can be altered to Section 304 Part I or II of IPC, as contended by learned counsel for the appellants ?

At this stage, it would re relevant 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.”

In the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327, it has been observed by the Supreme Court 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.”

Thereafter, in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused 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.

In a recent decision rendered by their Lordships of the Supreme Court in the matter of Mohd. Rafiq v. State of M.P. (2021) 10 SCC 706, reliance has been placed upon its earlier decision in the matter of Pulicherla Nagaraju v. State of A.P. (2006) 11 SCC 444 wherein the considerations that should weigh with Courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined and it has been observed in paragraph 13 as under :-

“13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju (supra). This court observed that: (SCC pp. 457-58, para 29)

"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”

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.

Reverting to the facts of the present case in light of the aforesaid principle of law laid down by Their Lordships of the Supreme Court in Mohd. Rafiq (supra) and Arjun (supra), it is quite vivid that there was no premeditation on the part of the appellants to cause the death of deceased. Furthermore, looking to the injuries suffered by the deceased, as per the postmortem report (Ex. P/19) all other injuries except for injuries No. 4 and 5 have been inflicted in the non-vital parts of the body which goes to show that the appellants did not take any undue advantage or acted in a cruel manner. As such, the case of the appellants would fall within exception 4 of Section 300 of IPC. However, looking to the injuries suffered by the deceased in his ribs by which his lungs got ruptured and he succumbed to death, the appellants must have had the knowledge that their act would likely cause the death of the deceased. Therefore, their conviction for offence punishable under Section 302/34 of IPC is hereby set aside and the appellants are convicted for offence punishable under Section 304 Part II of IPC. Since they are in jail since 27/10/2014 i.e. for more than 8 years, they are sentenced for the period already undergone. Their conviction recorded by the trial Court for offence punishable under Section 449 of IPC is hereby maintained, being well-merited, however, they are sentenced to the period already undergone. The appellants be released forthwith, if their detention is not required in any other case.

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