Lakshiram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal preferred by two appellants herein, namely, Lakshiram (A-1) and Rajeshwari (A-2) under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 17.08.2016, passed by 1st Addl. Sessions Judge, Sakti, Janjgir-Champa in Sessions Case No.10 of 2015, whereby they have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- each and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 06 months each.

(2) The case of the prosecution, in short, is that on 12.10.2014, at about 20:45 hours in the night, at Village Chisda, within the ambit of Police Station Hasoud, District Janjgir-Champa, the accused-appellants herein shared common intention and, in furtherance thereof, abused Sammelal (for short the “deceased”) in public place and further assaulted him by means of brick, due to which he suffered grievous injuries and died and, thereby, the appellants are said to have committed offence under Sections 302/34, 294 & 506 (Part-II) of IPC.

(3) The further case of the prosecution is that during the lifetime of Sammelal (deceased), he solemnized two marriages. The first marriage of the deceased was solemnized with Navdha Bai, with whom, Lakshiram (A-1) was born. Thereafter, the deceased solemnized his second marriage with Photobai and, out of said wedlock, they were having 06 children, namely, Puran Kishore (PW-03), Krishna Kumar @ Kishore (PW-09), Anita (not examined), Sunita (not examined), Savita (PW-02) and Lalita (PW-04). Among the children of the deceased, a long standing enmity/dispute existed with regard to property. On the date and time of offence, the appellant No.01- Lakshiram under the influence of liquor entered into the house and started abusing his father (deceased), upon which, Puran Kishore (PW-03) came outside from his room and quarrel took place between them and they went outside in the courtyard of his house. Thereafter, upon hearing the noise, the deceased came outside from the house and when he asked the appellant not to abuse him, the appellant No.01- Lakshiram assaulted the deceased by means of brick, due to which he suffered grievous injuries and the appellant No.02- Rajeshwari is said to have caught hold the hands of the deceased. Thereafter, the deceased was escorted to the hospital, where he was declared dead.

(4) Thereafter, the matter was reported to the police by Puran Kishore (PW-03) [step-brother of the appellant No.01], pursuant to which, FIR (Ex.P/05) was registered against the appellants and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/08 and summons under Section 175 of CrPC were sent vide Ex.P/07. ‘Nazari Naksha’ and ‘panchnama’ were also prepared vide Ex.P/01 and Ex.P/02 respectively. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/24), conducted by Dr. Manoj Kumar Rathore (PW-16), it was opined that the cause of death of deceased is hemorrhage and shock due to head injury. Thereafter, the appellants were arrested vide Ex.P/18 & Ex.P/19. Further, from the place of incident, the weapon of the offence i.e. brick has been seized vide Ex.P/17. The aforesaid seized brick was neither subjected to FSL examination nor any FSL report has been brought on record, for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Janjgir-Champa and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(5) The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 29 documents, whereas the appellants-accused in support of his defence has neither examined any witness nor exhibited any document.

(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants only for offence under Sections 302/34 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(7) Ms. Pooja Luniya, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that so far as Rajeshwari (A-2) is concerned, there is no allegation of assault being made by her on the deceased, who is his father-in-law, which is established from the record and, according to the case of the prosecution, it is only appellant No.01- Lakshiram who came into the house and started abusing the deceased and had further assaulted the deceased. As such, Rajeshwari (A-2) is entitled for acquittal on the basis of benefit of doubt. Learned counsel also submits that so far as Lakshiram (A-1) is concerned, between him and his step-brother and step-sisters, namely, Puran Kishore (PW-03), Ku. Savita (PW-02) and Ku. Lalita (PW-03) respectively, a long standing property dispute was going on and, therefore, he has been falsely implicated. As such, the Lakshiram (A-1) is also entitled for acquittal. In alternative, learned counsel for the appellants submits that if the prosecution case is accepted as it is, then also the appellant No.01 is said to have assaulted his father (deceased) in spur of the moment and there was no motive or premeditation on the part of the appellant No.01 to cause death of the deceased and only on account of sudden quarrel, under influence of liquor, in anger and in heat of passion the appellant No.01 assaulted the deceased by means of brick, due to which he suffered grievous injuries and died. Therefore, the case of the present appellant No.01- Lakshiram, falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant No.01 is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant No.01 for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part- II) of IPC and as the appellant is in jail since 13.10.2014 i.e. 08 years 11 months, he be awarded the sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

(8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of various prosecution witnesses, specially, Puran Kishore (PW-03), Ku. Savita (PW-02) and Ku. Lalita (PW-03) [son and daugthers of the deceased respectively] coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence under Section 302/34 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellant No.01 under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed.

(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

(10) 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 postmortem report (Ex.P/24), wherein it has been opined that cause of death of deceased is hemorrhage and shock due to head injury, which is duly proved by the statement of Dr. Manoj Kumar Rathore (PW-16). Accordingly, taking into consideration the postmortem report (Ex.P/24) and the statement of Dr. Manoj Kumar Rathore (PW-16), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(11) Now, the next question would be whether the accused-appellants herein are the author of the crime ?

(12) Considering the nature of the evidence available against the two appellants, we would consider the case of both the appellants one by one.

Case of the Appellant No.1- Lakshiram:

(13) In the instant case, the appellant No.01- Lakshiram is said to have assaulted and committed murder of his father (deceased). He being the son of the deceased from his first wife- Navdha Bai, whereas, Puran Kishore (PW-03) is the son of the deceased from his second wife- Photobai. Ku. Savita (PW-02) and Ku. Lalita (PW-04) are the daughters of the deceased from his second wife-Photobai and sisters of Puran Kishore (PW-03). It is also admitted position on record that between Lakshiram (A-1) and his step-brother and step-sisters, namely, Puran Kishore (PW-03)., Ku. Savita (PW-02) and Ku. Lalita (PW-04), a long standing property dispute existed and, on account of which, on the date and time of offence the appellant No.01- Lakshiram under the influence of liquor came to the house and started abusing, upon which, the Puran Kishore (PW-03) came outside from his room and quarrel took place between them. Thereafter, on hearing noise, the deceased came outside and tried to intervene between them, in which, the appellant No.01 assaulted the deceased by means of brick, due to which he suffered grievous injuries and died. Though, Ku. Savita (PW-02) and Ku. Lalita (PW-04) are said to have witnessed the said incident being eye-witnesses, but looking to their statements recorded before the Court, it appears that they reached to the spot immediately after the incident. However, the aforesaid incident has been reiterated by Puran Kishore (PW-03) in his statement recorded before the Court. Puran Kishore (PW-03) was subjected to some length of cross-examination, but nothing could be extracted from him to hold that he has not seen the incident or he is telling lie before the Court. As such, from the statement of Puran Kishore (PW-03) it is clearly established that is the appellant No.01- Lakshiram, who has caused injuries over the body of his father (deceased), due to which he died. Accordingly, we hereby affirm the said finding that it is the appellant No.01-Lakshiram who has caused injuries over the body of the deceased, due to which he died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

(14) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant No.01 is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellants ?

(15) 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 is it 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”.

(16) 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.

(17) 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 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.”

(18) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the instant case on the date and time of the offence, the appellant No.01- Lakshiram under the influence of liquor quarreled with the deceased and Puran Kishore (PW-03) on some previous dispute and further abused them and, in furtherance thereof, assaulted the deceased by means of brick, due to which he suffered grievous injuries and died. As such, there was no premeditation on the part of the appellant No.01 to cause death of the deceased, but only because of sudden quarrel, in anger, under influence of liquor and under heat of passion, the appellant No.01 assaulted the deceased, due to which he suffered grievous injuries and died. However, looking to the injuries sustained by the deceased, though the appellant No.01 had no intention, but he must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to 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 and, therefore, the conviction of the appellant No.01 under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.

(19) In view of the aforesaid discussion, the conviction of the appellant No.01- Lakshiram for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant No.01 to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant No.01 is convicted for offence punishable under Section 304 Part-II of IPC and as the appellant No.01 is in jail since 13.10.2014 i.e. 08 years 11 months, he is awarded the sentence for the period already undergone by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. The appellant No.01-Lakshiram be released from jail forthwith, if not required in any other matter/crime.

Case of the Appellant No.02- Rajeshwari:

(20) Though, it is the case of the prosecution that at the time of the offence, the appellant No.02- Rajeshwari had caught hold her father-in-law (deceased), but considering the statement of Ku. Lalita (PW-04), where she has only stated that on the date and time of the offence, the appellant No.01- Lakshiram under the influence of liquor came to the house and started abusing the deceased and when the deceased tried to intervene, then appellant No.01- Lakshiram assaulted the deceased by means of bricks. Similar was the statement of Ku. Savita (PW-02) and Puran Kishore (PW-03). As such, considering the statements of aforesaid witnesses, we are of the considered opinion that the prosecution has not been able to bring home the offence beyond reasonable doubt against the appellant No.02- Rajeshwari and, consequently, she is entitled for benefit of doubt.

(21) Accordingly, the conviction of the appellant No.02-Rajeshwari for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to her by the learned trial Court is hereby set aside. She is acquitted of the said charge by giving her benefit of doubt. She is reported to be on bail, therefore, she need not to surrender. However, her bail bonds shall remain in force for the period of six months in view of provision contained under Section 437-A of CrPC.

(22) This criminal appeal is partly allowed to the extent indicated herein-above.

(23) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.