Linga Oyami vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant/accused herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 2.5.2015 passed by the Sessions Judge, Dakshin Bastar Dantewada, in Sessions Trial No. 305/2011, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life.

Case of the prosecution, in brief, is that on 25.8.2011 at 5 p.m. at village Murki, P.S. Dantewada the appellant caused death of his uncle (father's brother) Jagguram and thereby committed the offence punishable under Section 302 of the IPC. It is undisputed fact that the appellant is nephew of deceased Jagguram, Bomda (PW-1) is nephew of deceased Jagguram and Smt.Pande Bai (PW-3) is wife of deceased Jagguram, Ku.Fulmati (PW-4) and Ku.Geeta (PW-5) are daughters of deceased Jagguram and Kama Ram Poyam (PW-6) & Arjun (PW-7) are brothers of deceased Jagguram. It is further case of the prosecution that teak wood planted by the appellant herein was sold by the the deceased in open market and got the amount of sale proceeds deposited in his account and he was using the said money and on account of which, there was some dispute between the appellant herein, his family members and the deceased and on account of that, on 25.8.2011 at about 5 p.m. the appellant entered into kitchen garden of deceased Jagguram with axe and caused injuries on his body, neck and left hand by which he suffered injuries and became unconscious. The incident was noticed by Bomda (PW-1), Smt.Jogi Oyami (PW-2) and Ku.Geeta (PW-5), where he taken to District Hospital, Dantewada, he was examined by Dr.R.L.Gangesh (PW-8), but looking to his serious condition, he was referred to District Hospital, Jagdalpur, where he died on 27.8.2011. FIR was lodged by Kama Ram Poyam (PW-6) vide Ex.P-1 at Police Station-Kotwali, Dantewada. Merg intimation being Merg No.55/11 was registered vide Ex.P-11. Inquest was conducted. Dead body of the deceased was sent for postmortem to Government Hospital, Jagdalpur, where Dr.Pawan Tekate (PW-12) conducted postmortem vide Ex.P-17 and opined that death was homicidal in nature. On the basis of memorandum statement of the accused/appellant (Ex.P-2), blood stained axe was seized vide Ex.P-3, which was sent to FSL for chemical examination and in FSL report dated 15.9.2011, blood was found on axe (article 'A') recovered from the possession of the appellant herein (not exhibited document, but available on record). Statements of the prosecution witnesses were recorded under Section 161 of the CrPC. After completion of investigation, the charge-sheet was filed before the Court of Chief Judicial Magistrate, Dantewada, who in turn, committed the case to the Court of Sessions, Dakshin Bastar Dantewada for trial in accordance with law. The accused abjured the guilt and entered into defence.

In order to bring home the above-stated offence, the prosecution examined as many as 12 witnesses and exhibited 17 documents Exs.P-1 to P-17. However, the appellant examined none in his defence and no document has been produced.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 2.5.2015, convicted the appellant herein for offence under Section 302 of the IPC and sentenced him as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred.

Mr.N.S.Dhurandhar, learned counsel for the appellant herein, would submit that the prosecution has failed to bring home the offence under Section 302 of the IPC and finding of the trial Court is based on perverse ground, as such, the judgment impugned deserves to be set-aside. Alternatively, he would submit that offence was committed on trivial issue of taking all money of teak wood which the deceased has sold in which the appellant had also share, it was sudden fight and there was no intention to cause death of deceased Jagguram. As such, the offence under Section 304 Part-I of the IPC is made out and not under Section 302 of the IPC. He would further submit that the appellant is in jail since 29.8.2011 and thereby he has completed more than 10 years, therefore, his sentence may be reduced to the period already undergone by him setting aside the conviction under Section 302 of the IPC.

On the other hand, Ms Madhu Nisha Singh, learned counsel for the respondent/State, would support the impugned judgment and submit that the trial Court has convicted the appellant on the basis of evidence available on record and as such, the appeal deserves to be dismissed.

We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

The first question would be, whether death of deceased Jagguram was homicidal in nature. The trial Court after noticing the evidence of medical expert Dr.R.L.Gangesh (PW-8), who has examined the deceased on 25.8.2011 in District Hospital, Dantewada, has clearly stated that the deceased has suffered five injuries on neck, head & chest and all the injuries were caused by sharp edged weapon. Dr.Pawan Tekate (PW-12), who has conducted postmortem of the deceased, has clearly opined that death of deceased Jagguram was homicidal in nature, which has also not been seriously disputed by the learned counsel for the appellant. Accordingly, we hold that death of Jagguram was homicidal in nature and we do not find any infirmity in the said finding recorded by the trial Court.

Now, the question is whether, death was caused by the appellant herein. Three eyewitnesses namely Bomda (PW-1), Smt.Jogi Oyami (PW-2) and Ku.Geeta (PW-5) have clearly stated before the Court that they have seen the incident by which the appellant assaulted the deceased by axe by which the deceased suffered serious injuries on 25.8.2011 as he was not sharing the amount of sale proceeds of teak wood of which he had a share and using alone. Not only this, on the memorandum statement of the appellant (Ex.P-2), blood stained axe was seized from him vide Ex.P-3, in which blood was found as per FSL report dated 15.9.2011 (not exhibited document, but available on record). As such, it has duly been established that death was caused by the appellant herein by axe.

Now the question is, whether conviction of the appellant under Section 302 of the IPC is sustainable ?

From the evidence of Bomda (PW-1), Smt.Jogi Oyami (PW-2) and Ku.Geeta (PW-5) it has clearly been established that the dispute between the appellant and the deceased was only with regard to sale proceeds of teak wood, which according to the appellant, teak wood was held jointly him and the deceased and therefore, the deceased ought to have given half of the share of sale proceeds to him and on account of which, there was dispute pending between the parties and that was the sole reason for causing death of deceased Jagguram. As such, there was no premeditation and it was happened in a sudden fight. The appellant has not taken any advantage or he has not acted in cruel or unusual manner. Considering the fact that without premeditation the appellant has assaulted the deceased by axe resulting into his death, we are of the considered opinion that the act of the appellant herein does not fall within the ambit of Section 302 of the IPC and it is covered by Exception 4 of Section 300 of the IPC.

The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 147 has elaborately dealt with the issue and observed 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 the case of 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 and 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 provision means ‘unfair advantage’.”

The Supreme Court in Arun (supra) has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I of the 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 of the IPC. It has been further held that injuries/incised wound caused on head i.e. right parietal region and right temporal region and also occipital region of deceased, indicate that appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part-I of the IPC.

Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in Arun (supra), it is quite apparent from testimonies of Bomda (PW-1), Smt.Jogi Oyami (PW-2) and Ku.Geeta (PW-5) that on account of trivial dispute of sharing of sale proceeds of teak wood sold by the deceased the appellant came and assaulted the deceased by which he suffered five injuries on neck, head, chest and hand and by which he died on third day i.e. on 27.8.2011, as such, it can safely be inferred that while inflicting such injuries on the person of the deceased, the appellant had the intention and knowledge that by causing such injuries it is likely to cause death of Jagguram and thus it would be a case falling under Section 304 Part-I of the IPC. Accordingly, the conviction of the appellant under Section 302 of the IPC is modified under Section 304 Part-I of the IPC. The appellant is in jail since 29.8.2011 and has completed more than 10 years of imprisonment. His sentence is modified to that of the period already undergone.

For the foregoing reasons, conviction of the appellant under Section 302 of the IPC is modified under Section 304 Part-I of the IPC and sentence is reduced to the period already undergone by him. The appellant is in jail, he be released forthwith unless required in any other case.

The criminal appeal is partly allowed to the extent indicated hereinabove.