Mohan vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC has been preferred by two appellants herein calling in question the correctness of the impugned judgment of conviction and order of sentence dated 06.08.2014 passed by the learned Second Additional Sessions Judge, Surajpur, District Surajpur (C.G.), in Sessions Trial No. 131/2011 by which appellants herein have been convicted as under:-

Conviction (against both the appellants)

Sentence (against both the appellants)

Under Section 148 of the IPC

R.I. for 1 year and fine of Rs.300/-, in default of payment of fine simple imprisonment for 02 months

Under  Section  302  /  149  of  the IPC

Imprisonment  for  life  and  fine  of Rs.500/-, in default of payment fine simple imprisonment for 6 months

Under  Section  323/149  of  the IPC   (for   causing   injuries   to Ramnarayan)

R.I.   for   6   months   and   fine   of Rs.200/-,  in  default  of  payment  of fine,   simple   imprisonment   for   1 month

Under  Section  323/149  of  the IPC   (for   causing   injuries   to Jwala)

R.I.   for   6   months   and   fine   of Rs.200/-,  in  default  of  payment  of fine,   simple   imprisonment   for   1 month

All the sentences are directed to run concurrently.

Case of the prosecution is that on 17.11.2010 at 4:00 pm at village Kuberpur, Harijanpara, Police Station Chandni, District Surajpur (C.G.) in furtherance of their common object two appellants herein namely Mohan & Shaymsundar along with Ramashankar, Sharfilal and four acquitted appellants assaulted Hanslal, Ramnarayan, Ramesh Kumar, Jwala Prasad and Suresh by which Hanslal suffered grievous injuries and died and Ramnarayan, Ramesh Kumar, Jwala Prasad and Suresh suffered simple injuries on dispute of hand-pump water between Jamuna and Hanslal (deceased) as the deceased closed the hand-pump, which was reported by Ramnarayan (PW-1) to the Police Station Chandni. It is further case of the prosecution that  Mahesh, son of Ramashankar, has kept the girl of Khairwar caste as his wife for which he had offered a party to which complainant did not attend, on account of which there was enmity between complainant and the accused party. On the date of offence when villagers were celebrating Ekadashi festival, the dispute erupted between the parties and in the course of event Mahesh, one of the juvenile accused, came armed with tangi, and assaulted the deceased Hanslal on his back and Ramshankar also assaulted the deceased – Hanslal by same axe on his head and other co-accused armed with wooden stick came there and assaulted Hanslal and complainants by which Hanslal suffered grievous injuries and died and Ramnarayan and Jwala Prasad suffered simple injuries. Merg intimation and FIR were registered vide Ex.P/1 and Ex.P/2 respectively. Inquest proceedings were conducted vide Ex.P/18 and dead body was sent for postmortem. Postmortem was conducted by Dr. A.M. Siddiqui (PW-5) and it was opined in the postmortem report (Ex.P/4) that cause of death is due to coma as a result of head injury, other contributory factor is hemorrhage shock as a result of excessive bleeding and nature of death is homicidal. Axe was recovered from Ramashankar and juvenile Mahesh and wooden stick was seized from appellant No.1 Mohan, appellant herein, nothing has been seized from appellant No.2 Shyamsundar, appellant herein. Seized articles were sent for chemical analysis to the FSL but FSL report has not been brought on record.

After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence stating that they have not committed the offence. Co-accused persons Lalluchand, Ramsakal, Jamuna and Baikunth were acquitted by the trial Court, however, juvenile Mahesh was charge-sheeted before the Juvenile Court. It is not brought on record whether Ramashankar and Sharfilal, who have been convicted by the impugned judgment preferred appeal or not though this Court has directed the learned State counsel to ascertain whether appeal has been preferred by the co-accused persons or not but nothing has been brought on record.

In order to bring home the offence prosecution has examined as many as 12 witnesses and exhibited 47 documents, whereas the appellants in support of their defence have examined two witnesses namely Siril Ekka (DW-1) & Ramprasad Sandilya (DW-2) and exhibited two documents i.e. Ex.D/01 & Ex.D/02.

The learned trial Court after appreciating the oral and documentary evidence available on record convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

Mr. Shobhit Koshta, learned counsel for the appellants, submits that the trial Court is absolutely unjustified in convicting the appellants for the aforesaid offence and, as such, the impugned judgment is liable to be set aside. He further submits that considering the nature of injury which the deceased – Haslal suffered, in view of the statement of Dr. A.M. Siddiqui (PW-5), incised wound which was caused by Ramashankar and juvenile Mahesh, one of the accused persons, is one of reason of excessive bleeding and death of deceased – Hanslal. Injury caused by the two appellants herein is by wooden stick which was seized from appellant No.1 Mohan and nothing has been seized from appellant No.2 Shyamsundar, as such, at the most, offence under Section 304 (Part-I or Part-II) of IPC read with Section 149 of the IPC is made out against the appellants herein and their conviction for offence under Section 302/149 of the IPC is liable to be set aside. Appellant No.1 – Mohan and appellant No.2 – Shyamsundar are in jail since 19.11.2010 and 31.10.2012 respectively. Thus, the present appeal deserves to be allowed in full or in part.

On the other hand, Mr. Sameer Oraon, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and, therefore, the instant appeal deserves to be dismissed.

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

The first question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative on the basis of postmortem report (Ex.P/4) which is proved by Dr. A.M. Siddiqui (PW-5) which is the 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 next question is, whether the appellants have caused death of deceased – Hanslal?

In the instant case, the appellants have been convicted with the aid of Section 149 of the IPC. Considering the statements of Ramnarayan (PW-1), Lotai (PW-2), Suresh (PW-3), Ramesh Kumar (PW-4), Basant Lal (PW-6), Rati Kunwar (PW-8), Ramanuj (PW-9) & Mahendra Kumar (PW-11), we are of the opinion that the trial Court has rightly held that the appellants have also participated in the crime in question with the aid of Section 149 of the IPC.

Now, the question is, whether the case of the appellants would fall under Exception 4 to Section 300 of IPC?

The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 has 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 Sukhbir 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 of IPC, 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 fro 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 without 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 to cause 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.

24.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 has 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 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.

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 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 principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that the dispute erupted between the parties on account of closure of hand-pump by deceased – Hanslal and the appellants were in aggression. The injuries on deceased – Hanslal are said to have been caused by the Ramashankar and juvenile Mahesh, one of the accused persons, and the injury No.1 is incised wound which was sufficient to cause death as per the statement of Dr. A.M. Siddiqui (PW-5) and only wooden stick was seized from appellant No.1 Mohan and nothing has been seized from appellant No.2 Shyamsundar. As such, there was no premeditation on the part of the appellants to cause death of Hanslal (deceased) and only in the spur of moment, out of anger appellants assaulted Hanslal and other complainants. However, the appellants must have had intention and knowledge that such injury inflicted by them 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  appellants 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 appellants under Section 302/149 of IPC can be altered/converted to Section 304 Part-I/149 of IPC.

In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302/149 of IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injuries caused by them were sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-I/149 of IPC. Since appellant No.1, Mohan, is in jail from 19.11.2010 more than 12 years 7 months and appellant No.2, Shyamsundar, is in jail from 31.10.2012 more than 10 years 8 months, taking into consideration the period they have already undergone, we award them sentence already undergone by them but the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellants be released from jail forthwith, if not required in any other matter. However, conviction & sentences for offences under Sections 148 and 323/149 of the IPC are not interfered with.

This criminal appeal is party allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.