Mohan Sahu vs State Of Chhattisgarh

Ramesh Sinha, CJ

This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 13.12.2022, passed by the learned Sessions Judge, Bemetara in Sessions Trial No.15/2021, whereby the appellant-accused has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine, to further undergo additional imprisonment for three months.

Case of the prosecution, in brief, is that complainant Ghanshyam Sahu had lodged report on 26.10.2020 at Police Station Nawagarh, District Bemetara stating that on 25.10.2020 at 11 P.M. he heard the noise of a hustle in Baba Sahu Hotel and then he went there to look into the matter wherein one Nakul Sahu and Bharat Sahu had told him that their brother namely Gajendra Sahu was beaten by the appellant with the help of wooden plank (batta), by which Gajendra has received injuries over right and left side of head and blood was oozing out. With the help of Nakul and Bharat Sahu, Gajendra Sahu was taken to the house and then he was admitted in the Government Hospital, Bemetara. After primary treatment, he was shifted to Shreyansh Hospital, Raipur and then he was further shifted to D.K.S. Hospital, Raipur. On the basis of complaint of Ghanshyam Sahu, FIR (Ex.P-1) for offence under Sections 294, 506B and 323 of the IPC was registered against the appellant. Spot map was prepared by the investigating officer vide Ex.P-2. Half shirt of the deceased stains with blood was seized from complainant Ghanshyam Sahu vide Ex.P-3. Memorandum statement of the appellant was recorded vide Ex.P-4 and on the basis of his memorandum statement, wooden plank (batta) was been seized on the pointing out of the appellant vide Ex.P-5. Patwari also prepared spot map vide Ex.P-6. During treatment, Gajendra Sahu died on 30.10.2020 at D.K.S. Hospital, Raipur. Inquest of dead body of deceased Gajendra Sahu was prepared vide Ex.P-8. Dead body of the deceased was sent for postmortem to Dr.Bhimrao Ambedkar Hospital, Raipur where Dr.Arun Kumar Jaiswani conducted postmortem over the body of the deceased vide Ex.P-9 and found following injuries:-

Stitched wound of length 37cm with 40 stitches in-situ present over left front-temporo-parietal region. On removing stitches, margins are clean cut and cranial flap of size 20cm x 14cm not in-situ. Evidence of lax duroplasty present.

Stitched wound of length 2cm with contused margins present obliquely over left parietal region, no oozing.

Stitched would of length 2cm with contused margins present obliquely over right parietal region, no oozing.

Surgical intervention seen as stitched wound of central line present over right supra-clavicular region.

Multiple abrasions ranging from size 0.5cm to 4cm x 0. 5cm extending over neck region bilaterally and upper chest region, black scab.

Stitched wound of length 12.5cm present horizontally over left abdomen region. On removing stitches, cranial flap of size 20cm x 14cm preserved subcutaneously.

Multiple contused abrasions of size 1cm x 0.5cm to 5 cm x 1cm present over entire back, back scab.

Dr.Arun Kumar Jaiswani opined that cause of death was head injury and its complications and death was homicidal in nature.

Statements of the witnesses were recorded. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Bemetara, who in turn, committed the case to the Court of Sessions, Bemetara. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has been falsely been implicated in crime in question.

In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 09 documents. The appellant-accused examined none in his defence nor any document has been exhibited.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 13.12.2022, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

Mr.B.P.Singh, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there are several contradictions and omissions in the prosecution witnesses and they were found contrary to each other. Looking to the evidence available on the face of record that due to simple reason and with sudden provocation and heat of passion, the incident has taken place and there is no motive available. He also submits that learned trial Court failed to establish the fact that at the time of incident, the deceased has consumed high quantity of liquor and he has started the dispute and evidence of Nakul Sahu is not sufficient to connect the appellant in murder case as like the same the evidence of Ram Kumar Sahu is also not enough to connect the appellant in murder case and evidence of Mukesh Sahu has established that the appellant and the deceased had consumed liquor and due to that reason and in a jolly mood, both of them were grabbing each other in a friendly manner and after some time the appellant had caused injury to Gajendra Sahu with wooden plank (batta) and returned his house and due to the effect of alcohol the said incident has taken place. He contended that the prosecution has not examined the doctor who has conducted the autopsy of the deceased as well as the treating doctor and thus, it is a serious lapse on the part of the prosecution and even if the defence has admitted the postmortem report, it is not sufficient to prove the cause of death and the nature of death as well as the postmortem is not well proved and it is the duty of the prosecution to call for that doctor who has treated the deceased as well as the doctor who has conducted the postmortem of the deceased, but in this case those doctors were not called. He further contended that there are two simple injuries found in the MLC, which are not sufficient to cause death of deceased Gajendra Sahu and there was no intention on the part of the appellant. He also contended that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment, as they were fighting to each other; though no injury was caused to the appellant herein. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death after five days of the incident. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. He relied upon the judgments of the Supreme Court in the matters of Manoj and another v. State of Karnataka (2013) 14 SCC 666 and Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others (2022) 12 SCC 657.

On the other hand, Mr.Avinash K. Mishra, learned Government Advocate appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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

The first question for consideration would be, whether death of deceased Gajendra Sahu was homicidal in nature ?

The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the postmortem report of Dr.Arjun Kumar Jaiswani (PW-9) has come to the conclusion that cause of death was head injury and its complications and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Gajendra Sahu was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of eyewitnesses Nakul Sahu (PW-2), Ramkumar Sahu (PW-7) and Mukesh Sahu (PW-8) and at the relevant point of time were present on the spot where the incident took place. Nakul Sahu (PW-2) has stated in para 2 of his evidence that last year on the day of Dussehra, about 9 months ago, it was around 8.30 P.M., he, Maheshwar, Ramkumar, Mukesh Harendra, Kartik and Gajendra were sitting in Baba Sahu hotel where Mohan and Gajendra had a fight over trivial issue. After the fight ended, Mohan left from there. In para 3 of his evidence, he has stated that Mohan came back after 15-20 minutes and assaulted Gejendra on the head with a wooden plank, Gajendra had fallen and blood started oozing from his head. Similar statement has been made by Ramkumar Sahu (PW-7) and Mukesh Sahu (PW-8).

Thus, on the basis of testimonies of Nakul Sahu (PW-2), Ramkumar Sahu (PW-7) and Mukesh Sahu (PW-8), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to Gajendra Sahu, due to which he died after five days of the incident. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding.

The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the 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 the IPC, as contended by learned counsel for the appellant ?

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 (PartI) 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 the 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.

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 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.

Further, the Supreme Court in the matter of Rambir v. 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.”

In the present case, Ghanshyam Sahu (PW-1) (brother of the deceased) who lodged FIR (Ex.P-1) is not an eyewitnesses of the incident. He stated in para-2 of his evidence that on the date of incident, he was in his house, after hearing the sound of fight around 8.30-9 P.M., he went near Baba Sahu’s hotel where his brother Gajendra was lying unconscious, blood was coming out from his head. Nakul and Bharat were there when he asked them and they told that Mohan had assaulted Gajendra by wooden plank. In para 3 of his evidence, he has stated that Nakul and Bharat had told that they had a fight over some issue, then Mohan killed him. In para 4 of his evidence, he has stated that he along with Bharat and Nakul took his brother home from there to Bemetara Hospital for treatment. After being referred from there, Gajendra was taken to Shreyansh Hospital, Raipur, he was then admitted to DKS Hospital, Raipur and he died during the treatment in DKS Hospital. In para 5, he has stated that he had informed about the incident in Navagarh police station, the police has registered his report. This witness accepted his signature on part A to A of the FIR presented in the case which was marked as Ex.P-1. In para 7 he has stated that the police had seized a torn shirt of his brother Gajendra with bloodstains on it and had written it down. In para 10 of his cross-examination, he has stated that it is incorrect to say that the police did not seize the shirt worn by his brother Gajendra.

Investigating officer Ambar Singh Bhardwaj (PW-9) has stated in para 4 of his evidence that during investigation, he interrogated accused Mohan Sahu in front of witnesses and recorded his memorandum statement, the accused has stated that wooden plank (batta) used in the incident was hidden on the banks of Half River. The memorandum statement of the accused is Ex.P-4. In para 5, he has stated that he had seized wooden square batta in front of witnesses at the instance of accused Mohan Sahu and prepared seizure memo Ex.P-5. In para 9 of his cross-examination, he has stated that it is incorrect to say that during the investigation, he came to know that deceased Gajendra had assaulted Ramkumar and accused Mohan’s nephew Prakash. It is also incorrect to say that when Mohan defended himself, Gajendra also threw him and assaulted him. In para 11 of his cross-examination, this witness has stated that it is correct to say that in the statements of witnesses Kartik, Maheshwar and Ramkumar, it is written that Gajendra was drunk and there was a fight between Gajendra and Mohan.

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra) and considering the statements of the witnesses, it is quite vivid that as per evidence of eyewitness Nakul Sahu (PW-2), at the relevant point of time he was present on the spot where the incident took place. He has stated that last year on the day of Dussehra, about 9 months ago, it was around 8.30 P.M., he, Maheshwar, Ramkumar, Mukesh Harendra, Kartik and Gajendra were sitting in Baba Sahu hotel where Mohan and Gajendra had a fight over trivial issue. After the fight ended, Mohan left from there and he came back after 15-20 minutes and assaulted Gejendra on the head with a wooden plank, Gajendra had fallen and blood started oozing from his head. There was no premeditation on the part of the appellant to cause death of deceased Gajendra Sahu and only because of some trivial issue, the quarrel took place between the appellant & the deceased. After the fight ended, Mohan left from there and he came back after 15-20 minutes and assaulted Gejendra on the head with a wooden plank, Gajendra had fallen and blood started oozing from his head, he was shifted to Hospital and after five days of the incident, he died. The appellant did not have any intention to cause death of deceased Gajendra Sahu, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Gajendra, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfied 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.

Considering the above-stated facts, further considering the evidence of eyewitnesses Nakul Sahu (PW-2), Ramkumar Sahu (PW-7) and Mukesh Sahu (PW-8), taking into consideration the age of the appellant at present, the fact that he is in jail since 30.10.2020, also considering the postmortem report of the deceased (Ex.P-9) and the material available on record, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC.

Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo RI for 7 years.

The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court.

The criminal appeal is partly allowed to the extent indicated herein-above.

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.