Praja Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned 3rd Additional Sessions Judge, Ambikapur in Sessions Trial No.234/2013 by which the appellants herein have been convicted for offences under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced to undergo imprisonment for life & pay a fine of  Rs.  500/-each, in default of payment of fine to further undergo additional simple imprisonment for one year and to pay a fine of  Rs.  500/- each, in default of payment of fine to undergo simple imprisonment for one month, respectively.

Case of the prosecution, in short, is that on 1-1-2013 at 04:00 p.m. at Village Turiyabeera, Police Station Lundra, the appellants herein in furtherance of their common intention, assaulted Bablu (PW-3) & Omprakash (deceased) by lathi and sharp-edged weapon kalari by which Omprakash suffered injuries and died, and Bablu suffered simple hurt. Further case of the prosecution is that appellant No.2 has kept the daughter of Omprakash namely, Anita as his wife without there being any marriage and on that pretext, on the date of offence, dispute erupted between appellants No.1 to 4 and Bablu (PW-3), who is close relative of Omprakash (deceased) in the courtyard of Omprakash and his wife Munni (PW-6) and when the appellants started assaulting Bablu by weapons, he shouted ‘bachao bachao’, then deceased Omprakash and his wife Munni (PW-6) came and tried to intervene, but thereafter, the appellants assaulted Omprakash also by which he suffered injuries and died. Munni (PW-6) reported the matter to the police vide Ex.P-12 and morgue intimation was registered vide Exs.P-16 & P-16A. Spot map was prepared vide Exs.P-15 & P-25. Both the injured Bablu (PW-3) & Omprakash were sent for medical examination and thereafter, on 6-1-2013, after four days of incident, Omprakash died during the course of treatment. Inquest over the dead body of the deceased was prepared vide Ex.P-1. Dead body was subjected to postmortem vide Ex.P-13A and postmortem was conducted by Dr. Shiv Kumar Manjhi. Thereafter, kalari was seized from appellant No.1 and lathis were seized from appellants No.2, 3 & 4. Seized articles were sent for chemical examination to the FSL, but no FSL report was brought on record.

Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the appellants were charge-sheeted and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Additional Sessions Judge received the case on transfer for conducting trial and hearing and disposal in accordance with law.

The accused / appellants abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as fourteen witnesses and exhibited 25 documents. The defence has examined none, but exhibited one document Ex.D-1 i.e. the statement of Bablu Bargah recorded under Section 161 of the CrPC. The appellants were examined under Section 313 of the CrPC in which they denied the guilt.

The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellants herein in the manner mentioned in the opening paragraph of this judgment holding the death of the deceased to be homicidal in nature and the appellants herein as the authors of the crime against which the instant appeal under Section 374(2) of the CrPC has been preferred by the appellants.

Mr. Ajay Kumar Pandey and Mr. Rajkumar Pali, learned counsel appearing for the appellants, would submit that Poteli Bai (PW-1) & Kawalsai (PW-2) are not eyewitnesses as they have not seen the incident. Bablu (PW-3) is injured witness and Munni (PW-6) is wife of deceased Omprakash, as such, she is the interested witness and therefore her evidence is not reliable. Learned counsel would further submit that even if the entire case of the prosecution is accepted as it is, the appellants have an arguable case of alteration of their conviction to that under Section 304 Part-II of the IPC and also for reduction of sentence as they had already undergone 10 years of imprisonment. Therefore, even if the prosecution case is taken as it is, the case of the appellants would fall under Exception 4 to Section 300 of the IPC. The appellants remained in jail for more than 10 years, as such, it is a fit case where conviction of the appellants can be converted/altered to an offence under Section 304 Part-II of the IPC. As such, taking into consideration the period already undergone by the appellants, the appeal of the appellants be allowed in part.

Per contra, Mr. Afroz Khan, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and oppose the appeal and would submit that it is the appellants who had assaulted the deceased due to which the deceased died. He would further submit that the prosecution has been able to bring home the offence and the appellants have rightly been convicted and sentenced, as such, no case is made out for conversion /alteration of the offence against the appellant to an offence under Section 304 Part-II of the IPC.

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

The death of deceased Omprakash to be homicidal in nature has not been seriously disputed on behalf of the appellants.

Now, the question would be, whether the appellants are the authors of the crime in question?

Considering the statements of Bablu (PW-3) & Munni (PW-6), who are eyewitnesses being present on the spot, and Munni (PW-6) is wife of the deceased and further considering the deadly weapons seized from the possession of the appellants pursuant to their memorandum statements, the trial Court has rightly held the appellants to be the authors of the crime.

The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellants for offence punishable under Section 302 of the IPC or their case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, their conviction can be converted to Section 304 Part-II of the IPC, as contended by learned counsel for the appellants?

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 further, 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 from 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 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 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 for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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.

xxx xxx xxx”

Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of Supreme Court, it is quite vivid that on the date of incident as per the statement of Munni (PW-6), the appellants were quarrelling with Bablu (PW-3) as appellant No.2 had kept the daughter of deceased Omprakash as his wife without there being any marriage and they were assaulting Bablu who has suffered simple hurt, but when Bablu shouted ‘bachao bachao’, then deceased Omprakash & Munni (PW-6) reached there and tried to intervene and in that course, after brief altercation, the appellants are said to have assaulted the deceased by which he suffered injuries and died. As such, the appellants were disputing with Bablu (PW-3) and there was no intention or premeditation to cause death of Omprakash, however, since the appellants were armed with kalari & wooden sticks, they must have had knowledge that the injury caused is sufficient to cause death. Considering the nature of injury it can be held that the appellants must have had the knowledge that such injury inflicted by them on the body of the deceased would likely to cause his death, however, it can safely be inferred that there is no premeditation on the part of the appellants to cause death of the deceased. The assualt has been made in a sudeen quarrel, on a sudden dispute arisen, as appellant N.2 had kept the daughter of Omprakash as his wife without marriage. Considering the fact that the injury caused upon the deceased is on account of a sudden quarrel that erupted between the parties, however, the appellants have not taken undue advantage and have not acted in unusual manner, in our considered opinion, this case would fall within the purview of Exception 4 to Section 300 of the IPC.

In view of the aforesaid discussion, conviction of the appellants under Section 302 read with Section 34 of the IPC as well as the sentences awarded to them by the learned trial Court are hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injury caused by them was sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II read with Section 34 of the IPC. Since the appellants are in jail from 24-1-2013 for 10 years, taking into consideration the period they had already undergone, we award them the sentence already undergone by them and the fine sentence imposed by the learned trial Court shall remain intact. However, their conviction for offence under Section 323 read with Section 34 of the IPC and sentence imposed under that count are well merited and are hereby confirmed. The appellants are in jail, they be released forthwith, if not required in any other offence.

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