Ram Narayan Pankaj vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant under Section 374(2) of IPC against impugned judgment dated 19/09/2014 passed by learned Additional Sessions Judge, Sarangarh, District Raigarh in Sessions Trial No. 07/2014 whereby he has been convicted for offence punishable under Section 302 of IPC and has been sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine, additional S.I. for 6 months.

Case of the prosecution, in brief, is that 10/01/2014 at about 6 PM at village Reda within the ambit of Police Station Sarangarh, the appellant herein assaulted his father Sonau Ram with wooden stick on his head, hands and face and caused his death and thereby, committed the aforesaid offence.

Further case of the prosecution is that appellant's legally wedded wife deserted him branding him to be insane on account of which appellant used to insist his father and mother to get him married again but they were not doing so. On 10/01/2014, Shiv Kumar Pankaj (P.W.-1) lodged a report at Police Station Sarangarh that he had lost his bicycle and was searching for it but when he returned to his house he found that his younger brother (appellant) had murdered his father Sonau Ram by assaulting him with wooden stick and his mother Kuntimati (P.W.-3) and his wife Radha Bai (P.W.-10) had seen his brother assault his father. On the basis of the said information, first information report was registered vide Ex. P/1 and dehati nalishi was registered vide Ex. P/4 and merg intimation was registered vide Ex. P/3. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/6 and inquest was conducted vide Ex. P/7 and the dead body of deceased Sonau Ram was subjected to postmortem which was conducted by Dr. J.R. Ghritlahre (P.W.-8) and as per the postmortem report (Ex. P/11), cause of death is said to be hemorrhage shock due to injury on vital organs and nature of death is said to be homicidal. Memorandum statement of the appellant was recorded vide Ex. P/11 and on that basis, wooden stick and t-shirt worn by the appellant were recovered vide Ex. P/8. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 22 documents. Statement of the appellant was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and only brought on record 1 document.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Sonau Ram to be homicidal in nature and further finding the appellant to be the author of the crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

Mr. Krishna Kumar Khatri, learned counsel for the appellant, would submit that the manner in which appellant is said to have assaulted his father Sonau Ram, aged about 85 years, it is a case which would fall within Exception 4 to Section 300 of IPC and the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC. Since he had no intention to cause the death of his father, his conviction under Section 302 of IPC be altered to Section 304 Part II of IPC and since he is in jail since 19/04/2014, he be sentenced to the period already undergone.

Per contra, Mr. Soumya Rai, learned State counsel, would submit that considering the statements of appellant's mother Smt. Kuntimati (P.W.-3) and appellant's sister-in-law Smt. Radha Bai (P.W.-10) who have seen the appellant assaulting his father coupled with the fact that wooden stick has been seized from the appellant pursuant to his memorandum statement, as such, prosecution has been able to bring home the offence beyond reasonable doubt and it is not a case which would fall within Exception 4 to Section 300 of IPC. Thus, the instant appeal is liable to be dismissed.

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

The first question for the consideration would be whether the death of deceased Sonau Ram was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Sonau Ram to be homicidal in nature relying upon the expert medical opinion of Dr. J.R. Ghritlahre (P.W.-8) who has proved the postmortem report (Ex. P/11) in which cause of death is said to be hemorrhagic shock due to injuries on vital organs and nature of death is said to be homicidal. Considering the statement of Dr. J.R. Ghritlahre (P.W.-8) as well as the postmortem report (Ex. P/11) and the grievous injury suffered by the deceased on his head, we are of the considered opinion that the trial Court has rightly held the death of deceased Sonau Ram to be homicidal in nature, more so, when it has not been seriously questioned by learned counsel for the appellant. We hereby affirm the said finding recorded by the trial Court.

This brings us to the next question for consideration, which is, whether the appellant assaulted his father Sonau Ram with wooden stick and thereby caused his death ?

Learned trial Court has relied upon the statements of appellant's mother Smt. Kuntimati (P.W.-3) and appellant's sister-in-law Smt. Radha Bai (P.W.-10) who have been cited as eye-witnesses by the prosecution, and held that appellant assaulted the deceased with wooden stick due to which he suffered grievous injuries and died.

A careful perusal of the statement of appellant's mother Smt. Kuntimati (P.W.-3) would show that she has clearly stated that on the date of the incident, she had given food to her husband deceased Sonau Ram at around 6-7 PM and while he was taking his meal, appellant came therein armed with wooden stick and started assaulting him. She ran outside crying for help and when she returned, she found that the deceased was lying on the floor and he was breathing slowly and he had suffered injuries on his head, hands and face and while he was being taken to Raigarh for treatment, he succumbed to death. Though Smt. Kuntimati has been subjected to some extent of cross-examination but nothing has been brought on record to hold that her version is doubtful and dubious and is not trustworthy. Similarly, appellant's sister-in-law Smt. Radha Bai (P.W.-10) has also stated before the Court that at the time of the incident she was watching TV in her house and when she heard her mother-in-law crying for help, she saw from her window that appellant was assaulting her father-in-law deceased Sonau Ram with wooden stick.

Thus, considering the statements of Smt. Kuntimati (P.W.-3) and Smt. Radha Bai (P.W.-10) who have seen the appellant assaulting the deceased with wooden stick due to which he suffered injuries and died, we are of the considered opinion that the trial Court has rightly held the appellant to be the author of the crime in question. Moreover, pursuant to the memorandum statement of the appellant, wooden stick has also been seized from him. As such, we hereby the affirm the finding recorded by the trial Court that appellant assaulted the deceased on account of which he died.

The last question for consideration would be whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his conviction is liable to be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellant ?

In order to consider the plea raised by learned counsel for the appellant, it would be appropriate to notice Exception 4 to Section 300 of IPC, which states as under :-

“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

With regard to the issue in hand, in the matter of Felix Ambrose D'Souza v. State of Karnataka (2009) 16 SCC 361, the Supreme Court has held in paragraph 7 as under :-

“7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 Part II IPC alone could have been rendered possible. Though the learned counsel for the respondent State strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. AS noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature. Irrespective of the silent nature of ill feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the storeroom by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with a hammer in his hand and attempts made by the appellant to physically prevent the deceased from doing so, and use of physical force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps, neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of the moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 Part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him under Section 304 Part II IPC.”

The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue at hand 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 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 when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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.

Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in the matter of Felix Ambrose D'souza (supra) and Arjun (supra), it is quite vivid that on the date of the incident, at about 6-7 PM, deceased Sonau Ram was taking his meal, however, the appellant came therein armed with wooden stick and started assaulting him on his head, hands and face on account of which he suffered injuries and died while he was being taken to the Hospital. It is the case of the prosecution and there is evidence available on record in the shape of testimony of eye-witness Smt. Kuntimati (P.W.-3), appellant's mother and wife of the deceased, that appellant was mentally ill and he was also undergoing treatment and his legally wedded wife had also deserted him because of his insanity, as such, we are of the considered opinion that there was no premeditation on the part of the appellant to cause death of the deceased and he had no such intention as well, however, looking to the injuries suffered by the deceased, the appellant must have had the knowledge that his act would likely cause the death of the deceased. In that view of the matter, the case of the appellant would fall within Exception 4 to Section 300 of IPC and his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part II of IPC and he is sentenced to undergo R.I. for 10 years. However, the fine and default sentence as awarded by the trial Court shall remain intact.

Accordingly, this Criminal Appeal is allowed to the extent indicated herein-above.

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