Ram Prasad vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 02/08/2013 passed by learned Sessions Judge, Sarguja, Ambikapur in Sessions Trial No. 115/2012 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 1000/-, in default of payment of fine, further S.I. for six months.

Case of the prosecution, in brief, is that on 17/12/2011, at about 4 PM, at Village Kesra (Marapaara) within the ambit of Police Station Kamleshwarpur, the appellant herein assaulted his father Malsai Manjhi with wooden log on the ground of not partitioning the agricultural land/ancestral property due to which his father suffered grievous injuries and died and the appellant, thereby, committed the aforesaid offence.

Further case of the prosecution is that on the date of the incident at about 4 PM, appellant came to his father's house and started abusing him and asked him to partition the agricultural land/ancestral property to which his father deceased Malsai Manjhi declined and told him that after his death, all of his property would belong to the appellant, however, the appellant was not satisfied and he consumed liqour with his father and thereafter, under the influence of liqour, he assaulted his father with a wooden log and caused his death. The matter was reported to the Police on the same day at about 07:40 PM by Dhansai (P.W.-2) on the basis of which, first information report was registered vide Ex. P/2 and merg intimation was registered vide Ex. P/12. In the presence of the witnesses, inquest was conducted vide Ex. P/4 and the dead body of deceased Malsai Manjhi was subjected to postmortem which was conducted by Dr. R.S. Singh (P.W.-4) and as per the postmortem report (Ex. P/9A), cause of death is said to be asphyxia and the nature of death is said to be homicidal. Pursuant to the memorandum statement of the appellant vide Ex. P/6, recovery of blood-stained wooden log was made at his instance vide Ex. P/7. The said wooden log was sent for forensic examination along with other seized articles, however, no blood was found on it as per the FSL report (Ex. P/16). 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 5 witnesses and brought on record 16 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt and he examined only 1 witness, however, he did not bring any document on record.

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

Mr. Palash Agrawal, learned counsel for the appellant, would submit that the dispute in the instant case was a family dispute between the father and son on account of partition, which was refused by the deceased and that is why the appellant is said to have assaulted the deceased with wooden log by which he suffered grievous injuires and died, however, as per the MLC report (Ex. P/10A), the appellant has also suffered injuries. As such, it is a case which is covered with Exception 4 to Section 300 of IPC and the conviction of the appellant for offence punishable under Section 302 of IPC is liable to be converted to either Part I or II of Section 304 IPC and since the appellant is in jail since 18/12/2011, he be sentenced for the period already undergone.

Per contra, Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and as such, the trial Court has rightly convicted the appellant for the offence in question and It is not a case which would be covered with Exception 4 to Section 300 of IPC, as such, the instant appeal deserves 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 consideration would be whether the death of deceased Malsai Manjhi is homicidal in nature ?

Learned trial Court has answered this question in affirmative and held the death of deceased Malsai Manjhi to be homicidal in nature relying upon the expert medical opinion of Dr. R.S. Singh (P.W.- 4) who has proved the postmortem report (Ex. P/9A) in which cause of death is said to be asphyxia and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/9A) as well as the statement of Dr. R.S. Singh (P.W.-4) and looking to the injuries suffered by the deceased, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Malsai Manjhi is homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellant is the author of the crime in question ?

This question has also been answered in affirmative by the trial Court. Considering the statement of Dhansai (P.W.-2) who has stated before the Court that he has seen the appellant assaulting the deceased and further considering that pursuant to the memorandum statement of the appellant vide Ex. P/6, recovery of wooden log has been made at his instance vide Ex. P/7, as such, we are of the considered opinion that it is the appellant who has assaulted the deceased and has caused his death.

The third and last question for consideration would be whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case would fall within Exception 4 to Section 300 of IPC, as contended by learned counsel for the appellant ?

In order to consider the plea raised by learned counel 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 appellant and deceased were son and father respectively and there was dispute going on between them on account of partition of agricultural land/ancestral property. On the date of the incident, the appellant went to the house of the deceased and asked him to partition the said property, however, the deceased refused stating that after his death the entire property would belong to the appellant, but the appellant was not satisfied and thereafter, both of them consumed liqour and under the influence and in sudden anger, the appellant assaulted the deceased with wooden log due to which he suffered grievous injuries and died, which goes to show that appellant had the intention to cause the death of the deceased and moreover, 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, who was aged about 72 years. As such, we are of the considered opinion that the present case would fall within Exception 4 to Section 300 of IPC and the conviction of the appellant is hereby altered to Section 304 Part I of IPC. Since the appellant is in jail since 18/12/2011 i.e. for more than 11 years, we hereby sentence him to the period already undergone, however, the fine sentence and default sentence as awarded by the trial Court is hereby maintained. He be released forthwith, if his detention is not required in any other case.

Accordingly, this criminal appeal is allowed to the extent indicated herein-above.