Ramchandra Verma vs State Of Chhattisgarh

Sanjay K. Agrawal, J

By way of this appeal filed under Section 374(2) of the Code of Criminal Procedure the appellant has assailed the judgment impugned dated 28.07.2014 passed by Additional Sessions Judge, Khairagarh, District Rajnandgaon (CG) in Sessions Trial No.11/2012 convicting him under Section 302 IPC and sentencing to undergo imprisonment for life with fine of Rs. 1000/-, in default of payment of fine, to further undergo SI for 01 month.

Facts of the case in brief are that prior to date of incident as the motorcycle of the accused/appellant had dashed against the buffalo of Laxman Lal (PW-3), some altercation between the two had taken place. Over that issue, on 05.01.2012 at about 9-10 PM deceased Pilaram had convened a meeting in connection with the said quarrel between Laxman Lal (PW-3) and the present appellant where the accused/appellant assaulted Pilaram with axe and lathi near the house of one Madan Verma. On seeing this, Gokaran went to the house of Pilaram and informed his sons Rajesh and Lalaram about the incident. When Rajesh and Lalaram went to the spot, accused/appellant was assaulting Pilaram, who however was caught hold of with the help of villagers. Thereafter when the information regarding the incident was given on phone, the police people came to the spot and took the accused/appellant to the police station. Rajesh and Lala Ram also went to the police station and lodged the report against the appellant. Spot map was prepared, inquest was made and the body was sent for postmortem examination which was conducted by Dr. Ashok Khare (not examined) who gave his report Ex P-17 which has been proved by Dr. Lila Ramteke (PW-13). Memorandum of the accused/appellant was recorded and based thereupon seizure of axe, lathi and clothes was made. After completion of investigation charge-sheet was filed against the accused/appellant under Section 302 IPC followed by framing of charge accordingly.

So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant under Section 313 Cr.P.C. was also recorded in which he pleaded his innocence and false implication in the case. Defence however has not examined any witness in support of its case.

After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Additional Sessions Judge has convicted and sentenced the accused/appellant as detailed in paragraph No. 1 of this judgment. Hence this appeal.

Learned counsel for the appellant submits that the conviction of the accused/appellant is based on the testimony of Gokaran Verma (PW-2) but there are number of contradictions and omissions in the same and therefore the finding recorded by the Court below is bad in law. He further submits that as far as the testimony of Lalaram (PW-5) and Rajesh Kumar (PW-9) is concerned, as these witnesses happen to be the sons of the deceased as such the interested ones, they cannot be said to be the reliable witnesses. He further submits that even otherwise, the incident had taken place on a trivial issue erupted prior to the incident between the accused and Laxman (PW-3) and for that a meeting was convened by the deceased, the case of the prosecution falls within Exception 4 to section 300 IPC as there was no premeditation on the part of the accused/appellant to cause the death of the deceased. Lastly, he submits that as the appellant is in jail since 06.01.2012, after convicting him under Section 304 (Part-II) IPC, he may be sentenced to the period already undergone by him.

On the other hand, learned counsel appearing for the State supports the judgment impugned and submits that the findings recorded by the Additional Sessions Judge holding the accused/appellant guilty under Section 302 IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal, and being so the appeal is liable to be dismissed.

Heard counsel for the parties at length and went through the evidence on record with utmost care and caution.

The first question to be decided by this Court is whether the death of the deceased was homicidal in nature or not? Dr. Ashok Khare (not examined) had conducted the postmortem examination on the body of the deceased and gave his report Ex.P-17 which has been proved by Dr. Lila Ramteke (PW-13). Postmortem report goes to show that the injury present on the head and mouth of the deceased was caused by some sharp object and on account of excessive bleeding the death of the deceased was caused. The report further says that there were multiple fractures including intracranial haemorrhage, and that all injuries have been opined to be antemortem in nature caused by hard and blunt object. The postmortem report further goes to show that cause of death was multiple injuries over skull leading to intracranial haemorrhage. Thus from the postmortem report duly proved by (PW-13) it is established that death of the deceased was homicidal in nature, and the trial Court’s finding in this regard appears to be well founded.

Now the second question to be answered by this Court is whether it is the accused/appellant who was involved in causing the death of the deceased? Gokaran (PW-2) who has been cited as an eyewitness to the incident has stated that on the date of incident when he was coming from his grainyard, he saw the accused/appellant assaulting the deceased with axe. Accused/appellant, according to this witness, was also carrying a lathi. Thereafter, this witness is stated to have gone to the house of the deceased and informed his sons about the incident. The evidence of (PW-2) has also been corroborated by son of the deceased namely Lalaram (PW-5). Thus, from the evidence of the PW-2 and PW-5 it is apparent that it is the accused/appellant who caused the death of the deceased, and therebey the Court below has not committed any error in recording a finding to this effect.

Now the point to be considered is whether the act attributed to the accused/appellant is covered with Exception 4 to Section 300 IPC vis-a-vis culpable homicide not amounting to murder, and thereby his conviction under Section 302 IPC can be converted into the one under Section 304-II IPC, as put forth by the 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 (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.”

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 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.”

From the factual background of this case it is revealed that there was no premeditation on the part of the appellant to cause the death of the deceased as the incident had taken place over a trivial dispute originated between the appellant and Laxman (PW-3) prior to the incident of assault as allegedly the motorcycle of the appellant had dashed against the buffalo of PW-3. To settle the said dispute between accused/appellant and Laxman, a meeting was convened by the deceased where having fallen in the grip of anger and resultant frustration, the accused inflicted axe injuries to the deceased. Of course, while using the axe as the weapon of assault and choosing the part where the injury was inflicted, intention on the part of the accused can very well be deciphered.

In view of the aforesaid factual and legal position, this Court is of the considered opinion that the conviction of the appellant under Section 302 of IPC and the resultant sentence of life imprisonment imposed on him by the learned trial Court is liable to be and is hereby set aside, and now the appellant is convicted under Section 304 Part-I of IPC. As the appellant is in jail since 06.01.2012 i.e. for more than 11 years, we award him the jail sentence to the period already undergone by him. The fine sentence imposed by the learned trial Court shall however remain intact.

Accordingly, the appeal is allowed in part.