Rampal Singh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 28/08/2015 passed by learned Additional Sessions Judge, District Surajpur in Sessions Trial No. 49/2015 whereby the appellant has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of Rs. 100/- and in default of payment of fine, further R.I. for 5 months.

Case of the prosecution, in brief, is that on 12/04/2015 at about 8 PM at Village Devna Baigapara within the ambit of Police Station Ramanujnagar, the appellant herein assaulted his wife Parwati with wooden plank and caused her death and thereby, committed the aforesaid offence.

Further case of the prosecution is that on 13/04/2015, Rambharosh Gond (P.W.-6) lodged a report at Police Station Ramanujnagar stating that her elder daughter Parwati was married with the appellant nearly about 25 years ago and she resided with her husband at village Devna. At about 7 AM, Sheshmani Singh (P.W.-7) came to his house and informed that his daugther Parwati has died. Immediately thereafter, he along with Lalchand (P.W.-8) and Sudama (not examined) went to his daughter's house in village Devna and when they asked the appellant about the death of Parwati, he did not give a satisfactory reply, as such, they came to the Police Station and again when they returned to appellant's house with the police, appellant admitted that on 12/04/2015 at about 8 PM, his wife Parwati came home in an intoxicated condition and on that account, dispute arose between the husband and wife and they started quarreling and out of sudden anger and in heat of passion, appellant assaulted his wife Parwati with wooden plank on her head due to which she sustained injuries and blood started oozing out. She fell in the courtyard and after some time succumbed to her injuries and died. On the basis of the said information, merg intimation was registered vide Ex. P/8 and first information report was registered against the appellant vide Ex. P/9. Inquest was conducted vide Ex. P/5 and dead body of deceased Parwati was subjected to postmortem which was conducted by Dr. D.K. Vishwakarma (P.W.-4) and as per the postmortem report (Ex. P/4A), cause of death is said to be coma due to head injury and nature of death is said to be homicidal. Memorandum statement of the appellant was recorded vide Ex. P/11 and pursuant thereof, recovery of wooden plank was made from him vide Ex. P/12 which was sent for chemical examination and as per the FSL report (Ex. P/18), blood was found on it. 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 9 witnesses and brought on record 18 documents. The statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and neither brought any document on record.

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

Mr. Ajay Mishra, learned counsel for the appellant, would submit that trial Court has erred in convicting the appellant for offence punishable under Section 302 of IPC as prosecution has not been able to bring home the offence beyond reasonable doubt. He would further submit that since on the date of the incident, deceased returned home in an intoxicated condition, dispute erupted between her and the appellant and on account of sudden anger and in heat of passion, the appellant assaulted her with a wooden plank which is also not a deadly weapon, however, the deceased succumbed to her injuries and died, as such, there was no premeditation on the part of the appellant to cause the death of the deceased and his case would be covered with Exception 4 to Section 300 of IPC and the appellant can be convicted for offence punishable under Section 304 Part II of IPC and since he is in jail from 14/04/2015, he be sentenced to the period already undergone by him.

Per contra, Mr. Sameer Uraon, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and as such, the trial Court is absolutely justified in convicting the appellant for offence punishable under Section 302 of IPC, therefore, this criminal appeal deserves to be dismissed.

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

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

Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Parwati to be homicidal in nature relying upon the expert medical opinion of Dr. D.K. Vishwakarma (P.W.-4) who has proved the postmortem report (Ex. P/4A) in which cause of death is said to be coma due to head injury and nature of death is said to be homicidal. Considering the statement of Dr. D.K. Vishwakarma (P.W.-4) as well as the postmortem report (Ex. P/4A) and the injury suffered by the deceased on her head, we are of the considered opinion that the trial Court has rightly held the death of deceased Parwati to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court particularly when it has been not been seriously questioned by learned counsel for the appellant.

The next question for consideration would be, whether it is the appellant who assaulted his wife Parwati with wooden plank on account of which she suffered grievous injury on her head and died ?

Taking into consideration the finding recorded by the trial Court that death of the deceased occurred in the house of the appellant where only the appellant and deceased resided and no such explanation has been offered by the appellant in his statement under Section 313 of CrPC as to how his wife died, as such, provision contained under Section 106 of the Evidence Act would be applicable and further considering statement of Rambharosh Gond (P.W.-6), father of the deceased, who reached the spot immediately after the incident as well as the statements of Sheshmani Singh (P.W.-7) and Lalchand Gond (P.W.-8) and further considering that pursuant to the memorandum statement of the appellant, recovery of wooden plank has been made vide Ex. P/12 in which blood has been found as per the FSL report (Ex. P/18), we are of the considered opinion that the trial Court has rightly held that it is the appellant who assaulted his wife Parwati with wooden plank on account of which she sustained grievous injuries on her head and died.

Now, what requires consideration is, 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 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.

Bearing in mind the principles of law law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that in the instant case, the appellant and deceased both were husband and wife and on the fateful day, at about 8 PM, deceased returned home in an intoxicated condition due to which dispute arose between her and the appellant and on that petty dispute, in sudden anger and in the heat of the moment, appellant assaulted his wife with wooden plank due to which she suffered grievous injuries on her head and died. This goes to show that there was no premeditation or intention on the part of the appellant to cause the death of the deceased, however, looking to the injury suffered by the deceased on her head, the appellant must have had the knowledge that his act would likely cause the death of the deceased. As such, the case of the appellant would be covered with Exception 4 to Section 300 of IPC and his conviction for offence punishable under Section 302 of IPC is hereby altered to Section 304 Part II of IPC. Since the appellant is in jail from 14/04/2015 i.e. for more than 8 years, we hereby sentence him to the period already undergone by him. However, the fine sentence as imposed by the trial Court shall remain intact. 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.

Let a certified copy of this judgment be sent to the concerned trial Court as well as the jail authorities for information and compliance.