Shankar Hathile vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 13.01.2017 passed by the learned Additional Judge, Dongargarh to the Court of First Additional Sessions Judge, Rajnandgaon, District Rajnandgaon (CG) in Sessions Trial No.08/2016, by which, he has been convicted and sentenced as under:-

CONVICTION

SENTENCE

Under Section 302 of IPC

R.I. for life and fine of Rs.100/-, in default of payment of fine, additional R.I. for 1 year

Under Section 201 of IPC

R.I. for 1 year and fine of Rs.100/-, in default of payment of fine, additional R.I. for 1 year

Both the sentences were directed to run concurrently

The case of the prosecution, in short, is that on 28.11.2015, in between 08 to 11 AM at Village Devkatta, Thana Dongargarh, the appellant herein has assaulted his wife- Sukma Bai, aged about 75 years by grinding stone (silbatta lodha), by which, she suffered grievous injuries and died and thereafter in order to screen himself from the offence, hide the grinding stone and blood stained clothes; and thereby committed the aforesaid offence.

Further case of the prosecution is that on the date of incident i.e. 28.11.2015, in between 08 to 11 AM at Village Devkatta, on an altercation regarding keeping the paddy (dhan) inside the house, the appellant assaulted his wife- Sukma Bai (since deceased) by grinding stone on her head, due to which, she suffered grievous injuries and died. Thereafter, she was taken to C.H.C. Dongargarh, where she was declared brought dead. The matter was reported to the Police by the Hospital Ward Boy, on the basis of which, Merg intimation was registered by the Police of Dongargarh vide Ex.P-2. Spot map was prepared vide Ex. P-4. First Information Report was lodged vide Ex. P-21. Inquest on the dead body of the deceased was prepared vide Ex.P-13. Dead body of the deceased was sent for postmortem examination to C.H.C., Dongargarh, where Dr. Narendra Golan (PW-11) conducted the postmortem and gave his report Ex.P-17 and opined that the cause of death was coma due to head injury and the death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex. P-9), one grinding stone and shirt of the appellant were seized vide Ex.P-8. Confessional Panchanama of the appellant was recorded vide Ex.P-10. Blood stained soil and plain soil were seized vide Ex. P-7. Clothes of the deceased were seized vide Ex.P-20. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur and as per F.S.L. report Ex. P-24, human blood was found on the grinding stone and shirt of the appellant.

After due investigation, the appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated in the offence in question.

In order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 25 documents Ex.P-1 to P-25. Statement of the appellant-accused was recorded under Section 313 of the Cr.P.C., wherein he denied guilt, however, he has not examined any witness nor has exhibited any document in his defence.

The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellant under Section 302 of IPC in the manner mentioned in the opening paragraph of this judgment, against which, the instant appeal has been preferred.

Mrs. Ranjana Jaiswal, learned counsel for the appellant submits that even if the case of the prosecution is taken as it is, on a small issue of not keeping the paddy inside the house, the appellant is said to have assaulted his ailing wife by the grinding stone, by which, she suffered grievous injuries on head and died, therefore, at the most, the case of appellant would fall under Exception 4 to Section 300 of I.P.C. and the alleged offence is liable to be converted to Part-II of Section 304 of I.P.C. and the appellant be sentenced for the period already undergone, as he is in jail since 02.12.2015 and the appeal be allowed in part.

Ms. Nand Kumari Kashyap, learned State counsel, would submit that the learned trial Court has rightly convicted the appellant herein for the aforesaid offence and it is not a case where the sentence of the appellant can be converted to Section 304 Part-II of I.P.C. and, 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 gone through the records with utmost circumspection.

The first question for consideration as to whether the death of deceased- Sukma Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-17 proved by Dr. Narendra Golan, PW-11, according to which, cause of death was coma, due to head injury and it was stated to be homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the next question is, whether the appellant herein has assaulted his wife- Sukma Bai by grinding stone and has caused her death ?

The incident has taken place on account of a small issue of not keeping the paddy inside the house which was lying in the court yard of the house by the deceased- Sukma Bai and the appellant in heat of anger, assaulted her by the grinding stone on her head, which was kept in the house, due to which, she suffered grievous injuries and died. Taking into consideration, the finding recorded by the trial Court in paragraph 40 of the judgment proving that the wife of the appellant was found dead in his house and human blood was found on the seized articles, grinding stone and the shirt of the appellant, the trial Court has rightly recorded a finding that it is the appellant, who has caused death of deceased-Sukma Bai, which is a correct finding of fact based on evidence available on record and accordingly, we hereby affirm the said finding.

Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 wherein it has been 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 Sukhir 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 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, 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 for 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 with 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 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 is 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, 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 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.

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 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.”

Reverting to the facts of the case, in the light of the principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments, admittedly, there is recovery of grinding stone (silbatta lodha) from the possession of the appellant pursuant to his memorandum statement, which was sent for its chemical examination and as per the F.S.L. report, human blood was found on the article, Silbatta Lodha “D” and the Shirt of the appellant, article “E”. The incident had taken place on a small issue of not keeping the paddy inside the house, which was lying in the court yard of the house and the appellant in heat of anger, assaulted his wife- Sukma Bai by the grinding stone (silbatta lodha) on her head, due to which, she suffered grievous injuries and died, as such, there was no premeditation or intention on the part of the appellant to cause death of the deceased. Considering the nature of injuries which have been caused on the head of the deceased and further considering the medical evidence available on record, it is quite vivid that the appellant must have had knowledge that such injuries inflicted by him would likely to cause her heath, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, we are of the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part II IPC and he be sentenced to the period already under by him as he is in jail since 02.12.2015, i.e. for more than 8 years.

In view of above, the impugned judgment of conviction and order of sentence dated 13.01.2017 passed by the learned Additional Judge, Dongargarh to the Court of First Additional Sessions Judge, Rajnandgaon, District Rajnandgaon (CG) in Sessions Trial No.08/2016, is hereby set aside. The conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to rigorous imprisonment for 8 years, which the appellant has already undergone, as he is in jail since 2.12.2015 i.e. for more than 8 years. However, conviction of the appellant under Section 201 of IPC and fine sentence with default stipulation awarded by the trial Court shall remain intact. Accordingly, we direct that appellant be released forthwith from jail, unless he is required in connection with any other offence.

In view of the above, this criminal appeal is partly allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.