Shivlal vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 21.10.2014 passed by learned Sessions Judge, Surajpur in Sessions Trial No. 57/2013, whereby the appellant/accused has been convicted for offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs. 2000/­, in default of payment of fine to further undergo R.I. for one year.

The case of the prosecution, in brief, is that on 27.3.2013 at 4 p.m. the appellant caused death of Ramdeo by making axe injury by which he suffered injuries and died instantaneously. It is further case of the prosecution that on 27.3.2013 Heeralal (not examined), the appellant herein, Beersai (PW­1), Jyot Singh (PW­2), Amir Sai and Sumeshwar (PW­4) all knowing each other were celebrating Holi festival and the appellant and Heeralal both were bothers (cousin) and were involved in agricultural operations and also running tractor. It is further case of the prosecution that Heeralal (cousin brother of the appellant) was operating tractor on behalf of all and also giving tractor on hire, but Heeralal did not maintain the account properly and on that account, on 27.3.2013 after consuming liquor the appellant and Heeralal (not a prosecution witness) both were quarrelling, which was intervened by Jyot Singh (PW­2) and deceased Ramdeo was also tried to intervene and during altercation, the appellant went inside the house and brought axe and assaulted Ramdeo by which he suffered injuries and died. Thereafter on the report of Beersai (PW­1), merg intimation was registered vide Ex.P­1 and on the basis of merg intimation, FIR (Ex.P­2) was registered for offence under Section 302 of the IPC against the appellant. Information was sent to the Judicial Magistrate First Class, Surajpur. Inquest was conducted vide Ex.P­9. Thereafter, dead body was sent for postmortem to Community Health Center, Premnagar, where Dr.S.B.Singh (PW­4) conducted postmortem vide Ex.P­10 and opined that cause of death was haemorrhagic shock and death was homicidal in nature. Thereafter memorandum statement of the appellant was recorded vide Ex.P­4 and pursuant to his memorandum statement, bloodstained axe was recovered vide Ex.P­5, which was dent for FSL vide Exs.P­21 and P­22, but no FSL report has been brought on record by the prosecution. Other part of investigation was completed. After completion of investigation, charge­sheet was filed before the Chief Judicial Magistrate, Surajpur, who in turn, committed the case to the Court of Session, Surajpur for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined 6 witnesses and brought into record 22 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

Learned trial Court, after appreciating the oral and documentary evidence on record, by its judgment dated 21.10.2014, convicted the appellant/accused for offence punishable under Section 302 of the IPC holding the death to be homicidal in nature and the appellant is author of the crime and sentenced him as aforesaid which has been called in question by way of the instant appeal.

Mr.Vivek Sharma, learned counsel for the appellant, would submit that the prosecution has failed to prove the offence under Section 302 of the IPC as there was no intention to cause death of deceased Ramdeo and at the most, offence under Section 304 Part II of the IPC is made out as Heeralal has not been examined with whom the appellant was quarreling and deceased Ramdeo has tried to intervene and there was no premeditation and in a sudden fight, injuries came to be caused to Ramdeo by which he suffered injuries and died. Therefore, the appeal can be allowed in toto or it can be altered under Section 304 Part II of the IPC and the appellant is in jail since 28.3.2013, the period already undergone by him be awarded for that.

Per Contra, Mr.Arijit Tiwari, learned Panel Lawyer for the respondent / State, would submit that the prosecution has proved its case beyond reasonable doubt and it is not the case where offence under Section 302 of the IPC can be altered under Section 304 Part II of the IPC and as such, the 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 learned Sessions Judge has rightly held the death to be homicidal in nature. The trial Court after appreciating medical evidence available on record particularly statement of Dr.S.B.Singh (PW­4) and considering that the death of the deceased to be excessive bleeding and injury No.1 was in head and injury No.2 was in right side of chest came to the conclusion that death of the deceased was homicidal in nature. The finding recorded by the trial Curt is the finding of fact based on medical evidence of Dr.S.B.Singh (PW­4) and postmortem report (Ex.P­10), which is neither perverse nor contrary to record. We affirm the finding recorded by the trial Court.

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

It is not in dispute that Heeralal (not examined) and Shivlal, the appellant herein both are cousins, Heeralal was operating tractor on their behalf by giving on hire and was not accounting money obtained from hiring the tractor and on that dispute, after having intoxicated condition on the day of Holi festival, they were quarreling, Beersai (PW­1) and Jyot Singh (PW­2) both tried to intervene and deceased Ramdeo also tried to intervene, on that account, the appellant brought axe and caused injuries to Ramdeo. Beersai (PW­1) has been examined as a prosecution witness. He has clearly stated that Heeralal and the appellant herein both were quarreling on account of money received from operating tractor, which was intervened by him and Jyot Singh (PW­2) and thereafter deceased Ramdeo came to intervene and asked the appellant herein not to dispute, but thereafter the appellant herein went inside the house and brought axe and assaulted Ramdeo. Identical statement has been made by Jyot Singh (PW­2). Both the witnesses in their cross­examination have clearly stated that relation between the appellant herein and Ramdeo was cordial and they were residing together and on that day, the deceased tried to intervene and the appellant being in drunken condition in that circumstance assaulted him. As such, it is quite established that in a sudden fight in sudden quarrel and in drunken condition, the appellant assaulted Ramdeo, who came to intervene the dispute between the appellant herein and Heeralal. Pursuant to disclosure statement of the appellant herein vide Ex.P­4, axe was recovered from him vide Ex.P­5, but no FSL report was received whether it is human blood or not, but the fact remains that the appellant has caused injuries to Ramdeo on vital parts of the body by axe by which he died, whether it is murder or culpable homicide not amounting to murder as the learned counsel for the appellant has argued that the case of the appellant is covered by Exception 4 of Section 300 of the IPC.

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 Part­I 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 Part­II IPC.

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.”

Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in the above­stated judgments (supra), it is quite vivid that there is no enmity between the appellant herein and deceased Ramdeo, they have cordial relations and on the day of Holi festival, account being not given by Heeralal, the appellant was quarreling with him, which was tried to intervene by deceased Ramdeo, but without premeditation in a sudden fight, in the heat of passion, the appellant went inside the house and came armed with axe and caused injuries on head and chest by which Ramdeo suffered and died. Since the manner in which the offence is said to have committed by the appellant herein as deceased Ramdeo came to intervene and there was no dispute between the appellant herein and Ramdeo, it can be held that there was no intention on the part of the appellant to cause death of Ramdeo, but from the injuries that have been caused on head and chest of the deceased, the appellant must have had the knowledge that his act is likely to cause death of Ramdeo as he has assaulted on head and chest which are vital parts of the body.

Accordingly, conviction of the appellant under Section 302 of the IPC is set aside and he is convicted for offence under Section 304 Part II of the IPC. It is stated at the bar that the appellant is in jail since 28.3.2013 and he has completed more than 9 years of imprisonment, his sentence is modified to that of the period already undergone by him. The appellant be released forthwith unless required in any other case.

The appeal is allowed to the extent indicated herein­above.