Teerath Ram Gond vs State Of Chhattisgarh

Radhakishan Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 27.12.2019 passed in Sessions Trial No.51/2019 by the 1st Additional Sessions Judge, Surajpur, District Surajpur, C.G., by which the appellant stands convicted for the offence under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2,000/-, in default of payment of fine amount additional rigorous imprisonment for six months.

Case of the prosecution, in brief, is that, on 01.05.2019 at about 5:00 pm, at village Dharsedi, Tariya Behera, Odagi, appellant herein assaulted Babu Singh (hereinafter called as 'deceased') with bamboo stick, as a result of which, deceased suffered grievous injuries over his body and died. Further case of the prosecution is that on 01.05.2019, PW-1 Mohar Say lodged a merg intimation at Police Station Jhilmili (Bhaiyathan) alleging in it that when he went to take bath in Chambothi pond, appellant, due to previous enmity, came there armed with tangi in his hand, started quarreling with him (PW-1) and tried to assault him, but on account of intervention by PW-5 Mangalsai and PW-6 Fuchai @ Sukhlal, who were also bathing there, he (PW-1) returned to his home. Thereafter, son of the complainant-deceased came to know about the incident from his father (PW-1), then deceased, after saying that “yesterday appellant assaulted on his ox's stomach and today, he went to beat his father/complainant, now he (deceased) will beat him”, left the home and at the house of Jaykaran (PW-7), he (deceased) met the appellant and said that “why he went to assault his father”, upon which appellant, who kept lathi in his hand, assaulted the deceased on his temple, neck and head with the said lathi, as result of which, deceased became unconscious and fell down and appellant ran away from there. Thereafter, he was taken to Government Hospital, Bhaiyathan where he was declared dead by Doctor. On the report of complainant-PW-1, PW-12 Gajpati Mirre, Assistant Sub-Inspector, registered unnumbered merg intimation (Ex.P-1) and FIR (Ex.P-2) against the appellant for the offence under Section 302 of IPC and thereafter, numbered merg intimation (Ex.P-13) and FIR (Ex.P-14) were registered against the appellant for the offence under Section 302 of IPC. During investigation, spot maps Ex.P-5 & Ex.P-19 were prepared, inquest proceeding was conducted vide Ex.P-3A and dead body was sent for postmortem examination which was conducted by PW-10 Dr. Gaurav Kumar Singh, who has proved the postmortem report Ex.P-11A. According to postmortem report, cause of death of the deceased was due to brain haemorrhage & coma and death was homicidal in nature. Accused/appellant was also sent for medical examination to Community Health Centre, Odagi where Dr. Manish Mishra (DW-5) examined the appellant and found lacerated wounds over forehead, right arm & left leg as well as swelling, which was proved by him (DW-5) vide Ex.D-13. From the spot, one bamboo stick, one blue colour scarf of deceased and plain and blood stained soil were seized vide Ex.P-6. Vide Ex.P-7, T-shirt of deceased was seized. However, no memorandum statement of the present appellant was available on record. Seized articles were sent to FSL for chemical examination vide Ex.P-10 and as per FSL report (Ex.-P-20), blood of group 'B' has been found on the seized soil, scarf and bamboo stick. Query report has also been obtained vide Ex.P-12 and as per the said report, injuries found over the body of the deceased could have been caused by the seized bamboo stick.

After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

In order to bring home the offence, prosecution has examined as many as 16 witnesses and brought on record 23 documents along with Ex.C-1 FSL report and Article 05 which is a written complaint. The defence has examined five witnesses and exhibited five documents.

The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellant would submit that the judgment of conviction and order of sentence passed by the trial Court without appreciating the evidence available on record is contrary to law. He would further submit that if the case of the prosecution is taken as it is, then it emerged that in order to defend himself, the appellant assaulted the deceased by giving a single blow looking to the aggressive nature of the deceased and in the said incident, the appellant also received injuries over his body, which was proved by Dr. Manish Mishra by way of MLC report (Ex.D-13). Alternatively, he would submit that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C as there was no premeditation on the part of the appellant in causing the death of the deceased- Babu Singh and in spur of moment and in heat of passion, the appellant assaulted the deceased, in order to defend himself. Thus, the present appeal deserves to be allowed in full or in part.

Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to Part-II of Section 304 of IPC, therefore, 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 learned trial Court has recorded an affirmative finding in this regard and held the death of deceased- Babu Singh to be homicidal in nature relying upon the expert medical opinion of Dr. Gaurav Kumar Singh (PW-10) who has proved the postmortem report (Ex.P-11A) in which cause of death is said to be due to brain haemorrhage and coma and nature of death is said to be homicidal. Considering the statement of Dr. Gaurav Kumar Singh (PW-10) as well as the postmortem report (Ex. P-11A), we are of the considered opinion that the trial Court has rightly held the death of deceased- Babu Singh to be homicidal in nature and we hereby affirm the said finding recorded by the trial Court.

Now, the question would be, whether the appellant is the author of the crime in question ?

PW-1 Mohar Say, father of the deceased, has stated in his evidence that appellant is the son of his brother Sonsay. He has further stated that on the date of incident, he went to take bath in the Chamboti pond, where the appellant came over there armed with axe to assault him, but by the intervention of PW-5 Mangalsay and PW-6 Sukhlal, this witness returned to his home and on returning to his home, the entire incident was narrated to his son-deceased, upon which he left the home by saying that “appellant assaulted his ox and also went to pond to beat his father and I will not leave him”. He has also stated that on hearing commotion from the house of Jaykaran (PW-7), this witness went over there and saw the appellant assaulting his son-deceased by bamboo stick on his temple and head because of which he became unconscious and fell down. During assault, his daughter Ram Bai (PW-2), daughter-in-law Sukhman (PW-3), grand-son Lalan and other villagers saw the appellant, thereafter, the appellant left the spot after leaving scarf and bamboo stick. Then, the deceased was taken to Bhaiyathan, Government Hospital where he was declared dead by Doctor. He has also admitted his signatures over merg intimation Ex.P-1, FIR Ex.P-2, seizure memo Exs.P-6 & P-7. He was subjected to cross-examination and in his cross-examination, he has denied in para 19 that on coming to know about the incident, his son-deceased left the home armed with lathi by saying that “appellant assaulted his ox and also went to beat his father, today he will not leave him” whereas in para 21, he has stated on the contrary that when deceased- Babu Singh left the home, he himself was present in the house and after hearing commotion, he came out of the house. In para 30, he denied to mention the above facts in police statement (Ex.D-1), whereas on perusal of Ex.D-1, whatever he denied the facts as mentioned in his statement have been written in the same document. Similar are the statements PW-2 Smt. Ram Bai, sister of deceased and PW-3 Smt. Sukhman Bai, wife of the deceased, who have stated about the incident in which they witnessed the assault made by the appellant on deceased.

Although PW-5 Mangal Say & PW-6 Sukhlal intervened in the matter when appellant came to the pond and was trying to assault PW-1 Mohar Say, who had gone there to take bath, but they denied the entire incident took place between the appellant and the deceased near the house of Jaykaran (PW-7) in which deceased died.

Thus, considering the statements of PW-1 Mohar Say, PW-2 Smt. Rambai and PW-3 Sukhman Bai, who have clearly stated that it was the appellant, who on the date of incident, assaulted the deceased with bamboo stick by giving a single blow, as a result of which, he suffered grievous injuries and died and further considering the fact that bamboo stick has been seized on the spot and proved by PW-12 Gajpati Mirre, Investigating Officer and as per FSL report, human blood of group 'B' has been found on the bamboo stick. The trial Court after considering oral and documentary evidence available on record, clearly recorded a finding that it is the appellant who has committed the offence. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question that requires our consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either 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 within 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 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.”

Returning to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the statement of PW-1 Mohar Say that before the incident, appellant had gone to pond to assault Mohar Say, but due to intervention of PW-5 Mangalsay and PW-6 Sukhlak, he (PW-1) returned to home and on such information, deceased-Babu Singh left the house and called on the appellant near the house of (PW-7) Jaykaran where quarrel took place between appellant and deceased in which the appellant, out of anger, assaulted the deceased and gave a single blow with bamboo stick, as a result of which deceased suffered grievous injuries over his body which led to his death. The evidence of PW-1 Mohar Say has been corroborated by the evidence of PW-2 Ram Bai and PW-3 Smt. Sukhman Bai. Further, from the statement of PW-10 Dr. Gaurav Kumar Singh, it is seen that there is no injury found over occipital and frontal region as well as parietal bone. This apart, from the contents of Ex.D-1 i.e. statement of Mohar Say recorded under Section 161 Cr.P.C., it is evident that on the date of incident, on coming to know that the appellant tried to assault his father-Mohar Say at pond, deceased-Babu Singh got annoyed and came out of his house in search of the appellant and ultimately, in front of the house of PW-7 Jaykaran, the deceased met the appellant where quarrel took place between them, as is evident from the contents of merg intimation (Ex.P-1) and in order to defend himself, the appellant assaulted him and caused injury and during the course of such quarrel, appellant also received simmple injuries, as is evident from the MLC report Ex.D-13, proved by DW-5 Dr. Manish Mishra. Moreover, weapon of offence seized on the spot vide Ex.P-6, proved by PW-12 Gajpati Mirre, Assistant Sub-Inspector, Investigating Officer, was found to contain human blood of group 'B', as per FSL report (Ex.P-20) and as per query report (Ex.P-12) also, the injuries found over the body of deceased could have been caused by such weapon of offence i.e. bamboo stick. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased- Babu Singh, but on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with bamboo stick, as a result of which, he suffered injuries over his body leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased but no intention of causing his death can be attributed to him.

In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC and he is sentenced to five years rigorous imprisonment in place of life imprisonment as awarded by the trial Court, however, the fine sentence imposed by the learned trial Court shall remain intact. The appellant is reported to be in jail since 04.05.2019 i.e. more than 4 years and 9 months, therefore, he is entitled for set off of the said period by virtue of Section 428 of Cr.P.C.

In the result, the criminal appeal is partly allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.