Thakur Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 25.05.2018, passed by the Court of learned Additional Sessions Judge (Fast Track Court), Baikunthpur, District Koriya (C.G.), whereby the appellant-accused has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.200/- and, in default of fine, additional imprisonment of 01 years.

(2) The case of the prosecution, in brief, is that on 09.04.2017 between 07:00 AM to 11:00 AM, the appellant in his own house situated at Pandopara (Pandobasti) caused death of his wife- Shanti (deceased) by assaulting her by means of ‘danda’ (wooden stick) on her head and on other parts of the body and, thereby, committed the offence under Sections 302 of IPC.

(3) The further case of the prosecution, in nutshell, is that Faguram Korwa (PW-01) lodged Dehati Nalsi (Ex.P/01) by stating that: he is resident of Pandopara (Pandobasti) and used to do labour work; on 09.04.2017, at about 07:00 AM in the morning, while he was in his house, at that juncture his neighborer- Thakur Ram (appellant herein) was quarreling with her wife-Shanti (deceased) and when he visited to the house of the appellant for stopping their quarrel/fight, he came to know that the appellant under the influence of liquor was quarreling with his wife-Shanti, abusing her filthily words and assaulting her on the demand of food; thereafter, after stopping their quarrel/fight and making them understood, he went for his labour work; thereafter, at about 11:00 AM Munshi Javed Khan came and informed him that appellant in his own house has caused death of his wife by assaulting her by means of hand, fist (punches) and ‘danda’ and, thereafter, he visited the house of the appellant and saw dead-body of deceased- Shanti lying on the floor and other nearby peoples were also present there. On the basis of said ‘Dehait Nalsi’ (Ex.P/01), FIR (Ex.P/26) was registered against the appellant-accused. Inquest proceedings were conducted vide Ex.P/04. Spot map was prepared vide Ex.P/06 and marg. intimation was recorded vide Ex.P/07. The dead-body of deceased- Shanti was sent for postmortem examination and in the postmortem examination report (Ex.P/32), Dr. Shreshth Mishra (PW-10) opined that the cause of death is due to hypovolemic shock, excessive internal bleeding and the injuries caused such as: Hemoperitoneum, Ruptured Splenic Capsule, Spleen and Subdural Hematoma. Thereafter, appellant-accused was arrested vide Ex.P/15 and his memorandum statement was recorded vide Ex.P/12 and, pursuant to which, seizure of a blood stained wooden stick was affected vide Ex.P/13. Further, the said blood stained wooden stick which is said to have been recovered pursuant to the memorandum statement of the appellant-accused (Ex.P/12) was subjected to FSL examination and in the FSL report (Ex.P/25) it has been opined that only blood stains have been found on the said wooden stick and it is not clear whether said blood is human blood or not. Moreso, a Sari of deceased and a T-shirt of the appellant have also been seized by the police vide Ex.P/05 & Ex.P/14 respectively, which was also subjected to FSL examination, wherein it has been opined that human blood has been found on the said Sari and T-shirt. Thereafter, statement of witnesses were recorded and after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Baikunthpur, District Koriya (CG) and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence.

(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 32 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Ms. Savita Tiwari, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. Furthermore, in alternative she submits that though the death of deceased- Shanti is said to be homicidal in nature, but there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel and under heat of passion on a petty dispute of not giving food, the appellant-accused is said to have assaulted deceased-Shanti, pursuant to which she sustained grievous injuries and died and, thereby, committed the offence. Thus, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant can be converted/altered to an offence under Section 304 (Part-II) of IPC. Hence, the present appeal deserves to be allowed in full or in part.

(7) Per-contra, Mr. Arjit Tiwari, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Sections 302 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-II of IPC, thus, the present appeal deserves to be dismissed.

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

(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/ 32), wherein it has been opined that the cause of death of deceased-Shanti is due to hypovolemic shock, excessive internal bleeding and the injuries caused such as: Hemoperitoneum, Ruptured Splenic Capsule, Spleen and Subdural Hematoma, and the statement of Dr. Shreshth Mishra (PW-10), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/32) and the statements of Dr. Shreshth Mishra (PW-10), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased- Shanti is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding.

(10) Now the next question would be whether the accused-appellant herein is the author of the crime in question ?

(11) In the instant case, the incident took place on 09.04.2017 between 07:00 AM to 11:00 AM, whereby Faguram Korwa (PW-01), who is neighbor and co-worker of the appellant, was in his house and at about 07:00 AM in the morning he heard quarreling noise of the appellant and that of deceased-Shanti and, when he reached at the spot, he came to know that the appellant under the influence of liquor was quarreling with her wife- Shanti, abusing her with filthily words and further assaulting her, upon which, he make both of them understood and stopped their quarrel/fight and, thereafter, went for his labour work. Thereafter, about 11:00 AM on the same day, one of his co-worker, namely, Javed Khan came and informed him that the appellant has caused death of his wife- Shanti, thereafter, he immediately visited the house of the appellant and saw dead-body of deceased-Shanti lying on floor. Thereafter, the matter was reported to police and investigation was carried out, in which memorandum statement of appellant-accused (Ex.P/12) was recorded and pursuant to which a blood stained wooden stick is said to have been recovered vide seizure memo (Ex.P/13) and, thereafter, it was sent for FSL examination and in the FSL report (Ex.P/25) it has been opined that only blood stains have been found on the said wooden stick and it is not clear whether said blood is human blood or not. Moreso, the articles i.e. Sari of deceased and T-shirt of the accused, which were seized vide Ex.P/05 & Ex.P/14 respectively, were also subjected to FSL examination, wherein it has opined that human blood stains have been found on the Sari of deceased-Shanti and T-shirt of the accused-appellant. Therefore, there are evidence available on record that it is the appellant-accused who on sudden quarrel and under heat of passion on a petty dispute of not giving food assaulted his wife- Shanti (deceased), due to which she suffered grievous injuries and died, which is further duly proved by the postmortem report (Ex.P/32) and the statement of Dr. Shreshth Mishra (PW-10). Accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

(12) The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellant ?

(13) It is apparent from the Dehati Nalsi (Ex.P/01) and the FIR (Ex.P/14) that on the fateful day the appellant under the influence of liquor was quarreling with her wife- Shanti, abusing her with filthily words and further assaulting her on a petty dispute of not giving food, which was heard and witnessed by Faguram Korwa (PW-01), who is neighbor of the appellant.

(14) 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.”

(15) 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 of IPC, 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 fro 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 without 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 to cause 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.”

(16) 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 has 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.

(17) 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”.

(18) 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 and bodily injury, then same would be a case of Section 304 Part-II IPC.

(19) 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.”

(20) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased, but only on account of petty dispute of not giving food by the deceased- Shanti (wife of the appellant), the appellant under the influence of liquor suddenly started quarreling with her, abused her and ensued a dispute and, in furtherance thereof, assaulted her, pursuant to which deceased-Shanti (deceased) sustained grievous injuries and died, as such, there was no premeditation on the part of the appellant to cause death of the deceased-Shanti and only because of a petty dispute, out of sudden anger, in heat of passion and under the influence of liquor, the appellant assaulted deceased-Shanti and caused her death. However, looking to the injuries sustained by deceased- Shanti, as recorded by Dr. Shreshth Mishra (PW-10), which have been caused on his head/brain, the appellant must have had the knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 of 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, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.

(21) In view of the aforesaid discussions, conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 as well as in Joseph v. State of Kerala 1995 SCC (Cri.) 165, the appellant is convicted for offence punishable under Section 304 Part II of IPC and sentenced to undergo 07 years rigorous imprisonment and the fine sentence imposed by trial Court shall remain intact.

(22) Since this appeal has been argued by the counsel appointed though High Court Legal Service Committee and the appellant is in jail since 10.04.2017, a copy of this judgment be sent to the appellant as well as to the Superintendent of Jail, where the appellant is languishing, the Secretary, High Court Legal Service Committee and the District Judge, District Koriya (C.G.) for information and needful action. It be also sent by e-mail/fax.

(23) This criminal appeal is party allowed to the extent indicated herein-above.