Vinod Banjare vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 14.07.2015 passed by the Sessions Judge, Bilaspur, District: Bilaspur (C.G.) in Sessions Trial No. 118/2014 by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 500/- in default of payment of fine amount, additional SI for one month.

Case of the prosecution, in brief, is that on 24.08.2014, at 11:30 am, the appellant assaulted his wife Parwati by iron axe by which she suffered grievous injuries and died. Further case of the prosecution is that marriage of Parwati (now deceased) solemnized with the appellant 10 years prior to the date of incident and she was residing along with his parents at Bajrang Nagar Sakri. On the date of incident, PW-10 Dhaniram Kurre, father of the appellant came to the house of the appellant to take her daughter at his home on the eve of Teej festival, to which the appellant did not allow her to go and pursuant to which PW-10 Dhaniram Kurre returned back to his home. Further case of the prosecution is that when the deceased Parwati insisted that she would go to her parental house, the appellant is said to have assaulted his wife by iron axe, by which she suffered injuries and died. The appellant is said to have given extra-judicial confession to PW-2 Binu Kumar Banjare who had informed the incident to PW-1 Suresh Kumar Ratre, pursuant to which Dehati Merg Intimation vide Ex. P/1 was lodged and the Dehati FIR were registered vide Ex.P/2. Inquest proceedings were conducted vide Ex.P/4. The dead body of the deceased was sent for autopsy. Postmortem was conducted by Dr. S.S. Gupta (PW-7) and his report is Exhibit-P/14 wherein, she has opined the death of the deceased was due to neck injury which was homicidal in nature. Seized articles were sent for FSL vide Ex. P/29 wherein blood was found on the iron axe vide Ex. P/31.

After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC 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 11 witnesses and brought into record 31 documents. The defence has examined none and has only exhibited two documents, i.e. statements recorded under Section 161 of Cr.P.C. of Zamil Ahamad Khan and Dhani Ram Kurre.

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

Learned counsel for the appellant would argue that the conviction is founded only on suspicion that the dead body of appellant’s wife has found at home, but there is no evidence of any strong motive and there is no eyewitness. It is further argued that the blood stains is said to have been found on the clothes and the weapon do not conclusively prove that it was the blood of the deceased and even finger prints have not been taken from the axe. She would further submits that at the most offence under Section 304 Part-I of IPC is made out and the appellant is in jail since 25.08.2014. As such, his conviction is liable to be set aside. In alternative, she 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 either to Part-I or Part-II of Section 304 of I.P.C. and the appeal be allowed in part.

Per contra, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt 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 either Part-I or 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 first question for consideration is, whether the death of deceased Parwati was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex.P-14) proved by Dr. S.S. Gupta (PW-7) which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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

Admittedly, the the appellant had given extra-judicial confession to Binu Kumar Banjari (PW-2) upon which he had informed the matter to Suresh Kumar Ratre (PW-1) who had lodged Dehati Merg Intimation vide Ex.P/1 and Dehati FIR vide Ex.P/2 and the axe was seized from the possession of the appellant, in which human blood has been found and PW-9 Dashmati Bai and PW-10 Dhaniram Kurre, father and mother of the deceased have clearly stated that on the date of offence, appellant had not allowed his wife to go to her house and on being forced by her to go to her house, the appellant is said to have assaulted the deceased with iron axe, by which she suffered injuries and died, therefore, it is quite established that the appellant has caused the death of his wife Parwati and finding in this regard by the Trial Court is hereby affirmed.

Now, the question that requires consideration is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or their 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)5 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 present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in above stated judgments, it is quite vivid that though there was no premeditation on the part of the appellant to cause death, but since the appellant refused to allow his wife to go to her house, and on being insisted by his wife, on the heat of anger and spur of moment, the appellant had assaulted his wife with iron axe, by which she suffered injuries and died. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased.

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. Since the appellant is in jail since 25.08.2014, i.e. for about 9 years, we hereby sentence him to the period already undergone, however, the sentence of fine amount as imposed by the trial Court is hereby maintained. We direct, the appellant be released forthwith, if 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 along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.