Cr.A.No.739/2013
Page 1 of 10
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.739 of 2013
{Arising out of judgment dated 2-8-2013 in Special Case No.2/2013 of the
Special Judge, Kabirdham (Kawardha)}
Kansram Sahu, S/o Bundel Sahu, aged about 28 years, R/o Village
Kholwa, Police Station Sahaspur-lohara, Civil & Revenue District
Kabirdham (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, through the Station House In-charge, Police
Station Sahaspur-lohara, District Kabirdham (C.G.)
---- Respondent
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For Appellant: Mr. Rahil Kochar, Advocate.
For Respondent/State: Mr. Ashish Tiwari, Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
Judgment On Board (21-11-2022) Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Special Judge by which the appellant has been convicted for offences under Sections 302 & 201 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 5,000/-, in default, to further undergo additional rigorous imprisonment for six months and to undergo rigorous imprisonment for five years and pay fine of ₹ 1,000/-, in default, to further undergo additional rigorous imprisonment for three months, Cr.A.No.739/2013 Page 2 of 10 respectively.
2. Case of the prosecution, in brief, is that the appellant was staying with his second wife Malti Bai Sahu and third wife Manki Bai Gond though Malti Bai was living separately in the same house. The appellant himself lodged report (Ex.P-10) on 11-12-2012 at 9.00 a.m. to the effect that on 10-12-2012 at about 10.00 a.m., the appellant came back from his field after flowing water to his field, he asked for food from his wife Manki Bai, but she did not serve food to him and asked him to take out the food himself, then he went for sleep and when he woke up, he found that his wife Manki was not there and then when she returned back at 5.00 p.m., he asked her where she has gone, then she replied irresponsibly and then he became angry and in the night at about 10.00 p.m., when she was sleeping, he strangulated to her neck and thrown the dead body in the field of Banke Gond, pursuant to which his memorandum statement was recorded vide Ex.P-1 in presence of Chabilal Markam (PW-1) & Govindram Sahu and dead body of Manki Bai was recovered vide seizure memo Ex.P-2. Thereafter, inquest was conducted vide Ex.P-4 and on the recommendation of panchas, dead body of the deceased was sent for postmortem to Community Health Centre, Sahaspur-Lohara where postmortem was conducted by Dr. Adesh Kumar Bagde (PW-3) vide Ex.P-9 and cause of death was stated to be due to asphyxia in result of throttling and death was homicidal in nature.
3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was Cr.A.No.739/2013 Page 3 of 10 charge-sheeted for offences under Sections 302 & 201 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Judicial Magistrate First Class, Kawardha, and the case was committed to the Court of Sessions from where the learned Special Judge, Kabirdham (Kawardha) received the case on transfer for conducting trial and for hearing and disposal in accordance with law.
4. The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as nine witnesses and exhibited 17 documents. The defence has examined none and exhibited one document Ex.D-1 i.e. the statement of Ramkali Bai Dhurve.
5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Sections 302 & 201 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.
6. Mr. Rahil Kochar, learned counsel appearing for the appellant, would submit that the appellant is not the perpetrator of the crime and the prosecution has failed to bring home the offence against the appellant, even if it is held that the appellant is the author of the crime, the case of the appellant would fall under Exception 4 to Section 300 of the IPC. Therefore, it is a fit case where conviction of the appellant can be converted/altered to an offence under Section 304 Part-II / Part-I of the IPC, as such, the appeal be allowed in part. He would rely upon the decision of the Supreme Cr.A.No.739/2013 Page 4 of 10 Court in the matter of Uday Singh v. State of U.P.1 to buttress his submission.
7. Mr. Ashish Tiwari, learned Government Advocate appearing for the State / respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has proved the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted him for offences under Sections 302 & 201 of the IPC. He would further submit that it is not the case where the offence against the appellant can be converted to Section 304 Part-II / Part-I of the IPC.
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
9. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem report Ex.P-9, which has been proved by Dr. Adesh Kumar Bagde (PW-3) in which cause of death was stated to be due to asphyxia in result of throttling and death to be homicidal in nature, rightly held that nature of death of the deceased was homicidal. The finding recorded by the trial Court that death of deceased Manki Bai was homicidal in nature, 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.
10. Now, the question would be, whether the appellant is the 1 (2002) 7 SCC 79 Cr.A.No.739/2013 Page 5 of 10 perpetrator of the offence?
11. First information report (FIR) has been lodged by the appellant himself before the police vide Ex.P-10 and it has been proved by two witnesses Sunil Dutt Dubey (PW-6) & Chaindas Manikpuri (PW-7). Sunil Dutt Dubey (PW-6) has turned hostile and Chaindas Manikpuri (PW-7) has proved the lodging of FIR Ex.P-10 by the appellant.
12. The Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar2 has clearly held that the information report under Section 154 of the CrPC is not substantive evidence, it may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. It was further held that if the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant, but a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.
13. Apart from that, pursuant to the FIR, memorandum statement of the appellant was taken vide Ex.P-1 and dead body of the deceased was recovered vide Ex.P-2. Out of the two witnesses of memorandum and recovery namely, Chabilal Markam (PW-1) & Govindram Sahu, Chabilal Markam (PW-1) has been examined who has fully supported the case of the prosecution and stated that pursuant to the memorandum, recovery of dead body has been 2 AIR 1966 SC 119 Cr.A.No.739/2013 Page 6 of 10 made, though he has been cross-examined, but recovery has been proved by the prosecution beyond reasonable doubt as such the appellant is author of the crime.
14. Now, at this stage, it would be appropriate to consider the argument advanced on behalf of the appellant that case of the appellant would fall under Exception 4 to Section 300 of the IPC.
15. The Supreme Court in the matter of Arjun v. State of Chhattisgarh3 has elaborately dealt with the issue of Exception 4 to Section 300 of the IPC and observed in paragraphs 20 and 21 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."
21. 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 3 (2017) 3 SCC 247 Cr.A.No.739/2013 Page 7 of 10 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".
16. In 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 the 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 of the IPC.
17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)4 has laid down four ingredients which should be tested for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read as under:
4 (2019) 6 SCC 122 Cr.A.No.739/2013 Page 8 of 10 "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.
By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a "saria" and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife's neck also depicts an act of extreme cruelty.
17. From the evidence on record it is clear that the incident occurred in a sudden fight and there was no premeditation. Even the primary witness PW 7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother, deceased, with the "saria" when she had taken out some money from the appellant's wallet. It is not as if "saria" was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria) was picked up at the spur of the moment at the time of incident and used to compress the neck forcefully. In that view of the matter it is nothing but an act committed by the appellant in a heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section 300 IPC on the ground that appellant compressed his wife's neck also depicts an act of extreme cruelty. Having regard to the nature and manner of incident it cannot be said that act of the appellant was extremely cruel. Unless it is barbaric, torturous and brutal, strangulation of the appellant's wife cannot be said to be an act of extreme cruelty for denying the benefit of Exception 4 to Section 300 IPC."
18. Reverting to the facts of the present case in light of the principles of Cr.A.No.739/2013 Page 9 of 10 law laid down by their Lordships of the Supreme Court in Arjun (supra) and Rambir (supra), it is quite vivid that the appellant was staying with his third wife Manki Bai Gond and it is the case of the prosecution that deceased Manki Bai used to misbehave with the appellant by which the appellant was unhappy and on that day also she abused the appellant, which is apparent from morgue intimation Ex.P-13 and FIR Ex.P-10, and taunted on his inter-caste marriage with her and uttered the words "Hkh[k eaxok nawxh" due to which on sudden quarrel in a heat of passion, the appellant is said to have strangulated the neck of the deceased and caused her death. As such, since the appellant & the deceased were husband & wife and living together and there was no premeditation of mind on the part of the appellant and in a sudden fight, on sudden anger, in a heat of passion, the appellant caused the death of deceased Manki Bai which is not barbaric, torturous and brutal strangulation of his wife, case of the appellant will definitely come within the purview of Exception 4 to Section 300 of the IPC and it will be improper to deny the benefit of Exception 4 to Section 300 of the IPC to the appellant following the decision of the Supreme Court in Rambir (supra), but the appellant must have had knowledge and intention that his act would likely to cause the death of the deceased in the ordinary course of nature. Thus, the case of the appellant falls within Exception 4 to Section 300 of the IPC.
19. In that view of the matter, conviction of the appellant under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside, and instead thereof, the appellant is convicted for offence punishable under Cr.A.No.739/2013 Page 10 of 10 Section 304 Part I of the IPC and he is sentenced to undergo RI for ten years, however, fine sentence and default sentence imposed upon him by the trial Court shall remain intact. The appellant is in custody since 11-12-2012.
20. The criminal appeal is partly allowed to the extent indicated herein- above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma