Kaushalnath Nagesiya vs State Of Chhattisgarh
2022 Latest Caselaw 4920 Chatt

                                      Page 1 of 10


                                                                                   NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                          Criminal Appeal No. 193 of 201 6

Kaushalnath Nagesiya son of Laxman Nagesiya, aged about 48 years,
resident of Gamharkona, Police Station-Sanna, District-Jashpur (CG)
                                                                          ---- Appellant
                                                                                (In Jail)
                                        Versus
State of Chhattisgarh, through the Station House Officer, Police Station
Sanna, District Jashpur (CG)
                                                                       ---- Respondent
-------------------------------------------------------------------------------------------

For Appellant                 :      Mr.J.K.Saxena, Advocate
For Respondent-State :               Mr.Arijit Tiwari, Panel Lawyer

-------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

Judgment on Board (2.8.2022) 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 13.1.2016, passed by the

learned Sessions Judge, Jashpur in Sessions Trial No.50/2014,

whereby the appellant-accused has been convicted for offence under

Section 302 of the IPC and sentenced him to undergo imprisonment

for life and fine of Rs.5000/-, in default of payment of fine, to further

undergo R.I. for 5 months.

2. Case of the prosecution, in brief, is that on 3.5.2014 at about 8.30 p.m.

at village Gamharkona, P.S. Sanna, District Jashpur, the appellant

assaulted Nanka Nageshiya by axe by which he suffered injuries and

died instantaneously. The appellant also caused grievous hurt to Sugi

Bai and Bhukhli Bai and thereby committed the aforesaid offences. It is

further case of the prosecution that on 3.5.2014 the appellant has

invited deceased Nanka Nagesiya as a cook on the eve of marriage of

his son Parasnath and in the same night, the appellant seen deceased

Nanka Nagesiya with his second wife Sugi Bai in room, then the

appellant suspected illicit relationship with her and caused injury on his

head and chest by which he suffered injuries and died. On the report of

Deosai (PW-5), FIR was registered vide Ex.P-6. Information was sent

to the Judicial Magistrate First Class, Bagicha vide Ex.P-13. Spot map

was prepared by investigating officer. After inquest, dead body of

deceased Nanka Nagesiya was sent for postmortem to Community

Health Center, Bagicha, where Dr.Mithlesh Minz (PW-17) conducted

postmortem vide Ex.P-17A and opined that cause of death was due to

internal head injury and death was homicidal in nature. Pursuant to

memorandum statement of the appellant vide Ex.P-9, axe was seized

vide Ex.P-10, which was sent for FSL examination and in FSL report

(Ex.P-26), blood was found on axe and sando (baniyan) recovered

from the appellant (Article 'C' and 'D'). Similarly, on baniyan seized

from the deceased, blood was also found. Thereafter, statement of

witnesses were recorded and after due investigation, the police filed

charge-sheet in the Court of Judicial Magistrate First Class, Bagicha,

who in turn, committed the case to the Court of Sessions, Jashpur. The

appellant/accused abjured his guilt and entered into defence.

3. In order to bring home the offence, the prosecution examined as many

as 17 witnesses and exhibited 26 documents. The appellant-accused

examined none in his defence and no document has been exhibited in

his defence.

4. The trial Court upon appreciation of oral and documentary evidence

available on record, by its judgment and dated 13.1.2016, convicted

the appellant for offence punishable under Section 302 of the IPC and

sentenced him as aforementioned, against which, this criminal appeal

has been filed.

5. Mr.J.K.Saxena, learned counsel for the appellant-accused, would

submit that the appellant has not committed any offence and he has

falsely been implicated in offence in question. He would further submit

that conviction is based on no evidence. In alternative, he would

submit that the appellant did not have any intention to commit the

crime in question and therefore, his case is covered with Exception 4

to Section 300 of the IPC, as such, his conviction for offence

punishable under Section 302 of the IPC can be altered to offence

punishable under Section 304 Part-I or Part-II of the IPC and as such,

the appeal deserves to be allowed in part.

6. On the other hand, Mr.Arijit Tiwari, learned Panel Lawyer for the

respondent/State, would support the impugned judgment and submit

that the prosecution has been able to bring home the offence and the

appellant has rightly been convicted for offence under Section 302 of

the IPC. He would further submit that it is not a case where the

appellant's conviction under Section 302 of IPC can be converted

under Section 304 Part I or II of the IPC as the appellant caused axe

blow on head and chest of the deceased with full intention of causing

his death, as such, the instant appeal deserves to be dismissed.

7. We have heard learned counsel appearing for the parties, considered

their rival submissions made herein-above and also went through the

records with utmost circumspection.

8. The first question for consideration would be, whether death of

deceased Nanka Nagesiya was homicidal in nature. The trial Court

after appreciating the evidence available on record recorded the

finding in affirmative holding that as per statement of Dr.Mithlesh Minz

(PW-17) and postmortem report (Ex.P-17A), cause of death was due

to internal head injury and death was homicidal in nature. As such,

finding recorded by the trial Court that cause of death was homicidal in

nature is finding of fact based on evidence available on record, which

is neither perverse nor contrary to record. We hereby affirm the said

finding recorded by the trial Court.

9. Now the next question for consideration would be, whether the

appellant is author of the crime and what is the nature of crime, if any,

he has committed ?

10. It is not in dispute that on 3.5.2014 the appellant herein married

his son Parasnath and on the eve of marriage of his son, he hosted a

dinner for family members, relatives and friends in which the deceased

has also been invited as a cook. It is also not in dispute that Sugi Bai

(PW-2) is wife (second wife) of the appellant herein. On the date of

incident, the deceased asked some food items to Sugi Bai (PW-2) and

for which both were talking together, at that time, the appellant entered

into room and saw the deceased and Sugi Bai (PW-2) (wife of the

appellant) together, on suspecting illicit relationship, the appellant has

assaulted Nanka Nagesiya by axe, by which he suffered injuries and

died instantaneously. The matter was reported and pursuant to

memorandum statement of the appellant (Ex.P-9), bloodstained axe

was seized vide Ex.P-10 and that was subjected to FSL examination

and as per FSL report (Ex.P-26), blood was found on axe and sando

(baniyan) recovered from the appellant as Article 'C' and 'D'. In the

deceased baniyan, blood was also found.

11.There was no motive, but when the appellant seen his wife talking with

the deceased in his house in the night, he suspected illicit relationship

and assaulted him by axe by which he suffered injuries and died. Axe

has been recovered from the house of the appellant on his

memorandum statement in which blood was found and as such, it is

duly established that the appellant is author of the crime.

12. The next question for consideration would be, 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. The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana 1 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

1 (2002) 3 SCC 327

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."

14. The Supreme Court in the matter of Gurmukh Singh v. State

of Haryana 2 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.

24. 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

2 (2009) 15 SCC 635

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. "

15. Likewise, in the matter of State v. Sanjeev Nanda 3, 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.

16. Further, the Supreme Court in the matter of Arjun v. State of

Chhattisgarh 4 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."

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

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 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".

17. 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.

18. Reverting to the facts of the present case in light of principles of

law laid down by their Lordships of the Supreme Court in the above-

stated judgments (supra), it is quite vivid that the appellant himself has

called the deceased for the purpose of cooking on the eve of marriage

of his son that is called Chumawan, but in the midnight, the appellant

seen the deceased talking with his wife as stated by Devsai (PW-5),

suspecting some illicit relationship he has caused axe blow to the

deceased by which he suffered injuries and died. There was no

premeditation on the part of the appellant to cause death of deceased

Nanka Nagesiya and only because of a petty dispute, out of sudden

anger and in heat of passion, the appellant assaulted deceased Nanka

Nagesiya and caused his death. However, looking to the injuries

sustained by deceased Nanka Nagesiya as recorded by Mithlesh Minz

(PW-17), which have been caused on his head and chest, 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, his case would fall within the purview of Exception 4 of Section

300 of IPC, as the act of the appellant herein completely satisfied 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 the IPC.

19. In view of the aforesaid discussions, conviction of the appellant

for offence punishable under Section 302 of IPC as well as 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,

the appellant is convicted for offence punishable under Section 304

Part II of the IPC. Since the appellant is in jail from 4.5.2014 i.e. more

than 8 years and 3 months, taking into consideration the period he has

already undergone, we award him sentence to the period already

undergone by him and the fine sentence imposed by the learned trial

Court shall remain intact. Accordingly, the appellant be released from

jail forthwith, if not required in any other case.

20. The criminal appeal is partly allowed to the extent indicated

herein-above.

             Sd/-                                                   Sd/-

       (Sanjay K. Agrawal)                                   (Sanjay S. Agrawal)
           Judge                                                    Judge
B/-