Chattisgarh High Court
Baliram Mandavi vs State Of Chhattisgarh on 5 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 464 of 2016
Baliram Mandavi S/o Ramsingh Mandavi, Aged about 38
years, Occupation Agriculture, R/o Village Badal,
P.S. Narharpur, Distt. North Bastar Kanker,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Narharpur, Distt. Kanker, Chhattisgarh.
Respondent
For Appellant : Mr. Vikas Pandey, Advocate
For State : Mr. Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
05/08/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
emanates from the impugned judgment of conviction
and order of sentence dated 22/04/2015 passed in
Sessions Trial No. 2/2014 whereby learned
Sessions Judge, North Bastar Kanker has convicted
the appellant for offence punishable under Section
302 of IPC and sentenced him to life imprisonment
and fine of Rs. 3,000/ in default of payment of
fine additional R.I. for 1 year.
2. The case of the prosecution, in brief, is that on
22/09/2013 at about 12 noon at Village Badal, P.S.
Narharpur, the appellant herein assaulted his
sisterinlaw Sagantin bai (wife of his brother
Budharuram - P.W. 13) with a wooden stick on her
head and caused grievous injuries due to which she
died instantaneously and he thereby, committed the
aforesaid offence.
3. Further case of the prosecution, in brief, is that
on 22/09/201, deceased Sagantin bai was going to
the canal to catch crabs along with her niece Ku.
Priti, daughter of Jailal (P.W.3) and Sagaro bai
(P.W.12), aged about 10 years and when she was
crossing through the field of the appellant, he was
sleeping in his badi (courtyard) and when the
deceased abused him, the appellant collected wooden
stick lying therein and assaulted the deceased and
caused injuries on her head on account of which she
fell to the ground and died immediately. Meanwhile,
Ku. Priti (P.W.5) ran away and told about the
incident to her mother Sagaro bai (P.W.12) and
then to her father Jailal (P.W.3) when he came
home, who then informed about the incident to Arjun
Singh Markam (P.W.4).
4. The said incident was reported by Arjun Singh
Markam (P.W.4) at Police Station Narharpur on the
basis of which merg intimation was registered vide
Ex. P/7 and thereafter, FIR was registered against
the appellant for offence punishable under Section
302 of IPC vide Ex. P/8. Inquest was conducted vide
Ex. P/10 and the dead body of deceased Sagantin bai
was sent to Government Hospital, Narharpur for
postmortem, which was conducted by Dr. Bhoj Kumar
Sahu (P.W.11) and the postmortem report has been
filed as Ex. P/23 according to which the cause of
death is multiple head injuries and nature of death
is homicidal. From the spot, two wooden sticks
lying near the dead body were seized vide Ex. P/11
and pursuant to memorandum of the appellant/accused
vide Ex. P/4, wooden stick was seized from the
possession of the appellant vide Ex. P/5 which was
sent for chemical examination and as per FSL report
(Ex. P/20), blood has been found on it. After
recording the statements of the witnesses and after
due investigation, the appellant/accused was
chargesheeted for offence punishable under Section
302 of IPC which was committed to the Court of
Session for hearing and disposal in accordance with
law. The appellant/accused abjured his guilt and
entered into defence.
5. In order to bring home the offence, prosecution
examined as many as 13 witnesses and brought into
record 23 documents. Statement of the
appellant/accused was recorded under Section 313 of
CrPC wherein he denied guilt however, he examined
none in his defence.
6. Learned trial Court, after appreciating the oral
and documentary evidence on record, finding the
death of deceased Sagantin bai to be homicidal in
nature and further finding the appellant to be the
author of the crime, proceeded to convict him for
offence punishable under Section 302 of IPC and
sentenced him as aforesaid which has been called in
question by way of this appeal.
7. Mr. Vikash Pandey, learned counsel for the
appellant, would submit that there is no evidence
available on record to connect the appellant from
the offence in question and trial Court has gravely
erred in convicting the appellant for offence
punishable under Section 302 of IPC. He would
further submit that at the most, the appellant
could have been convicted for offence punishable
under Section 304 Part II of IPC as his case is
covered with Exception 4 to Section 300 of IPC as
the appellant had no intention of causing the death
of the deceased and only because she abused him,
the appellant, out of sudden anger and heat of
passion, assaulted her with wooden stick. As such,
the conviction of the appellant be altered from
Section 302 of IPC to Section 304 Part II of IPC
and since he is in jail since 23/09/2013, his
sentence be awarded for the period already
undergone.
8. Per Contra, Mr. Soumya Rai, learned State counsel,
would support the impugned judgment and submit that
there is ample evidence available on record to
connect the appellant from the said offence and
learned trial Court has rightly convicted him for
offence punishable under Section 302 of IPC relying
upon the testimony of child eyewitness Ku. Priti
(P.W.5) and further relying upon the medical
evidence of Dr. Bhoj Kumar Sahu (P.W.11) who has
clearly stated that death of deceased was homicidal
in nature. He would further submit that appellant's
case is not covered with Exception 4 to Section 300
of IPC and as such, his conviction cannot be
altered to Section 304 Part II of IPC, therefore,
the instant appeal, being devoid of merits, is
liable to be dismissed.
9. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
10.The first question for consideration would be
whether the death of deceased Sagantin bai was
homicidal in nature ?
11. Learned trial Court has recorded an affirmative
finding with regard to this question on the basis
of postmortem report (Ex. P/23) wherein Dr. Bhoj
Kumar Sahu (P.W.11), who has conducted postmortem,
has clearly stated that the cause of death is
multiple injuries suffered by the deceased on her
head and the death of deceased was homicidal in
nature. Moreover, the death of deceased is
homicidal in nature has also not been seriously
disputed by learned counsel for the appellant. As
such, after hearing learned counsel for the parties
and after going through the postmortem report (Ex.
P/20) as well as going through the evidence of Dr.
Bhoj Kumar Sahu (P.W.11), we are of the opinion
that the finding recorded by the trial Court that
death of deceased Sagantin bai is homicidal in
nature is a correct finding of fact based on
evidence available on record which is neither
perverse nor contrary to the record. We hereby
affirm the said finding.
12.The next question for consideration is whether the
appellant is the author of the crime ?
13.It is the case of the prosecution that on the
fateful day, the appellant was sleeping in his badi
(courtyard) and since deceased Sagantin bai, who
was crossing appellant's field along with Ku. Priti
(P.W.5) to go towards the canal for catching
crabs, abused the appellant, he picked up a wooden
stick lying therein and assaulted the deceased on
her head with anger and caused multiple head
injuries on account of which she fell to the ground
and died immediately.
14.The statement of Ku. Priti (P.W.5), daughter of
Jailal (P.W.3) and Sagaro bai (P.W.12) is quite
relevant and must be noticed at this stage. In her
statement before the Court, Ku. Priti (P.W.5) has
clearly stated that appellant was sleeping in his
badi (courtyard) and while crossing the appellant,
deceased Sagantin bai abused him and on that note,
the appellant came with an axe (tangiya) and with
the intention of killing him, assaulted her with
axe. Thereafter, out of fear, she ran away from the
spot and after reaching her home, informed about
the incident to her mother Sagaro bai (P.W.5).
Moreover, the incident has also been proved by
Rajesh Mandavi (P.W.7) who is said to have
witnessed the appellant assaulting deceased
Sagantin bai with a wooden stick from a distance of
about 100 steps.
15. Furthermore, pursuant to the memorandum of the
appellant/accused vide Ex. P/4, wooden stick has
been seized from the possession of the appellant
vide Ex. P/5 and it was sent for chemical
examination wherein blood has been found on it as
per the FSL report (Ex. P/20). As such, looking to
the entire evidence available on record, it can
safely be inferred that appellant is the author of
the crime, which has rightly been held by the trial
Court.
16. 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 and thus, his conviction can be converted to
Section 304 Part II of IPC ?
17. At this stage, it would be appropriate to notice
Exception 4 of Section 300 of IPC, which states as
under :
"Exception 4 - Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without
the offender having taken undue advantage or
acted in a cruel or unusual manner."
18. The Supreme Court in the matter of Arjun v. State
of Chhattisgarh1 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."
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
1 (2017) 3 SCC 247
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".
19. 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
PartI 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
PartII IPC.
20. Reverting to the facts of the present case in light
of the principle of law laid down by the Supreme
Court in the matter of Arjun (supra), it is quite
vivid that the appellant was simply sleeping in his
badi (courtyard) and since deceased Sagantin bai,
who was crossing his field to reach to the canal
for catching crabs, abused him, out of sudden anger
and in heat of passion, the appellant picked up a
wooden stick lying therein and assaulted the
deceased on her head due to which she suffered
multiple injuries and died immediately. As such, it
is quite apparent that there was no premeditation
on the part of the appellant to cause death of the
deceased and only because she abused him, out of
sudden anger and in heat of passion, appellant
assaulted the deceased and caused her death.
However, looking to nature of the injuries suffered
by the deceased on her head which is a vital part
of the body, the appellant must have had the
knowledge that such injuries inflicted by him on
the head of the deceased would likely cause her
death, as such, this is a case which would fall
under Exception 4 of Section 300 of IPC.
21. In view of the aforesaid discussion, conviction of
the appellant for offence punishable under Section
302 of IPC as well as the sentence awarded to him
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 2
as well as in Joseph v. State of Kerala3, the
appellant is convicted for offence punishable under
Section 304 Part II of IPC. Since he is in jail
since 23/09/2013 i.e. for more than 8 years, we
hereby award the sentence for the period already
undergone. The appellant be released forthwith if
not required in any other case.
22.The criminal appeal is allowed to the extent
indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet
2 AIR 1956 SC 116
3 1995 SCC (Cri.) 165
