Bishambhar Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 5070 Chatt

                                                                                    CRA-884-2021
                                           Page 1 of 12


                                                                                              NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                              Criminal Appeal No. 884 of 2021

Bishambhar Yadav, Son of Laxman Yadav, aged about 35 years, Resident of
Village Khudmuda, Police Station Berla, District Bemetara (Chhattisgarh)
                                                                                    ---- Appellant
                                                                                           (In Jail)
                                              Versus
State of Chhattisgarh, through the Station House Officer, Police Station
Berla, District Bemetara (Chhattisgarh)
                                                                                ---- Respondent
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For Appellant                    :        Mr. Rajkumar Pali, Advocate
For Respondent-State :                    Mr. Arjit Tiwari, Panel Lawyer

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

Judgment on Board (08.08.2022) Sanjay K. Agrawal, J

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 07.08.2021, passed by the Court of learned

Sessions Judge, Bemetara, District Bemetara (C.G.) in S.T. No.17/2020,

whereby the appellant-accused has been convicted for offence under Section

302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/-

and, in default of fine, additional imprisonment of 03 months.

(2) The case of the prosecution, in brief, is that the appellant on

19.12.2019, at about 08:00 PM in the night, at Village Khudmuda, Chowki

Kandarka within the ambit of Police Station Berla, District Bemetara (CG) has

assaulted Nandkumar Yadav (deceased) by means of wooden stick on his

head, due to which he suffered injuries and died during the course of CRA-884-2021

treatment on 28.12.2019 and, thereby, committed the offence under Section

302 of IPC.

(3) The further case of the prosecution, in nutshell, is that on the fateful

day a goat belonging to the appellant entered into the house of the

deceased- Nandkumar Yadav, on which Nandkumar Yadav (deceased)

scolded the wife of the appellant, namely, Budhyari Bai and on that account

the appellant came out from his house and started abusing, thereafter, when

deceased- Nandkumar Yadav asked the appellant not to abuse, the appellant

assaulted him by means of wooden stick on his head, due to which he

sustained grievous injury and died on 28.12.2019 during the course of

treatment in the hospital. Thereafter, on the basis of information given by the

hospital, marg intimation (Ex.P/12) was recorded and FIR (Ex.P/19) was also

registered by the police against the appellant-accused. Inquest proceedings

were conducted vide Ex.P/09. Spot map was prepared vide Ex.P/16. The

dead-body of deceased- Nandkumar was sent for postmortem examination

and in the postmortem examination report (Ex.P/26), conducted by Dr. M.

Nirala (PW-12), it was opined that the cause of death is due to cardio-

respiratory failure, as a result of head injury. Thereafter, appellant-accused

was arrested vide Ex.P/07 and his memorandum statement was recorded

vide Ex.P/03 and, pursuant to which, seizure of a wooden stick was affected

vide Ex.P/04. The said wooden stick which is said to have been recovered

pursuant to the memorandum statement of the appellant-accused (Ex.P/03)

was subjected to FSL examination and in the FSL report (Ex.P/25) it has

been opined that no blood has been found on the said wooden stick.

Thereafter, statement of witnesses were recorded and, after due

investigation, the police filed charge-sheet in the Court of Judicial Magistrate CRA-884-2021

First Class, District Bemetara (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 14

witnesses and exhibited 28 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) Mr. Rajkumar Pali, 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 he submits

that though the death of deceased- Nandkumar Yadav 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 that deceased- Nandkumar Yadav

scolded the wife of the appellant, namely, Budhyari Bai, as a goat belonging

to the appellant entered into the house of the deceased, to which the

appellant ensued a dispute and started abusing the deceased and his wife-

Smt. Ramkali (PW-01), upon which deceased asked him not to abuse, but

the appellant-accused assaulted him by means of wooden stick, pursuant to

which he sustained grievous injuries and died after 10 days during the course CRA-884-2021

of treatment in hospital 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. He submits that though deceased died during

the course of treatment in the hospital after 10 days from the date of incident,

but fact remains that the appellant has caused grievous injury on his head by

assaulting him be means of wooden stick. 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/

26), wherein it has been opined that the cause of death of deceased-

CRA-884-2021

Nandkumar Yadav is due to cardio-respiratory failure, as a result of head

injury, and the statement of Dr. M. Nirala (PW-10), who has conducted the

postmortem of the dead-body of the deceased. Accordingly, taking into

consideration the postmortem report (Ex.P/26) and the statements of Dr. M.

Nirala (PW-12), we are of the considered opinion that the learned trial Court

is absolutely justified in holding that the death of deceased- Nandkumar

Yadav 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, Smt. Ramkali Yadav (PW-01) is the wife of the

deceased and Ku. Dhaneshwari Yadav (PW-02) is the daughter of the

deceased and they both have categorically stated before the Court that since

goat belonging to the appellant entered into the house of the deceased,

appellant's wife, namely, Budhyari Bai came and ensued a dispute by

abusing and, thereafter, appellant armed with a wooden stick also came over

there and started abusing with filthily words, to which, deceased asked him

not to abuse, but the appellant assaulted deceased by means of wooden

stick on his head, due to which deceased sustained grievous injury on his

head and died in hospital after 10 days during the course of treatment, as

such, Smt. Ramkali Yadav (PW-01) and Ku. Dhaneshwari Yadav (PW-02) are

the eye-witnesses in the case, who have clearly seen that the appellant has

assaulted the deceased by wooden stick and, despite their cross-

examination, nothing has been brought to say them that they have not seen

the incident. However, in cross-examination, Smt. Ramkali Yadav (PW-01) CRA-884-2021

has clearly stated that the appellant has visited the hospital and had given

them some money for incurring expenses towards treatment of the

deceased- Nandkumar Yadav (deceased). Further, when the matter was

reported to police and investigation was carried out, memorandum statement

of appellant-accused (Ex.P/03) was recorded and pursuant to which a

wooden stick is said to have been recovered vide seizure memo (Ex.P/04)

and, thereafter, it was sent for FSL examination, but in the FSL report

(Ex.P/25) it has been opined that no blood stains were found on the said

wooden stick. But still, fact remains that it is the appellant-accused who on

sudden quarrel and under heat of passion on a petty dispute that a goat

belonging to the appellant entered into the house of the deceased followed

by further quarrel/fight between the to families (i.e. appellant, his wife-

Budhyari Bai and deceased- Nandkumar and his wife- Ramkali), the

appellant assaulted the deceased- Nandkumar Yadav, due to which he

suffered grievous injuries on his head and died during the course of

treatment in hospital after 10 days, which incident has been clearly seen by

the two eye-witnesses, namely, Smt. Ramkali Yadav (PW-01) and Ku.

Dhaneshwari Yadav (PW-02). 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 ?

CRA-884-2021

(13) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 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."

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

Haryana2 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;

1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 CRA-884-2021

(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 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 Nanda3, 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

Chhattisgarh4 has elaborately dealt with the issue and observed in

paragraphs 20 and 21, which reads as under :-

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 CRA-884-2021

"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 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 CRA-884-2021

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) 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."

(19) 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 that a goat belonging to the

appellant entered into the house of the deceased followed by further

quarrel/fight between the to families (i.e. appellant, his wife- Budhyari Bai and

the deceased- Nandkumar and his wife- Ramkali), the appellant suddenly

started quarreling with the deceased and his wife, abused them and ensued

a dispute and, in furtherance thereof, assaulted the deceased by means of

wooden stick, pursuant to which deceased- Nandkumar Yadav (deceased)

sustained grievous head injuries and died after 10 days in hospital during the

course of treatment, as such, there was no premeditation on the part of the

5 (2019) 6 SCC 122 CRA-884-2021

appellant to cause death of the deceased- Nandkumar Yadav and only

because of a petty dispute, out of sudden anger, in heat of passion, the

appellant assaulted deceased- Nandkumar Yadav and caused his death.

However, looking to the injuries sustained by deceased- Nandkumar Yadav,

as recorded by Dr. M. Nirala (PW-12), 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.

(20) 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 Pradesh6 as well as in Joseph v. State of Kerala7, the appellant is

convicted for offence punishable under Section 304 Part II of IPC and

sentenced to undergo 05 years' rigorous imprisonment, but the fine sentence

6 AIR 1956 SC 116 7 1995 SCC (Cri.) 165 CRA-884-2021

imposed upon him by trial Court shall remain intact.

(21) This criminal appeal is party allowed to the extent indicated herein-

above.

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