Rakesh Lakda vs State Of Chhattisgarh
2022 Latest Caselaw 5071 Chatt

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                                                                                   NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                          Criminal Appeal No. 603 of 201 4

Rakesh Lakda S/o Rai Singh Lakda, Aged About 26 years, Resident of
Village Tolma, Thana Lailunga, Civil, Revenue & District Raigarh (CG)
                                                                          ---- Appellant
                                                                                (In Jail)
                                        Versus
State of Chhattisgarh Through Station Incharge, Thana Lailunga, District
Raigarh (CG)
                                                                       ---- Respondent
-------------------------------------------------------------------------------------------

For Appellant : Mr.Arvind Shrivastava, Advocate For Respondent-State : Mr.Soumya Rai, Panel Lawyer

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

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

Judgment on Board (8.8.2022) 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 6.5.2014, passed by the

learned First Additional Sessions Judge, Raigarh in Sessions Trial

No.95/2013, whereby the appellant-accused has been convicted for

offence under Section 302 of the IPC and sentenced to undergo

imprisonment for life and further sentenced to fine of Rs.5000/-, in

default of payment of fine, to further undergo R.I. for 1 year.

2. Case of the prosecution, in brief, is that on 10.3.2013 at 2 p.m. the

appellant firstly assaulted his wife Fago Bai by footwear (sleeper) and

thereafter strangulated her and thereby committed the offence. It is

further case of the prosecution as mentioned in merg intimation

(Ex.P-1) and FIR (Ex.P-2) that on the fateful day the appellant came

back from forest along with fire woods and asked for food from his wife

(the appellant and deceased Fago Bai both were living together as

husband and wife, but not married), but Fago Bai did not serve and

ask the appellant to serve food himself and thereafter to wash utensils,

then out of anger and on sudden quarrel, the appellant firstly assaulted

her by footwear (sleeper) and thereafter strangulated her, by which

Fago Bai died. The matter was reported by Jaipal Tigga (PW-1) to the

police station vide Ex.P-1 and on that basis, FIR was registered vide

Ex.P-2. Dead body of the deceased was sent for postmortem to

Community Health Center, Lailunga, where Dr.Yogeshwar Singh

Sarthiya (PW-5) conducted postmortem vide Ex.P-12 and opined that

cause of death was asphyxia due to compression over neck. Pursuant

to memorandum statement of the appellant vide Ex.P-8, sleeper was

seized from him vide Ex.P-9, but it was not subjected to FSL

examination. Statements of the witnesses were recorded and after due

investigation, the police filed charge-sheet in the Court of Judicial

Magistrate First Class, Gharghoda, who in turn, committed the case to

the Court of Sessions, Raigarh, from where the First Additional

Sessions Judge, Raigarh received the case on transfer for trial. The

appellant/accused abjured his guilt and entered into defence that he

has not committed any offence and he has falsely been implicated in

crime in question.

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

as 8 witnesses and exhibited 20 documents. The appellant-accused

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

his support.

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

available on record, by its judgment dated 6.5.2014, 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.Arvind Shrivastava, learned counsel for the appellant-accused,

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

the crime in question and as such, it is the case where offence would

fall under Exception 4 to Section 300 of the IPC as per Ex.P-1 and

Ex.P-2, as such, his conviction for offence under Section 302 of the

IPC can be altered to offence under Section 304 Part II of the IPC and

as such, the appeal deserves to be allowed in part. He would rely upon

the judgments of the Supreme Court in the matters of Uday Singh v.

State of U.P. 1and State of Madhya Pradesh v. Abdul Latif 2.

6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer for the

respondent/State, would support the impugned judgment and submit

that it is not a case where the appellant's conviction under Section 302

of the IPC can be altered/converted under Section 304 Part II of the

IPC and as such, the instant appeal deserves to be dismissed.

7. We have heard learned counsel appearing for the parties and

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

1 (2002) 7 SCC 79 2 (2018) 5 SCC 456

deceased Fago Bai was homicidal in nature ?

9. The trial Court after appreciating oral and documentary evidence

available on record particularly relying upon the statement of

Dr.Yogeshwar Singh Rarthiya (PW-5), who has conducted

postmortem, has come to the conclusion that cause of death was

asphyxia and death was homicidal in nature. After hearing learned

counsel for the parties and after considering the submissions, we are

of the considered opinion that a finding recorded by the trial Court that

death of deceased Fago Bai was homicidal in nature is a finding of fact

based on evidence available on record. It is neither perverse nor

contrary to record. We hereby affirm that finding.

10. The next question for consideration would be, whether the trial

Court has rightly convicted the appellant for offence under Section 302

of the IPC or his case would be covered under Exception 4 of Section

300 of the IPC vis-a-vis culpable homicide not amounting to murder

and, thus, his conviction can be converted to Section 304 Part II of the

IPC, as contended by learned counsel for the appellant ?

11.The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana 3 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 3 (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."

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

of Haryana 4 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

4 (2009) 15 SCC 635

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. "

13. Likewise, in the matter of State v. Sanjeev Nanda 5, 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.

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

Chhattisgarh 6 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 5 (2012) 8 SCC 450 6 (2017) 3 SCC 247

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".

15. 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 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.

16. 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 as per Ex.P-1 and

Ex.P-2, on the fateful day the appellant came back from forest along

with fire woods and asked for food from his wife, but Fago Bai did not

serve and ask the appellant to serve food himself and thereafter to

wash utensils, then out of anger and on sudden quarrel the appellant

firstly assaulted her by footwear (sleeper) and thereafter strangulated

her, by which Fago Bai died. There was no premeditation on the part of

the appellant to cause death of deceased Fago Bai and only because

of a petty dispute, in the name of serving food, quarrel took place

between the appellant and the deceased and out of that anger and in

heat of passion, the appellant assaulted her firstly by sleeper and

thereafter pressed her neck by which she died. The appellant did not

have any intention to cause death of deceased Fago Bai, but by

causing such injuries and by pressing her neck, he must have had the

knowledge that such injuries inflicted by her would likely to cause her

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, conviction of the appellant under

Section 302 of IPC can be altered/converted to Section 304 Part-II of

the IPC.

17. Accordingly, conviction of the appellant under Section 302 of the

IPC is set aside and he is convicted under Section 304 Part-II of the

IPC. It is stated at the Bar that the appellant is in jail since 12.3.2013

and has completed more than 9 years of imprisonment. Considering

the fact situation of the case, we hereby sentence to the period already

undergone by him. The appellant be released forthwith unless required

in any other case.

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

herein-above.

                  Sd/-                                   Sd/-

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