Balrup vs State Of Chhattisgarh
2022 Latest Caselaw 7219 Chatt

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                                                                         NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 973 of 2013


 Balrup, S/o. Thakur Manjhwar, Aged About 43 Years, By Caste- Manjhwar,
R/o. Village Suplaga, P.S. Kamleshwarpur, Distt. Surguja, Chhattisgarh

                                                                 ---Appellant

                                   Versus

State Of Chhattisgarh, Through Station House Officer, Police Station-
Kamleshwarpur, Distt. Surguja, Chhattisgarh

                                                             ---Respondent


For Appellant      :-    Ms. Pooja Loniya, Advocate
For State          :-    Mr. Avinash Singh, Panel Lawyer


                  Hon'ble Shri Justice Sanjay K. Agrawal
                Hon'ble Shri Justice Rakesh Mohan Pandey

                           Judgment on Board
                               02.12.2022

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. is directed

against the impugned judgment dated 21.06.2013 passed by learned

Sessions Judge, Sarguja, Ambikapur, in Sessions Trial No.104/2012

by which the appellant herein has been convicted for the offence

under Section 302 of I.P.C. and sentenced for life imprisonment with

fine of Rs.1000/- and in default of payment of fine amount, further S.I.

for 6 months.

2. Case of the prosecution, in brief, is that on 20.12.2011 at 7:00 p.m. at

village Suplaga, P.S. Kamleshwarpur, the appellant assaulted the

deceased by Bow & Arrow, by which he suffered grievous injuries

and died; thereby, the appellant has committed the offence under

Section 302 of I.P.C.

3. Further case of the prosecution is that the cattle of the deceased

Jagdhari were grazing the crop sown by the appellant to which the

appellant had objected and thereafter on the fateful day, he assaulted

the deceased by Bow & Arrow on his Chest, by which he suffered

grievous injuries and died. On the report of Bandhan Ram (PW-4),

the FIR was registered vide Ex.P-8 and thereafter panchnama was

conducted vide Ex.P-2 and on the recommendation of Panchas,

dead body was sent for post mortem, which was conducted by Dr.

R.S.Singh (PW-7) and the post mortem report is Ex.P-13-A. Pursuant

to the memorandum statement of the appellant (Ex.P-4), Bow &

Arrow was seized vide Ex.P-5 and all the seized articles along-with

cloths were sent for FSL and in the FSL report (Ex.P-19), human

blood was found on Article 'D' and on other articles also 'C1, C2, C3'

human blood was found. After due investigation, the appellant was

charge-sheeted for the offence under Section 302 of I.P.C. and the

appellant/accused abjured his guilt and entered into defence.

4. The prosecution in order to prove its case examined as many as 9

witnesses and exhibited 18 documents and the appellant-accused in

support of his defence has neither examined any witness nor

exhibited any document.

5. The learned trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellant for the offence under

Section 302 of I.P.C. and sentenced him as above, against which the

present appeal has been preferred.

6. Ms. Pooja Loniya, learned counsel for the appellant would submit

that the trial Court is absolutely unjustified in convicting the appellant

for the offence punishable under Section 302 of I.P.C. as the

appellant is not the perpetrator of the crime and in alternative she

would submit that at the most offence under Section 304 Part-I or

Part-II of I.P.C. is made out and therefore the appeal be allowed in

full or in part.

7. Per contra, Mr. Avinash Singh, learned State counsel would support

the impugned judgment and submit that learned trial Court has rightly

convicted the appellant for offence punishable under Section 302 of

I.P.C. He would submit that in view of testimony of the eye-witness

Bandhni Majhwar (PW-5) and statement of wife of the deceased

Shaniyari Bai (PW-2) and other circumstantial evidence available on

record, the conviction of the appellant for the offence under Section

302 of I.P.C. is justified and it is not a case which is covered under

Exception 4 to Section 300 of IPC, as such, the conviction of the

appellant cannot be converted to either Part I or Part II of Section

304 of IPC, therefore, the instant 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 Jagdhari was homicidal in nature, which the learned trial

Court has recorded in affirmative relying upon the testimony of Dr.

R.S. Singh (PW-7) who has proved post mortem report (Ex.P-13-A),

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

which 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 perpetrator

of the crime, to which the learned trial Court relied upon the

statement of the eye-witness Bandhni Manjhwar (PW-5), who in her

statement before the trial Court has stated that she has seen the

incident that the appellant has caused bow injury to the deceased,

pursuant to which he suffered injuries and died, but she was

confronted with her statement by Ex.P-11 under Section 161 of

Cr.P.C. It would be apparent from her statement under Section 161 of

Cr.P.C. that she reached to the spot after deceased cried "Bachao-

Bachao" and suffered bow injury, as such, she cannot be held to be

eye-witness, but she reached immediately to the spot after the

incident. Furthermore, arrow was recovered from the body of the

deceased and it was sent for FSL and in the FSL report (Ex.P-19)

human blood was found and even on the shirt of the deceased also

human blood was found, which connects the appellant with the

offence in question. Bow has been recovered pursuant to the

memorandum statement in accordance with law and, as such, the

appellant is the perpetrator of the crime in question.

11. Now, the question that requires consideration is whether the trial

Court is justified in convicting the appellant for offence punishable

under Section 302 of I.P.C. or his case is covered under Exception 4

to Section 300 of I.P.C. and as such, his conviction can be altered to

either Part-I or Part-II of Section 304 of IPC, as contended by learned

counsel for the appellant ?

12. In order to consider whether the case of the appellant is covered

within Exception 4 to Section 300 of I.P.C., it would be appropriate to

notice the decision rendered by the Supreme Court in the matter of

Sukhbir Singh v. State of Haryana 1 wherein it has been 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 Sukhir 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."

13. 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, 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 for 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;

1 (2002) 3 SCC 327 2 (2009) 15 SCC 635

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused with 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 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."

14. 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 is 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

3 (2012) 8 SCC 450

such death was caused by the act of the accused and that he knew

that such act of his is likely to cause death.

15. 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 :-

"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

4 (2017) 3 SCC 247

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 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 Part-I 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.

17. 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."

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

principles of law laid down by their lordships of the Supreme Court, it

is quite vivid that there was no premeditation on the part of the

appellant to cause the death of the deceased. Shaniyaro Bai (PW-2)

wife of deceased has clearly stated that the deceased had gone near

the house of the appellant for grazing the cattle which the appellant

had objected as his crop was standing, as such, deceased came

back alongwith his cattle. However, Bihani (PW-3) who is also a

prosecution witness stated that quarrel took place in between the

appellant and deceased on the issue of grazing the cattle near the

courtyard of the appellant and that is the reason after sometime the

appellant came alongwith Bow & Arrow and caused bow injury to the

deceased by which he suffered injuries and died. As such, appellant

had knowledge that the injury caused by him would likely cause

death of the deceased in ordinary course of nature.

19. In that view of the matter, we are of the opinion that the case of the

appellant is covered within Exception 4 to Section 300 of IPC and

since the appellant had no intention and premeditation to cause the

death of the deceased, however, he must have had the knowledge

that his act of assault would cause the death of the deceased, his

conviction for offence punishable under Section 302 of I.P.C. is

altered to Section 304 Part-II of I.P.C. Since the appellant is in jail

since 22.12.2011, i.e. for more than 10 years, we hereby sentence

him to the period already undergone, but 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. In view of the above, this criminal appeal is partly allowed to the

extent indicated herein-above.

                            Sd/-                                 Sd/-
                      (Sanjay K. Agrawal)               (Rakesh Mohan Pandey)
                           Judge                                Judge




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