Radhe Gond vs State Of Chhattisgarh
2022 Latest Caselaw 7276 Chatt

                                                         Cr.A. No. 197 of 2013

                                     Page 1 of 9


                                                                       NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                                CRA No. 197 of 2013

        Radhe Gond, S/o Parmanand Gond, Aged About 40 Years, R/o
        Kamrid, P.S. Pamgarh, District- Janjgir Champa, Chhattisgarh.

                                                              ---- Appellant

                                   Versus

      • State of Chhattisgarh, Through - P.S. Pamgarh , District- Janjgir
        Champa, Chhattisgarh.                             ---- Respondent

__________________________________________________________

     For Appellant          :      Ms. Diksha Gauraha, Advocate

 For Respondent/State : Mr. Afroj Khan, Panel Lawyer
__________________________________________________________

                       Hon'ble Shri Sanjay K. Agrawal and
                     Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (05-12-2022)

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC is directed

against the impugned judgment of conviction recorded and sentence

awarded by the learned Sessions Judge, Janjgir-Champa (C.G.) by which

the appellant has been convicted for offence under Section 302 of the IPC

and sentenced to undergo imprisonment for life and pay fine of ₹ 2,000/-,

in default, to further undergo additional rigorous imprisonment for three

months.

2. Case of the prosecution, in brief, is that the appellant is brother-in-law

(sister's husband) of deceased/Dwarika Prasad Gond. The cattle (hen) of

the appellant used to enter in the house of the deceased, on that account

they used to quarrel with each-other. On 16.05.2012 at village Kamrid, at Cr.A. No. 197 of 2013

2.00 A.M. the deceased had gone out to answer call of nature and on

returning home he was abusing the appellant herein. When the appellant

heard the abuse given by the deceased, then altercation took place

between them on account of the said abuse and he slammed the

deceased on the ground and assaulted him with wooden stick by picking

it up from the spot by which he suffered injuries and died instantaneously.

3. Saroj Kumar Gond (PW/1) son of the deceased lodged report (Ex.P/1)

in police station Pamgarh on 16.05.2012 at 6.00 A.M. and also lodged

merg vide Ex.P/2. Spot map was prepared vide Ex.P/5 by Investigating

Officer- Rajshri Damu (PW/8). Inquest over the dead body of the

deceased was conducted vide Ex.P/11. On the recommendation of the

panchas, the dead body of the deceased was sent for postmortem which

was conducted by Dr. K. K. Dahire (PW/6) and report has been submitted

vide Ex.P/8. Memorandum statement of the appellant was recorded vide

Ex.P/6 and pursuant to his memorandum statement wooden stick has

been recovered and it was sent for query report vide Ex.P/10 and Dr. K.

K. Dahire (PW/6) opined that injuries can be caused by the seized

wooden stick. Simple soil (Article-A/2), blood stained soil (Article-A/3) and

steel box (Article-A/4) were seized from the spot vide Ex.P/14. All the

seized articles were sent for FSL vide Ex.P/19, however, no FSL report

has been brought on record. Statements of the witnesses were recorded

under Section 161 of the CrPC.

4. After due investigation, the accused/appellant was charge-sheeted for

offence under Section 302 of the IPC and charge-sheet was filed before

the jurisdictional criminal court and the case was committed to the Court

of Sessions for conducting trial and for hearing and disposal in

accordance with law.

Cr.A. No. 197 of 2013

5. The accused / appellant abjured the guilt and entered into defence. In

order to bring home the offence, the prosecution examined as many as 8

witnesses and exhibited 19 documents. The defence has examined none

and exhibited no document in his defence.

6. The trial Court after appreciating oral and documentary evidence

available on record, convicted and sentenced the appellant under Section

302 of the IPC in the manner mentioned in the opening paragraph of this

judgment against which the instant appeal under Section 374(2) of the

CrPC has been preferred.

7. Ms. Diksha Gauraha, learned counsel appearing for the appellant,

would submit that though witnesses Saroj Kumar Gond (PW/1), Koushilya

Bai (PW/2) and Lagan Singh Gond (PW/5) have been cited and branded

as eye witnesses, but they have not seen the incident. As such, the

appellant is not the perpetrator of the crime. There was dispute between

the appellant and the deceased, both were under the influence of liquor

as there was a celebration in the house of Balmiki. As such, the case of

the appellant would fall under Exception 4 to Section 300 of the IPC.

Therefore, it is a fit case where conviction of the appellant can be

converted/altered into an offence under Section 304 Part-II / Part-I of the

IPC, as the appellant is in jail since 16.05.2012. As such, the appeal be

allowed in part.

8.Mr. Afroj Khan, learned State counsel appearing for the State/

respondent, would support the impugned judgment and oppose the

appeal as also the submission made on behalf of the appellant and would

submit that the prosecution has proved the offence against the appellant

beyond reasonable doubt and the trial Court has rightly convicted him for

offence under Section 302 of the IPC. He would further submit that it is Cr.A. No. 197 of 2013

not the case where the offence against the appellant can be converted

into Section 304 Part-II / Part-I of the IPC.

9. We have heard learned counsel for the parties and considered their

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

with utmost circumspection.

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

deceased was homicidal in nature?

11. The trial Court upon appreciating oral and documentary evidence

available on record and considering the postmortem report Ex.P/8, which

has been proved by Dr. K. K. Dahire (PW-6) in which cause of death was

stated to be due to injury antemortem leading to severe brain

haemorrhage and shock due to impact of hard and blunt object on left

side of head again and again and nature of death is opined to be

homicidal. The trial Court rightly held that nature of death of the

deceased was homicidal. The finding recorded by the trial Court that

death of the deceased was homicidal in nature, is a finding of fact based

on the evidence available on record, it is neither perverse nor contrary to

the record and we hereby affirm the said finding.

12. Now, the question would be, whether the appellant is the perpetrator

of the offence, which was answered by the trial Court in affirmamtive,

relying upon the testimonies of the witnesses, Saroj Kumar Gond (PW/1),

who is son of the deceased, Kaushilya Bai Gond (PW/2) wife of the

deceased and Lagan Singh Gond (PW/5) brother of the deceased. A

careful perusal of the statements of these witnesses would reveal that

they have witnessed the incident in which the appellant had assaulted the

deceased by wooden stick. Even in their cross-examination nothing has Cr.A. No. 197 of 2013

been brought out that they have not witnessed the incident. As such, the

trial Court has rightly held that the appellant is the author of the crime in

question.

13. Now, the next question for consideration would be, whether case of

the appellant would fall under Exception 4 to Section 300 of the IPC.

14. The Supreme Court in the matter of Arjun v. State of Chhattisgarh1

has elaborately dealt with the issue of Exception 4 to Section 300 of the

IPC and observed in paragraphs 20 and 21 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."

1 (2017) 3 SCC 247 Cr.A. No. 197 of 2013

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 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 Cr.A. No. 197 of 2013

Section 304 Part-II of the IPC.

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

(NCT of Delhi)2 has laid down four ingredients which should be

tested for bringing a case within the purview of Exception 4 to

Section 300 of the IPC, which read 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.

By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a "saria" and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife's neck also depicts an act of extreme cruelty.

17. From the evidence on record it is clear that the incident occurred in a sudden fight and there was no premeditation. Even the primary witness PW 7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother, deceased, with the "saria" when she had taken out some money from the appellant's wallet. It is not as if "saria" was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria) was picked up at the spur of the moment at the time of incident and used to compress the neck forcefully. In that view of the matter it is nothing but an act committed by the appellant in a 2 (2019) 6 SCC 122 Cr.A. No. 197 of 2013

heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section 300 IPC on the ground that appellant compressed his wife's neck also depicts an act of extreme cruelty. Having regard to the nature and manner of incident it cannot be said that act of the appellant was extremely cruel. Unless it is barbaric, torturous and brutal, strangulation of the appellant's wife cannot be said to be an act of extreme cruelty for denying the benefit of Exception 4 to Section 300 IPC."

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

of law laid down by their Lordships of the Supreme Court in Arjun

(supra) and Rambir (supra), it is quite vivid that the appellant is

brother-in-law (Jija) of the deceased, on the fateful day they had

celebrated birth celebration in the house of Balmiki, one of the co-

villagers of village-Kamrid and as per the statement of the brother

of the deceased - Lagan Singh Gond (PW/5), the deceased and

the appellant were under the influence of liquor and all of a sudden,

the dispute arose between them. Furthermore, as per statement of

wife of the deceased - Kaushilya Bai Gond (PW/2), relationship

between the deceased and the appellant was cordial and there was

no such dispute between them. However, the FIR vide Ex.P/1

lodged by son of the deceased Saroj Kumar Gond (PW/1) shows

that the appellant's cattle (hen) used to enter into the house of the

deceased, which has been protested by the deceased from time to

time and on 16.05.2012 the deceased was returning home in the

midnight after attending the call of nature and when he reached

near the house of the appellant and abused the appellant, which

was heard by the appellant, the appellant came out from his house

and then some altercation took place between them and the

appellant assaulted the deceased by wooden stick. As such, there Cr.A. No. 197 of 2013

was no premeditation of mind on the part of the appellant and on a

sudden fight, on sudden anger, in heat of passion, the appellant

caused the death of deceased Dwarika Prasad Gond but looking to

the nature of injuries, it can be held that the appellant had intention

as well as knowledge that the injury inflicted by him would likely to

cause death of the deceased, though the appellant does not acted

in unusual manner and not taken any undue advantage. Thus, the

case of the appellant falls within Exception 4 to Section 300 of the

IPC.

18. In that view of the matter, conviction of the appellant under Section

302 of the IPC as well as the sentence of life imprisonment awarded

to him by the learned trial Court is hereby set aside, and instead

thereof, the appellant is convicted for offence punishable under

Section 304 Part-II of the IPC. The appellant is in custody since

16.05.2012. We accordingly award the sentence for the period already

undergone by him and it is directed that the appellant be released

forthwith, if not required in any other offence.

19. The criminal appeal is party allowed to the extent indicated herein-

above.

                  Sd/-                                        Sd/-

           (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
                Judge                                        Judge
Nadim