Dhansai Khadia vs State Of Chhattisgarh
2022 Latest Caselaw 7487 Chatt

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                                                                            NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                         Criminal Appeal No. 1093 of 2013

Dhansai Khadia, S/o. Jogiram Khadia, Aged About 45 Years, R/o. Village -
Gahnajhariya, P.S. Lailunga, Civil & Revenue Distt. Raigarh, Chhattisgarh


                                                                ---Appellant

                                      Versus

State Of Chhattisgarh, Through the Police Station- Gharghoda, Civil & Revenue
Distt. Raigarh, Chhattisgarh

                                                                ---Respondent

For Appellant              :-      Ms. Sareena Khan, Advocate
For State-Respondent       :-      Mr. Avinash Singh, Panel Lawyer


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

                                Judgment on Board
                                    13.12.2022

Sanjay K. Agrawal, J.

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

against the impugned judgment dated 02.09.2013 passed by learned

First Additional Sessions Judge, Raigarh, in Sessions Trial

No.18/2012, by which the appellant herein has been convicted for the

offence under Section 302 of Indian Penal Code and sentenced for

life imprisonment with fine of Rs.15,000/- and in default of payment of

fine amount, 1 year additional R.I.

2. Case of the prosecution, in brief, is that the appellant and deceased

both were real brothers. The deceased has settled the marriage of

his daughter at village Dhab but since it was not liked by his daughter

Shanti Bai, it was again settled at village Raikera, P.S. Gharghoda

and on account of which, the appellant was little-bit unhappy.

Therefore, on 07.06.2011, he quarreled with the deceased and

thereafter assaulted him by Axe and fled away. The deceased was

admitted to the Government Hospital Lailunga where during his

treatment he could not recover and succumbed to death. On the

complaint of wife of the deceased Smt. Sasita Khadia (PW-2), the

merg intimation (Ex.P-12) was registered and thereafter FIR was

registered vide Ex.P-3 for the offence under Section 302 of I.P.C. The

inquest was conducted by Ex.P-13 and on the recommendation of

panchas, the dead body was subjected to post mortem, which was

conducted by Dr. Yogeshwar Singh Sarathiya (PW-6), who prepared

the post mortem report vide Ex.P-15A. According to the post mortem

report, the death occurred on account of injuries sustained on head

and the death was homicidal in nature. Thereafter, the appellant was

taken into custody and on his memorandum statement (Ex.P-5), iron

Axe was recovered vide Ex.P-6 and Ex.P-7 and it was sent for query.

The query report was made vide Ex.P-19 and all the articles were

sent for FSL vide Ex.P-20 but no FSL report was brought on record.

Thereafter, the statements of the prosecution witnesses were

recorded and after due investigation, the appellant was charge-

sheeted for the aforesaid offences, which was committed to the Court

of Sessions for hearing and disposal in accordance with law.

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

6 witnesses and exhibited 24 documents. The appellant abjured his

guilt and the appellant-accused in support of his defence has neither

examined any witness nor exhibited any document.

4. The 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 as above, against which the present appeal

has been preferred.

5. Ms. Sareena Khan, learned counsel for the appellant would submit

that the prosecution has failed to bring home the offence beyond

reasonable doubt. She submits that appellant and deceased both

were real brothers and on account of marriage of daughter of the

deceased Shanti Bai, sudden dispute arose and on that account, the

appellant is said to have caused Axe injury to the deceased by which

he suffered injuries and died. In alternative, she would submit that

the case of the appellant would be covered under Exception 4 to

Section 300 of I.P.C. and therefore his conviction under Section 302

of I.P.C. be altered to Part-II of Section 304 of I.P.C. and the appeal

be allowed in part.

6. Per contra, Mr. Avinash Singh, learned State counsel would submit

that the prosecution has been able to bring home the offence beyond

reasonable doubt, therefore, the conviction of the appellant for the

offence under Section 302 of I.P.C. is well merited and it is not a case

which is covered under Exception 4 to Section 300 of I.P.C., as such,

the conviction of the appellant cannot be converted to Part II of

Section 304 of I.P.C., therefore, the instant appeal deserves to be

dismissed.

7. We have heard learned counsel for the parties, considered their rival

submissions made herein-above and went through the records with

utmost circumspection.

8. The first question as to whether the death of deceased Karam Sai

was homicidal in nature has been answered by the trial Court in

affirmative holding the death to be homicidal in nature on account of

injuries suffered by him all over the body and relying upon the post

mortem report Ex.P-15A, which is proved by Dr. Yogeshwar Singh

Sarathiya (PW-6). We are of the considered opinion that the said

finding recorded by the trial Court is neither perverse nor contrary to

the record and even otherwise it has not been seriously questioned

by the learned counsel for the appellant and therefore we hereby

affirm the said finding.

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

of the crime in question, to which the trial Court has answered in

affirmative specially relying upon the statement of Ku. Kanti Khadia

(PW-1) who is daughter of the deceased. In her statement before the

Court, she has clearly stated that since the deceased has settled the

marriage of his daughter Shanti Bai at village Raikera, on that

account the appellant was unhappy and on the fateful day, he

quarreled with her father and also abused him and at that time the

quarrel was intervened by herself (PW-1) and Smt. Sasita Khadia

(PW-2) and they took the appellant back to their house. Thereafter,

again the appellant abused her father by which the deceased came

into the house of the appellant and then the appellant assaulted her

father by Tangi by which he suffered injuries and thereafter during

course of treatment in the Hospital, he succumbed to death. She was

subjected to cross-examination, but nothing has been brought out on

record except that his father was also armed with Lathi.

10. Furthermore, Smt. Sasita Khadia (PW-2) wife of the deceased has

also stated before the Court that the appellant had quarreled with her

husband on account of marriage of her daughter which was settled at

village Raikera. Further, she affirms the fact that on account of place

of marriage of their daughter, the appellant had quarreled with her

husband, which she intervened and took her husband to their house,

but thereafter the deceased came back into the house of the

appellant and dispute erupted in between them and appellant is said

to have assaulted her husband by Tangi and during his treatment in

the Hospital, he succumbed to death.

11. Pursuant to memorandum statement of the appellant, the

bloodstained Tangi has been seized and according to Dr. Yogeshwar

Singh Sarathiya (PW-6) in the query report (Ex.P-19A) it is confirmed

that the injuries might have been caused by the seized article, which

is recovered from the possession of the appellant, but FSL report has

not been brought on record. However, considering the direct

evidence of Ku. Kanti Khadia (PW-1) and Smt. Sasita Khadia (PW-2)

it is held that the appellant is the perpetrator of the crime.

12. Now, the question would be whether the case of the appellant would

fall under Exception 4 to Section 300 of IPC and as such, his

conviction can be altered to Part-II of Section 304 of IPC, as

contended by learned counsel for the appellant ?

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

under Exception 4 to Section 300 of IPC, 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."

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, 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;

(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;

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

(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."

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 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

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

that such act of his is likely to cause death.

3 (2012) 8 SCC 450

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 :-

"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 4 (2017) 3 SCC 247

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 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.

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 the aforesaid

principles of law laid down by their Lordships of the Supreme Court

and in view of the fact that the appellant and deceased both are real

brothers and deceased has settled the marriage of her daughter at

village Raikera by which the appellant expressed his displeasure to

the deceased and on that count, the dispute erupted which was

intervened by Ku. Kanti Khadia (PW-1) and Smt. Sasita Khadia

(PW-2) and thereafter again the appellant abused the deceased by

which the deceased came into the house of the appellant armed with

Lathi and the appellant assaulted him by Axe whereby he suffered

grievous injuries and died in the Hospital during course of treatment.

As such, there was no premeditation on the part of the appellant to

cause the death of his brother Karam Sai, he must have had the

knowledge that the injuries caused to the appellant is sufficient to

cause death.

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

appellant is covered under 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.

Therefore, his conviction for offence punishable under Section 302 of

IPC is altered to Section 304 Part II of IPC and the appellant is

convicted for the period of 5 years.

21. Accordingly, the conviction of the appellant for the offence under

Section 302 of I.P.C. is set aside. Now he is convicted for the offence

under Section 304 Part-II of I.P.C. and sentenced to 5 years Rigorous

Imprisonment. The fine amount of Rs.15,000/- which was imposed

upon the appellant is also reduced to Rs.1000/-.

22. The appellant is on bail. His bail bond are forfeited, he is directed to

surrender forthwith to serve out the remaining jail sentence.

23. In view of the above, this criminal appeal is allowed to the extent

indicated herein-above.

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