Patiram vs State Of Chhattisgarh
2022 Latest Caselaw 4181 Chatt

                                                                                Cr.A.No.983/2017

                                           Page 1 of 10

                                                                                              NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.983 of 2017

  {Arising out of judgment dated 31-1-2017 in Sessions Trial No.43/2015 of
                  the Additional Sessions Judge, Gariyaband}

Patiram, S/o Samaru Kamar, Aged about 45 years, R/o Village Ludhapara
(Chhindoula), P.S. Mainpur, District Gariyaband (C.G.)
                                                                (In Jail)
                                                          ---- Appellant

                                              Versus

State of Chhattisgarh, Through P.S. Mainpur, District Gariyaband (C.G.)
                                                             ---- Respondent

------------------------------------------------------------------------------------------------------
For Appellant:                   Mr. F.S. Khare, Advocate.
For Respondent/State: Mr. Soumya Rai, Panel Lawyer.
------------------------------------------------------------------------------------------------------

                           Hon'ble Shri Sanjay K. Agrawal and
                            Hon'ble Shri Sanjay Agrawal, JJ.

Judgment On Board (04/07/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under Section

374(2) of the CrPC is directed against the impugned judgment of

conviction and order of sentence dated 31-1-2017 passed in Sessions

Trial No.43/2015 by the Additional Sessions Judge, Gariyaband, by

which the appellant herein has been convicted for offence under

Section 302 of the IPC and sentenced to undergo imprisonment for life

and further sentenced to pay a fine of ₹ 200/- and to further undergo

rigorous imprisonment for one month for want of failure to pay the fine

amount.

2. Case of the prosecution, in brief, is that on 10-4-2015 at about 10 p.m.

near Luthapara, Village Chhindoula, Police Station Mainpur, District Cr.A.No.983/2017

Gariyaband, the appellant assaulted his wife by sharp-edged weapon

kulhadi on her stomach and thigh and thereby committed the offence

punishable under Section 302 of the IPC. Further case of the

prosecution, in brief, is that on 10-4-2015, the appellant's wife Itwari

Bai did not cook any food in time and when the appellant reached to

the house, the food was not ready, on that count, he became angry

and assaulted his wife by axe kept in his house on her thigh and

stomach by which she died instantaneously. The matter was informed

by accused Patiram himself to Mangturam (PW-2) by making extra

judicial confession before him on 11-4-2015 that on account of non-

cooking of food, he assaulted his wife by axe pursuant to which

Mangturam (PW-2) gave information to the police about the incident

on 12-4-2015. On the basis of the said information, morgue intimation

No.9/2015 was registered vide Ex.P-4 and thereafter, Police Station

Mainpur, Distt. Gariyaband, registered first information report vide

Ex.P-5 against accused Patiram under Crime No.41/2015 for the

offence punishable under Section 302 of the IPC and information was

given to the Chief Judicial Magistrate, Gariyaband. Thereafter, spot

map was prepared by the police vide Ex.P-12 and naksha

panchayatnama was also prepared vide Ex.P-6. Memorandum of the

accused was recorded vide Ex.P-8 in presence of Aghantaram,

Mangturam, Rameshwar & Sundar and pursuant to the memorandum

statement of the accused, axe was recovered at his instance vide

Ex.P-9. Dead body of the deceased was sent for postmortem

examination which was conducted by Dr. Sunil Singh (PW-7) and

postmortem report is Ex.P-22. The doctor has found injury on head,

right knee and abrasion on stomach. Cause of death was due to Cr.A.No.983/2017

injury on head leading to pain and shock and death was homicidal in

nature. The recovered axe was sent for forensic examination, but as

per the FSL report available at page 33 of the paper book, no blood

was found on the said axe.

3. Statements of the witnesses were recorded under Section 161 of the

CrPC.. Thereafter, after completion of investigation, the appellant was

charge-sheeted before the Court of Chief Judicial Magistrate,

Gariyaband which was taken cognizance of and thereafter, the case

was committed to the Court of Sessions for hearing and disposal in

accordance with law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused / appellant

abjured the guilt and entered into trial stating that he has been falsely

implicated and he has not committed the offence.

5. The prosecution in order to bring home the offence examined as many

as 8 witnesses and brought on record 23 documents Exs.P-1 to P-23

to prove its case. However, the defence examined none and not

exhibited any document. Statement of the accused / appellant was

recorded under Section 313 of the CrPC in which he abjured the guilt

and pleaded innocence and false implication.

6. The trial Court after completion of trial and upon appreciation of oral

and documentary evidence, especially relying upon the extra judicial

confession made by the accused, convicted the appellant herein for

the offence under Section 302 of the IPC and sentenced him in the

manner as mentioned in the opening paragraph of this judgment

which has been called in question in this appeal preferred under

Section 374(2) of the CrPC.

Cr.A.No.983/2017

7. Mr. F.S. Khare, learned counsel appearing for the appellant, would

submit that the prosecution has failed to bring home the offence and

as such, the appellant could not have been convicted and he has

been convicted by recording a finding which is perverse to record.

Even otherwise, considering the nature of injuries and that the dispute

arose on account of non-cooking of food on a sudden quarrel and

there is no premeditation on the part of the appellant, it is a case

where the offence in question would not amount to murder, but it

would be culpable homicide not amounting to murder, as such,

conviction can be converted to Section 304 Part-II of the IPC and as

the appellant is in jail since 12-4-2015, therefore, he be sentenced to

the period already undergone by him and the appeal be allowed either

in toto or in part.

8. Mr. Soumya Rai, learned Panel Lawyer appearing for the State /

respondent, would submit that the appellant has assaulted his wife by

sharp-edged weapon - axe by which she suffered injuries and died

instantaneously. He would further submit that bloodstained axe was

earlier recovered from the appellant pursuant to his memorandum

statement and seized vide Ex.P-9 which has duly been proved, as

such, the prosecution has been able to bring home the offence and it

is not the case where the offence can be converted to Section 304

Part-II of the IPC and therefore the appeal deserves to be dismissed.

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 the trial Court is

justified in holding that death of the deceased was homicidal in Cr.A.No.983/2017

nature?

11. The trial Court after relying upon the statement of Dr. Sunil Singh

(PW-7) and also taking into consideration the postmortem report Ex.P-

22, clearly came to the conclusion that fracture was found on temporal

region of head, right knee was also fractured and there was abrasion

in stomach and as such, cause of death being head injury and on

account of shock and pain, death was homicidal in nature. In our

considered opinion, such a finding recorded by the trial Court that

death was homicidal in nature is the correct finding of fact based on

the evidence available on record and we hereby affirm the said finding

recorded by the trial Court.

12. Now, the question is, whether the trial Court is justified in holding that

it is the appellant who is the author of the crime in question of causing

death of his wife Itwari Bai?

13. It is the case of the prosecution that immediately after the incident, the

appellant has made extra judicial confession to Mangturam (PW-2).

Mangturam (PW-2) - cousin of the appellant, in his statement before

the Court has clearly stated that after two days of incident, the

appellant came to his house in the night at 10 p.m. and informed him

that since his wife did not cook food for him, he has assaulted her by

axe by which she died, upon which he {this witness Mangutram (PW-

2)} has informed to other villagers. He has stated before the Court

that the appellant has made extra judicial confession before him about

the murder of his wife by axe. Apart from that, on his arrest, the

appellant has made similar statement before Rameshwar Kamar (PW-

3), Aghanta Ram (PW-4) - Sarpanch of Village Dabnai, Sundar Singh

(PW-6) and Sondhar (PW-8) that he has killed his wife by assaulting Cr.A.No.983/2017

with axe. Not only this, pursuant to the memorandum statement of the

accused Ex.P-8, the weapon used in the offence has been recovered

from the possession of the appellant vide Ex.P-9 which has duly been

proved, though in the FSL report it has not been confirmed that blood

was present on the recovered axe. The trial Court relying upon the

statements of Mangturam (PW-2), Rameshwar Kamar (PW-3),

Aghanta Ram (PW-4), Sundar Singh (PW-6) and Sondhar (PW-8)

clearly came to the conclusion that the appellant has made extra

judicial confession before them which has been relied upon by the

prosecution and which has been accepted by the trial Court.

14. As such, upon hearing learned counsel for the parties, we consider it

appropriate to accept the finding of the learned trial Court that the

extra judicial confession made by the accused before Mangturam

(PW-2), Rameshwar Kamar (PW-3), Aghanta Ram (PW-4), Sundar

Singh (PW-6) and Sondhar (PW-8) that he has murdered his wife, has

been proved by the prosecution and there is no reason not to accept

the finding so recorded by the trial Court and we hereby affirm that

finding.

15. Now, the question is, what would be the nature of offence, whether it

would be under Section 302 of the IPC or it will fall under Exception 4

to Section 300 of the IPC?

16. At this stage, it would be appropriate to notice Exception 4 to Section

300 of the IPC, which states as under: -

"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Cr.A.No.983/2017

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."

17. As noticed herein-above, it is quite vivid that the dispute is only with

regard to non-cooking of food by the wife of the appellant and on the

fateful night, when the appellant came to his house, food was not

prepared / ready and on that count, the dispute arose which resulted

in assault by the appellant causing injury to his wife by axe. As such,

there is no premeditation for commission of offence and it happened

on a sudden quarrel, and the appellant has not taken any undue

advantage.

18. The Supreme Court in the matter of Arjun and another v. State of

Chhattisgarh1 has elaborately dealt with the issue 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, Chandigarh2, 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 is it 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 2 (1989) 2 SCC 217 Cr.A.No.983/2017

21. Further in Arumugam v. State3, 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 and 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 provision means "unfair advantage".'"

19. In Arjun (supra), the Supreme Court has held that when and if there is

intent and knowledge, the same would be a 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.

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

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

(supra), it is quite vivid that in the present case, except non-cooking of

3 (2008) 15 SCC 590 Cr.A.No.983/2017

food by the wife of the appellant, there was no such dispute existing

between the appellant and his wife and only on account of non-

cooking of food that too in the late night, the appellant became angry

and assaulted his wife by axe after brief and sudden quarrel, without

any premeditation and in a heat of passion which is also apparent

from the statement of Dr. Sunil Singh (PW-7). Dr. Sunil Singh (PW-7)

has stated in paragraph 1 of his evidence as under: -

ckg~; ijh{k.k%& 'kjhj dk 20 izfr'kr Hkkx MhdEikst gks x;k FkkA 'kjhj esa QQksys vk x, FksA flj ds VsEiksjy jhtu gM~Mh VwV xbZ FkhA nk;ka ?kqVuk V`Vk gqvk FkkA isV esa ,csztu fn[kkbZ ns jgk FkkA vkarfjd ijh{k.k%& e`rd dk gkVZ] yaXl] fLifju] fdMuh datLVsM FkkA flj dh VsEiksjy gM~Mh VwVh gqbZ FkhA NksVh vkar esa v/kipk inkFkZ ,oa cMh vkar esa ey inkFkZ FkkA vfHker%& esjs erkuqlkj e`frdk dh e`R;q flj esa vkbZ pksV ds dkj.k lkWd yxus vkSj nnZ ds dkj.k gqbZ gSA e`R;q dh gR;kRed izd`fr dh FkhA e`frdk dh e`R;q esjs 'ko ijh{k.k fd, tkus ds yxHkx 3 fnu iwoZ gqbZ FkhA esjh ijh{k.k fjiksVZ iz0ih0&2 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gSA

21. As such, only temporal bone was found fractured and even left knee

was also fractured and there was abrasion in stomach / abdomen.

Considering the nature of injuries and that on brief and sudden quarrel

the appellant is said to have assaulted the deceased i.e. his wife, it

can be held that there is no premeditation on the part of the appellant

to cause her death, the appellant has not taken unusual advantage

and has not acted in unusual manner and the incident happened in a

sudden fight in the heat of passion. Therefore, in the light of the

decision of the Supreme Court in Arjun (supra) though there was no

intention on the part of the appellant to cause the death of his wife, but

while causing injury he must be having the knowledge that the injury

caused by him is likely to cause the death of his wife Itwari Bai.

Therefore, we are of the considered opinion that conviction of the Cr.A.No.983/2017

appellant herein under Section 302 of the IPC can be converted to

Section 304 Part-II of the IPC.

22. Accordingly, conviction of the appellant for offence under Section 302

of the IPC is modified to Section 304 Part-II of the IPC. The appellant

is in jail since 12-4-2015, thereby he has completed more than seven

years of imprisonment. Jail sentence imposed upon the appellant is

modified to that of the period already undergone by him. The

appellant be released forthwith, unless required in any other case.

23. The appeal is allowed to the extent indicated herein-above.

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


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