Smt. Sarita Bai vs State Of Chhattisgarh
2022 Latest Caselaw 4465 Chatt

                                      1

                                                                       NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Criminal Appeal No. 1236 of 2015

          Smt.Sarita Bai W/o. Late Mandur Ram Lohar, aged
          about   50     years,   R/o.    Village    Sikri    Sarnapara
          Police Station Aasta, Civil and Revenue District
          Jashpur (CG)

                                                         ­­­Appellant

                                     Versus

          State     of   Chhattisgarh      through    Station     House
          Officer, Police Station Aasta, District Jashpur
          (CG)

                                                      ­­­Respondent


    For Appellant          :­     Ms Savita Tiwari, Advocate
    For State              :­     Mr.Sudeep Verma, Dy.G.A.

             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Sanjay S. Agrawal
                            Judgment on Board
                                14/07/2022


Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant

herein under Section 374(2) of CrPC is directed

against the impugned judgment of conviction and

order of sentence dated 26.8.2015 passed by

learned Additional Sessions Judge, Jashpur in

Sessions Trial No. 92/2014, whereby the

appellant/accused has been convicted for offence

under Section 302 of the IPC and sentenced him to

undergo imprisonment for life and fine of Rs.

1000/­, in default of payment of fine to further

undergo R.I. for one month.

2. The case of the prosecution, in brief, is that on

5.9.2014 between 1 p.m. to 5 p.m. the appellant

assaulted her husband Mandudram by heavy hammer

(ghana) by which he suffered injuries and died

instantaneously. It is further case of the

prosecution that on 5.9.2014 James Toppo (PW­1),

deceased Mandudram, Sarita Bai (appellant

herein), Meghnath Ram (PW­2) (son of the

appellant and the deceased) and Rohit Kujur (PW­

11) all were drinking hadiya (home­made liquor)

in the house of the appellant and the deceased on

the eve of Karma festival and immediately

thereafter the appellant tried to assault her

husband by wooden plank, which was intervened by

James Toppo (PW­1 and they were separated and

thereafter in the evening, Rohit Kumar (PW­11)

heard noise of the appellant and the deceased,

they were shouting, immediately he reached to

open place / courtyard of the appellant and the

deceased, then he saw that the appellant was

assaulting her husband by heavy hammer (ghana),

by which he suffered injuries and died. Meghnath

Ram (PW­2) reported the matter to police station

Aasta on 6.9.2014 that his father has died on

5.9.2014. Merg was registered vide Ex.P­9 and

immediately thereafter on the report of Meghnath

Ram (PW­2), FIR was registered vide Ex.P­10. Merg

inquiry was conducted and thereafter inquest was

conducted. Dead body of the deceased was sent for

postmortem, where Dr.George Jiwan Lakda (PW­16)

conducted postmortem and opined that cause of

death was due to excessive bleeding and death was

homicidal in nature. Thereafter the appellant was

arrested and on the basis of his memorandum

statement (Ex.P­1), heavy hammer (ghana) and sari

were seized vide Ex.P­2. Other articles were also

seized vide Ex.P­3. Bloodstained soil and plain

soil were seized from the spot vide Ex.P­4. Sari

and hammer (ghana) were sent to FSL for

examination and in FSL report (Ex.P­19) blood was

found in sari and hammer seized from possession

of the appellant. After completion of

investigation, charge­sheet was filed before the

Chief Judicial Magistrate, Jashpur, who in turn,

committed the case to the Court of Session,

Jashpur, from where the Additional Sessions Judge

received the case on transfer for trial. The

appellant/accused abjured his guilt and entered

into defence.

3. In order to bring home the offence, the

prosecution examined 16 witnesses and brought

into record 23 documents. Statement of the

appellant/accused was recorded under Section 313

of CrPC wherein he denied his guilt, however, he

examined none in his defence. However, Ex.D­1 was

brought on record as defence document.

4. Learned trial Court, after appreciating the oral

and documentary evidence on record, by its

judgment dated 26.8.2015, proceeded to convict

the appellant herein on the basis of evidence of

eyewitness Rohit Kujur (PW­11), extra­judicial

confession made to Jusfina (PW­5) and

circumstantial evidence of memorandum statement

recorded and FSL report and sentenced him as

aforesaid which has been called in question by

way of the instant appeal.

5. Ms Savita Tiwari, learned counsel for the

appellant, would submit that the trial Court is

absolutely unjustified in convicting the

appellant herein for offence under Section 302 of

the IPC as there is no evidence on record to

connect the appellant for offence under Section

302 of the IPC. She would further submit that

extra­judicial confession allegedly made to

Jusfina (PW­5) is a weak piece of evidence and

evidence of eyewitness is not reliable and

furthermore, memorandum and recovery have not

been proved in accordance with law and even

otherwise, looking to the nature of injury and in

a petty dispute, the offence is said to have been

committed, the act of the appellant would fall

under Section 304 Part II of the IPC.

6. On the other hand, Mr.Sudeep Verma, learned

Government Advocate for the respondent/State,

would submit that the prosecution has brought

sufficient evidence to convict the appellant for

offence under Section 302 of the IPC and as such,

the trial Court has rightly convicted the

appellant for offence under Section 302 of the

IPC. He would further submit that it is not a

case where offence under Section 302 of the IPC

can be converted under Section 304 Part II of the

IPC as the appellant assaulted her husband by

hammer with full intention to cause his death and

as such, the 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 for consideration would be,

whether death of deceased Mandudram was homicidal

in nature.

9. The trial Court after taking into consideration

the medical evidence particularly evidence of

Dr.George Jiwan Lakda (PW­16) and after taking

into consideration the postmortem report

(Ex.P­23) conducted by Dr.P.K.Singh came to the

conclusion that cause of death was due to

excessive bleeding and death was homicidal in

nature. The finding recorded by the trial Court

holding the death to be homicidal in nature is

the finding of fact based on evidence available

on record, which is neither perverse nor

contrary to record and even otherwise, it has not

been seriously disputed by the learned counsel

for the appellant.

10. The next question for consideration would

be, whether the appellant was author of crime in

question and what would be the nature of offence,

if any ?

11. Rohit Kujur (PW­11) is eyewitness. He has

also joined the company of the appellant and

deceased Mandudram in their house where James

Toppo (PW­1) and his father Nirmal Kujur have

joined for drinking hadiya (home­made liquor) and

at that time the appellant tried to assault the

deceased by wooden plank, but anyhow it was

intervened by him and thereafter all have gone to

their respective places, but being neighbour at 2

p.m. he heard noise from the house of the

deceased and the appellant as they were husband

and wife, on hearing noise, when he entered into

the house / courtyard of the appellant and the

deceased, he saw that the appellant was

assaulting her husband by heavy hammer (ghana),

but he did not inform anyone probably on account

of fear and implication in the case, but when the

matter was reported by Meghnath Ram (PW­2) to the

police and immediately memorandum statement of

the appellant was recorded vide Ex.P­1 and

pursuant to which, heavy hammer (ghana) and sari

were seized vide Ex.P­2, which were sent to FSL

and in FSL report (Ex.P­19), blood was found in

hammer (ghana) and sari seized from the

possession of the appellant and a chain of

circumstance in order to prove the guilt of the

appellant has been found proved by the trial

Court. The trial Court has held that the

appellant has caused injury by heavy hammer

(ghana) by which he suffered injury and died.

12. Now the question for consideration would be,

whether the appellant is guilty for offence under

Section 302 of the IPC or his case can be

converted under Section 304 Part II of the IPC.

13. The Supreme Court in the matter of Arjun v. State

of Chhattisgarh1 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

1 (2017) 3 SCC 247

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".

14. 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

Part­I 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

Part­II IPC.

15. The Supreme Court in the matter of Sukhbir Singh

v. State of Haryana2 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 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."

16. Reverting to the facts of the present case in

light of principle of law laid down by the

Supreme Court in the above­stated judgments

(supra), it is quite vivid that on the eve of

Karma festival, the appellant, the deceased,

2 (2002) 3 SCC 327

James Toppo (PW­1) and Rojit Kujur (PW­11) all

were drinking hadiya (home­made liquor) and in

that course of drinking, the appellant even tried

to assault her husband in influence of liquor,

which was intervened by James Toppo (PW­1) and

Rohit Kujur (PW­11) and they have gone to their

respective places, but again the appellant and

the deceased entered into quarrel and on hearing

noise Rohit Kujur (PW­11) entered into the house

of the appellant and the deceased and seen the

appellant assaulting the deceased by hammer by

which he suffered grievous injury on right

temporal region, which is vital part of body, but

the fact remains that he has not taken any undue

advantage, there was no premeditation, the

deceased and the appellant both were in influence

of intoxication and the deceased has also caused

injury to the appellant, which is apparent from

Ex.P­20A in which it has been recorded that the

appellant has also suffered injury on left wrist

joint and other parts of the body by hard and

blunt object and the injuries were simple in

nature. There was no intension on the part of the

appellant to cause death of the deceased, but

while causing such injury the appellant must have

had the knowledge that her act is likely to cause

death of Mandudram as she has assaulted on right

temporal region which is vital part of the body.

Thus, conviction of the appellant under Section

302 of the IPC can be converted under 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 for offence under Section 304 Part II

of the IPC. It is stated at the bar that the

appellant is in jail since 7.9.2014 and he has

completed about 8 years of imprisonment, his

sentence is modified to that of the period

already undergone by him. The appellant be

released forthwith unless required in any other

case.

18. The appeal is allowed to the extent indicated

herein­above.

                 Sd/­                                     Sd/­

         (Sanjay K. Agrawal)                   (Sanjay S. Agrawal)
                 Judge                                Judge


B/­