Chattisgarh High Court
Vikram @ Vicky vs State Of Chhattisgarh on 19 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 326 of 2014
Vikram @ Vicky, S/o Shiv Singh, Aged about 30
years, R/o Deendayal Nagar, Atal Awash, Chikhli,
P.S.Rajnandgaon, Revenue District and District
Rajnandgaon, Chhattisgarh
Appellant
Versus
State of Chhattisgarh Through its Police Station
Kotwali, District Rajnandgaon, Chhattisgarh
Respondent
For Appellant : Ms Sangeeta Mishra, Advocate on
behalf of Mr.Jitendra Gupta, Advocate
For State : Mr.Kapil Maini, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
19/07/2022
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 5.3.2014
passed by learned Sessions Judge, Rajnandgaon in
Sessions Trial No.60/2012, 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 3 months.
2. The case of the prosecution, in brief, is that on
18.7.2012 at 8 p.m. at Deendayal Nagar,
Rajnandgaon the appellant herein assaulted Ravi
by knife on his stomach by which he suffered
grievous injury and died on the next day. It is
further case of the prosecution that deceased
Ravi was involved in the work of moneylending
and running poultryfarm and admittedly, he has
given some loan amount to the appellant. On the
fateful day of 18.7.2012 Ravi has gone along with
Rakesh Koshley (not examined) to recover the said
amount and when he was returning from his house
at Station Para, Rajnandgaon, near the house of
Nasib Devar the appellant asked him to stay for
few minutes and then some altercation took place
between them in the name of recovery of loan
amount and thereafter the appellant took out
knife and caused stab injury over his stomach by
which he suffered injury and died on the next
day. Pursuant to the information given by the
District Hospital, Rajnandgaon, dehati nalishi
(Ex.P13) was registered. Ravi died in J.L.N
Hospital, Rajnandgaonon during his treatment and
on being informed by the Station House Officer,
Police Station Chikhli, merg (Ex.P16) was
registered and thereafter offence under Section
307 of the IPC was registered and thereafter it
was converted under Section 302 of the IPC.
Pursuant to memorandum statement of the appellant
vide Ex.P10, knife concealed by the appellant in
shrub near Atal Awas ground was recovered and it
was seized vide Ex.P11. Dead body of deceased
Ravi was sent for postmortem to Government
Hospital, Durg, where Dr.P Akhtar (PW9)
conducted postmortem (Ex.P5) and opined that
cause of death was shock due to hemorrhage on
right side chest following stab injury and death
was homicidal in nature. Seized knife was sent
for FSL and in FSL report (Ex.P20), blood was
found on knife. After completion of
investigation, chargesheet was filed before the
Chief Judicial Magistrate, Rajnandgaon, who in
turn, committed the case to the Court of Session,
Rajnandgaon for trial in accordance with law. The
appellant/accused abjured his guilt and entered
into defence.
3. In order to bring home the offence, the
prosecution examined as many as 18 witnesses and
brought into record 20 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 5.3.2014, convicted the appellant
for offence under Section 302 of the IPC holding
that death of deceased Ravi was homicidal in
nature and there is sufficient ocular and
circumstantial evidence to convict the appellant
for offence under Section 302 of the IPC and
sentenced him as aforesaid which has been called
in question by way of the instant appeal.
5. Ms Sangeeta Mishra, learned counsel for the
appellant, would submit that the appellant has
falsely been implicated in offence in question,
there is no evidence on record to connect the
appellant in offence in question and eyewitnesses
Gappu @ Puppu Swami (PW1), Rita (PW4) and
Kamleshwari (PW5) have not seen the incident and
they have not supported the case of the
prosecution. In alternative, she would submit
that the appellant did not have any intention to
commit the crime in question and his case is
covered with Exception 4 to Section 300 of IPC,
as such, his conviction for offence punishable
under Section 302 of IPC can be altered to
offence punishable under Section 304 Part II of
IPC.
6. On the other hand, Mr.Kapil Maini, learned Panel
Lawyer for the respondent/State, would oppose the
submission and submit that 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 and as such, 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 Ravi was homicidal in
nature.
9. The trial Court relying upon the statement of
Dr.Sanjay Meshram (PW11) particularly finding
one incised wound of 4" x 3" x 2" over stomach of
the deceased and replying upon postmortem report
(Ex.P5) of Dr.P. Akhtar (PW9) came to the
conclusion that cause of death was shock due to
haemorrhage 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 whether the trial Court has rightly
held that the appellant is the person who has
caused death of deceased Ravi ?
11. Gappu @ Puppu Swami (PW1) is eyewitness. He
has stated before the Court that the deceased was
moneylender and used to give money on interest
and the appellant has also taken some money from
the deceased. On the date of incident, the
deceased had come along with Rakesh Koshley for
recovery of said amount, on that account, some
altercation took place between them, then the
appellant took out his wife and assaulted Ravi by
which he suffered injury. Similarly, Rita (PW4)
has also seen the incident along with Kamleshwari
(PW5). She has seen that altercation took place
between the appellant and the deceased and the
deceased has also pushed the appellant by which
he has suffered injury on his hand, which is
clear from Ex.D1, in which the doctor has also
found injury over the body of the appellant.
Kamleshwari (PW5) though cited as eyewitness,
but in her crossexamination, she has clearly
admitted that she has not seen the incident.
Apart from this, pursuant to memorandum statement
of the appellant (Ex.P10), knife was seized vide
Ex.P11, which was sent to FSL and in FSL report
(Ex.P20), blood was found on knife. As such, it
is clearly established that it is the appellant
who has caused knife blow i.e. stab injury to
deceased Ravi by which he suffered injuries and
died on the next day and as such, it is the
appellant who has caused murder of deceased Ravi.
12. Now the question for consideration would be,
whether the appellant is guilty for offence under
Section 302 of the IPC or his case would fall
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
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)
1 (2017) 3 SCC 247
"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 account that
the deceased had given loan amount to the
appellant, on the fateful day of 18.7.2012 the
deceased has approached the appellant to recover
that amount, on that account, some altercation
took place as witnessed by Gappu @ Puppu Swami
(PW1) and Rita (PW4) and in the course of
2 (2002) 3 SCC 327
altercation, the appellant took out knife and
caused stab injury to the deceased, which is also
clear from the statement of Rita (PW4) that the
deceased has also pushed the appellant by which
he fell down and suffered injury, which is clear
from Ex.D1, which is admitted by Dr.Sanjay
Meshram (PW11) in his crossexamination. As
such, it is quite vivid that on account of
recovery of money the dispute took place between
the deceased & the appellant and the deceased has
also pushed the appellant by which he suffered
injury on his hand. There was no intension on the
part of the appellant to cause death of the
deceased and without premeditation in a sudden
fight the incident took place, but while causing
such injury the appellant must have had the
knowledge that his act is likely to cause death
of Ravi as the appellant has assaulted the
deceased on his stomach, 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 and sentenced to undergo R.I. for 10
years and fine of Rs.1000/, in default of
payment of fine to further undergo R.I. for 3
months.
18. The criminal appeal is allowed to the extent
indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/
