Chattisgarh High Court
Chandrabhan Rajwade @ Chamru vs State Of Chhattisgarh on 22 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 455 of 2018
Chandrabhan Rajwade @ Chamru S/o Shri Raghunandan
Rajwade, Aged about 33 years, Occupation
Agriculturist, R/o Village Korja Yadav Muhalla,
Thana Lakhanpur, Distt. Sarguja, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through District Magistrate,
Ambikapur, Distt. Sarguja, Chhattisgarh.
Respondent
For Appellant : Mr. R.V. Rajwade, Advocate
For State : Mr. Arjit Tiwari, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
22/07/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
is directed against the impugned judgment of
conviction and order of sentence dated 03/01/2018
passed in Sessions Trial No. 63/2017 whereby
learned Session Judge, Ambikapur, Distt. Sarguja
has convicted the appellant for offence punishable
under Section 302 of IPC and sentenced him to life
imprisonment and fine of Rs. 500/, in default of
payment of fine additional R.I. for six months.
2. The case of the prosecution, in brief, is that on
07/05/2017 at about 03:00 PM at Village Korja, P.S.
Lakhanpur, Distt. Sarguja, the appellant herein
assaulted his uncle Shyamram Rajwade with a wooden
stick due to which he suffered grievous injuries on
his head and succumbed to death and the appellant
thereby, committed the offence.
3. Further case of the prosecution, in brief, is that
Amrit Rajwade (P.W.1), son of deceased Shyamram
Rajwade, lodged a report at Police Station
Lakhanpur on 07/05/2017 at about 04:50 PM that on
that very day he and his father were at home when
at about 03:00 PM, the appellant, whose house is
adjacent to their house, started burning waste in
between their houses. Deceased Shyamram Rajwade and
his son Amrit Rajwade (P.W.1) came outside and
asked the appellant not to burn waste in front of
their house as his paira (material left after
taking out paddy) was likely to burn as well but
the appellant did not accept and dispute arose
between the appellant and the deceased in this
regard and out of anger, the appellant caused a
wooden stick blow on the head on the deceased by
which he suffered grievous injuries and ultimately
succumbed to death. On the said report, merg
intimation was registered vide Ex. P/2 and FIR was
registered against the appellant vide Ex. P/1 for
offence punishable under Section 302 of IPC.
Summons were issued to the witnesses under Section
175 of CrPC vide Ex. P/3 and inquest was conducted
vide Ex. P/4 and thereafter, dead body of the
deceased was sent for postmortem, which was
conducted by Dr. I.D. Bhatnagar (P.W.5) and the
postmortem report has been filed as Ex. P/12
according to which the cause of death is coma and
shock due to head injury on the occipital bone and
the nature of death is said to be homicidal. Nazri
naksha was prepared vide Ex. P/5 and after taking
the appellant into custody, his memorandum
statement was recorded vide Ex. P/6 and on that
basis, wooden stick was seized from his possession
vide Ex. P/7 and it was though sent for chemical
examination, but FSL report has not been brought on
record. After due investigation, the
appellant/accused was chargesheeted for offence
punishable under Section 302 of IPC which was
committed to the Court of Session for hearing and
disposal in accordance with law. The
appellant/accused abjured his guilt and entered
into defence.
4. In order to bring home the offence, prosecution
examined 7 witnesses and brought into record 14
documents. Statement of the appellant/accused was
recorded under Section 313 of CrPC wherein he
denied guilt and he examined one witness but did
not exhibit any documents.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, finding the
death of deceased Shyamram Rajwade to be homicidal
in nature and further finding the appellant to be
the author of the crime, proceeded to convict him
for offence punishable under Section 302 of IPC and
sentenced him as aforesaid which has been called in
question by way of this appeal.
6. Mr. R.V. Rajwade, learned counsel for the
appellant, would submit there is no evidence
available on record against the appellant and he
has perversely been convicted for offence
punishable under Section 302 of IPC by the trial
Court, as such, the impugned judgment of conviction
is liable to be set aside. In alternative, he would
submit that appellant was the nephew of the
deceased and their houses were adjacent to each
other and the relationship between them were
cordial and out of sudden quarrel and anger, the
dispute arose on the fateful day and the appellant
assaulted the deceased with a wooden stick, as
such, this is a case which is covered with
Exception 4 of Section 300 of IPC and thus, the
conviction of the appellant under Section 302 of
IPC be converted to Section 304 Part II of IPC.
7. Per Contra, Mr. Arjit Tiwari, learned State
counsel, would submit that prosecution has brought
sufficient evidence in shape of oral and
documentary evidence to convict the appellant for
offence punishable under Section 302 of IPC, as
such, he has rightly been convicted by the trial
Court for offence punishable under Section 302 of
IPC and it is not a case where his conviction can
be converted to Section 304 Part II of IPC as the
appellant assaulted the deceased with a wooden
stick on his head which is a vital part of the body
and knowing fully well that the deceased was aged
about 65 years which goes to show that he assaulted
the deceased with the intention of causing his
death, therefore, the instant appeal deserves to be
dismissed.
8. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. The first question for consideration would be
whether the death of deceased Shyamram Rajwade was
homicidal in nature ?
10. Learned trial Court has recorded an affirmative
finding with regard to this question on the basis
of postmortem report (Ex. P/12) wherein Dr. I.D.
Bhatnagar (P.W.5), who has conducted postmortem,
has clearly stated that the cause of death is coma
and shock due to head injury on the occipital bone
and the death of deceased was homicidal in nature.
Moreover, the fact that the death of deceased
Shyamram Rajwade was homicidal in nature has also
not been seriously disputed by learned counsel for
the appellant. As such, after hearing learned
counsel for the parties and after going through the
postmortem report (Ex. P/12) as well as going
through the evidence of Dr. I.D. Bhatnagar (P.W.
5), we are satisfied that learned trial Court has
rightly held the death of deceased Shyamram Rajwade
to be homicidal in nature. We hereby affirm the
said finding recorded by the trial Court.
11.The next question for consideration is whether the
appellant is the author of the crime ?
12. Learned trial Court has also recorded this finding
in affirmative relying upon the testimony of Amrit
Rajwade (P.W.1), son of the deceased, who is an
eyewitness of the incident. In his statement
before the Court, Amrit Rajwade (P.W.1) has
clearly stated that on the fateful day, the
appellant was burning waste in between their houses
due to which the wooden boundary of their house
started burning aswell, thereafter, he and his
father (deceased) came out of their house and asked
the appellant not to burn waste near their house
but the appellant did not listen and upon feeling
insulted, he assaulted the deceased on his head
with a wooden stick due to which he suffered
grievous injuries and succumbed to death. Despite
being subjected to crossexamination, Amrit Rajwade
has remained consistent and has supported the case
of the prosecution.
13. Apart from that, though recovery of wooden stick
has been made from an open place pursuant to the
memorandum statement of the appellant/accused but
the statement of Dr. I.D. Bhatnagar (P.W.5), who
has conducted postmortem of the deceased, would
show that the injuries suffered by the deceased can
be caused by a wooden stick and he has clearly
stated in his statement as well as in the
postmortem report (Ex. P/12) that the death of
deceased is indeed homicidal in nature. As such,
looking to the testimony of eyewitness Amrit
Rajwade (P.W.1) as well as looking to the
aforesaid medical evidence, it can safely be held
that appellant indeed is the author of the crime.
14. The aforesaid finding brings us to the next
question for consideration, which is, whether the
trial Court has rightly convicted the appellant for
offence punishable under Section 302 of IPC or his
case is covered with Exception 4 of Section 300 of
IPC and thus, his conviction can be converted to
Section 304 Part II of IPC ?
15. At this stage, it would be appropriate to notice
Exception 4 of Section 300 of 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."
16. 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)
1 (2017) 3 SCC 247
"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 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
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.
18.Reverting to the facts of the present case in light
of the principle of law laid down by the Supreme
Court in the matter of Arjun (supra), it is quite
vivid that on the fateful day, at about 03:00 PM,
the appellant herein was burning waste in between
his house and the house of the deceased due to
which the wooden boundary erected outside the house
of the deceased also caught fire and started
burning, the deceased along with his son Amrit
Rajwade (P.W.1) came outside and asked the
appellant not to burn waste near his house but the
appellant did not listen to him and a sudden
quarrel occurred between them and upon feeling
insulted the appellant assaulted the deceased on
his head with a wooden stick, therefore, looking to
the entire evidence available on record, it can
safely be held that there was no premeditation on
the part of the appellant to commit the offence in
question and he had no intention to cause the death
of the deceased which is apparent from the fact
that he did not take any undue advantage or did not
act in a cruel way. However, the appellant caused
the blow on the head of the deceased which is a
vital part of the body, as such, he must have had
the knowledge that such injury inflicted by him on
the head of the deceased would likely cause his
death, as such, this is a case which would fall
under Exception 4 of Section 300 of IPC.
19.In view of the aforesaid discussion, conviction of
the appellant for offence punishable under Section
302 of IPC as well as the sentence of life
imprisonment awarded to him is hereby set aside.
Considering that there was no premeditation on the
part of the appellant to cause death of the
deceased, following the decision rendered by the
Supreme Court in the matter of Willie (William)
Slaney v. State of Madhya Pradesh2 as well as in
2 AIR 1956 SC 116
Joseph v. State of Kerala3, the appellant is
convicted for offence punishable under Section 304
Part II of IPC. Since he is in jail since
08/05/2017, we hereby award the sentence for the
period already undergone. The appellant be released
forthwith if not required in any other case.
20.Accordingly, this criminal appeal is allowed to the
extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet
3 1995 SCC (Cri.) 165
