Chandramani Jatwar vs State Of Chhattisgarh
2022 Latest Caselaw 4833 Chatt

                                                                                   CRA-1170-2015
                                           Page 1 of 12


                                                                                                AFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                             Criminal Appeal No. 1170 of 2015

Chandramani Jatwar, Son of Heeralal, aged about 30 years, Resident of
Village Reda, Police Station Dabhta, Civil and Revenue District Janjgir
Champa (Chhattisgarh)
                                                                                    ---- Appellant
                                                                                           (In Jail)
                                              Versus
State of Chhattisgarh, through Station House Officer, Police Station Dabhra,
Civil and Revenue District Janjgir Champa (Chhattisgarh)
                                                                                ---- Respondent
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For Appellant                    :        Mr. Harishankar Patel, Advocate
For Respondent-State :                    Mr. Anmol Sharma, Panel Lawyer

--------------------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

Judgment on Board (28.07.2022) Sanjay K. Agrawal, J

This criminal appeal filed by the appellant-accused under Section

374(2) of Cr.P.C. is directed against the impugned judgment of conviction

and order of sentence dated 17.02.2014, passed by the Court of learned 2nd

Additional Sessions Judge, Sakti, District Janjgir Champa (C.G.), whereby

the appellant-accused has been convicted for offence under Section 302 of

IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in

default of fine, additional rigorous imprisonment of 07 days and also under

Section 323 of IPC and sentenced to undergo rigorous imprisonment of 06

months.

(2) The case of the prosecution, in brief, is that on 11.09.2012 at about

03:00 PM, near the house of Phagulal Dhobi, at Village Reda within the CRA-1170-2015

ambit of Police Station Dabhta, District Janjgir Champa (CG), the appellant-

accused has assaulted Ghasiram (PW-03) and Dashrath (deceased) by

means of iron pipe due to which Ghasiram (PW-03) suffered grievous injuries

on his head, hands and legs and Dashrath (deceased) sustained head injury,

due to which he died and, thereby, committed the offence under Sections 302

& 307 of IPC.

(3) The further case of the prosecution, in nutshell, is that on 11.09.2019

Ghasiram (PW-03) and deceased-Dashrath were returning from fields after

catching fish and, at that juncture, appellant-accused met them and asked

them to sell their fish, on which they agreed to sell their fish, which was

around 03 kg for Rs.200/- and, in turn, the appellant-accused had taken their

fish and promised them to give Rs.200/- after one hour. Thereafter, Ghasiram

(PW-03) and deceased-Dashrath went to their house and after having food,

around 02:00 PM, they went to the house of the appellant-accused

demanding their money, but appellant-accused met them near the house of

Phagulal Dhobi. Thereafter, on being asked to give their money (Rs.200/-),

the appellant-accused seems to be in evasive mood, upon which Ghasiram

(PW-03) and deceased-Dashrath asked appellant-accused to return their

fish, on which it is alleged that the appellant-accused started abusing them

and brought an iron pipe from his house and, in furtherance thereof, ensued

a dispute with Ghasiram (PW-03) and deceased-Dashrath and assaulted

them by means of said iron pipe, pursuant of which Ghasiram suffered

grievous injuries on his head, hands and legs and Dashrath (deceased)

sustained head injury and died. Thereafter, marg intimation was given to the

police vide Ex.P/15 and, on the basis of which, FIR (Ex.P/14) was registered

against the appellant-accused. Inquest proceedings were conducted vide CRA-1170-2015

Ex.P/06. Spot map and Panchnama were prepared vide Ex.P/02 & Ex.P/03

respectively. The dead-body of deceased- Dashrath was sent for postmortem

examination and in the postmortem examination report (Ex.P/21), Dr. N.P.

Mishra (PW-11) opined that the cause of death seems to be shock due to

external and internal hemorrhage, which is due to injury on vital organ like

brain and nature of death is homicidal. Thereafter, appellant-accused was

arrested vide Ex.P/12 and his memorandum statement was recorded vide

Ex.P/08 and, pursuant to which, seizure of blood stained iron pipe was

affected vide Ex.P/09. However, said blood stained iron pipe which is said to

have been recovered pursuant to the memorandum statement of the

appellant-accused (Ex.P/08) was not subjected to FSL examination for the

reasons best known to the prosecution. Thereafter, statement of witnesses

were recorded and after due investigation, the police filed charge-sheet in the

Court of Judicial Magistrate First Class, Dabhra, District Janjgir Champa

(CG) and, thereafter, the case was committed to the Court of Sessions. The

appellant/accused abjured his guilt and entered into defence.

(4) The prosecution in order to prove its case examined as many as 18

witnesses and exhibited 28 documents and the appellant-accused in support

of his defence has neither examined any witness nor exhibited any

document.

(5) The learned trial Court after appreciating the oral and documentary

evidence available on record proceeded to convict the appellant for offences

under Sections 302 & 323 of IPC and sentenced him as mentioned herein-

above, against which this appeal has been preferred by the appellant-

accused questioning the impugned judgment of conviction and order of

sentence.

CRA-1170-2015

(6) Mr. Harishankar Patel, learned counsel for the appellant submits that

though the death of deceased- Dashrath is said to be homicidal in nature, but

there was no motive or intention on the part of the appellant and only on

account of sudden quarrel and under heat of passion on a petty dispute of

not giving Rs.200/- for purchase of fish, the appellant-accused is said to have

assaulted Ghasiram (PW-03) and deceased-Dashrath, pursuant to which

they both sustained grievous injuries and deceased- Dashrath died due to

head injury and thereby committed the offence. Thus, the case of the present

appellant falls within the purview of Exception 4 to Section 300 of IPC and

the act of the appellant is culpable homicide not amounting to murder and,

therefore, it is a fit case where the conviction of the appellant can be

converted/altered to an offence under Section 304 (Part-II) of IPC and,

further, since the appellant is in jail since 12.09.2012 i.e. more than 09 years

and 09 months, taking into consideration the period he has already

undergone, the appellant-accused be released from jail forthwith. Hence, the

present appeal deserves to be partly allowed.

(7) Per-contra, Mr. Anmol Sharma, learned State counsel supported the

impugned judgment of conviction and order of sentence and submits that the

prosecution has proved the offence beyond reasonable doubt by leading

evidence of clinching nature. The learned trial Court has rightly convicted the

appellant for offence under Sections 302 & 323 of IPC. Exception 04 to

Section 300 of IPC is not attracted in this case and it is not a case where

conviction of the appellant under Section 302 of IPC requires to be altered to

Section 304 Part-II of IPC, thus, the present appeal deserves to be

dismissed.

(8) We have heard learned counsel for the parties, considered their rival CRA-1170-2015

submissions made herein-above and went through the records with utmost

circumspection.

(9) The first and foremost question is as to whether the death of the

deceased was homicidal in nature, which the learned trial Court has recorded

in affirmative by taking into consideration the oral and documentary evidence

available on record and particularly considering the postmortem report (Ex.P/

21) which is duly proved by the evidence of Dr. N.P. Mishra (PW-11) and the

statement of injured eye-witness, namely, Ghasiram (PW-03). Accordingly,

taking into consideration the postmortem report (Ex.P/21) and the statements

of Dr. N.P. Mishra (PW-11) and that of injured eye-witness- Ghasiram (PW-

03), we are of the considered opinion that the learned trial Court is absolutely

justified in holding that the death of the deceased- Dashrath is homicidal in

nature, as the same is correct finding of fact based on evidence and same is

neither perverse nor contrary to the record. Accordingly, we hereby affirmed

the said finding.

(10) Now the next question would be whether the accused-appellant herein

is the author of the crime in question ?

(11) In the instant case, the incident took place on 11.09.2012, whereby

Ghasiram (PW-03) and deceased-Dashrath both went to the house of the

appellant-accused for demanding Rs.200/-, as they have sold 3 kg fish to the

appellant, which they have catch from their fields and the appellant had

promised them to pay Rs.200/- after one hour, but when Ghasiram (PW-03)

and deceased-Dashrath visited the house of the appellant-accused and

demanded Rs.200/-, appellant-accused seems to be in evasive mood and

not making payment of Rs.200/-, then Ghasiram (PW-03) and deceased-

Dashrath asked the appellant-accused to return their fish, upon which the CRA-1170-2015

appellant is said to have started abusing them and under sudden anger he

brought an iron pipe from his house and assaulted Ghasiram (PW-03) and

deceased-Dashrath, pursuant to which Ghasiram (PW-03) suffered grievous

injuries on his head, hands and legs and Dashrath (deceased) sustained

head injury and died. Thereafter, the matter was reported to the police and

investigation was carried out, in which memorandum statement of appellant-

accused (Ex.P/08) was recorded and pursuant to which a blood stained iron

pipe is said to have been recovered vide seizure memo (Ex.P/09), but it was

not sent for FSL examination for the reasons best known to the prosecution.

But still, fact remains that it is the appellant-accused who on sudden quarrel

and under heat of passion on a petty dispute of not giving Rs.200/- or

returning fish to Ghasiram (PW-03) and deceased-Dashrath, assaulted both

of them by means of iron pipe, due to which they both suffered grievous

injuries and deceased- Dashrath died on account of his head injury, which is

duly proved by the postmortem report (Ex.P/21) conducted by Dr. N.P.

Mishra (PW-11). Accordingly, we hereby affirm the finding recorded by the

learned trial Court that the appellant-accused is the author of the crime in

question.

(12) 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 vis-a-vis culpable homicide not amounting

to murder and, thus, his conviction can be converted to Section 304 Part II of

IPC, as contended by learned counsel for the appellant ?

(13) It is apparent from the FIR (Ex.P/14) and marg. inquiry that at the time

when incident took place Ghasiram (PW-03) and deceased-Dashrath had CRA-1170-2015

visited the house of the appellant-accused for demanding Rs.200/-, as

appellant-accused has purchased 3 kg fish from them for Rs.200/- and

promised them to pay Rs.200/- after one hour, but when they met appellant-

accused and demanded Rs.200/-, the appellant-accused seems to be in

evasive mood and not making payment of Rs.200/-, on which Ghasiram

(PW-03) and deceased-Dashrath asked him to return their fish, upon which

the appellant-accused starting abusing them and a dispute ensued between

them and, in furtherance thereof, the appellant-accused brought an iron pipe

from his house and under anger followed by sudden quarrel, the appellant

assaulted Ghasiram (PW-03) and deceased-Dashrath by means of said iron

pipe, due to which they both suffered grievous injuries and deceased-

Dashrath died due to his head injury on the way to hospital.

(14) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 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."

(15) 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 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 CRA-1170-2015

reference to Section 302 or Section 304 Part II of IPC, 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 fro 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 without premeditation in a sudden fight;

(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 to cause 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. "

(16) Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of 3 (2012) 8 SCC 450 CRA-1170-2015

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 has 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.

(17) 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 4 (2017) 3 SCC 247 CRA-1170-2015

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".

(18) In the matter of Arjun (supra), the Supreme Court has held that if there

is intent and knowledge, the same would be case of Section 304 Part-I of

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.

(19) 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."

(20) Reverting to the facts of the present case in light of above principles of

law laid down by their Lordships of Supreme Court, it is quite vivid that there 5 (2019) 6 SCC 122 CRA-1170-2015

was no premeditation on the part of the appellant to cause death of the

deceased, but only on account of refusal to pay Rs.200/- or return fish to the

injured eye-witness- Ghasiram (PW-03) and deceased-Dashrath, the

appellant suddenly started quarreling with them, abused them and ensued a

dispute with them and, in furtherance thereof, brought an iron pipe and

assaulted both of them, pursuant to which Ghasiram (PW-03) suffered

grievous injuries on his head, hands and legs and Dashrath (deceased)

sustained head injury and died on the way to hospital, as such, there was no

premeditation on the part of the appellant to cause death of the deceased-

Dashrath and only because of a petty dispute, out of sudden anger and in

heat of passion, the appellant assaulted deceased- Dashrath and caused his

death. However, looking to the injuries sustained by deceased- Dashrath, as

recorded by Dr. N.P. Mishra (PW-11), which have been caused on his

head/brain, the appellant must have had the knowledge that such injuries

inflicted by him on the body of the deceased would likely to cause his death,

as such, this is a case which would fall within the purview of Exception 4 of

Section 300 of IPC, as the act of the appellant herein completely satisfies the

four necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken any

undue advantage or acted in a cruel or unusual manner and, therefore, the

conviction of the appellant under Section 302 of IPC can be

altered/converted to Section 304 (Part-II) of IPC.

(21) In view of the aforesaid discussions, the conviction of the appellant for

offence punishable under Section 302 of IPC as well as the sentence of life

imprisonment awarded to him by the learned trial Court is hereby set aside.

CRA-1170-2015

Considering that there was no premeditation on the part of the appellant to

cause death of the deceased but the injuries caused by him were sufficient in

the ordinary course of nature to cause death, the appellant is convicted for

offence punishable under Section 304 Part II of IPC. The conviction of the

appellant under Sections 323 of IPC is hereby maintained. Since the

appellant is in jail from 12.09.2012 i.e. more than 09 years and 09 months,

taking into consideration the period he has already undergone, we award him

sentence already undergone by him and the fine sentence imposed by the

learned trial Court shall remain intact. Accordingly, the appellant be released

from jail forthwith, if not required in any other case.

(22) Since this appeal has been argued by the counsel appointed though

High Court Legal Service Committee and the appellant is in jail since

12.09.2012, a copy of this judgment be sent to the appellant as well as to the

Superintendent of Jail, where the appellant is languishing, the Secretary,

High Court Legal Service Committee and the District Judge, District Janjgir

Champa (CG) for information and needful action. It be also sent by

e-mail/fax.

(23) This criminal appeal is party allowed to the extent indicated herein-

above.

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