Chattisgarh High Court
Madwari Majhwar vs State Of Chhattisgarh on 14 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1091 of 2013
Madwari Majhwar S/o Duhan Majhwar, Aged about 28
years, R/o Village AamgaonBhouradand
Manjhwarpara, P.S. Kamleshwarpur, Civil and
Revenue District Surguja, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Kamleshwarpur, District Surguja, Chhattisgarh.
Respondent
For Appellant : Ms. Savita Tiwari, Advocate
For State : Mr. Himanshu Kumar Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
14/06/2022
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 07/09/2013
passed by learned Session Judge, Surguja
(Ambikapur) in Sessions Trial No. 554/2011
whereby the appellant/accused has been convicted
for offence punishable under Section 302 of IPC
and has been sentenced to life imprisonment and
fine of Rs. 1,000/, in default of payment of
fine S.I. for six months.
2. The case of the prosecution, in brief, is that on
27/10/2011 at about 5:00 PM in Village Aamgaon
Bhouradand, the appellant/accused assaulted
Ramprasad Majhwar and when father his father
Budhu Majhwar came to intervene, the
appellant/accused assaulted him with a wooden
stick and caused his death and thereby, committed
the offence.
3. It is admitted fact on record that the
appellant/accused is the nephew of Sainath
Majhwar (P.W. 1) and the deceased Budhu Majhwar
was younger brother of Sainath Majhwar (P.W.1).
4. Further case of the prosecution, in brief, is
that on 28/10/2011, at about 09:20 AM, Sainath
Majhwar (P.W.1) lodged report at Police Station
Kamleshwarpur that on 27/10/2011 at 05:00 PM, he
had gone towards the fields and his wife Kunti
(P.W.2) was at home. When he heard her wife
shouting, he ran back towards his home and found
that the appellant was hitting his younger
brother Budhu Majhwar with a genda (wooden
stick) and on account of the injuries suffered
by his brother, blood was oozing out of his
head. When the complainant (P.W.1) asked the
appellant not to further hit his brother Budhu
Majhwar, the appellant threatened that he would
also hit Ramprasad, son of Budhu Majhwar and
thereafter, he ran away in search of Ramprasad.
On account of grievous injuries suffered by
Budhu Majhwar, he died instantaneously. On the
basis of the said report (Ex. P/1) and merg
intimation (Ex. P/2), offence punishable under
Section 302 of IPC was registered against the
appellant herein. The dead body of deceased
Budhu Majhwar was sent for postmortem and the
postmortem report has been filed as Ex. P/7 in
which Dr. R.S. Singh (P.W.4), who has conducted
the postmortem, has opined that cause of death
is coma due to head injury and the death of
deceased Budhu Majhwar is homicidal in nature.
Thereafter, the Investigating Officer prepared
Spot Map (Ex. P/6) and recorded the statements
of the witnesses. Pursuant to the memorandum
statement of the appellant/accused recorded on
28/10/2011, the wooden stick used in the
incident was recovered in four parts vide Ex.
P/11 which was sent for chemical examination
along with plain soil and bloodstained soil
seized from the spot. The FSL report has been
filed as Ex. P/17 and as per the said report,
blood has been found in all the three articles,
i.e. plain soil, stained soil as well as pieces
of wooden stick and it has further been held
that human blood has been found on stained soil
but the blood found on pieces wooden stick could
not be classified as human blood. After due
investigation, the appellant 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.
5. In order to bring home the offence, prosecution
examined as many as 6 witnesses and brought into
record 17 documents. Statement of the
appellant/accused was recorded under Section 313
of CrPC wherein he denied guilt. On behalf of the
defence, none was examined however, the statement
of complainant's wife namely Kunti Majhwar has
been brought on record as Ex. D/1.
6. Learned trial Court, after appreciating the oral
and documentary evidence on record and after
finding the death of deceased Budhu Majhwar to be
homicidal in nature, proceeded to convict the
appellant/accused for offence punishable under
Section 302 of CPC and sentenced him as
aforesaid.
7. Ms. Savita Tiwari, learned counsel for the
appellant/accused, would submit that the trial
Court is absolutely unjustified in convicting the
appellant for offence punishable under Section
302 of IPC as there is no evidence on record to
convict him for offence punishable under Section
302 of IPC and Kunti Majhwar (P.W.2), being the
only eyewitness, has also not supported the
prosecution version. She would further submit
that looking to the single injury which is said
to have been caused by the appellant herein by
which the deceased died on the spot, it is
evident that the appellant had no intention of
causing death of the deceased as such, at the
best, the appellant can be convicted for offence
punishable under Section 304 Part II of IPC and
since he is in jail since 28/10/2011 i.e. for
more than 11 years, his sentence be awarded for
the period already undergone and he be released
from jail.
8. Per Contra, Mr. Himanshu Kumar Sharma, 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, learned trial Court has rightly convicted
him for the said offence. He would also submit
that it is not a case where the appellant's
conviction under Section 302 of IPC can be
converted under Section 304 Part II of IPC as
appellant assaulted the deceased with full
intention of causing death, as such, the instant
appeal deserves to be dismissed.
9. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
10. The first question for consideration would be,
whether the death of deceased Budhu Majhwar was
homicidal in nature ?
11. Learned trial Court has recorded an affirmative
finding with regard to this question on the basis
of postmortem report (Ex. P/7) wherein Dr. R.S.
Singh (P.W.4), who has conducted the postmortem,
has opined that the deceased had suffered
grievous injuries on his head on account of which
his right temporal bone and right parietal bone
had been fractured and the said injuries have
been caused by a hard and blunt object. He has
further stated in the report that cause of death
is coma due to head injury and death of the
deceased is homicidal in nature. As such, after
going through the postmortem report (Ex. P/7) and
after going through the medical evidence of Dr.
R.S. Singh (P.W.4), we are of the considered
opinion that learned trial Court is absolutely
justified in holding that death of deceased Budhu
Majhwar was homicidal in nature. Moreover, the
fact that the death of deceased Budhu Majhwar is
homicidal in nature has also not been seriously
disputed by learned counsel for the appellant. As
such, the finding recorded by the trial Court
that the death of deceased Budhu Majhwar is
homicidal in nature is hereby affirmed.
12. The next question for consideration is whether
the appellant/accused has caused the death of
deceased Budhu Majhwar and has thereby committed
the offence ?
13. Sainath Majhwar (P.W.1), who is the elder
brother of deceased Budhu Majhwar, has though
been cited as an eyewitness, but in view of
paragraph 8 of his statement wherein he himself
has stated that when he reached the spot hearing
the shouts of his wife, he found his brother to
be dead, as such, he cannot be relied upon as an
eyewitness.
14. Kunti Majhwar (P.W.2), who is the wife of
Sainath Majhwar (P.W.1), has clearly stated
before the Court that the appellant suspected
that Ramprasad (son of deceased Budhu Majhwar)
had an affair with his wife and he was asking the
deceased to warn his son Ramprasad about the said
relationship and immediately thereafter, the
appellant hit the deceased four times on his head
with the wooden stick on account of which
deceased died instantaneously on the spot. Though
Kunti Majhwar (P.W.2) has been subjected to some
extent of crossexamination, but she remained
intact and supported the version of the
prosecution, as such, she has rightly been held
to be an eyewitness by the trial Court. However,
she has also stated in paragraph 3 of her
statement that there was no previous enmity
between the appellant and the deceased.
15. It is also evident from the record that pursuant
to the memorandum statement of the
appellant/accused (Ex. P/10), the wooden stick
used in the incident was recovered in four parts
vide Ex. P/11 and it was sent for chemical
examination. It has been clearly stated in the
FSL report (Ex. P/17) that blood has been found
on the pieces of the wooden stick. As such,
prosecution has successfully been able to connect
the appellant with the aforesaid offence of
committing murder of deceased Budhu Majhwar and
we hereby affirm the finding so recorded by the
trial Court.
16. Now the next question is whether the offence
committed by the appellant/accused would fall
within Exception 4 of Section 300 of IPC ?
17. 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."
18. Thus, To invoke exception 4 of Section 300 of
IPC, 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.
19. In the matter of Raj Paul Singh and Another v.
State Through P.S. Musheerabad, Hyderabad 1, their
Lordships of the Supreme Court have quoted the
decisions rendered in Narayanan Nair Raghvan Nair
v. State of TravancoreCochin2 and Kikar Singh v.
State of Rajasthan3 and have held as under :
"9. In Narayanan (supra), a threeJudge
Bench of this Court speaking through Bose,
J. held: (AIR p. 101, para 11)
"11. .... It is enough to say that the
Exception requires that no undue
advantage be taken of by the other
side. It is impossible to say that
there is no undue advantage when a man
stabs an unarmed person who makes no
threatening gestures and merely asks
the accused's opponent to stop
fighting. Then also, the fight must be
with the person who is killed."
This view on Exception 4 to Section 300 IPC,
has also been taken by this Court in Kikar
Singh (supra) wherein it has been held :
(SCC p. 243, para 9)
"9. .... Where the deceased was unharmed
and did not cause any injury to the
accused even following a sudden quarrel
if the accused has inflicted fatal
blows on the deceased, Exception 4 is
not attracted and commission must be
one of murder punishable under Section
302."
Thus, in a case where a man stabs another
person, unless it is established that there
was some threat from that person to the
offender, the court cannot possibly hold
that the offender by stabbing that person
1 (2012) 10 SCC 144
2 AIR 1956 SC 99
3 (1993) 4 SCC 238
has not taken any undue advantage or has not
acted in a cruel or unusual manner."
20. 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 the 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)
4 (2017) 3 SCC 147
"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".
21. 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.
22. Reverting to the facts of the present case in
light of the decision rendered by the Supreme
Court in Arjun (supra), it is quite vivid that in
the present case, though it is the case of the
prosecution that Ramprasad, son of deceased Budhu
Majhwar, had illicit relationship with the wife
of the appellant on account of the which the
appellant/accused firstly assaulted Ramprasad and
when his father deceased Budhu Majhwar came to
intervene, the appellant/accused caused his death
by hitting him with a wooden stick, however, in
paragraph 3 of the statement of Kunti Majhwar
(P.W.2), she has clearly stated that there was
no previous enmity between the appellant and the
deceased. More particularly, it is quite
established that the allegation of illicit
relationship, if any, was upon Ramprasad and not
upon his father Budhu Majhwar (deceased), as
such, there was no premeditation on the part of
the appellant/accused to cause his death. It was
solely on sudden quarrel that the incident
happened and the appellant caused the death of
deceased in the heat of passion. Although looking
to the injury caused by the appellant on the head
of the deceased, it is apparent that the
appellant must have had the knowledge that his
act is likely to cause death of the deceased as
he assaulted the deceased in his head which is a
vital part of the body. Thus, the conviction of
the appellant under Section 302 of IPC can be
converted under Section 304 Part II of IPC.
Accordingly, the conviction of the appellant
under Section 302 of IPC is modified under
Section 304 Part II of IPC. As stated at the bar,
the appellant is in jail since 28/10/2011 and he
has completed more than 11 years of imprisonment,
his sentence is modified to that of the period
already undergone. The appellant be released
forthwith unless required in any other case.
23. The appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
