Premsai Nagesiya vs State Of Chhattisgarh
2022 Latest Caselaw 3702 Chatt

                                                                              Cr.A.No.1386/2016

                                           Page 1 of 10

                                                                                                AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                            Criminal Appeal No.1386 of 2016

 {Arising out of judgment dated 10-9-2013 in Sessions Trial No.458/2011 of
              the Sessions Judge, Ambikapur, District Surguja}

Premsai Nagesiya, S/o late Baiga Ram Nagesiya, aged about 52 years,
Occupation Cultivator, R/o Village Chitarpur (Pahadpara), Police Station
Dhourpur, District Surguja (C.G.)
                                                                 (In Jail)
                                                           ---- Appellant

                                              Versus

The State of Chhattisgarh, through the Police Station Dhourpur, District
Surguja (C.G.)
                                                        ---- Respondent

------------------------------------------------------------------------------------------------------
For Appellant:                   Miss Sofia Khan, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Government Advocate.
------------------------------------------------------------------------------------------------------

                           Hon'ble Shri Sanjay K. Agrawal and
                          Hon'ble Shri Sachin Singh Rajput, JJ.

Judgment On Board (14/06/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the impugned judgment of conviction and order of

sentence dated 10-9-2013 passed in Sessions Trial No.458/2011 by

the Sessions Judge, Ambikapur, District Surguja, by which the

appellant herein has been convicted for offence under Section 302 of

the IPC and sentenced to undergo imprisonment for life and further

sentenced to pay a fine of ₹ 1,000/- and to further undergo simple

imprisonment for six months for want of failure to pay the fine amount.

2. Case of the prosecution, in brief, is that on 21-8-2011 at about 2.30

p.m. at Village Chitarpur, Bagichapara, Police Station Dhourpur, Cr.A.No.1386/2016

District Surguja, the appellant herein assaulted the deceased namely,

Jagdish and thereby caused his death by wooden plank ( kutela). It is

admitted position on record that Naresh (PW-5) and the deceased

were cousins. On 21-8-2011, deceased Jagdish had visited the house

of the appellant herein demanding his coin which he had lost and he

has reason to believe that it has been obtained by the daughter of the

appellant namely Pancho Bai which the appellant refused and then

some conversation took place and all of a sudden, the appellant

assaulted the deceased by wooden plank by which the deceased

suffered injuries on head and became unconscious. Thereafter, the

deceased was taken to hospital where he remained hospitalized for

two days and during treatment, he died. Further case of the

prosecution, in brief, is that morgue intimation was registered at the

instance of the District Hospital, Ambikapur on 27-8-2011 vide Ex.P-4

and deceased Jagdish was admitted to the District Hospital where he

succumbed to the injuries sustained by him and died. FIR was

registered vide Ex.P-6 and thereafter, inquest proceeding was

conducted and body was sent for postmortem and postmortem was

conducted by Dr. Sanjay Singh (PW-3) who submitted his report vide

Ex.P-5A. Upon the disclosure statement of the appellant Ex.P-12,

wooden plank (kutela) was seized vide Ex.P-13 and same was sent

for chemical examination and the chemical examination report is Ex.P-

19 according to which blood was found on the said wooden plank.

3. Statements of the witnesses were recorded under Section 161 of the

CrPC.. Thereafter, after completion of investigation, the appellant was

charge-sheeted before the jurisdictional criminal court which was

committed to the Court of Sessions for hearing and disposal in Cr.A.No.1386/2016

accordance with law.

4. The trial Court has framed charges under Sections 294, 506 Part-II

and 302 of the IPC against the appellant and proceeded on trial. The

accused / appellant abjured guilt and entered into trial.

5. The prosecution in order to bring home the offence examined as many

as 10 witnesses and brought on record 20 documents Exs.P-1 to P-20

to prove its case. However, the defence examined none, but proved

the documents Exs.D-1 & D-2 i.e. the statements of Smt. Sukanti Bai

and Naresh Ram recorded under Section 161 of the CrPC. Statement

of the accused / appellant was recorded under Section 313 of the

CrPC in which he abjured the guilt and pleaded innocence and false

implication.

6. The trial Court after completion of trial and after appreciating oral and

documentary evidence finding the death of deceased Jagdish to be

homicidal in nature proceeded to convict the appellant for offence

under Section 302 of the IPC and sentenced him in the manner as

mentioned in the opening paragraph of this judgment which has been

called in question in this appeal preferred under Section 374(2) of the

CrPC.

7. Miss Sofia Khan, learned counsel appearing for the appellant, would

submit that the trial Court is absolutely unjustified in convicting the

appellant for offence under Section 302 of the IPC as there is no

sufficient evidence available on record to convict him for offence under

Section 302 of the IPC and looking to only two injuries sustained by

the deceased on vital part of the body which were said to have been

caused by the appellant, the deceased died after two days of the

incident for want of treatment and for want of expert neurosurgeon in Cr.A.No.1386/2016

the Ambikapur Hospital. As such, it is evident that the appellant had

no intention to cause the death of the deceased, at the best, the

appellant can be convicted for offence under Section 304 Part-II of the

IPC and he is in jail since 28-8-2011, thereby he has served more

than ten years of jail sentence. Therefore, the appellant be sentenced

to the period already undergone by him and he be released from jail.

8. Per contra, Mr. Sudeep Verma, learned Deputy Government Advocate

appearing for the State / respondent, would submit that the

prosecution has brought sufficient legal evidence in shape of oral,

medical and documentary evidence to convict the appellant under

Section 302 of the IPC, as such, the trial Court has rightly convicted

him for offence under Section 302 of the IPC. It is not the case where

the appellant's conviction under Section 302 of the IPC can be

converted to one under Section 304 Part-II of the IPC, as the appellant

with intention to cause death of the deceased has caused injuries on

the vital part of the body of the deceased as a result of which occipital

bone and temporal bone of head were fractured, as such, the instant

appeal deserves to be dismissed in toto.

9. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

10. The first question for consideration would be, whether the death of

deceased Jagdish was homicidal in nature?

11. The trial Court after appreciating oral and documentary evidence and

considering the nature of injuries which the deceased has received

particularly injury on head on which fracture was found in occipital and

temporal regions and further considering the statement of Dr. Sanjay Cr.A.No.1386/2016

Singh (PW-3), came to the conclusion that the death of deceased

Jagdish was homicidal in nature. After due consideration, we are

inclined to hold that the finding recorded by the learned trial Court

holding the death of deceased Jagdish to be homicidal in nature is a

finding of fact based on the evidence available on record and we

hereby affirm the said finding recorded by the trial Court.

12. Now, the question is, whether the trial Court is justified in holding that

it is the appellant who is the author of the crime and he has caused

the murder of deceased Jagdish?

13. The genesis of the crime is one old coin which was owned by

deceased Jagdish and which he is said to have lost in the marriage

ceremony of neighbour Solaram's sister in the courtyard of Solaram.

The deceased suspected the said coin to have been received by the

appellant's daughter Pancho Bai. On being demanded by the

deceased, Pancho Bai did not give the coin to the deceased and for

taking back that coin, the deceased had gone to the house of

appellant Premsai on that very day and during conversation, dispute

arose on that day which resulted in marpit and then the incident came

to be happened in the shape of murder of Jagdish.

14. Sakunti (PW-4), who is wife of Naresh (PW-5), being eyewitness has

clearly stated before the Court that on that day she was working in her

courtyard grazing the grass and she has seen the incident by which

the appellant caused injury to the deceased by wooden plank as a

result of which the deceased suffered grievous injury and Naresh Ram

(PW-5) lodged report to the police and thereafter, the deceased was

taken to the District Hospital where he died after two days of his

admission in the hospital. Sakunti (PW-4) has been subjected to Cr.A.No.1386/2016

lengthy cross-examination on behalf of the defence, but nothing has

been elicited to discard her statement, however, it has been stated by

Sakunti (PW-4) that relation of the appellant and the deceased was

cordial.

15. As such, it has been established by the prosecution based on the

testimony of Sakunti (PW-4) that it is the appellant who has caused

injuries to the deceased by wooden plank by which the deceased

suffered grievous injuries on head and thereafter succumbed to death

after being admitted in the hospital for two days. Upon the

memorandum statement of the appellant Ex.P-12, wooden plank

stained with blood has been recovered vide Ex.P-13 and it has been

sent for chemical analysis and chemical analysis report has been filed

as Ex.P-19 in which blood has been found on the said wooden plank.

As such, there is sufficient evidence on record to hold that it is the

appellant who has caused injuries to the deceased by wooden plank

and by which the deceased suffered injuries and succumbed to death.

16. Now, the question is, whether the offence would fall under Exception 4

to Section 300 of the IPC and whether the appellant is liable to be

convicted under Section 304 Part-I or Part-II of the IPC or whether the

offence under Section 302 of the IPC is made out as it has been found

proved against the appellant by the trial Court?

17. As noticed herein-above, it is quite vivid that the dispute is only with

regard to an old coin owned by the deceased - Jagdish, which he lost

in the marriage ceremony of his neighbour Solaram's sister and which

is said to have been received by the appellant's daughter Pancho Bai

which she refused to give back to deceased Jagdish and which was

regularly being demanded unsuccessfully by the deceased. It is also Cr.A.No.1386/2016

established from the statement of Sakunti (PW-4), paragraphs 9 & 10,

that accused / appellant Premsai and deceased Jagdish both were

having good relations and they are in talking terms, but the fact

remains that coin was not being returned by the appellant to the

deceased - Jagdish and on that pretext, the deceased had gone to

the house of the appellant on that particular day and during the course

of conversation, dispute arose which resulted in assault by each other

and the appellant has caused injury to the deceased. As such, there

is no premeditation for commission of offence, particularly when the

incident occurred in the house of the appellant and it took place in a

sudden fight, and the appellant has not taken any undue advantage.

18. The Supreme Court in the matter of Arjun and another v. State of

Chhattisgarh1 has elaborately dealt with the issue and observed in

paragraphs 20 and 21 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, Chandigarh2, 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 is it 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

1 (2017) 3 SCC 247 2 (1989) 2 SCC 217 Cr.A.No.1386/2016

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. State3, 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 and 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 provision means "unfair advantage".'"

19. In Arjun (supra), the Supreme Court has held that when and if there is

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

of the 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 of the IPC.

20. Reverting to the facts of the present case in the light of the principles

3 (2008) 15 SCC 590 Cr.A.No.1386/2016

of law laid down by their Lordships of the Supreme Court in Arjun

(supra), it is quite vivid that except for the missing coin of deceased

Jagdish, there was no dispute existing between the appellant and the

deceased and on a sudden fight, without any premeditation and in a

heat of passion, the offence is said to have been committed by the

appellant. Furthermore, Dr. Sanjay Singh (PW-3) has clearly stated in

paragraphs 8 & 14 of his evidence that there was clotting of blood on

the head of the deceased and same could have been removed in

presence of surgical expert or neurosurgeon through treatment, but in

the Ambikapur hospital there was no surgical specialist / expert or

neurosurgeon, therefore, clot could not be removed and the patient

went into coma and thereafter died. Thus, the possibility of surviving

of the appellant was also there as per the statement of Dr. Sanjay

Singh (PW-3). As such, there was no intention on the part of the

appellant to cause the death of Jagdish, but from the injuries that have

been caused by the appellant on the head of the deceased by which

there was clotting of blood inside the brain and fracture of occipital

and temporal bones on the head of the deceased, the appellant must

have had the knowledge that his act is likely to cause death of the

deceased, as he had assaulted the deceased on his head. Therefore,

we are of the considered opinion that conviction of the appellant

herein under Section 302 of the IPC can be converted to Section 304

Part-II of the IPC.

21. Accordingly, conviction of the appellant for offence under Section 302

of the IPC is modified to Section 304 Part-II of the IPC. The appellant

is in jail since 28-8-2011, thereby he has completed more than ten

years of imprisonment. Jail sentence imposed upon the appellant is Cr.A.No.1386/2016

modified to that of the period already undergone by him. The

appellant be released forthwith, unless required in any other case.

22. The appeal is allowed to the extent indicated herein-above.

              Sd/-                                                   Sd/-
       (Sanjay K. Agrawal)                                   (Sachin Singh Rajput)
             Judge                                                  Judge


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