Chattisgarh High Court
Dilip @ Boti vs State Of Chhattisgarh on 15 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 47 of 2017
Dilip @ Boti S/o Dhaniram Parbuleeya, Aged about
44 years R/o Village Gadhpara, Bhairamgarh,
Police Station Bhairamgarh, Distt. Bijapur,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Bhairamgarh, District Bijapur, Chhattisgarh.
Respondent
For Appellant : Mr. Suresh Tandon, Advocate
For State : Mr. Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
15/06/2022
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 17/11/2016
passed by learned Session Judge, South Bastar,
Dantewara in Sessions Trial No. 26/2013 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. 100/, in default of payment of fine R.I.
for one year.
2. The case of the prosecution, in brief, is that on
03/10/2012 at about 07:00 PM in village Gadhpara,
Bhairamgarh, the appellant herein committed the
murder of Laxman Samrath with a bow and arrow
suspecting him to have assisted appellant's wife
smt. Lakhmi (P.W.8) in eloping and thereby,
committed the offence.
3. Further case of the prosecution, in brief, is
that on 03/10/2012 morning, the appellant herein
committed maar peet with his wife Lakhmi (P.W.8)
pursuant to which, she ran away from the house.
The appellant, suspecting Laxman Samrath
(deceased) to have helped her wife in eloping,
started searching for him with the intention to
kill him. On the same day at about 07:00 PM,
deceased Laxman Samrath was sitting along with
Mahendra Bhoyar (P.W.5) in the house of one
Chandraram when suddenly the appellant came and
struck an arrow in the chest of Laxman Samrath
and ran away. The arrow got stuck in the right
side of Laxman Samrath's chest on account of
which blood started oozing and while he was being
taken to the Hospital, he succumbed to death.
Lacchinder Guruji (P.W.9) informed about the
incident to Ratiram Samrath (P.W.1), brother of
the deceased, who then reported the incident at
Police Station and lodged FIR (Ex. P/1) and
registered merg intimation (Ex. P/2). Thereafter,
the dead body of deceased Laxman Samrath was sent
for postmortem which was conducted by Dr. Vijay
Kumar Singh (P.W.10) and as per the postmortem
report (Ex. P/11), cause of death is
cardiorespiratory arrest due to hemorrhage and
injury caused by arrow and the nature of death is
homicidal. Thereafter, memorandum statement of
the appellant/accused was recorded vide Ex. P/5A
and a bow was seized vide Ex. P/6 and it was sent
for chemical examination vide Ex. P/15 but no FSL
report has been brought on record. After due
investigation, the appellant/accused was charge
sheeted 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 as many as 11 witnesses and brought into
record 18 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 Mangaldei has been brought on record as Ex.
D/1.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict the appellant/accused for offence
punishable under Section 302 of CPC and sentenced
him as aforesaid which has called in question by
way of the instant appeal.
6. Mr. Suresh Tandon, learned counsel for the
appellant/accused, would submit that learned
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 connect him with the said offence
and merely on the basis of the statements of Smt.
Shribati (P.W.4) and Mahendra Bhoyar (P.W.5),
who are said to be eyewitnesses, the appellant
has been convicted for the aforesaid offence
which is absolutely illegal and Smt. Shribati
(P.W.4) has not seen the incident herself and
her testimony cannot be relied upon. Apart from
that, there is no other witness having supported
the case of the prosecution. He would further
submit that looking to the single injury which is
said to have been caused by the appellant herein,
it is evident that the appellant had no intention
of causing death of the deceased particularly in
view of the statement of Garib Manjhi (P.W.2) as
he was the one who helped appellant's wife in
eloping, as such, the act of the appellant is
covered with Exception 4 to Section 300 of IPC
and at best, he can be convicted for offence
punishable under Section 304 Part II of IPC and
since he is in jail since 04/10/2012 i.e. for
more than 9 years, his sentence be awarded for
the period already undergone and he be released
from jail.
7. Per Contra, Mr. Soumya Rai, 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 the
appellant caused arrow blow on the chest of the
deceased with full intention of causing his
death, as such, 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 Laxman Samrath 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/11) wherein Dr. Vijay
Kumar Singh (P.W.10), who has conducted the
postmortem, has opined that the deceased had died
because of injury No. 1 suffered by him which is
a lacerated wound of about 3x3/2x1 cm caused by
an arrow struck in the mid portion of his chest.
He has further stated in the report that cause of
death is cardiorespiratory arrest due to
hemorrhage and injury caused by arrow and death
of the deceased is homicidal in nature. As such,
after going through the postmortem report (Ex.
P/11) and after going through the medical
evidence of Dr. Vijay Kumar Singh (P.W.10), we
are of the considered opinion that learned trial
Court is absolutely justified in holding that
death of deceased Laxman Samrath was homicidal in
nature. Moreover, the fact that the death of the
deceased 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 Laxman
Samrath is homicidal in nature is hereby
affirmed.
11. The next question for consideration is whether
the appellant/accused has caused the death of
deceased Laxman Samrath and has thereby committed
the offence ?
12. Admittedly, incident occurred in the house of
Chandraram and though he has not been examined
but his wife Smt. Shribati (P.W.4) has been
examined as she is related to both the
appellant/accused as well as the deceased. She
has clearly stated in paragraph 2 of her
statement that on the date of the incident, the
appellant/accused came to their house armed with
a bow and arrow and caused a grievous injury on
the chest of the deceased and while he was being
taken to the Hospital, he succumbed to death, but
she has failed to elaborate the reason because of
which the appellant caused the death of the
deceased. On being crossexamination, she has
repeated the fact that she does not have any
knowledge of any kind of dispute between the
appellant and the deceased and she has further
stated that she has seen the appellant striking
the deceased with an arrow on his chest. As such,
there is no reason to disbelieve the testimony of
Smt. Shribati (P.W.4) as eyewitness. Not only
this, pursuant to the memorandum statement of the
appellant/accused, bow was also seized from his
possession vide Ex. P/6.
13. In view of the categorical statement of Smt.
Shribati (P.W.4), who is an eyewitness, and
whose statement remained uncontroverted, we are
of the considered opinion that learned trial
Court is absolutely justified in holding that it
was the appellant who caused arrow injury to the
deceased by which he suffered grievous injury on
his chest and while being escorted to the
hospital, succumbed to death. The said finding
recorded by the trial Court is hereby accepted
and reaffirmed.
14. The last question for consideration is whether
the trial Court was justified in convicting the
appellant/accused for offence punishable under
Section 302 of IPC or his case is covered with
Exception 4 of Section 300 of IPC and thus he
ought to have been convicted for offence
punishable under 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. 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.
17. 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
1 (2012) 10 SCC 144
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
has not taken any undue advantage or has not
acted in a cruel or unusual manner."
18. 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
2 AIR 1956 SC 99
3 (1993) 4 SCC 238
4 (2017) 3 SCC 247
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 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".
19. 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.
20. 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, admittedly, as per the
prosecution story, there was no pending dispute
between the appellant/accused and the deceased.
Ratiram (P.W.1), who is the brother of the
deceased, has simply stated in his statement
before the Police under Section 161 of CrPC that
there was pending dispute between the appellant
and the deceased as the deceased was the
councillor and he refused to provide electricity
and water to the appellant. Garib Manjhi (P.W.2)
has stated before the Court that on the date of
the incident, the appellant/accused had assaulted
his wife due to which she ran away and came to
his house for hiding. Thereafter, the appellant
came in search of his wife and was chasing Garib
Manjhi (P.W.2) to kill him when deceased Laxman
Samrath, being the councillor, was coming towards
the village and the appellant/accused stopped him
and assaulted him by striking an arrow to his
chest on account of which he succumbed to death.
As such, it is evident that the appellant/accused
was only searching for his wife and suspecting
that it was either Garib Manjhi (P.W.2) or
deceased Laxman Samrath who has assisted his wife
in eloping, in sudden anger and heat of passion,
he struck an arrow on the chest of deceased
Laxman Samrath and caused his death due to
grievous injury suffered by him. As such, the
appellant/accused had no intention to cause death
of deceased and 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 chest 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 struck the deceased with an
arrow in his chest which is a vital part of the
body. Thus, the case of the appellant/accused is
covered with Exception 4 to Section 300 of IPC
and in our considered opinion, his conviction
under Section 302 of IPC can be converted under
Section 304 Part II of IPC.
21. Accordingly, the conviction of the appellant
under Section 302 of IPC is modified under
Section 304 Part II of IPC. We hereby award R.I.
for 10 years and fine of Rs. 100/ to the
appellant and in default of payment of fine,
additional S.I. for 10 days. The sentence awarded
to the appellant is modified as stated herein.
22. The appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
