Chattisgarh High Court
Devendra Bhaskar vs State Of Chhattisgarh on 22 June, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.835 of 2017
Devendra Bhaskar son of Rangaiya, aged about 52 years,
R/o. Village Madderh, P.S. Madderh, District Bijapur
(CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police Station Madderh,
District Bijapur (CG)
Respondent
For Appellants: Mr.S.K.Chandel, Advocate
For Respondent/State: Mr.Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(22.6.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC
is directed against the impugned judgment of conviction
and order of sentence dated 31.3.2017 passed by the
Sessions Judge, South Bastar Dantewada, in Sessions
Trial No.235/2011, whereby the appellant / accused has
been convicted for offence under Section 302 of the IPC
and sentenced him to undergo imprisonment for life and
fine of Rs.100/, in default of payment of fine to
further undergo rigorous imprisonment for one year.
2. Case of the prosecution, in brief, is that on 3.3.2011
at 3 p.m. at village Maddeh, District Bijapur, the
appellant murdered his wife Smt.Beeramma as she
declined to permit the appellant herein to sell almirah
of her house. The appellant caused injuries on her neck
and left ear by knife by which she died on 12.3.2011 at
12.15 p.m. It is further case of prosecution that on
2.3.2011 after having his night meal the appellant told
his wife Beeramma that for household expenses he will
sell almirah kept in the house, which she did not allow
the appellant herein and on that count, the appellant
started quarreling with his wife and on the next day
i.e. on 3.3.2011 the appellant threatened on the said
count to his wife Beeramma. It is also case of the
prosecution that on 3.3.2011 the deceased and the
appellant's son Manish Bhaskar (PW1) had gone to
Bhopalpattnam to see fare organized therein and he
returned at 6 p.m. to his house. When he returned, he
searched out his mother where he found her mother
injured with blood all over her body, he also noticed
injury on her neck and his father was sitting in the
courtyard stand wearing baniyan with blood stains and
on being asked, his father gave extrajudicial
confession to him that since his mother refused him to
sell almirah, she assaulted by churi (sharp edged
weapon) and cut her hairs by knife, which Manish
Bhaskar (PW1) reported to the police and the police
has registered the FIR vide Ex.P1. Dead body of
deceased Beeramma was sent for postmortem where
Dr.Akhilesh Badge (PW10) conducted her postmortem and
submitted his report vide Ex.P11 in which cause of
death was due to cardiorespiratory failure as a result
of neck injury and its complications and death was
homicidal in nature. As per memorandum statement of the
appellant herein vide Ex.P7, bloodstained knife was
seized from the house of the appellant vide Ex.P8,
which was sent to FSL for chemical examination. FSL has
submitted its report on 14.11.2011 (though filed on
record but it has not been admitted) in which blood was
found. The appellant was chargesheeted before the
Chief Judicial Magistrate, Bijapur, who was committed
the case to the Court of Session, South Bastar
Dantewada. The accused/appellant abjured the guilt and
entered into defence.
3. In order to bring home the offence, the prosecution
examined as many as 11 witnesses and exhibited 13
documents Exs.P1 to P13. However, the appellant /
accused examined four defence witnesses in his defence.
4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment dated 31.1.2017, convicted the appellant
herein for offence punishable under Section 302 of the
IPC and sentenced him as mentioned in opening paragraph
of this judgment, against which, this appeal has been
preferred by the appellant herein.
5. Mr.S.K.Chandel, learned counsel 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 evidence on
record to convict him for offence under Section 302 of
the IPC and as such, he is liable to be acquitted. In
alternative, he would submit that there was no
premeditation and on petty dispute of selling almirah
of their house the appellant is said to have caused
injuries and injuries have not been caused over vital
parts of the body and in view of Exception 4 to Section
300 of the IPC, it can be converted to Section 304
PartI or PartII of the IPC. The appellant is in jail
since 4.3.2011 i.e. for more than 11 years 3 months,
therefore, the sentence already undergone be awarded to
him.
6. Per contra, Mr.Soumya Rai, learned Panel Lawyer for the
respondent/State, would submit that the prosecution has
brought sufficient evidence to convict the appellant
for offence under Section 302 of the IPC and as such,
the trial Court has rightly convicted him for offence
under Section 302 of the IPC. He would further submit
that it is not the case where conviction of the
appellant can be converted under Section 304 PartI or
PartII of the IPC as the appellant has been assaulted
the deceased with full intention of causing death,
which is apparent from blow given by sharp edged
weapon.
7. We have heard learned appearing for the parties,
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
8. The first question for consideration would be, whether
death of deceased Beeramma was homicidal in nature. The
trial Court has recorded affirmative finding in this
regard on the basis of postmortem report (Ex.P11)
wherein it has been proved by Dr.Akhilesh Badge (PW10)
that death was due to cardiorespiratory failure as a
result of neck injury and death was homicidal in
nature. As such, the finding recorded by the learned
trial Court holding the death to be homicidal in nature
is the finding based on evidence available on record,
which is neither perverse nor contrary to record. We
hereby affirm that finding.
9. The next question for consideration would be, whether
the appellant has caused death of the deceased and
whether it would be covered under Exception 4 to
Section 300 of the IPC requiring conversion of the
offence under Section 302 into Section 304 PartI or
PartII of the IPC.
10. A careful perusal of the record would show that prior
to the date of offence on 2.3.2011 the appellant has
quarreled with the deceased on the pretext of her
refusal to allow the appellant to sell almirah of their
house and on that count, the appellant has threatened
her to see the consequence, which is apparent from the
statement of Manish Bhaskar (PW1) and on the date of
incident i.e. on 3.3.2011, the appellant and the
deceased both were in the house alone and their son
Manish Bhaskar (PW1) had gone to see fare organized at
village Bhopalpattnam and on coming back, he noticed
her lying injured with blood, on being asked from the
appellant, he has given extrajudicial confession to
him that he has caused injuries to his mother and also
cut her hairs and thereafter Manish Bhaskar (PW1)
lodged the report to the police and wheels of
investigation started running. On memorandum statement
of the appellant (Ex.P7), bloodstained knife used for
cutting vegetables was also seized and bloodstained
baniyan of the appellant was also seized and sent to
FSL, in which as per FSL report dated 14.11.2011 blood
was found though blood group has not been ascertained.
As such, there is sufficient evidence available on
record to hold that it is the appellant who has caused
death of his wife on petty dispute that he was not
being allowed by the deceased to sell almirah kept in
their house. As such, finding recorded in this regard
that the appellant has caused death of his wife
Beeramma is finding of fact based on evidence available
on record.
11. The last question for consideration would be, whether
Exception 4 to Section 300 of the IPC wold be attracted
in the facts and circumstances of the case ?
12. At this stage, it would be appropriate to notice
Exception 4 to Section 300 of the 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."
13. 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)
"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
1 (2017) 3 SCC 247
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".
14. Reverting to the facts of the present case in light of
decision rendered by the Supreme Court in Arjun
(supra), it is quite vivid that in the present case in
order to meet the household expenses the appellant
wanted to sell almirah which the deceased did not
permit the appellant to sell out, on account of which
the appellant become furious and on the next day he
threatened Beeramma to see the consequence and
coincidentally son Manish Bhaskar (PW1) has gone out
from her house to see fare at Bhopalpattnam and in the
meanwhile, the appellant came back and said to have
assaulted his wife by knife used for cutting vegetables
by giving 12 injuries, which is apparent from
postmortem report (Ex.P11) and evidence of Dr.Akhilesh
Badge (PW10), but fact remains that there was no
premeditation on the part of the accused and on petty
dispute of selling almirah in hit of passion, it has
been caused by the appellant to the deceased.
15. Considering the nature of injuries, the appellant must
have had the knowledge that his act is likely to cause
death of the deceased as he assaulted the deceased on
back side of her neck and also on vital parts of the
body. As such, we are of the considered opinion that
offence would fall within Exception 4 to Section 300
read with Section 304 PartI of the IPC. Accordingly,
conviction of the appellant under Section 302 of the
IPC is modified under Section 304 PartI of the IPC. It
is stated at the Bar, the appellant is in jail since
4.3.2011 and he has completed more than 11 years of
imprisonment, his sentence is modified to the period
already undergone by him. The appellant be released
forthwith if not required in any other case.
16. The appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
