Chattisgarh High Court
Suresh Kumar Sahu vs State Of Chhattisgarh on 23 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1031 of 2017
• Suresh Kumar Sahu S/o Lakhan Sahu, Aged About 30 Years R/o
Village Mungbadi Keshkal, Thana Keshkal, District Kondagaon,
Chhattisgarh.
---- Appellant
Versus
• State Of Chhattisgarh Through Police Station Kondagaon District
Vishrampuri, Chhattisgarh.
----Respondent
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For Appellant: Shri Arjun Lal Singroul, Advocate
For Respondent/State: Shri Sameer Oraon, Government Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ
Judgment On Board
(23.06.2022)
Sanjay K. Agrawal, J.
1. By way of this appeal filed under Section 374(2) of the Code of
Criminal Procedure the appellant has assailed the judgment impugned dated
08.05.2017 passed by Sessions Judge, Kondagoan in Sessions Trial No.
489/2012 convicting him under Section 302 IPC and sentencing to undergo
imprisonment for life with fine of Rs. 200/-, in default of payment of fine, to
further undergo RI for 03 months.
2. Succinctly stated facts of the case leading to the disposal of this
appeal are that on 23.09.2012 at about 1 PM the accused/appellant herein
caused the death of his 19 days old male child by flinging him on the ground
thrice. The case of the prosecution is that the accused/appellant was
married to Dewantin (PW-6) and about four months prior to the date of
incident being fed up with the accused, Dewantin went to her maternal home
along with her twin daughters at Granjidheeh Vishrampuri where she
delivered a male child namely Chaman. On 22.09.2012 the accused also
went to Granjidheeh Vishrampuri to have a glimpse of his son and stayed
there for one night. On the following day i.e. 23.09.2012 as the said little
child passed urine on the lap of the accused/appellant, Dewantin Bai (PW-6)
and her mother Sukhbati (PW-5) demanded the child back from him, but
instead of handing the child over to them, he pushed them aside and flung
the child on the ground thrice as a result of which he met with an
instantaneous death. The accused/appellant also pushed aside one Makhan
(not examined) when he tried to intervene in the matter. On matter being
reported by Sukhbati (PW-5), FIR (Ex.P-1) and Merg intimation report (Ex.P-
2A) were registered at Crime No. 62/2012 for the offence under Section 302
IPC. Diary statements of the witnesses were recorded by the Police; inquest
on the body of the deceased child was conducted; spot map was prepared;
and the body was sent for postmortem examination, which was conducted
by Dr. S.N. Dhruv (PW-3) who gave his report (Ex.P-2). The post mortem
report shows one fracture on occipital bone and two on right temporal bones.
Cause of death as has been opined by the doctor is coma and shock due to
head injury with excessive bleeding, and the death was homicidal in nature.
After completion of investigation charge-sheet was filed against the accused/
appellant under Section 302 IPC in the Court of JMFC, Kondagoan, from
where the case was committed to the Court of Sessions, Kondagaon for
disposal in accordance with law.
3. So as to prove the complicity of the accused/appellant in the crime
in question, prosecution has examined as many as 7 witnesses. Statement
of the accused/appellant under Section 313 Cr.PC was also recorded in
which he pleaded his innocence and false implication in the case. Defence
however has not examined anyone in support of its case.
4. After hearing the parties and going through the material available
on record including the evidence of the witnesses, learned Sessions Judge
has convicted and sentenced the accused/appellant as adumbrated in
paragraph No. 1 of this judgment. Hence this appeal.
5. Counsel for the appellant submits that the prosecution has utterly
failed to prove its case under Section 302 IPC beyond all reasonable doubts.
He further submits that as there was some acrimony and bitterness in the
relations between the accused and his wife Dewantin, she has roped the
appellant in an absolutely false case, otherwise there was no reason for the
accused to have flung his own tender aged male child on the ground and
thereby caused his death. He submits that looking to the overall evidence,
the conviction of the accused/appellant under Section 302 IPC is not
sustainable in law and it is liable to be set aside. He further submits that as
Sukhbati (PW-5) and Dewantin (PW-6) are the interested witnesses, the
Court below should not have relied upon their testimony to convict the
accused/appellant under Section 302 IPC. According to the counsel for the
accused/appellant, looking to the manner in which the incident involving the
death of a tender aged child occurred on the spur of moment and without
premeditation, at the most, act of the accused/appellant would make him
liable for conviction under Section 304-II IPC as it is squarely covered by
Exception IV to Section 300 IPC.
6. On the other hand, counsel appearing for the State supports the
judgment impugned and submits that the findings recorded by the Sessions
Judge holding the accused/appellant guilty under Section 302 IPC being
based on proper appreciation of the evidence on record are fully justified and
do not call for any interference in this appeal.
7. Heard counsel for the parties at length and went through the
evidence on record with utmost care and caution.
8. It is not in dispute that Dewantin (PW-6) was married to the
accused/appellant herein prior to the ill-fated occurrence i.e. 23.09.2012 and
on account of acerbity with the accused/appellant she had left for her
maternal home along with her twin daughters where she gave birth to a male
child namely Chaman. Record discloses that the accused/appellant also
visited the maternal home of Dewantin (PW-6) and when he took his 19 days
old child, there was urination by him in his lap. Record further discloses that
when Dewantin Bai (PW-6) and her mother Sukhbati (PW-5) demanded the
child back from the accused, instead of handing him over to them, he flung
him on the ground thrice as a result of which he died then and there.
Dewantin Bai (PW-6) and her mother Sukhbati (PW-5) have fully supported
the case of the prosecution and had been consistent right from the beginning
in stating that the 19 days old male child died on account of being abruptly
thrown on the ground by the appellant where he suffered three fractures on
his head. This Court does not find any force in the argument of counsel for
the appellant that the testimony of Dewantin Bai (PW-6) and her mother
Sukhbati (PW-5) being the interested witnesses cannot be made a basic for
conviction, for the reason that it is a settled legal positoin that if a witness is
consistent and trustworthy in narrating the prosecution story, their version
cannot meet the outright rejection merely for this simple reason of his being
a interested witness. It is however not disputed that the appellant did not use
any weapon in killing the infant child, which shows that he had no
premeditation or prior planning for eliminating the child, and whatever the
accused did, it was on account of the acrimony nurtured between him and
his wife. If the entire material is seen, it is spelt out that when Dewantin Bai
(PW-6) and her mother Sukhbati (PW-5) came in between the appellant and
the minor child, he got furious and having fallen in the heat of passion he
flung the child on the ground thrice causing his instantaneous death.
09. 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, 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)
"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
1 (2017) 3 SCC 247
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".
10. 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 Part-I 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.
11. Likewise, in the matter of Elavarasan v. State2 where the
accused/appellant had not used any sharp edged weapon in causing the
death of the deceased, nor was there any evidence of premeditation on his
part, the Supreme Court held him guilty under Section 304-II IPC observing
that the act of the accused fell within Exception IV to Section 300 IPC.
12. If the facts and circumstances of the case in hand are seen in the
light of the evidence of the witnesses in particular that of Dewantin Bai (PW-
6), Sukhbati (PW-5) and S.N. Dhruv (PW-3), it can safely be held that
involvement of the accused in commission of the crime in question where an
infant child was done to death by his own father, is writ large. Now the only
question to be decided at this stage is whether his conviction would fall
under Section 302 or 304-I or 304-II IPC?
13. The evidence on record eloquently speaks that there was some
beforehand inimical relationship between the accused and his wife (PW-6)
2 AIR 2011 SC 2816
and on account of being fed up with his excesses, she left for her maternal
home along with her twin daughters where she gave birth to the male child,
by name Chaman. It is also manifest from the record that the accused also
visited the maternal home of Dewantin (PW-6) to see his newly born son,
who at the relevant time had grown 19 days old. There is evidence to the
effect that when the accused took the child in his lap, he had passed urine
on him. On seeing this, PW-6 asked for child being given back to her, which
the accused did not do. When PW-6 persistently tried to take over the child,
the accused got enraged and having been gripped by anger on the spur of
moment he flung the child on the ground thrice. Of course, no sharp cutting
weapon was used by the accused in executing the crime, but his act of
flinging the child on the ground not once, not twice but thrice clearly goes to
show that apart from the knowledge of causing culpable homicide, he had
intention as well for so doing. Even the doctor (PW-3) has stated that the
death was homicidal in nature and three fractures were noticed by him on
the head i.e. the vital part of the body. Being so, this Court is of the opinion
that the accused/appellant cannot escape conviction under Section 304-I
IPC consequent to his act falling within the sweep of Exception IV to Section
300 IPC. It is held accordingly.
14. As regards sentence, considering the act attributed against the
accused, the circumstances in which he lost his tamper and executed the
crime claiming the life of his own minor sibling without there being any pre-
planned design etc, this Court deems it just and proper to sentence the
accused/appellant to undergo RI for 10 years but keeping the sentence of
fine intact. Order accordingly.
15. In the result, the appeal is allowed in part. Conviction of the
accused/appellant under Section 302 IPC and the resultant sentence
imposed by the trial Court are set aside. Appellant is however convicted
under Section 304-I IPC and sentenced to undergo RI for 10 years as
referred to above. Sentence of fine is however, left undisturbed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Jyotishi
