Chattisgarh High Court
Khirodhar vs State Of Chhattisgarh on 24 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 218 of 2022
Khirodhar S/o Sukru Mahku, Aged about 38 yars,
(now aged about 55 yeas), Occupation Labour, R/o
Kilkila, At present Lailunga, Distt. Raigarh,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Lailunga, Distt. Raigarh,
Chhattisgarh.
Respondent
For Appellant : Mr. Hairsh Khuntiya, 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
24/06/2022
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 30/08/2006
passed by learned First Additional Sessions
Raigarh in Sessions Trial No. 48/2006 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.
under the facts and circumstances of the case."
500/, in default of payment of fine additional
R.I. for three months.
2. The case of the prosecution, in brief, is that on
14/02/2006 at about 11:30 AM, the appellant
herein murdered Bhikhari Mirdha by causing injury
on his head with the blunt edge of axe and
thereby, committed the offence.
3. Further case of the prosecution, in brief, is
that deceased Bhikhari Mirdha was working as a
watchman in the garden owned by Ramkrishna Patel
and while he became ill, the appellant herein was
engaged as watchman but when Bhikhari Mirdha
recovered and became healthy, he was again
engaged in place of the appellant. On 14/02/2006,
Bhikhari Mirdha was standing at the door of his
quarter built inside the garden, when at about
11:30 AM, the appellant assaulted him with an
axe. After hearing Bhikhari Mirdha crying for
help, Ramkrishna Patel (P.W.5) and Deenbandhu
Patel (P.W.6) came therein and saw the appellant
hitting Bhikhari Mirdha with the blunt edge of
the axe. After seeing them, the appellant
absconded and thereafter, Bhikhari Mirdha was
being escorted to the hospital for treatment but
he succumbed to death at about 04:00 PM in the
hospital.
under the facts and circumstances of the case."
4. The said incident was reported by Ramkrishna
Patel (P.W.5) at Police Station Lailunga. On his
report FIR was registered against the appellant
for offence punishable under Section 302 of IPC
vide Ex. P/10 and merg intimation was registered
vide Ex. P/11. Inquest was conducted in the
presence of the witnesses vide Ex. P/6 and the
dead body was sent for postmortem. The postmortem
report has been filed as Ex. P/4 in which the
cause of death is said to be coma due to head
injury and the death is said to be homicidal in
nature. During the course of the investigation,
plain soil as well as bloodstained soil was
seized from the spot. Statement of the witnesses
were recorded. The axe used by the appellant in
the incident was also seized vide Ex. P/8 and it
was sent to Forensic Science Laboratory, Raipur
but no FSL report has been brought on record.
After due investigation, the appellant/accused
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 7 witnesses and brought into record 20
under the facts and circumstances of the case."
documents. Statement of the appellant/accused was
recorded under Section 313 of CrPC wherein he
denied guilt, however, he examined none in his
defence.
6. 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 been called in
question by way of the instant appeal.
7. Mr. Harish Khuntiya, learned counsel for the
appellant/accused, would submit that prosecution
has failed to bring home the offence beyond
reasonable doubt and the appellant/accused has
wrongly been convicted for offence punishable
under Section 302 of IPC. He would further submit
that Ramkrishna Patel (P.W.5) and Deenbandhu
Patel (P.W.6), who are said to be eyewitnesses,
are not trustworthy and their statements could
not have been relied upon, as such, the
conviction of the appellant/accused for offence
punishable under Section 302 of IPC deserves to
be set aside. In alternative, he would submit
that considering the nature of the injuries
suffered by the deceased which were caused by the
blunt edge of the axe, it goes to show that the
under the facts and circumstances of the case."
appellant did not have any intention to commit
the crime in question and his case is covered
with Exception 4 to Section 300 of IPC and since
he is in jail since 15/02/2006, as such, his
conviction for offence punishable under Section
302 of IPC can be altered to offence punishable
under Section 304 Part II of IPC.
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 the
appellant caused axe blow on the head of the
deceased with full intention of causing his
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.
under the facts and circumstances of the case."
10. The first question for consideration would be,
whether the death of deceased Bhikhari Mirdha 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/4) wherein Dr.
Vishwanath Nayak (P.W.2), who has conducted the
postmortem, has opined that the cause of death is
coma due to injury on head and death of the
deceased is homicidal in nature. As such, after
going through the postmortem report (Ex. P/4) and
after going through the medical evidence of Dr.
Vishwanath Nayak (P.W.2), we are of the
considered opinion that learned trial Court is
absolutely justified in holding that death of
deceased Bhikhari Mirdha 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 Bhikhari
Mirdha is homicidal in nature is hereby affirmed.
12. The next question for consideration is whether
the appellant is the author of the crime in
question ?
under the facts and circumstances of the case."
13. Admittedly, Ramkrishna Patel (P.W.5) is the
owner of the garden in which the deceased was
working. He has clearly stated in his statement
that on the date of the incident, when he heard
deceased Bhikhari Mirdha crying for help, he
reached the spot along with Deenbandhu Patel
(P.W.6) and saw that the appellant was
assaulting the deceased with an axe and upon
seeing them, the appellant absconded from the
spot. Despite having being crossexamined,
Ramkrishna Patel (P.W.5) has remained consistent
and has maintained his version.
14. Similarly, Deenbandhu Patel (P.W.6) has also
admitted that on 14/02/2006 at about 11:00 AM, he
was going towards Ramkrishna Patel's garden along
with him when they heard deceased Bhikhari Mirdha
crying for help. When they reached the spot, they
found the appellant hitting the deceased with an
axe on his head and when they asked the appellant
why he was assaulting the deceased, the appellant
absconded from the spot. Thereafter, both
Ramkrishna Patel (P.W.5) and Deenbandhu Patel
(P.W.6) took the deceased to the hospital
wherein he succumbed to death at about 04:00 PM
on account of the grievous injuries suffered by
him. As such, both Ramkrishna Patel (P.W.5) and
under the facts and circumstances of the case."
Deenbandhu Patel (P.W.6) have witnessed the
incident and even after lengthy crossexamination
made on behalf of the defence, they have remained
consistent in their statement before the Court
and have supported the case of the prosecution.
Thus, we are of the considered opinion that
learned trial Court has rightly held that it is
the appellant who has caused the death of the
deceased by assaulting him with an axe and
causing grievous injuries to him.
15. The next 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 ?
16. 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."
17. The Supreme Court in the matter of Arjun v. State
of Chhattisgarh1 has elaborately dealt with the
1 (2017) 3 SCC 247
under the facts and circumstances of the case."
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 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
under the facts and circumstances of the case."
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".
18. 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.
19. Reverting to the facts of the present case in
light of the decision rendered by the Supreme
Court in Arjun (supra) and in view of the
provision contained under Exception 4 to Section
300 of IPC, it is quite vivid that in the present
under the facts and circumstances of the case."
case, deceased Bhikhari Mirdha worked as a
watchman in the garden owned by Ramkrishna Patel
(P.W.5) and when he became ill, appellant was
engaged to work as watchman and again when
deceased Bhikhari Mirdha returned after becoming
healthy, he was employed and the appellant was
removed due to which, on the fateful day of
14/02/2006, he assaulted deceased Bhikhari Mirdha
with an axe. The injuries suffered by the
deceased as described by Dr. Vishwanath Nayak
have been caused by the sharp edge of the axe
whereas injuries No. 3 to 6 have been caused by
the blunt edge of the axe and all the injuries
have been caused on the head of the deceased.
Though the appellant could have caused all the
injuries with the sharp edge of the axe but he
did not do so which goes to show that there was
no premeditation on the part of the appellant to
cause the death of the deceased and but since all
the injuries have been caused in the head of the
deceased which is a vital part of the body, we
are of the considered opinion that it is a case
where the appellant had intention as well as
knowledge that his act is likely to cause the
death of the deceased. As such, his act is
under the facts and circumstances of the case."
covered with Exception 4 to Section 300 of IPC
and his conviction for offence punishable under
Section 302 of IPC can be modified to Section 304
Part I of IPC.
20. Accordingly, the conviction of the appellant
under Section 302 of IPC is modified to Section
304 Part I of IPC. As stated at the bar, the
appellant is in jail since 15/02/2006 and he has
completed more than 10 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.
21. The appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
under the facts and circumstances of the case."
