Chattisgarh High Court
Aitwaro Bai vs State Of Chhattisgarh on 27 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 796 of 2014
Aitwaro Bai W/o Kamaleshwar, Aged about 50 years,
R/o Village Karamdeeha, Police Chowki Daura
(wrongly mentioned as Dabara), Police Station
Rajpur, Distt. (Revenue and Civil) - Surguja,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through District Magistrate
Surguja at Ambikapur, Distt. (Revenue and Civil)
Surguja, Chhattisgarh.
Respondent
For Appellant : Mr. S.D. Singh, 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
27/06/2022
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 04/09/2010
passed by learned 3rd Upper Sessions Judge (FTC)
Surguja (Ambikapur) in Sessions Trial No.
365/2009 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. 500/, in default of
payment of fine additional R.I. for one month.
2. The case of the prosecution, in brief, is that on
the intervening night of 2627/05/2009 at Village
Karamdeeha, the appellant herein caused the death
of her husband Kamleshwar by assaulting him with
a tangi and thereby, committed the aforesaid
offence.
3. Further case of the prosecution, in brief, is
that on 27/05/2009 at 11:30 AM, complainant
Santosh (P.W.2), who is the son of the appellant
and the deceased, lodged a report at Police
Station Rajpur that on 25/06/2009, after eating
food at night, he along with his brother and
sister went to sleep inside the house whereas his
mother was sleeping in the veranda and his father
was sleeping in the courtyard. The next morning
at about 6:00 AM, his sister woke up and went
into the courtyard and found their father
Kamleshwar lying dead. Blood was oozing out of
his head and there was an injury which looked
like it has been caused by a tangi. She woke up
the complainant and told the same to him and both
of them came outside and started searching for
their mother i.e. the appellant herein. She was
not in the house. On the basis of the report, FIR
was registered against the appellant for offence
punishable under Section 302 of IPC vide Ex. P/1
and after registering merg intimation vide Ex.
P/11, inquest was conducted vide Ex. P/3. The
body of deceased Kamleshwar was sent for
postmortem which was conducted by Dr. Rajesh
Bhajagbali (P.W.9) and the postmortem report has
been filed as Ex. P/16 wherein the cause of death
is said to be coma due to fracture in skull and
nature of death is said to be homicidal. Blood
stained soil and plain soil as well as blood
stained tangi were seized from the spot and they
were sent for chemical examination 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 her guilt
and entered into defence.
4. In order to bring home the offence, prosecution
examined 9 witnesses and brought into record 16
documents. Statement of the appellant/accused was
recorded under Section 313 of CrPC wherein she
denied guilt, however, she examined none in her
defence but the statements of Santosh and Anugrah
@ Motu have been exhibited as D/1 and D/2.
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 mainly on the
basis of testimony of eyewitnesses Basanti
(P.W.1) and Santosh (P.W.2) and sentenced her
as aforesaid which has been called in question by
way of the instant appeal.
6. Mr. S.D. Singh, learned counsel for the
appellant/accused, would submit that prosecution
has failed to bring home the offence beyond
reasonable doubt and the trial Court has
committed grave legal error in accepting the
versions of Basanti (P.W.1) and Santosh (P.W.2)
and convicting the appellant for offence
punishable under Section 302 of IPC. In
alternative, he would further submit that
deceased Kamleshwar used to come home in
intoxicated condition every night and out of
sudden anger and in heat of passion, the
appellant caused injury to the deceased, that
too, with the blunt side of the tangi, as such,
there was no premeditation or intention on the
part of the appellant to cause death of the
deceased, as such, her case is covered by
Exception 4 of Section 300 of IPC and her
conviction under Section 302 of IPC be modified
to Section 304 Part I or II of IPC.
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 on the basis of the
testimony of Basanti (P.W.1) and Santosh
(P.W.2).
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 Kamleshwar 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/16) wherein Dr.
Rajesh Bhajagbali (P.W.9), who has conducted the
postmortem, has opined that the cause of death is
coma due to fracture in skull and the nature of
death is said to be homicidal. As such, after
going through the postmortem report (Ex. P/16)
and after going through the medical evidence of
Dr. Rajesh Bhajagbali (P.W.9), we are of the
considered opinion that learned trial Court is
absolutely justified in holding that death of
deceased Kamleshwar 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 Kamleshwar
is homicidal in nature is hereby affirmed.
11. The next question for consideration is whether
the trial Court is justified in convicting the
appellant for offence punishable under Section
302 of IPC or her case is covered with Exception
4 to Section 300 of IPC ?
12. 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."
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
1 (2017) 3 SCC 247
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".
14. 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.
15. Reverting to the facts of the present case in
light of the decision rendered by the Supreme
Court in the matter of Arjun (supra), it is quite
vivid that the relationship between the deceased
and the appellant was that of a husband and wife
and they had cordial relations except that the
deceased used to come home in a drunken condition
every night and on the night of the incident as
well he was drunk and the appellant and deceased
quarreled and out of sudden and in heat of
passion, the appellant assaulted the deceased
with a tangi and caused injury on his head with
the blunt edge of the said tangi which goes on to
show that there was no premeditation or intention
on the part of the appellant to cause the death
of the deceased and she also did not take any
undue advantage or acted in a cruel or unusal
manner. As such, her case is covered by Exception
4 of Section 300 of IPC. However, looking to the
injury caused by the appellant on the head of the
deceased which is a vital part of the body, the
appellant must have had the knowledge that her
act is likely to cause death of the deceased.
Thus, the conviction of the appellant herein
under Section 302 of IPC is modified to Section
304 Part II of IPC. As stated at the bar, the
appellant is in jail since 30/05/2009 i.e. for
more than 12 years, as such, his sentence is
modified to that of the period already undergone.
The appellant be released forthwith unless
required in any other case.
16. Accordingly this appeal is allowed to the extent
indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
