Chattisgarh High Court
Uttar Kumar Sao vs State Of Chhattisgarh on 2 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1262 of 2015
Uttar Kumar Sao S/o Vidhyadhar Sao, Aged about 44
years, R/o Village Kandagarh, P.S. Pusor, Civil and
Revenue Distt. Raigarh, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Pusor, Distt.
Raigarh, Chhattisgarh.
Respondent
For Appellant : Ms. Savita Tiwari, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
02/05/2022
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 11/08/2015
passed by learned 1st Additional Session Judge,
Raigarh in Sessions Trial No. 147/2013 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. 2,000/, in default of payment of fine further
R.I. of five months.
2. The case of the prosecution, in brief, is that on
25/06/2013 at about 08:00 AM, the appellant herein
came to his nephew Rameshwar Sao, who was sitting
in front of the house of Gaurang, and assaulted him
with a wooden plunk on his head and near his right
ear due to which Rameshwar Sao suffered with
grievous injuries and ultimately after two days
succumbed to death and the appellant thereby,
committed the aforesaid offence punishable under
Section 302 of IPC.
3. Further case of the prosecution, in brief, is that
on 25/06/2013 at about 08:00 AM, when Rameshwar Sao
was sitting in front of Gaurang's house, the
appellant herein came armed with a wooden plunk and
hit him in the back side of his head and near his
right ear and caused his grievous injuries. The
incident was witnessed by grandfather of Rameshwar
Sao and father of the appellant namely Vidyadhar
(P.W.2) who informed about the incident to
Nrapmani (P.W.1), father of Rameshwar Sao, who in
turn, then reported the incident to the Police
Station, Pusour and lodged first information report
(Ex. P/1) against his brother i.e. the appellant
herein and the wheels of investigation started
running. Thereafter, inquest was conducted vide Ex.
P/17 and spot map (Ex. P/3) was prepared. The
witnesses were summoned under Section 175 of CrPC
and thereafter, the dead body of deceased Rameshwar
Sao was sent for postmortem vide Ex. P/19.
Memorandum statement of the appellant/accused was
recorded (Ex. P/4) and on that basis, one wooden
plunk was seized (Ex. P/5). From the spot, plain
soil as well as bloodstained soil was seized and
the seized articles were sent for chemical analysis
but no report has been brought on record. Pursuant
thereof, the appellant was arrested (Ex. P/8). The
statements of the witnesses were recorded and after
due investigation, the appellant/accused was
chargesheeted for offence punishable under Section
302 of CrPC. which was submitted to the Court of
Chief Judicial Magistrate, Raigarh wherein the case
was registered and it was committed to the Court of
Session Judge, Raigarh 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 10 witnesses and brought into
record 20 documents. Statement of the
appellant/accused was recorded under Section 313 of
CrPC wherein he denied guilt, however, he examined
none in his defence.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, convicted the
appellant/accused for offence punishable under
Section 302 of CPC and sentenced him as aforesaid.
6. Ms. Savita Tiwari, learned counsel for the
appellant/accused, would submit that the 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 convict
him for offence punishable under Section 302 of IPC
and looking to the single injury which is said to
have been caused by the appellant herein by which
the deceased died after two days of the incident,
it is evident that the appellant had no intention
of causing death of the deceased as such, at the
best, the appellant can be convicted for offence
punishable under Section 304 Part II of IPC and
since he is in jail since 26/06/2013 i.e. for more
than 8 years, his sentence be awarded for the
period already undergone and he be released from
jail.
7. Per Contra, Mr. Sudeep Verma, 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 appellant assaulted
the deceased with full intention of causing death
as dispute was going on between the appellant and
his brother Nrapmani (P.W.1) on account of the
amount of compensation that they had received in
lieu of acquisition of their land by NTPC, 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 Rameshwar Sao 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/20) wherein Dr. S.K.
Bhagh (P.W.10), who has conducted the postmortem
of deceased Rameshwar Sao, has opined that the
injuries on the body of the deceased have been
would show that left temporal bone as well as
oxypital bone in the skull of the deceased were
fractured and the cause of his death is said to be
due to cardiorespiratory failure as a result of
cumulative effect of multiple injuries to body and
their complications. As such, after going through
the postmortem report (Ex. P/20) and after going
through the medical evidence of Dr. S.K. Bhagh
(P.W.10), we are of the considered opinion that
learned trial Court is absolutely justified in
holding that death of deceased Rameshwar Sao was
homicidal in nature. Moreover, the fact that the
death of deceased Rameshwar Sao 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 Rameshwar Sao is homicidal in nature is
hereby affirmed.
11. This finding brings us to the next question for
consideration which is with regard to the nature of
the offence committed by the appellant and whether
it would be covered by any of the exceptions of
Section 4 of IPC ?
12. The appellant herein has been convicted for offence
punishable under Section 302 of IPC. Vidyadhar
(P.W.2) has two sons namely Nrapmani (P.W.1) and
Uttar Kumar Sao (the appellant herein). Deceased
Rameshwar Sao was the son of Nrapmani (P.W.1) and
nephew of the appellant herein. Vidyadhar (P.W.2),
father of the appellant and grandfather of
deceased, has also been examined who has clearly
stated that on the fateful day, the appellant came
in front of the house of the Gaurang where his
grandson deceased Rameshwar Sao was sitting and
assaulted him with a wooden plunk in his head by
which Rameshwar Sao suffered grievous injuries and
succumbed to death after two days. In his cross
examination, in paragraph 6, he has clearly stated
that their land had been subjected to acquisition
by NTPC and they had received compensation because
of which there was dispute between his two sons,
the appellant and Nrapmani (P.W.1). He has further
stated that the appellant had also quarreled with
Nrapmani (P.W.1) and expect for the said dispute,
they had cordial relations between them. It also
appears from the statement of Vidyadhar (P.W.2)
that on the day before the incident, wife of
deceased Rameshar Sao had provoked the appellant
herein pursuant to which the appellant came on the
spot and assaulted the deceased.
13. In the considered opinion of this Court, the manner
in which the offence is said to have been
committed, it would fall within Exception 4 of
Section 300 of IPC as there was no premeditation on
the part of the appellant and in a sudden fight and
heat of passion, he assaulted deceased Rameshwar
Sao. The appellant herein did not take any undue
advantage and did not act in a cruel manner as
there is a single grave injury which was caused by
the appellant in the head of the deceased. As such,
the offence committed by the appellant is covered
with Exception 4 of Section 300 of IPC.
14. The next question for consideration is whether the
conviction of the appellant herein under Section
302 of IPC can be converted under Section 304 part
II of IPC ?
15. 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 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
1 (2017) 3 SCC 147
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".
16. 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.
17.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, except for the dispute with regard to
the compensation for their land acquired by NTPC,
there was no other dispute between the appellant
and his brother Nrapmani (P.W.1) or his nephew
deceased Rameshwar Sao. As such, there was no
intention on the part of the appellant to cause
death of Rameshwar Sao but from the injury that has
been caused in the head of the deceased, the
appellant must have had the knowledge that his act
is likely to cause death of the deceased as he
assaulted the deceased in the backside of his head
and on his neck which are vital parts of the body.
Thus, the conviction of the appellant under Section
302 of IPC can be converted under Section 304 Part
II of IPC. Accordingly, the conviction of the
appellant under Section 302 of IPC is modified
under Section 304 Part II of IPC. As stated at the
bar, the appellant is in jail since 26/06/2013 and
he has completed more than 9 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.
18. The appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
