Chattisgarh High Court
Sanjay Kumar Prajapati vs State Of Chhattisgarh on 4 November, 2022
Cr.A.No.302/2013
Page 1 of 10
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.302 of 2013
{Arising out of judgment dated 30-1-2013 in Sessions Trial No.201/2011
of the learned Sessions Judge, Surguja (Ambikapur)}
Sanjay Kumar Prajapati, S/o Shri Dilram Prajapati, aged about 31 years,
Occ: Labour/Agriculturist, Caste Kumhar, R/o Village Gangapur, Police
Station Batauli, District Sarguja (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Batauli, District Sarguja (C.G.)
---- Respondent
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For Appellant: Mr. Pushkar Sinha, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment On Board
(4-11-2022)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC is directed
against the impugned judgment of conviction recorded and
sentence awarded by the learned Sessions Judge by which the
appellant has been convicted for offence under Section 302 of the
IPC and sentenced to undergo imprisonment for life and pay fine of
₹ 2,000/-, in default, to further undergo additional rigorous
imprisonment for six months.
2. Case of the prosecution, in brief, is that in the intervening night of
24-2-2011 and 25-2-2011, the appellant assaulted his father Dilram
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Prajapati, aged about 80 years, by axe, by which he suffered
injuries and died, and thereby committed the offence. It is the
further case of the prosecution that the appellant and his father
were residing together, as the appellant's mother and wife of Dilram
Prajapati (deceased) had already died and on the fateful night, the
appellant assaulted his father and thereafter absconded from the
spot. Morgue was registered vide Ex.P-1 and thereafter, FIR
Exs.P-15 & P-16 were lodged. On the recommendation of
panchas, postmortem on the dead body of the deceased was
conducted in Community Health Centre, Batauli vide Ex.P-9A by
Dr. Vijay Singh Pradhan (PW-3) and cause of death was stated to
be coma due to head injury (brain injury) and death was homicidal
in nature. Pursuant to the memorandum statement of the appellant
Ex.P-11, bloodstained axe was seized vide Ex.P-12 and the same
was sent for forensic examination to the FSL, Raipur from where
report Ex.P-20 was received and blood was found on the weapon of
offence axe, but blood group and origin could not be established.
Blood was also found on the vest of the deceased.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC. After due investigation, the accused / appellant was
charge-sheeted for offence under Section 302 of the IPC and
charge-sheet was filed before the jurisdictional criminal court and
the case was committed to the Court of Sessions for conducting the
trial and hearing and disposal in accordance with law.
4. The accused / appellant abjured the guilt and entered into witness.
In order to bring home the offence, the prosecution examined as
Cr.A.No.302/2013
many as seven witnesses and exhibited 20 documents. The
defence has examined none and exhibited no document.
5. The trial Court after appreciating oral and documentary evidence
available on record, convicted and sentenced the appellant under
Section 302 of the IPC in the manner mentioned in the opening
paragraph of this judgment against which the instant appeal under
Section 374(2) of the CrPC has been preferred.
6. Mr. Pushkar Sinha, learned counsel appearing for the appellant,
would submit that the prosecution has failed to prove the offence
against the appellant beyond reasonable doubt, therefore, the
appellant deserves to be acquitted. In alternative, he would further
submit that father of the appellant, aged about 80 years, having
been assaulted by his son (appellant) and considering only one
injury, the case of the appellant would fall under Exception 4 to
Section 300 of the IPC. The appellant is already in jail since 11
years 8 months, therefore, it is a fit case where conviction of the
appellant can be converted/altered to an offence under Section 304
Part-II of the IPC. Therefore, taking into consideration the period
already undergone by the appellant, the appellant be released from
jail forthwith by partly allowing the appeal.
7. Mr. Sudeep Verma, learned Deputy Government Advocate
appearing for the State / respondent, would support the impugned
judgment and oppose the appeal.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
Cr.A.No.302/2013
9. The trial Court upon appreciating oral and documentary evidence
available on record and considering the postmortem report Ex.P-
9A, which has been proved by Dr. Vijay Singh Pradhan (PW-3) in
which cause of death was stated to be coma due to head injury
(brain injury) and death to be homicidal in nature, rightly held that
nature of death of the deceased was homicidal. The finding
recorded by the trial Court that death of deceased Dilram Prajapati
was homicidal in nature, is a finding of fact based on the evidence
available on record, it is neither perverse nor contrary to the record
and we hereby affirm the said finding, even otherwise, same has
not been seriously disputed by the appellant, as such, the death
was homicidal in nature.
10. The trial Court has found that pursuant to the memorandum
statement of the appellant, bloodstained axe has been seized vide
Ex.P-12 in which blood has been found vide FSL report Ex.P-20
and recovery has also been found proved which is also a finding of
fact based on the evidence available on record. Evidence of last
seen is also found to be established pursuant to the statement of
Ganga Prasad (PW-5). As such, the appellant is the author of the
crime.
11. The aforesaid finding brings us to the next question for
consideration, whether the trial Court has rightly convicted the
appellant for offence punishable under Section 302 of the IPC or
his case is covered within Exception 4 to Section 300 of the IPC
vis-a-vis culpable homicide not amounting to murder and, thus, his
conviction can be converted to Section 304 Part II of the IPC, as
Cr.A.No.302/2013
contended by learned counsel for the appellant?
12. The Supreme Court in the matter of Sukhbir Singh v. State of
Haryana1 has observed as under:-
"21. Keeping in view the facts and circumstances of the
case, we are of the opinion that in the absence of the
existence of common object Sukhbir Singh is proved to
have committed the offence of culpable homicide without
premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and did not act in a cruel or
unusual manner and his case is covered by Exception 4
of Section 300 IPC which is punishable under Section
304 (Part I) IPC. The finding of the courts below holding
the aforesaid appellant guilty of offence of murder
punishable under Section 302 IPC is set aside and he is
held guilty for the commission of offence of culpable
homicide not amounting to murder punishable under
Section 304 (Part I) IPC and sentenced to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.5000. In default of payment of fine, he shall undergo
further rigorous imprisonment for one year."
13. The Supreme Court further, in the matter of Gurmukh Singh v.
State of Haryana2 has laid down certain factors which are to be
taken into consideration before awarding appropriate sentence to
the accused with reference to Section 302 or Section 304 Part II of
the IPC, which state as under :-
"23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case
has to be seen from its special perspective. The relevant
factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur
of the moment;
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
Cr.A.No.302/2013
(c) The intention/knowledge of the accused while
inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the
victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the
accused;
(g) Whether the injury was caused without
premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting
the injury and the force with which the blow was
inflicted;
(i) The criminal background and adverse history of
the accused;
(j) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the
death was because of shock;
(k) Number of other criminal cases pending against
the accused;
(l) Incident occurred within the family members or
close relations;
(m) The conduct and behaviour of the accused after
the incident.
Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure that
he/she gets proper medical treatment?
These are some of the factors which can be taken into
consideration while granting an appropriate sentence to
the accused.
24. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our considered view,
proper and appropriate sentence to the accused is the
bounded obligation and duty of the court. The
endeavour of the court must be to ensure that the
accused receives appropriate sentence, in other words,
Cr.A.No.302/2013
sentence should be according to the gravity of the
offence. These are some of the relevant factors which
are required to be kept in view while convicting and
sentencing the accused."
14. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships
of the Supreme Court have held that once knowledge that it is likely
to cause death is established but without any intention to cause
death, then jail sentence may be for a term which may extend to 10
years or with fine or with both. It has further been held that to make
out an offence punishable under Section 304 Part II of the IPC, the
prosecution has to prove the death of the person in question and
such death was caused by the act of the accused and that he knew
that such act of his is likely to cause death.
15. Further, the Supreme Court in the matter of Arjun v. State of
Chhattisgarh4 has elaborately dealt with the issue and observed in
paragraphs 20 and 21 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
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
Cr.A.No.302/2013
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 Arjun (supra), the Supreme Court has held that if there is intent
and knowledge, the same would be case of Section 304 Part-I of
the IPC and if it is only a case of knowledge and not the intention to
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cause murder and bodily injury, then same would be a case of
Section 304 Part-II of the IPC.
17. Further, the Supreme Court in the matter of Rambir v. State (NCT
of Delhi)5 has laid down four ingredients which should be tested for
bringing a case within the purview of Exception 4 to Section 300 of
the IPC, which read as under:
"16. A plain reading of Exception 4 to Section 300 IPC
shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage
or acted in a cruel or unusual manner.
xxx xxx xxx"
18. Reverting to the facts of the present case in light of the above
principles of law laid down by their Lordships of Supreme Court, it
is quite vivid that was no premeditation on the part of the appellant
to cause death of the deceased, aged about 80 years and further
considering that one injury has been found in postmortem report
Ex.P-9A proved by Dr. Vijay Singh Pradhan (PW-3) and also
looking to the age of the deceased, the appellant must have had the
knowledge that such injuries inflicted by him on the body of the
deceased would likely to cause his death. Consideirng the age of the
deceased and further considering the dispute between the appellant
and the deceased, in our considered opinion, this case would fall
within the purview of Exception 4 to Section 300 of the IPC.
5 (2019) 6 SCC 122
Cr.A.No.302/2013
19. In view of the aforesaid discussion, conviction of the appellant under
Section 302 of the IPC as well as the sentence of life imprisonment
awarded to him by the learned trial Court is hereby set aside.
Considering that there was no premeditation on the part of the
appellant to cause death of the deceased but the injury caused by him
was sufficient in the ordinary course of nature to cause death, the
appellant is convicted for offence punishable under Section 304 Part II
of the IPC. Since the appellant is in jail since more than 11 years,
taking into consideration the period he had already undergone, we
award him the sentence already undergone by him and the fine
sentence imposed by the learned trial Court shall remain intact.
Accordingly, the appellant be released from jail forthwith, if his
detention is not required in any other offence.
20. The criminal appeal is party allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma
