Chhatrapal Singh vs State Of Chhattisgarh
2022 Latest Caselaw 6701 Chatt

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                                                            Cr.A. No. 232 of 2022


                                                                        NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Appeal No. 232 of 2022
      Chhatrapal Singh Son of Rikhiram Gond, aged about 30 years, R/o
       Dukupathra, Police Station Pali, District Korba (C.G.)

                                                               ---- Appellant
                                   Versus
      State of Chhattisgarh, through Station House Officer, Police Station
       Pali, District Korba (C.G.)
                                                         ---- Respondent

  For Appellant          : Ms. Nirupama Bajpai, Advocate

  For Respondent         : Mr. Animesh Tiwari, Deputy Advocate General

             DB: Hon'ble Shri Justice Sanjay K. Agrawal
                 Hon'ble Shri Justice Rakesh Mohan Pandey
                         Judgment on Board
                             (10.11.2022)

Sanjay K. Agrawal, J.

1. This criminal appeal filed by the appellant/accused herein under

Section 374 (2) of Cr.P.C. is directed against the impugned

judgment of conviction and order of sentence dated 16.06.2016

passed by the Court of learned Additional Sessions Judge,

Katghora, District Korba (C.G.) in Sessions Case No. 58/2015,

whereby the appellant has been convicted for offence under Section

302 of IPC and sentenced to undergo life imprisonment with fine of

Rs.1,000/- and, in default of payment of fine, he shall undergo

further rigorous imprisonment for six months.

2. The case of the prosecution, in brief, is that on 18.05.2015 at about

08:00 am, village Dukupathra within the ambit of Police Station Pali,

District Korba (C.G.), the appellant/accused assaulted his father

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Rikhiram by means of axe due to which Rikhiram suffered grievous

injuries on his head, face, neck and waist and he died on the spot

instantaneously. Further case of the prosecution is that deceased-

Rikhiram used to quarrel with his wife Smt. Umendra Kunwar (PW-

5). The preceeding date of offence, the deceased had quarrelled

with his wife on account of which the deceased's brother and his

nephew had settled the dispute between them. But, the deceased

again quarrelled and abused with his wife and he expelled his wife

from the house and about the same thing, dispute arose between

the appellant and his father (deceased) and the appellant assaulted

his father by tangia due to which his father suffered grievous

injuries and died instantaneously. The appellant called her cousin

sister namely Ku. Lalima (PW-3) and narrated the incident to her

and shown the dead body of his father. Ku. Lalima informed her

mother Aapkunwar about the incident. Thereafter, Aapkunwar

informed the incident to Radhesyam (PW-1) and others. Merg

intimation was given to the police vide Ex.-P/1 by Radheshyam

(PW-1) and on the basis of which, FIR (Ex.-P/2) was registered

against the appellant/accused under Sections 302 of IPC in Police

Station Pali, District Korba under Crime No. 77/2015.

3. Inquest was prepared vide Ex.-P/9. Spot map was prepared vide

Ex.2. Dead body of deceased Rikhiram was sent for postmortem

and in the postmortem examination report (Ex.-P/23), Dr. Pradeep

Agrawal (PW- 9) opined that the cause of death was shock as a

result of extensive multiple injuries and death had occurred between

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18 to 36 hours prior to postmortem examination. Death was

homicidal in nature. Thereafter, appellant was arrested on

19.05.2015 vide Ex.-P/4 and his memorandum statement was

recorded vide Ex.-P/10 consequent to which axe (tangiya) and other

articles were recovered from the place of incident vide Ex.-P/11.

Seized articles were sent for FSL examination. As per FSL report

(Ex.-P/40), human blood was found on the axe. Statement of

witnesses were recorded and after due investigation, the ploice filed

charge-shee in the Court of Judicial Magistrate First Class, Pali,

District Korba (C.G.) and, thereafter, the case was committed to the

Court of Sessions. The appellant/accused abjured his guilt and

entered into defence.

4. The prosecution in order to prove its case examined as many as 11

witnesses and exhibited 40 documents and statement of the

appellant under Section 313 of Cr.P.C. was recorded. The appellant

in support of his defence has neither examined any witness nor

exhibited any document.

5. The learned trial Court after appreciating the oral and documentary

evidence available on record proceeded to convict the appellant for

offence under Section 302 of IPC and sentenced him as mentioned

herein-above, against which this appeal has been preferred by the

appellant question the impugned judgment of conviction and order

of sentence.

6. Ms. Nirupama Bajpai, learned counsel for the appellant submits that

Ku. Lalima (PW-3) and Smt. Umendra Kunwar (PW-5) have not

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seen the incident and the blood stained axe recovered from the

open place. She further submits that the seizure witnesses namely

Gangaram (PW-4) and Bhagirathi Markam (PW-6) have not

supported the prosecution case. Therefore, seizure of axe was

made at an open place in the presence of witnesses and the same

has not been proved by the witnesses regarding the said axe was

actually used in commission of offence. Even FSL report (Ex.-P/40)

human blood was found, but, it does not connect the appellant in

the crime in question. She further submits that the trial Court without

appreciating the evidence available on record, convicted and

sentenced the appellant, therefore, conviction and sentence

awarded by the trial Court to the appellant deserves to be set aside.

Thus, the case of the present appellant falls within the purview of

Exception 4 to Section 300 of IPC and the act of the appellant is

culpable homicide not amounting to murder and, therefore, it is a fit

case where the conviction of the appellant can be converted/altered

to an offence under Section 304 Part-II of IPC, further, since the

appellant is in jail since 19.05.2015 i.e. more than 07 years, taking

into consideration the period he has already undergone, the

appellant be released from jail forthwith. Hence, the present appeal

deserves to be partly allowed.

7. Per contra, Mr. Animesh Tiwari, learned Deputy Advocate Genenal

appearing for the State, supported the impugned judgment of

conviction and order of sentence and submits that the prosecution

has proved the offence beyond reasonable doubt by leading

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evidence of clinching nature. The learned trial Court has rightly

convicted the appellant for office under Section 302 of IPC.

Exception 4 to Section 300 of IPC is not attracted in this case and it

is not a case where conviction of the appellant under Section 302 of

IPC requires to be altered to Section 304 Part-II of IPC, thus, the

present 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 and foremost question is as to whether the death of the

deceased was homicidal in nature, which has been answered by

the learned trial Court in affirmative by taking into consideration the

oral and documentary evidence available on record and particularly

relying upon the postmortem report (Ex.-P/23) which is duly proved

by the evidence of Dr. Pradeep Agrawal (PW-9), we are of the

considered opinion that the learned trial Court is absolutely justified

in holding that the death of deceased- Rikhiram is homicidal in

nature, as the same is correct finding of fact based on evidence

available on record and same is neither perverse nor contrary to the

record.

10. Next question is that whether the appellant/accused is the

perpetrator/author of the crime in question, which the trial is also

answered in affirmative.

11. Admittedly, the deceased used to quarrel with his wife Smt.

Umendra Kunwar (PW-5) and day before the incident he quarelled

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with his wife and on account of which she had gone back her

parental home by which the appellant was unhappy. Since the

deceased could not mind away inspite of understanding given by

the appellant and again the deceased assaulted and abused

Umendra Kunwar, though the appellant is mentally weak as

statement of Lalima (PW-3), the appellant assaulted the deceased

by axe to which the appellant made extra judicial confession before

Lalima (PW-3) as well as Umendra Kunwar (PW-5 - mother of the

appellant), though the extra judicial confession is a weak piece of

evidence, further considering that it is a case of house murder, apart

from appellant and the deceased, Umendra Kunwar were residing,

but on the date of incident Umendra Kunwar had left house and she

had gone her parental house at Village Kaccharpara, and the fact

that the axe was seized from the open place of the house, as per

FSL report (Ex.-P/40) human blood was found on soil, axe (tangia),

cloths of the deceased, we hold that the appellant is author of the

crime in question.

12. The question would be, whether the offence would fall within the

purview of Exception 4 to Section 300 of IPC as contended by

learned counsel for the appellant?

13. The Supreme Court in the matter of Sukhbir Singh vs. State of

Haryana, (2002) 3 SCC 327 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 offfence of culpable homicide

Cr.A. No. 232 of 2022

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 to 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."

14. The Supreme Court in the matter of Gurmukh Singh vs. State of

Haryana, (2009) 15 SCC 635 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 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 fro 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;

(c) The intention/knowledge of the accused while inflicting the blow of injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

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(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, 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."

15. Likewise, in the matter of State vs. Sanjeev Nanda, (2012) 8 SCC

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450, 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.

16. Further, the Supreme Court in the matter of Arjun vs. State of

Chhattisgarh, (2017) 3 SCC 247 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 upremeditated 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

Cr.A. No. 232 of 2022

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 cruelty."

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".

17. In the matter of 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 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

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case of Section 304 Part-II IPC.

18. Further, the Supreme Court in the matter of Rambir vs. State (NCT

of Delhi), (2019) 6 SCC 122 has laid down four ingredients which

should be tested for bring a case within the purview of Exception 4

to Section 300 of IPC, which reads 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."

19. Reverting to the facts of the present case in light of above principles

of law laid down by the Hon'ble Supreme Court, it is quite vivid that

the deceased is the appellant's father. He (deceased) used to

quarrel with his wife (appellant's mother) Umendra Kunwar (PW-5)

by which the appellant was unhappy and as per statement of PW-3

the appellant is a mentally weak person and in despite of

understanding given by the appellant, when the date of incident, the

deceased again quarrelled and abused his wife (PW-5) by which

she had gone her parental house, thereafter, some altercation arose

between the deceased and the appellant, then the appellant

assaulted the deceased by axe which was in his house, as such,

there was no premeditation on the part of the appellant to cause

death of deceased- Rikhiram and only because of a petty dispute,

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out of sudden anger and in heat of passion, the appellant assaulted

deceased- Rikhiram and caused his death. However, looking to the

injuries sustained by deceased- Rikhiram as recorded by Dr.

Pradeep Agrawal (PW-9), which have been caused on his

head/brain, face, neck, chest and other parts of the body, 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,

as such, this is a case which would fall within the purview of

Exception 4 to Section 300 of IPC, as the act of the appellant herein

completely satisfies the four necessary ingredients of Exception 4 to

Section 300 IPC i.e. (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 appellant had not taken any undue advantage or acted

in a cruel or unusual manner and, therefore, the conviction of the

appellant under Section 302 of IPC can be altered/converted to

Section 304 Part-II of IPC.

20. In view of the aforesaid discussions, the conviction of the appellant

for offence punishable under Section 302 of 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 injuries caused by him were sufficient in the

ordinary course of nature to cause death, the appellant is convicted

for offence punishable under Section 304 Part-II of IPC. Since the

appellant is in jail since 19.05.2015 i.e. more than 07 years, taking

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into consideration the period he has already undergone, we award

him 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 not required in any

other case.

21. This criminal appeal is partly allowed to the extent indicated herein-

above.

                     Sd/-                                      Sd/-
             (Sanjay K. Agrawal)                      (Rakesh Mohan Pandey)
                   Judge                                      Judge




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