Raktu Kamar vs State Of Chhattisgarh
2022 Latest Caselaw 6911 Chatt

                                                                                    CRA-328-2013
                                           Page 1 of 11


                                                                                              NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                              Criminal Appeal No. 328 of 2013

Raktu Kamar, Son of Baldu Kamar, aged about 30 years, Resident of Village
Hasauda, Police Station/Post Office/Tehsil/District Gariyaband (Chhattisgarh)
                                                                                    ---- Appellant
                                                                                           (In Jail)
                                              Versus
State     of   Chhattisgarh,        through       Police     Station      Gariyaband,        District
Gariyaband (Chhattisgarh)
                                                                                ---- Respondent
------------------------------------------------------------------------------------------------------

For Appellant                             :       Mr. Ritesh Verma, Advocate
For Respondent-State                      :       Mr. Sudeep Verma, Deputy G.A.

--------------------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey

Judgment on Board (18.11.2022) Sanjay K. Agrawal, J

This criminal appeal filed by the appellant-accused under Section

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

and order of sentence dated 23.01.2013, passed by the Court of learned

Additional Sessions Judge, District Gariyaband (C.G.) in S.T. No.59/2012

(State of CG vs. Raktu Kamar), whereby the appellant-accused has been

convicted for offence under Section 302 of IPC and sentenced to undergo life

imprisonment with fine of Rs.100/- and, in default of fine, additional rigorous

imprisonment for 10 days.

(2) The case of the prosecution, in brief, is that on 02.07.2012, at about

07:00 PM in the evening, at Village Hasoda Nadipara within the ambit of

Police Station Gariyaband (CG), in the courtyard situated between the house

of appellant and Jagturam (deceased), the appellant forcibly thrust (inserted) CRA-328-2013

a sharp and edged iron arrow in the chest of Jagturam (deceased), due to

which he suffered injury and died on the spot and, thereby, committed the

offence under Section 302 of IPC.

(3) The further case of the prosecution, in nutshell, is that: Jagturam

(deceased) alongwith his wife- Smt. Jagwati Bai and four years old son,

namely, Ramesh used to reside at Village Hasoda Nadipara; on the fateful

day i.e. on 02.07.2012, in the evening, while Jagturam (deceased) alongwith

his wife- Jagwati Bai (PW-02) were having their food (dinner), at that

juncture, accused-appellant, who is brother of Jagturam (deceased), came to

their house and started shouting on them to leave the said house, on which,

Jagturam (deceased) came out from his house and asked him to go back to

his home and, thereafter, the accused-appellant under anger went to his

house and brought arrow and bow; thereafter, when accused-appellant used

arrow and bow to caused injury to Jagturam (deceased), in front of Jagwati

Bai (PW-02), the said arrow fell in the courtyard of the house of Jagturam

(deceased); thereafter, when Jagturam (deceased) tried to get arrow and

bow from appellant's hand, the appellant forcibly thrust (inserted) an arrow in

the chest of Jagturam (deceased) to cause his death; thereafter, when

Jagwati Bai (PW-02) shouted, Jagturam (deceased) tried to take out said

arrow inserted in his chest, but accused-appellant break the said arrow from

between and, when the said arrow was taken out, blood came from his chest

and ultimately Jagturam (deceased) died; thereafter, Jagwati Bai (PW-02),

sole eye-witness, informed the aforesaid incident to Faktu Ram (PW-01),

who is another brother of deceased- Jagturam, where Arjun (PW-03) also

came, who thereafter informed the aforesaid incident to other villagers and

they all went to lodge report in the night. Thereafter, on the report so lodged CRA-328-2013

by them, the police of Police Station Gariyaband registered FIR (Ex.P/01)

and, thereafter, 'naksha panchayatnama' was prepared vide Ex.P/04. The

dead-body of deceased- Jagturam was sent for postmortem examination and

in the postmortem examination report (Ex.P/17), conducted by Dr. M.S.

Thakur (PW-11), it was opined that the cause of death of deceased-

Jagturam is excessive bleeding due to injury on chest by sharp object and

nature of death is homicidal in nature. Appellant-accused was arrested and

his memorandum statement was recorded vide Ex.P/10, pursuant to which

arrow and bow have been seized vide Ex.P/11 and from the place of

occurrence/spot, two samples of soil and arrow were seized vide seizure

memo (Ex.P/12). Further, the aforesaid seized articles were subjected to FSL

examination, whereby vide FSL report (Ex.P/09), it has been opined that

blood has been found on the arrow and in one sample of soil which were

seized from the spot vide Ex.P/12. Thereafter, statement of witnesses were

recorded and, after due investigation, the police filed charge-sheet in the

Court of Judicial Magistrate First Class, District Gariyaband (CG) 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 18

witnesses and exhibited 26 documents, whereas the appellant-accused in

support of his defence has not examined any witness, but exhibited 02

documents.

(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-accused CRA-328-2013

questioning the impugned judgment of conviction and order of sentence.

(6) Mr. C.R. Sahu, learned counsel appearing for the appellant submits

that the learned trial Court is absolutely unjustified in convicting the appellant

for offence under Section 302 IPC, as the prosecution has failed to prove the

offence beyond reasonable doubt. The conviction of the appellant is

premised on the testimony of Jagwati Bai (PW-02), wife of the deceased,

who is interested witness and has not supported the case of the prosecution,

as she turned hostile. Furthermore, in alternative he submits that though the

death of deceased- Jagturam is said to be homicidal in nature, but there was

no motive or intention on the part of the appellant to cause death of the

deceased and only on account of sudden quarrel and under heat of passion

on a petty dispute to vacate the house, which was in furtherance of old

enmity, the accused-appellant forcibly thrust (inserted) a sharp and edged

iron arrow in the chest of Jagturam (deceased), due to which he suffered

injury and died on the spot and, thereby, committed the offence. Hence, 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-I or Part-II) of IPC. Hence, the present appeal deserves to be allowed in

full or in part.

(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the

impugned judgment of conviction and order of sentence and submits that the

prosecution has proved the offence beyond reasonable doubt by leading

evidence of clinching nature. The learned trial Court has rightly convicted the

appellant for offence under Sections 302 of IPC. Exception 04 to Section 300 CRA-328-2013

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-I or 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 the learned trial Court has recorded

in affirmative by taking into consideration the oral and documentary evidence

available on record and particularly considering the postmortem report (Ex.P/

17), wherein it has been opined that the cause of death of deceased-

Jagturam is due to excessive bleeding due to injury on chest by sharp object

and nature of death is homicidal in nature and the statement of Dr. M.S.

Thakur (PW-11), who has conducted the postmortem of the dead-body of the

deceased. Accordingly, taking into consideration the postmortem report

(Ex.P/17) and the statements of Dr. M.S. Thakur (PW-11), we are of the

considered opinion that the learned trial Court is absolutely justified in

holding that the death of deceased- Jagturam is homicidal in nature, as the

same is correct finding of fact based on evidence and same is neither

perverse nor contrary to the record. Accordingly, we hereby affirmed the said

finding.

(10) Now the next question would be whether the accused-appellant herein

is the perpetrator of the crime in question ?

(11) In the instant case, deceased's wife Jagwati Bai (PW-02) is the sole

eye-witness to the incident, though she has been declared hostile, but has

clearly stated before the Court that: accused-appellant and deceased-

CRA-328-2013

Jagturam both are brothers; on the date of incident, the accused-appellant

visited the house of the deceased-Jagturam while they were having dinner

and started shouting on them to leave the said house, on which, Jagturam

(deceased) asked him to go back to his home, upon which, the accused-

appellant under anger went to his house and brought arrow and bow and a

dispute ensued, thereafter, accused-appellant forcibly thrust (inserted) an

arrow in the chest of Jagturam (deceased), due to which he suffered injury

and died on the spot. Further, during the course of investigation, an arrow

has been recovered from the spot/place of occurrence, which was subjected

to FSL examination and vide FSL report (Ex.P/09) it has been opined that

blood has been found on the said arrow and pursuant to memorandum

statement of the accused-appellant recorded vide Ex.P/10, arrow and bow

have been seized vide Ex.P/11. Thus, considering the aforesaid facts

coupled with other evidence available on record, the learned trial Court has

rightly held that the appellant-accused is perpetrator of the crime in question.

Accordingly, we hereby affirm the finding recorded by the learned trial Court

that the appellant-accused is the perpetrator of the crime in question, as the

same is neither perverse nor contrary to the record.

(12) The aforesaid finding brings us to the next question for consideration,

which is, whether the case of the appellant is covered with Exception 4 of

Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and

his conviction can be converted to Section 304 Part-I or Part-II of IPC, as

contended by learned counsel for the appellant ?

(13) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 has observed as under:-

1 (2002) 3 SCC 327 CRA-328-2013

"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."

(14) The Supreme Court 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 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 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

2 (2009) 15 SCC 635 CRA-328-2013

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 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.

(16) 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, 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;

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 CRA-328-2013

(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 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 case of Section 304 Part-II

IPC.

CRA-328-2013

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

Delhi)5 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 their Lordships of Supreme Court, it is quite vivid that there

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

deceased, but only on account of petty dispute to vacate the house, which

was in furtherance of old enmity, the accused-appellant firstly ensued a

dispute with the deceased and thereafter forcibly thrust (inserted) a sharp

and edged iron arrow in the chest of Jagturam (deceased), due to which he

suffered injury and died on the spot, as such, there was no premeditation on

the part of the appellant to cause death of the deceased- Jagturam and only

because of a petty dispute, which was in furtherance of old enmity, out of

sudden anger and under heat of passion, the appellant assaulted deceased-

Jagturam and caused his death. However, looking to the injuries sustained

by deceased- Jagturam, as recorded by Dr. M.S. Thakur (PW-11), which

have been caused on his chest, the appellant must have had the intention

and 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 of Section 300 of IPC, as the act of the 5 (2019) 6 SCC 122 CRA-328-2013

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-I) 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-I) of IPC. Since the appellant is

in jail from 03.07.2012 i.e. more than 10 years, taking into consideration the

period he already undergone, we award him sentence already undergone by

him, but 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 party allowed to the extent indicated herein-

above.

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