Gudluram vs State Of Chhattisgarh
2022 Latest Caselaw 6973 Chatt

                                      1



                                                                           NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 868 of 2014


Gudluram, S/o. Naya Majhi @ Murriram, Aged About 34 Years, Occupation-
Agriculture, R/o. Village Maltipur, P.S. Kamleshwarpur, Distt. Surguja,
Chhattisgarh

                                                                  ---Appellant

                                   Versus

State Of Chhattisgarh, Through P.S. Kamleshwarpur, Distt. Surguja,
Chhattisgarh

                                                              ---Respondent


For Appellant      :-    Mr. Shashi Kumar Kushwaha, Advocate
For State          :-    Mr. Anmol Sharma, Panel Lawyer


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

                           Judgment on Board
                               21/11/2022

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section 374(2)

of Cr.P.C. is directed against the impugned judgment dated

24.07.2014 passed in S.T. No.251/2011 by which the trial Court has

convicted the appellant herein for the offence under Section 302 of

I.P.C. and sentenced to life imprisonment and fine of Rs.500/-, in

default of payment of fine, additional R.I. for 3 months.

2. Case of the prosecution, in brief, is that on 30.03.2011, the appellant

assaulted his wife Sanjhai Bai at Maltipur Aamaghat Nala due to

which she died and the appellant, thereby committed the offence.

3. Further case of the prosecution is that the appellant and deceased

Sanjhai Bai both were husband & wife and before the date of

incident, the appellant had gone to her paternal house to bring her

back to his house and on the way at about 12 p.m. the appellant,

deceased and their daughter went into the house of Patar Sai (PW-1)

and asked for food for his daughter and thereafter they left there.

Thereafter, on the way to his house, dispute occurred in between the

wife and husband and the appellant assaulted his wife by hand & fist

and by Lathi by which she died at 7 a.m. in the morning and in the

morning the appellant came back to his house alongwith his

daughter. In the morning, he was seen in a bloodstained cloth by

Anand Ram and Naihar Sai (PW-4) and on being enquired, he made

confession to Naihar Sai (PW-4) and the dead body was recovered

from the Nala in the bad condition and on the report of Anand Ram,

merg intimation Ex.P-19 was registered. Thereafter, FIR was

registered vide Ex.P-20 and Panchnama was conducted and the

dead body was sent for post mortem, which was conducted by

Dr.R.S.Singh (PW-3) who prepared a report vide Ex.P-12-A in which

cause of death was found to be shock due to renal injury and

excessive bleeding from buttock and nature of death was homicidal.

From the spot, the bloodstained soil and Gamchha was seized vide

Ex.P-3 and on memorandum (Ex.P-4), wooden stick was seized and

shirt & pant of the appellant were seized vide Ex.P-7 which were sent

for examination to FSL and from FSL report (Ex.P-21) it was revealed

that human blood was found in the seized articles. Thereafter, after

due investigation, the appellant was charge sheeted for the aforesaid

offence under Section 302 of I.P.C. which was ultimately committed

to the Court of Sessions for hearing and disposal in accordance with

law.

4. The appellant abjured his guilt and entered into defence. However,

the prosecution in order to prove its case examined as many as 7

witnesses and exhibited 21 documents and the appellant-accused in

support of his defence has neither examined any witness nor

exhibited any document.

5. The trial Court, after appreciation of oral and documentary evidence

on record, convicted the appellant for the offence under Section 302

of I.P.C. and sentenced him as above, against which the present

appeal has been preferred.

6. Mr. Shashi Kumar Kushwaha, learned counsel for the appellant

would submit that the prosecution has failed to bring home the

offence and the trial Court has committed gross error in convicting

the appellant and held him to be perpetrator of the crime, as such,

his conviction is liable to be set aside. In alternative, he would submit

that the case of the appellant would fall within exception 4 to section

300 of I.P.C. and therefore his conviction under Section 302 of I.P.C.

be altered to Part-I of section 304 of I.P.C.

7. Per contra, Mr. Anmol Sharma, learned State counsel, would support

the impugned judgment and submit that the prosecution has able to

bring the offence and learned trial Court has rightly convicted the

appellant herein for offence punishable under Section 302 of IPC.;

therefore, 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 is whether the death of deceased

Sanjhai Bai was homicidal in nature ?

10. Learned trial Court has recorded an affirmative finding in this regard

on the basis of medical opinion of Dr. R.S.Singh (PW-3) as well as

post mortem report (Ex.P-12-A) in which cause of death was found to

be shock due to renal injury and excessive bleeding from buttock and

nature of death was homicidal. Taking consideration of the entire

evidence available on record as well as looking to the injuries

sustained by the deceased and relying upon the medical opinion of

Dr. R.S.Singh (PW.-3) as well as postmortem report (Ex.P-12-A), we

are of the considered opinion that learned trial Court has rightly held

the death of deceased Sanjhai Bai to be homicidal in nature.

Moreover, the fact that death of the deceased was homicidal in

nature has also not been seriously disputed by learned counsel for

the appellant. As such, we hereby affirm the said finding recorded by

the trial Court that the death of deceased Sanjhai Bai was homicidal

in nature.

11. Now the question is whether the appellant is the perpetrator of the

crime in question ?

12. There is no direct evidence available on record and the conviction is

based on circumstantial evidence, which has been recorded by the

trial Court in para 11 of the judgment, which is quoted herein :

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13. The trial Court has found the above stated four circumstances proved

by prosecution, Patar Sai in whose house the appellant and his wife

alongwith their daughter visited, who has been examined as PW-1.

Though he has turned hostile, but in para 9, he has stated that in the

late night at about 12 p.m., the appellant came alongwith his wife and

daughter and asked for food for his minor daughter and they served

food to his daughter and thereafter they went back to his house.

Thereafter, the dead body of Sanjhai, wife of the appellant was

found, as such, Patar Sai (PW-1) has supported the case of the

prosecution and proved the aforesaid fact and seen the appellant

and deceased last together on the intervening night of 29-30 March

2011.

14. Similarly, Naihar Sai (PW-4), Nirmal Minz (PW-5) and Bansidhar

Yadav (PW-6) have stated that they have seen blood on the cloth of

the appellant and he has made extra-judicial confession to them, as

such, this fact has also rightly been found to be proved by the

learned trial Court. Similarly, in the FSL report (Ex.P-21) from the

bloodstained seized articles i.e. shirt gamchha and lathi, human

blood was found, as such, the trial Court has rightly held that the

appellant is perpetrator to the crime.

15. Now, at this stage, it would be appropriate to consider the

argument advanced on behalf of the appellant that case of the

appellant would fall under Exception 4 to Section 300 of the IPC.

16. The Supreme Court in the matter of Arjun v. State of

Chhattisgarh1 has elaborately dealt with the issue of Exception 4

to Section 300 of the IPC 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 a fit of anger. Of course, the offender must not have

1(2017) 3 SCC 247

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 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 cause murder and bodily injury, then same would be a case of

Section 304 Part-II of the IPC.

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

of Delhi)2 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.

By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a "saria" and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife's neck also depicts an act of extreme cruelty.

17. From the evidence on record it is clear that the incident occurred in a sudden fight and there was no premeditation. Even the primary witness PW 7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother, deceased, with the "saria" when she had taken out some money from the appellant's wallet. It is not as if "saria" was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria) was picked up at the spur of the moment at the time of incident and used to compress the neck forcefully. In that view of the matter it is nothing but an act committed by the appellant in a 2(2019) 6 SCC 122

heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section 300 IPC on the ground that appellant compressed his wife's neck also depicts an act of extreme cruelty. Having regard to the nature and manner of incident it cannot be said that act of the appellant was extremely cruel. Unless it is barbaric, torturous and brutal, strangulation of the appellant's wife cannot be said to be an act of extreme cruelty for denying the benefit of Exception 4 to Section 300 IPC."

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

law laid down by their Lordships of the Supreme Court in Arjun

(supra) and Rambir (supra), the trial Court has found in para 11 that

after taking food and returning from the house of the Patar Sai (PW-

1), dispute arose between the appellant and deceased and then he

assaulted the deceased by hand & fist as well as Lathi due to which

she suffered injuries and died, as such, it appears from the record

that there was no premeditation or intention on the part of the

appellant to cause death but on account of sudden anger and in heat

of passion, the appellant assaulted his wife. Moreover, looking to the

injury suffered by the deceased it is evident that the appellant must

have had the intention and knowledge that the said injury would be

sufficient to cause death. As such, the case of the appellant would

fall within Exception 4 to Section 300 of IPC and since there was

intention as well as knowledge on the part of the appellant to cause

death of the deceased, therefore, his conviction under Section 302 of

I.P.C. is altered to Section 304 Part-I of I.P.C.

20. In that view of the matter, 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, and instead

thereof, the appellant is convicted for offence punishable under

Section 304 Part I of the IPC. Since the appellant is in custody since

31.03.2011 i.e. for more than 10 years, he is sentenced to the period

already undergone. He be released forthwith, if his detention is not

required in any other case.

21. The criminal appeal is party allowed to the extent indicated herein-

above.

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

Ashok