Chattisgarh High Court
Sharad Kumar Sahu vs State Of Chhattisgarh on 23 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1109 of 2013
Sharad Kumar Sahu S/o Sukhram Sahu, Aged about 40
years, R/o Krishna Nagar, Gandhi Chowk, Supela, P.S.
Supela, Tahsil Civil and Revenue District Durg,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Police Station Supela,
Tahsil/Civil and Revenue District Durg, Chhattisgarh.
---Respondent
For Appellant :- Mr. Mirza Kaiser Baeg, Advocate
For State :- Mr. Anmol Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
23/11/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been
preferred by the appellant herein assailing the impugned
judgment dated 17/09/2013 passed by learned Sessions
Judge, Durg in Sessions Trial No. 02/2013 whereby he has
been convicted for offence punishable under Section 302 of
IPC and sentenced to undergo imprisonment for life with
fine of Rs. 1000/- and for default in payment of fine,
additional S.I. for 6 months.
2. Case of the prosecution, in brief, is that on 29/07/2013 at
about 12:30 PM in Krishnanagar, Supela within the ambit
of P.S. Supela, the appellant herein assaulted his mother
Smt. Neera Bai Sahu with iron pestle on her head due to
which she suffered grievous injuries and succumbed to
death and he, thereby, committed the aforesaid offence.
3. Further case of the prosecution is that on 29/07/2012 at
about 12:30 PM, Assistant Sub-Inspector Ishwar Lal Yadav
(P.W.-17), on the basis of the information received by
Sukhram Sahu (P.W.-1), husband of the deceased and
father of the appellant, went to the District Hospital, Durg
and inquired Sukhram Sahu (P.W.-1) wherein he stated that
appellant had given some money as a loan to one Domanlal,
who was not returning the money to him. On the day of the
incident, at about 12 noon, appellant asked his father
Sukhram Sahu (P.W.-1) to take money from Domanlal and
bring him to the house. When Sukhram Sahu (P.W.-1)
refused, the appellant started abusing him and thereafter,
deceased Smt. Neera Bai Sahu, wife of Sukhram Sahu
(P.W.-1) and mother of the appellant, tried to intervene and
stopped him from abusing his father and out of anger, the
appellant assaulted the deceased on her head with iron
pestle kept in the house due to which she suffered grievous
injuries and thereafter, she was escorted to the District
Hospital, Durg by her husband Sukhram Sahu (P.W.-1). On
the basis of the said information, dehati nalishi was
registered vide Ex. P/1 and thereafter, crime No. 513/2012
was registered against the appellant for offence punishable
under Section 307 of IPC vide Ex. P/26. Injured Smt. Neera
Bai Sahu was examined by Dr. Ramesh Dutt Sharma (P.W.-
8) who found injuries on her head and looking to her
serious condition, she was admitted in the hospital and on
that basis, MLC report (Ex. P/12) and Bed-head ticket (Ex.
P/13) were prepared.
4. Smt. Neera Bai Sahu succumbed to death on the same day
at District Hospital, Durg. Thereafter, merg intimation was
registered vide Ex. P/19 and after summoning the witnesses
vide Ex. P/3, inquest was conducted vide Ex. P/4 and the
dead body was subjected to postmortem, which was
conducted by Dr. Nohar Prasad Jangde (P.W.-15) and as per
the postmortem report (Ex. P/25), cause of death is said to
be hemorrahge and shock as a result of head injury and the
nature of death is said to be homicidal. Pursuant thereof,
memorandum statement of the appellant was recorded vide
Ex. P/8A and recovery of iron pestle was made at the
instance of the appellant vide Ex. P/9. Moreover, the shirt
worn by the appellant which had blood like stains was also
seized vide Ex. P/10. The said seized articles were sent for
chemical examination and as per FSL report (Ex. P/28),
blood was found only on the shirt of the appellant, though
origin of blood could not be ascertained. After due
investigation, the appellant was charge-sheeted for offence
punishable under Section 302 of IPC and it was committed
to the Court of Session for trial in accordance with law. The
appellant abjured his guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as
many as 17 witnesses and brought on record 28
documents. The statement of appellant/accused person was
recorded wherein he denied guilt, however, he examined
none in his defence but exhibited the statement of Ku.
Saraswati Sahu (P.W.-2) under Section 161 CrPC as Ex.
D/1.
6. Learned trial Court, after appreciation of oral and
documentary evidence on record, holding the death of
deceased Smt. Neera Bai Sahu to be homicidal in nature
and further holding the appellant to be the perpetrator of
the crime in question on the basis of sole testimony of eye-
witness Ku. Saraswati Sahu (P.W.-2), proceeded to convict
him for offence punishable under Section 302 of IPC and
sentenced him as aforesaid.
7. Mr. Mirza Kesar Baeg, learned counsel for the appellant,
would make two-fold submission :-
i) that, merely on the basis of ocular evidence in the form of
testimony of Ku. Saraswati Sahu (P.W.-2), who is an
interested witness, conviction of the appellant could not
have been recorded by the trial Court, as such, the
impugned judgment be set aside and he be acquitted of the
charge by allowing the instant appeal in toto.
ii) that, even if appellant is held to be the perpetrator of the
crime in question, his case would fall within exception 4 to
Section 300 of IPC as he did not have any premeditation to
cause the death of the deceased and only out of sudden
anger and in heat of passion, he assaulted her and as such,
his conviction under Section 302 of IPC be altered to
Section 304 Part I or II of IPC and the instant appeal be
allowed in part and since the appellant is in jail since
30/07/2012, he be sentenced for the period already
undergone.
8. Per contra, Mr. Anmol Sharma, learned State counsel,
would support the impugned judgment and submit that
prosecution has been able to bring home the offence and the
trial Court has rightly convicted the appellant for the said
offence on the basis of testimony of eye-witness Ku.
Saraswati Sahu (P.W.-2), as such, the instant appeal
deserves to be dismissed.
9. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
10. The first question for consideration, is whether the death of
deceased Smt. Neera Bai Sahu was homicidal in nature ?
11. Learned trial Court has recorded an affirmative finding in
this regard holding the death of deceased Smt. Neera Bai
Sahu to be homicidal in nature relying upon the
postmortem report (Ex. P/25) which has been proved by Dr.
Nohar Prasad Jangde (P.W.-15) and in which it has been
clearly recorded that the cause of death is due to
hemorrhage and shock as a result of fracture of both the
parietal bones of the skull. In his statement, when the
question as to whether the death of the deceased was
homicidal in nature has been asked by the Court, Dr. Nohar
Prasad Jangde (P.W.-15) has stated that he cannot surely
tell whether the death was homicidal or not, however, he
has stated that deceased died due to the injuries suffered by
her on her head and he has further stated that the injuries
suffered by the deceased could have been caused by a hard
and blunt object. We are of the considered opinion that the
trial Court has rightly relied upon the statement of Dr.
Nohar Prasad Jangde (P.W.-15) as well as the postmortem
report (Ex. P/25) to hold the death of deceased to be
homicidal in nature. We hereby affirm the said finding
recorded by the trial Court, more so, when it has not been
seriously questioned by learned counsel for the appellant.
12. The next question for consideration is, whether the
appellant is the perpetrator of the crime in question ?
13. Learned trial Court has also recorded an affirmative finding
in this regard relying upon the sole testimony of eye-witness
Ku. Saraswati Sahu (P.W.-2), daughter of the deceased and
sister of the appellant, who has clearly stated that on the
date of the incident, at about 12 noon, appellant was asking
his father Sukhram Sahu (P.W.-1) to go and take back the
money he had lent to one Doman Sahu and he was also
abusing his father in this context. Meanwhile, deceased
came out from the bathroom and asked the appellant not to
abuse his father but the appellant took the iron pestle kept
in the house and inflicted two-three blows on the head of
the deceased due to which she suffered grievous injuries.
Thereafter, she started shouting loudly and after hearing
her, neighbors gathered at their house and her father
Sukhram Singh (P.W.-1) her sister Ku. Saroj Sahu (P.W.-3)
escorted the deceased to the Hospital but she succumbed to
death on the same day. Though Ku. Saraswati Sahu (P.W.-
2) has been subjected to some length of cross-examination,
but nothing could be extracted from her which could show
that she has not seen the appellant assaulting the
deceased. As such, her testimony, being credible and
trustworthy, inspires confidence.
14. Moreover, pursuant to the memorandum statement of the
appellant vide Ex. P/8A, recovery of iron pestle has been
made vide Ex. P/9 and it has been supported by seizure
witness Santosh Shrirangey (P.W.-5). The shirt worn by the
appellant at the time of the incident has also been seized
vide Ex. P/10 and the iron pestle as well as the shirt of the
appellant were sent for chemical examination along with
other seized articles and as per the FSL report (Ex. P/28),
blood has been found on the shirt worn by the appellant.
15. As such, the testimony of Ku. Saraswati Sahu (P.W.-2) is
quite clear, coherent and reliable to hold that appellant is
the perpetrator of the crime in question. Even it is well-
settled law that on the basis of sole testimony of eye-
witness, conviction can be rested, sans any other evidence,
provided always, the evidence of eye-witness is absolutely
credible. In the instant case, the sole testimony of Ku.
Saraswati Sahu (P.W.-2) has also been corroborated by
circumstantial evidence of memorandum and seizure. Thus,
we are of the considered opinion that learned trial Court
has rightly held the appellant to be the perpetrator of the
crime in question relying upon the sole testimony of eye-
witness Ku. Saraswati Sahu (P.W.-2).
16. Now, the question for consideration is, whether the case of
the appellant would fall within Exception 4 to Section 300 of
IPC and whether his conviction under Section 302 of IPC
can be altered to Section 304 Part I or II of IPC, as
contended by learned counsel for the appellant ?
17. At this stage, it would re relevant to notice Exception 4 to
Section 300 of IPC, which states as under :-
"Exception 4 - Culpable homicide is not murder if it
is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel
and without the offender having taken undue
advantage or acted in a cruel or unusual manner."
18. In the matter of Sukhbir Singh v. State of Haryana1, it has
been observed by the Supreme Court 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 Sukhir 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."
19. Thereafter, in the matter of Gurmukh Singh v. State of
Haryana2, Their Lordships of the Supreme Court have laid
down certain factors which are to be taken into
consideration before awarding appropriate sentence to the
accused 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 for 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
(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 with
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 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."
20. Likewise, in the matter of State v. Sanjeev Nanda3, their
Lordships of the Supreme Court have held that once
3 (2012) 8 SCC 450
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 is 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.
21. In a recent decision rendered by their Lordships of the
Supreme Court in the matter of Mohd. Rafiq v. State of
M.P.4, reliance has been placed upon its earlier decision in
the matter of Pulicherla Nagaraju v. State of A.P.5 wherein
the considerations that should weigh with Courts, in
discerning whether an act is punishable as murder, or
culpable homicide, not amounting to murder, were outlined
and it has been observed in paragraph 13 as under :-
"13. The considerations that should weigh with
courts, in discerning whether an act is punishable as
murder, or culpable homicide, not amounting to
murder, were outlined in Pulicherla Nagaraju (supra).
This court observed that: (SCC pp. 457-58, para 29)
"29. Therefore, the court should proceed to decide
the pivotal question of intention, with care and
caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters - plucking of a
fruit, straying of cattle, quarrel of children,
utterance of a rude word or even an objectionable
glance, may lead to altercations and group clashes
culminating in deaths. Usual motives like revenge,
greed, jealousy or suspicion may be totally absent
in such cases. There may be no intention. There
4 (2021) 10 SCC 706
5 (2006) 11 SCC 444
may be no premeditation. In fact, there may not
even be criminality. At the other end of the
spectrum, there may be cases of murder where the
accused attempts to avoid the penalty for murder
by attempting to put forth a case that there was no
intention to cause death. It is for the courts to
ensure that the cases of murder punishable under
Section 302, are not converted into offences
punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder are
treated as murder punishable under Section 302.
The intention to cause death can be gathered
generally from a combination of a few or several of
the following, among other, circumstances: (i)
nature of the weapon used; (ii) whether the weapon
was carried by the accused or was picked up from
the spot; (iii) whether the blow is aimed at a vital
part of the body;(iv) the amount of force employed
in causing injury; (v) whether the act was in the
course of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by chance
or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger;(viii) whether there was
any grave and sudden provocation, and if so, the
cause for such provocation; (ix) whether it was in
the heat of passion; (x) whether the person inflicting
the injury has taken undue advantage or has acted
in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other special
circumstances with reference to individual cases
which may throw light on the question of intention."
22. Further, the Supreme Court in the matter of Arjun v. State
of Chhattisgarh6 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
6 (2017) 3 SCC 247
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".
23. 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 Part-I 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.
24. Reverting to the facts of the present case in light of the
aforesaid principle of law laid down by Their Lordships of
the Supreme Court in Mohd. Rafiq (supra) and Arjun
(supra), it is quite vivid that deceased was mother of the
appellant and on the date of the incident, the appellant was
abusing his father Sukhram Sahu (P.W.-1) on the premises
of taking money back from one Doman Sahu, which he had
given as loan and meanwhile, deceased Smt. Neera Bai
Sahu came out of the bathroom and stopped the appellant
from abusing his father and out of sudden anger and in
heat of passion, the appellant picked up the iron pestle kept
in the house and assaulted the deceased on her head which
goes to show that there was no premeditation on his part to
cause the death of the deceased and merely because she
intervened in the quarrel that was happening between the
appellant and his father Sukhram Sahu (P.W.-1), the
appellant assaulted her. However, the appellant inflicted
two-three blows on the head of the deceased which shows
that he must have had intent as well as knowledge that his
act is likely to cause the death of the deceased. Therefore,
we are of the considered opinion that conviction of the
appellant under Section 302 of IPC can be altered to Section
304 Part I of IPC, as contended by learned counsel for the
appellant.
25. In conclusion of the aforesaid discussion, we set aside the
conviction of the appellant for offence punishable under
Section 302 of IPC and the sentence so awarded by the trial
Court and we hereby convict the appellant for offence
punishable under Section 304 Part I of IPC and since he is
in jail since 30/07/2012 i.e. for more than 10 years, he is
sentenced for the period already undergone by him. He be
released forthwith, if his detention is not required in any
other case.
26. Accordingly, this criminal appeal is allowed to the extent
indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet
