Budhwar Singh @ Bhursa Baiga vs State Of Chhattisgarh
2022 Latest Caselaw 7109 Chatt

                                         1



                                                                         NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 1557 of 2021

Budhwar Singh @ Bhursa Baiga S/o Dukhal Baiga Aged About 30 Years
R/o Village- Atariya, Chowki-Khudiya, Police Station- Lormi, District-
Mungeli Chhattisgarh
                                                                ---Appellants

                                       Versus

State Of Chhattisgarh Through- The Station House Officer, Police Chowki-
Khudiya, Police Station-Lormi, District- Mungeli Chhattisgarh

                                                            ---Respondent


For Appellant      :-    Mr. K.P. Sahu, Advocate
For State          :-    Mr. Sudeep Verma, Dy. Govt. Advocate


                 Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Naresh Kumar Chandravanshi

                            Judgment on Board
                                28/11/2022

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. is directed

against the impugned judgment dated 07.03.2017 passed by learned

Additional Sessions Judge, Mungeli, District Mungeli, in Sessions

Trial No.19/2015 by which the appellant herein has been convicted

for the offence under Sections 302 and 201 of I.P.C. and sentenced

for life imprisonment with fine of Rs.500/- and R.I. for 5 years with

fine of Rs.200/- respectively.

2. Case of the prosecution, in brief, is that on 18.01.2015 at 10 p.m. in

the night, the appellant assaulted his wife by Spade by which she

suffered injuries and died; thereby, the appellant has committed the

offence under Section 302 of I.P.C. and he also committed the

offence under Section 201 of I.P.C.

3. Further case of the prosecution is that on 24.01.2015 a report was

lodged by Rama Baiga (PW-7) that on 18.01.2015 at about 10 p.m.

the appellant under the influence of liquor while taking his meal

started altercation and assaulted his sister Sukwati Bai by Spade in

the back portion of his head by which she suffered grievous injuries,

which was intervened by Lallu (PW-1), Rama (PW-7) and other

villagers, but the appellant refused to take the injured to hospital for

treatment pursuant to which she died after 4 days on 23.01.2015. On

the report of Lallu (PW-1) Dehati Nalicy vide Ex.P-11 and merg

intimation vide Ex.P-16 were registered. On the merg enquiry, it was

revealed that appellant has assaulted his wife on the influence of

liquor by Spade and thereby the FIR was registered vide Ex.P-19

and Naksha Panchnama by Ex.P-7 and Spot Map by Ex.P-3 was

prepared. The bloodstained soil was seized by Ex.P-4 and pursuant

to the memorandum statement vide Ex.P-5, one iron spade and

clothes were seized vide Ex.P-6 and after panchnama of the dead

body, it was sent for post mortem vide Ex.P-2 and the post mortem

report (Ex.P-15) was proved by Dr. Jitendra Paikra (PW-10). Seized

articles were sent for FSL and in the FSL report (Ex.P-16) no blood

was found. Thereafter, the statements of the prosecution witnesses

were recorded and after due investigation, the appellant was charge-

sheeted for the aforesaid offences which was committed to the Court

of Sessions for hearing and disposal in accordance with law.

4. In order to bring home the offence, prosecution examined as many as

11 witnesses and exhibited 26 documents. The appellant abjured his

guilt 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 Sections 302

and 201 of I.P.C. and sentenced as above against which the present

appeal has been preferred.

6. Mr. K.P.Sahu, learned counsel for the appellant would submit that

there is no direct and circumstantial evidence to convict the appellant

for the offence punishable under Sections 302 and 201 of I.P.C. 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 either to Part-I or Part-II of Section 304 of I.P.C.

and the appeal be allowed in part.

7. Per contra, Mr. Sudeep Verma, learned State counsel, would support

the impugned judgment and submit that learned trial Court has rightly

convicted the appellant for offence punishable under Sections 302

and 201 of IPC and it is not a case which is covered under Exception

4 to Section 300 of IPC, as such, the conviction of the appellant

cannot be converted to either Part I or Part II of Section 304 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

Sukwati Bai was homicidal in nature ?

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

relying upon the post mortem report (Ex.P-15) proved by Dr. Jitendra

Paikra (PW-10) which is a finding of fact based on evidence available

on record, it is neither perverse nor contrary to the record and we

hereby affirm the said finding.

11. Now, the question would be, whether the appellant is the perpetrator

of the crime in question ?

12. Lallu (PW-1) and Rama Baiga (PW-7) both are brothers of the

deceased and on the fateful day they have gone to the house of the

appellant & deceased and they have witnessed the incident and in

their cross-examination nothing has transpired from them.

Furthermore, pursuant to the memorandum statement of the

appellant, spade was recovered though in FSL report (Ex.P-26),

though no bloodstain was found. In view of the evidence of eye-

witnesses, it is held that the appellant is the perpetrator of the crime.

13. Now, the question that requires consideration is whether the trial

Court is justified in convicting the appellant for offence punishable

under Section 302 of IPC or his case is covered under Exception 4 to

Section 300 of IPC and as such, his conviction can be altered to

either Part-I or Part-II of Section 304 of IPC, as contended by learned

counsel for the appellant ?

14. In order to consider whether the case of the appellant is covered

within Exception 4 to Section 300 of IPC, it would be appropriate to

notice the decision rendered by the Supreme Court in the matter of

Sukhbir Singh v. State of Haryana 1 wherein it has been observed

as under :-

1 (2002) 3 SCC 327

"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."

15. 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, 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;

(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;

2 (2009) 15 SCC 635

(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."

16. 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 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.

17. 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 :-

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

"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 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".

18. 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.

19. 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."

20. Reverting to the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme Court

and in view of the statement of Rama Baiga (PW-7) and mother of

the deceased Shanti Bai (PW-8) that the appellant used to quarrel

with his wife on the influence of liquor, as such, there was no

premeditation on the part of the appellant to cause the death of the

deceased Sukwati Bai and only because of influence of liquor, on

sudden quarrel erupted between them and out of sudden anger and

in heat of passion, the appellant assaulted the deceased on her head

by spade by which she suffered injuries. As such, appellant must

have had the knowledge that his act would likely cause the death of

the deceased.

21. In that view of the matter, we are of the opinion that the case of the

appellant is covered within Exception 4 to Section 300 of IPC and

since the appellant had no intention and premeditation to cause the

death of the deceased, however, he must have had the knowledge

that his act of assault would cause the death of the deceased, his

conviction for offence punishable under Section 302 of IPC is altered

to Section 304 Part II of IPC. Since the appellant is in jail since

24/01/2015, i.e. for more than 7 years, we hereby sentence him to

the period already undergone, however, the sentence of fine amount

as imposed by the trial Court is hereby maintained. Further, we are of

the opinion that no offence is made out under Section 201 of I.P.C.

and therefore the conviction and sentence for the said offence is

hereby set aside. The appellant be released forthwith, if not required

in any other case.

22.Accordingly, this criminal appeal is allowed to the extent indicated

herein-above.

                     Sd/-                                Sd/-
             (Sanjay K. Agrawal)         (Naresh Kumar Chandravanshi)
                   Judge                               Judge

Ashok