Chandrika And Ors vs State Of Chhattisgarh
2022 Latest Caselaw 6157 Chatt

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                                                                                              NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                              Criminal Appeal No. 582 of 2012

    1. Chandrika S/o Lakhan Uraon (Gond), aged about 25 years,
    2. Bhagwat S/o Lakhan Uraon (Gond), aged about 21 years,
        Both are resident of Village Khardi, Police Station Pendra, District
        Bilaspur (CG)
    3. Bir Singh S/o Santram Uraon, aged about 22 years, R/o Pandariya,
        Police Station Pendra, District Bilaspur (CG)
    4. Sarju S/o Rain Singh Gond, aged about 22 years, R/o Village Khardi,
        (Mungadih) Police Station Pendra, District Bilaspur (CG)
                                                                                  ---- Appellants
                                                                                         (In Jail)
                                              Versus
        State of Chhattisgarh Through Station House Officer, Police Station
        Pendra, District Bilaspur (CG)
                                                                                ---- Respondent
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For Appellants                   :        Mr.Rajesh Jain, Advocate
For Respondent-State :                    Mr.Afroz Khan, Panel Lawyer

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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari

Judgment on Board (10.10.2022) Sanjay K. Agrawal, J

1. This criminal appeal preferred by the appellants herein under Section

374(2) of the CrPC is directed against the impugned judgment of

conviction and order of sentence dated 26.5.2012, passed by the

learned Additional Sessions Judge, Pendra Road, District Bilaspur in

Sessions Trial No.37/2012, whereby appellant No.1 has been

convicted for offence under Section 302 of the IPC and appellants

No.2 to 4 have been convicted for offence under Section 302/34 of the

IPC and sentenced them to undergo imprisonment for life and further

sentenced to fine of Rs.500/-, in default of payment of fine, to further

undergo R.I. for two months.

2. Case of the prosecution, in brief, is that on 28.5.2011 at about 7.30-8

p.m. at village Chandhouri, Police Station Pendra, District Bilaspur the

appellants in furtherance of common intention assaulted and

strangulated Chandrapal Uraon and caused his death and thereby

committed the offence. It is admitted position on record that marriage

of Mantram Uraon was solemnized with Kamleshwari, sister of

appellants No.1 and 2 on 28.5.2011 at village Khardi, in which

deceased Chandrapal and other 100 persons had reached to village

Khardi along with barat party at 5 p.m. and they were asked to stay at

school at village Khardi. At 5 p.m. Kumari Meena with her friends, Raju

and deceased Chandrapal were dancing near the place of marriage, at

that time, appellants No.3 and 4 were joined the dance where Kumari

Meena and deceased Chandrapal all were dancing, which was

objected by the deceased and one Raju (PW-2) and asking them to

dance separately and on that account, the dispute arose and in that

course of event, bride's brother appellant No.1 is alleged to have tight

the towel around the neck of the deceased and pulled him and taken

to his courtyard, which was followed by appellants No.2, 3 and 4 and

they said to have assaulted by hands and fists and thereafter fled

away from the spot. Chandrapal was taken to Government Hospital,

Pendra where he was directed to be taken at Senotoriem Hospital,

Gourela and at the time of admission at Senotoriem Hospital, Gourela

at 1 a.m., he died. On the basis of report of Raju (PW-2), FIR (Ex.P-5)

was registered. Postmortem was conducted by Dr.H.P.Singh (PW-8)

vide Ex.P-11 and opined that cause of death was asphyxia due to

throttling and death was homicidal in nature. No injury on chest and

other parts of the body were found. Towel was recovered vide Ex.P-15.

Statements of the witnesses were recorded and after due

investigation, the police filed charge-sheet in the Court of Judicial

Magistrate First Class, Pendra Road, who in turn, committed the case

to the Court of Sessions, Bilaspur, from where the Additional Sessions

Judge, Pendra Road received the case on transfer for trial. The

appellants/accused abjured their guilt and entered into defence that

they have not committed any offence and they have falsely been

implicated in crime in question.

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

as 11 witnesses and exhibited 28 documents. The appellants-accused

examined none in their defence but produced statement of Meera Bai

as Ex.D-1 in their support.

4. The trial Court upon appreciation of oral and documentary evidence

available on record, by its judgment dated 26.5.2012, convicted

appellant No.1 for offence under Section 302 of the IPC and appellants

No.2 to 4 for offence under Section 302/34 of the IPC and sentenced

them as aforementioned, against which, this criminal appeal has been

filed.

5. Mr.Rajesh Jain, learned counsel for the appellants, would submit that

the prosecution has failed to bring home the offence and no case for

offence under Section 302 of the IPC would be made out and since

there was marriage of Kamleshwari, sister of appellants No.1 and 2

with Mantram Uraon on 28.5.2011 and since family members of

appellants No.1 and 2 joined the dance, which was being performed by

family members of Mantram Uraon on the date of marriage and at that

time, the dispute arose and postmortem report only reveals that cause

of death was asphyxia and only one injury around the neck has been

found and no other injury has been found and appellants No.2, 3 and 4

have stated that they have beaten the deceased by hands and fists

after he fell down. As such, at the best offence under Section 304

Part-II of the IPC is made out and it is the case where offence would

fall under Exception 4 to Section 300 of the IPC, as such, their

conviction for offence under Section 302 and 302/34 of the IPC can be

altered to offence under Section 304 Part II of the IPC and the appeal

deserves to be allowed in part.

6. On the other hand, Mr.Afroz Khan, learned Panel Lawyer for the

respondent/State, would support the impugned judgment and submit

that the trial Court has rightly convicted appellant No.1 for offence

under Section 302 and appellants No.2 to 4 for offence under Section

302/34 of the IPC and as such, the instant appeal deserves to be

dismissed.

7. We have heard learned counsel appearing for the parties and

considered their rival submissions made herein-above and also went

through the records with utmost circumspection.

8. The first question for consideration would be, whether death of

deceased Chandrapal was homicidal in nature ?

9. The trial Court after appreciating oral and documentary evidence

available on record particularly relying upon the statement of

Dr.H.P.Singh (PW-8), who has conducted postmortem vide Ex.P-11,

has come to the conclusion that death of the deceased was homicidal

in nature. After hearing learned counsel for the parties and after

considering the submissions, we are of the considered opinion that a

finding recorded by the trial Court that death of deceased Chandrapal

was homicidal in nature is a finding of fact based on evidence available

on record. It is neither perverse nor contrary to record. We hereby

affirm that finding.

10. The next question for consideration would be, whether the

appellants act would fall under Exception 4 to Section 300 of the IPC ?

11.Admittedly, the dispute erupted on account of dance being performed

by members of bride family and bridegroom family jointly, bridegroom

family, deceased Chandrapal, Kumari Meena and others firstly started

dancing which the bride family joined, which was objected by

deceased Chandrapal and Raju (PW-2), then the dispute arose and it

is the case of the prosecution that appellant No.1 had tied a towel

around the neck of the deceased and pulled him and thereafter

appellants No.2, 3 and 4 are stated to have beaten the deceased by

hands and fists after the deceased fell down, by which he suffered

injury and died.

12. The only contention raised on behalf of the appellants is that

there was no intention on the part of the appellants to cause death of

the deceased as marriage of Kamleshwari, sister of appellants No.1

and 2 was to be performed on that day with Mantram Uraon and there

was no occasion even to cause injury to anyone who had come along

with family of bridegroom.

13. The question for consideration would be, whether the trial Court

has rightly convicted the appellants for offence under Section 302 and

302/34 of the IPC or their case would be covered under Exception 4 of

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

murder and, thus, their conviction can be converted to Section 304

Part II of the IPC, as contended by learned counsel for the appellants ?

14. The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 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 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 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

1 (2002) 3 SCC 327 2 (2009) 15 SCC 635

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 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

3 (2012) 8 SCC 450

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.

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 :-

"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.

4 (2017) 3 SCC 247

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

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.

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

law laid down by their Lordships of the Supreme Court in the above-

stated judgments (supra), it is quite vivid that admittedly, marriage of

Kamleshwari, sister of appellants No.1 and 2 was to be solemnized

with Mantram on 28.5.2011 and on that day, barat along with

bridegroom had already reached to village Khardi and at the time of

offence, barat has already reached to the house of appellants No.1

and 2 for performing the marriage and at that time, when baratis were

dancing with Kumri Meena, Raju and deceased Chandrapal, then

appellant No.3-Bir Singh and appellant No.4-Sarju also joined the

dance, which was being performed by bridegroom family and others,

which was objected by other side and then dispute arose and appellant

No.1-Chandrika is alleged to have tied a towel around the neck of

deceased Chandrapal and pulled him, to which appellants No.2, 3 and

4 have joined and ultimately the deceased died. As such, it cannot be

held that there was intention on the part of the appellants to cause

death of the deceased, but the appellants must have had the

knowledge that such injury inflicted by them would likely to cause his

death, as such, their case would fall within the purview of Exception 4

of Section 300 of IPC, as the act of the appellants herein completely

satisfies the four necessary ingredients of Exception 4 to Section 300

of the 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, conviction of the appellants under

Section 302 of IPC is altered/converted to Section 304 Part-II of the

IPC.

20. Accordingly, conviction of appellant No.1 under Section 302 of

the IPC and conviction of appellants No.2, 3 and 4 under Section

302/34 is set aside and they are convicted under Section 304 Part-II of

the IPC. It is stated at the Bar that appellant No.1 is remained in jail for

more than 4 years and similarly, appellants No.2, 3 and 4 are remained

in jail for more than 3 years. Considering the fact situation of the case,

we hereby sentence to the appellants to the period already undergone

by them. The appellants are on bail, they need not surrender.

21. The criminal appeal is partly allowed to the extent indicated

herein-above.

                Sd/-                                   Sd/-

      (Sanjay K. Agrawal)                     (Deepak Kumar Tiwari)
           Judge                                  Judge