Chattisgarh High Court
Balak Ram Manjhi vs State Of Chhattisgarh on 20 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 167 of 2016
Balak Ram Manjhi, S/o. Pradhan Manjhi, Aged About 35 Years, Profession
Farmer, R/o. Village Pahadludeg, Police Station And Tahsil Lailunga, District
Raigarh Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Lailunga, District Raigarh, Chhattisgarh.
---Respondent
For Appellant :- Mr. Naveen Shukla, Advocate on behalf of Ms. Smita
Jha, Advocate
For State :- Mr. Afroz Khan, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
20/10/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been
preferred against the impugned judgment dated 24.11.2015
(Annexure A/1) passed by learned Sessions Judge, Raigarh in
Sessions Trial No.87/2015 whereby the appellant has been convicted
for the offence under Section 302 of I.P.C. and Section 25 & 27 of
the Arms Act.
2. Case of the prosecution, in brief, is that on 16.04.2015, at about 7:00
A.M. at village Pahadludeg, P.S. Lailunga, District Raigarh, the
appellant assaulted his wife Guruwari Manjhi by farsa and caused
her death alleging that she is not taking care of his house and not
cleaning it properly and thereby, he committed aforesaid offences.
3. Further case of the prosecution is that on 16.04.2015, at about 8:15
P.M., Jiyat Ram Manjhi (PW-4) lodged a report in the Police Station
Lailunga against the appellant for offence under Section 307 of I.P.C.
vide Ex.P-14 and thereafter, the wheels of investigation started
running. Counter nalasi was registered vide P-17 and information
was received from the Community Health Centre Lailunga on
16.04.2015 itself that Guruwari died pursuant to which merg
intimation was registered vide P-18 and thereafter, the inquest was
conducted vide Ex.P-7 and dead body was sent for post mortem
which was conducted by Dr. Manoj Patel (PW-3). As per the post
mortem report (Ex.P-10) the cause of death is neurogenic shock due
to injury over parietal region of skull bone and the nature of death
was homicidal. Pursuant to memorandum statement of the appellant
vide Ex.P-2, blood stained farsa was recovered from the Kitchen of
the appellant and seizure was made vide Ex.P-3. It was sent for FSL
vide Ex.24 & 25 but FSL report was not brought on record.
Thereafter, the statement 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 Session for hearing and disposal in accordance with law.
4. In order to bring home the offence, prosecution examined as many as
8 witnesses and exhibited 25 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 Section 302
of I.P.C. and under Section 25 & 27 of the Arms Act and sentenced
as above against which the present appeal has been preferred.
6. Learned counsel for the appellant would submit that the trial Court is
absolutely unjustified in convicting the appellant for the offence
punishable under Section 302 of I.P.C. and under Section 25 & 27 of
the Arms Act as both the eye-witnesses namely Ku. Lalita (PW-5)
and Ku. Babita (PW-6) are daughters of the appellant. Moreover,
though blood stained farsa has been seized vide Ex.P-3 pursuant to
memorandum statement of the appellant vide Ex.P-2 but no FSL
report has been brought on record to establish the origin of the blood
found on it to convict him for the aforesaid offences. 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.
7. Per contra, Mr. Afroz Khan, learned State counsel, would support the
impugned judgment and submit that learned trial Court has rightly
convicted the appellant herein for offence punishable under Section
302 of IPC and Section 25 & 27 of Arms Act and it is not a case
which is covered with 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
Guruwari was homicidal in nature ?
10. Learned trial Court has recorded an affirmative finding in this regard
on the basis of medical opinion of Dr. Manoj Patel (P.W.-3) as well as
postmortem report (Ex.P-10) wherein it has categorically been held
that cause of death is neurogenic shock due to injury over parietal
region of skull bone and the nature of death is homicidal. Taking
consideration of the entire evidence available on record as well as
looking to the injuries sustained by the deceased on his head and
relying upon the medical opinion of Dr. Manoj Patel (P.W.-3) as well
as postmortem report (Ex.P-10), we are of the considered opinion
that learned trial Court has rightly held the death of deceased
Guruwari 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 Guruwari was homicidal in nature.
11. The next question for consideration is whether the appellant is the
perpetrator of the crime in question ?
12. Learned trial Court has also recorded an affirmative finding in this
regard and held that appellant is the perpetrator of the crime in
question relying upon the statements of the eye-witnesses Ku. Lalita
(PW-5) and Ku. Babli (PW-6).
13. Ku. Lalita (PW-5), who has been cited as an eye-witness, has clearly
stated in her statement before the Court that her father has caused
the death of her mother by assaulting on her head with farsa,
however, she has further stated that when her father assaulted her
mother, they were inside the house but she was outside the house.
Upon being subjected to cross-examination, she has further stated
that she has not seen her father assault her mother as at that time
she was outside the house, as such, she is not an eye-witness and
has not witnessed the incident.
14. Ku. Babli (P.W.- 6), who has also been cited as an eye-witness by the
prosecution, has stated before the Court that her father has
assaulted her mother on head with farsa and thereby caused her
death on the pretext that she did not do her work properly, however,
she has further stated that when her father caused the death of her
mother, they were inside the house while she was sitting in the
courtyard (parcchi) along with her brother Mahesh and her sister Ku.
Lalita (P.W.-5). In cross-examination also, she has admitted that she
has not seen the incident.
15. Pursuant to the memorandum statement of the appellant vide Ex.
P/2, seizure of blood stained farsa has been made vide Ex. P/3
which has been proved by memorandum and seizure witness namely
Heera Painkra (P.W.-1). The said farsa seized from the possession of
the appellant was though sent for FSL vide Ex. P/24 and P/25 but no
FSL report has been brought on record to establish that the blood
found on the said farsa was that of the deceased, much less it was
human blood. As such, after going through the entire evidence
available on record, we are of the considered opinion that it can
safely be held that appellant is indeed the perpetrator of the crime in
question.
16. 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 with 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 ?
17. In order to consider whether the case of the appellant is covered with
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 Haryana1 wherein it has been 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 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."
18. 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 :-
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
"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;
(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."
19. 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.
20. 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
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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".
21. 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.
22. 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."
23. 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, it
is quite vivid that there was no premeditation on the part of the
appellant to cause the death of the deceased and only because
deceased Guruwari was not cleaning the house properly, sudden
quarrel erupted between them and out of sudden anger and in heat
of passion, the appellant assaulted the deceased on her head with a
farsa which has been established by the statement of Jiyatram
Manjhi (P.W.-4) which goes to show that he had no intention to cause
the death of the deceased which is also established from the fact that
the appellant only inflicted single blow on the head of the deceased.
However, looking to the injury suffered by the deceased on her head,
which is a vital part of the body, appellant must have had the
knowledge that his act would likely cause the death of the deceased.
In that view of the matter, we are of the opinion that the case of the
appellant is covered with 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
16/04/2015, 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 and the conviction
of the appellant for offence punishable under Section 25 and 27 of
the Arms Act is also maintained. The appellant be released forthwith,
if not required in any other case.
24.Accordingly, this criminal appeal is allowed to the extent indicated
herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Ashok
