Aatram Santi vs State Of Chhattisgarh
2022 Latest Caselaw 5746 Chatt

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                                                                                  NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Appeal No. 770 of 201 5

Aatram Santi S/o Shri Aatram Mundi, aged 43 years, Residence of Village -
Gulla-penta, Police Station - Bhopal Patnam, District Bijapur (Chhattisgarh)
                                                                         ---- Appellant
                                                                               (In Jail)
                                        Versus
State of Chhattisgarh Through Police Station House Bhopal Patnam District
Bijapur (Chhattisgarh)
                                                                       ---- Respondent
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For Appellant : Mr.Ashok Verma and Mr.Gajendra Sahu, Advocates For Respondent-State : Mr.Afroz Khan, Panel Lawyer

-------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput

Judgment on Board (14.9.2022) Sanjay K. Agrawal, J

1. This criminal appeal preferred by the appellant-accused under Section

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

conviction and order of sentence dated 6.5.2015, passed by the

Sessions Judge, South Bastar Dantewada in Sessions Trial

No.80/2012, whereby the appellant-accused has been convicted for

offence under Section 302 of the IPC and sentenced to undergo

imprisonment for life.

2. Case of the prosecution, in brief, is that on 18.2.2012 at about 4 a.m.

at morning the appellant murdered his wife Atram Kamla by wooden

stick and thereby committed the offence. It is further case of the

prosecution that deceased Atram Kamla was residing along with the

appellant herein and his children at village Gulla Penta, Sanjaypara,

P.S. Bhopalpattnam. The deceased was earlier working in Aaganwadi

Center and on account of her salary, some amount was lying

deposited in the bank and on 16.2.2012 she has withdrawn some

amount from her account and out of which, the appellant had already

taken Rs.500/- out of that money and on 17.2.2012 he kept drinking

liquor on the whole day and again on 18.2.2012 at 4 a.m., the

appellant demanded money from his wife Atram Kamla, which she

refused to give, out of which, the appellant became angry and after

tightening her by rope, he assaulted her by which she suffered injuries

and died. In the meantime, Korse Chandu (PW-8) reached to the spot,

he was also assaulted by the appellant, consequently he ran away

from the spot. Thereafter Smt.Korse Nagakka (PW-7) (mother of

deceased Atram Kamla) came on the spot, she found her daughter

lying unconscious, she administered water and in the meanwhile,

deceased Atram Kamla died. Thereafter on the report of Smt.Korse

Nagakka (PW-7), FIR was registered vide Ex.P-11. Merg was also

registered vide Ex.P-12. Inquest was conducted over dead body of the

deceased vide Ex.P-1. Dead body of the deceased was sent for

postmortem to Community Health Center, Bhopalpattnam, where

Dr.Ajay Ramteke (PW-15) conducted postmortem vide Ex.P-16 and

opined that cause of death was due to multiple injuries to bony & vital

organs and heamorrhagic shock, injuries were antemortem in nature

and death was homicidal in nature. Pursuant to memorandum

statement of the appellant vide Ex.P-8, wooden stick and rope were

seized vide Ex.P-3, which were sent to FSL examination, but FSL

report has not been brought on record. Statements of the witnesses

were recorded and after due investigation, the police filed charge-

sheet in the Court of Chief Judicial Magistrate, Bijapur, who in turn,

committed the case to the Court of Sessions, South Bastar

Dantewada. The appellant/accused abjured his guilt and entered into

defence that he has not committed any offence and he has falsely

been implicated in crime in question.

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

as 15 witnesses and exhibited 17 documents. The appellant-accused

examined none in his defence and no document has been exhibited in

his support.

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

available on record, by its judgment dated 6.5.2015, convicted the

appellant for offence punishable under Section 302 of the IPC and

sentenced him as aforementioned, against which, this criminal appeal

has been filed.

5. Mr.Ashok Verma, learned counsel for the appellant, would submit that

memorandum and seizure are not admissible in evidence as it was

taken prior to arrest and there is no evidence brought by the

prosecution to connect the appellant in offence in question and there

are major contradictions and omissions in evidence of the prosecution

witnesses. He would further submit that the appellant has taken a plea

of alibi which has been proved by Durgam Laxmaiya (PW-1). As such,

in absence of FSL report of bamboo stick and rope, the appeal

deserves to be allowed.

6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer for the

respondent/State, would support the impugned judgment and submit

that the prosecution has been able to prove its case beyond

reasonable doubt and the trial Court has rightly convicted the appellant

for offence under Section 302 of the IPC. As such, the 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 Atram Kamla was homicidal in nature ?

9. The trial Court after appreciating oral and documentary evidence

available on record particularly relying upon the statement of Dr.Ajay

Ramteke (PW-15), who has conducted postmortem vide Ex.P-16, has

come to the conclusion that cause of death was due to multiple injuries

to bony & vital organs and death 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 Atram Kamla 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 appellant has been convicted basically on oral testimony of

Korse Chandu (PW-8) (father of the deceased). He has clearly stated

in his statement before the Court that on hearing quarrel between the

appellant and the deceased, he approached to the house of the

appellant, then he saw that the appellant was assaulting his daughter

by wooden stick, to which he intervened and thereafter the deceased

fell down and died on the spot. Pursuant to memorandum statement of

the appellant vide Ex.P-8, bamboo stick and rope have been seized

vide Ex.P-3. Though it was sent to FSL examination, but FSL report

was not brought on record. Witnesses of memorandum and seizure

namely Suresh (PW-12) and Dharmaiya (PW-1) have not supported

the disclosure statement and recovery, but the trial Court has accepted

the statement of the investigating officer K.S.Nagwanshi (PW-13) who

has proved memorandum vide Ex.P-8 and seizure vide Ex.P-3. Korse

Chandu (PW-8) has witnessed the incident and immediately thereafter

Smt.Korse Nagakka (PW-7) has also reached to the spot and

immediately other witnesses Tamti Ramchandram (PW-2) and Tamdi

Baniakya (PW-5) were informed. Considering the evidence available

on record and taking into consideration the nature of injuries, we are of

the considered opinion that the trial Court is justified in convicting the

appellant in offence in question.

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

has rightly convicted the appellant for offence under Section 302 of the

IPC or his case would be covered under Exception 4 of Section 300 of

the IPC vis-a-vis culpable homicide not amounting to murder and, thus,

his conviction can be converted to Section 304 Part II of the IPC, as

contended by learned counsel for the appellant ?

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

Haryana 1 has observed as under:-

"21. Keeping in view the facts and circumstances of the case, we

1 (2002) 3 SCC 327

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."

13. The Supreme Court in the matter of Gurmukh Singh v. State

of Haryana 2 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 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 2 (2009) 15 SCC 635

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. "

14. Likewise, in the matter of State v. Sanjeev Nanda 3, 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 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.

15. Further, the Supreme Court in the matter of Arjun v. State of

Chhattisgarh 4 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)

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

"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".

16. 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.

17. 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 there was no intention on

part of the appellant to cause death particularly that one day prior to

the date of offence, the appellant took Rs.500/- from the deceased and

brought liquor and consumed liquor on that day and next day he

demanded money to his wife Atram Kamla which she refused to give

and on that pretext, the appellant assaulted his wife by tightening her

by rope. Korse Chandu (PW-8) in para 2 of his statement has clearly

stated that the deceased and the appellant both were in influence of

liquor on the fateful day and thereafter quarrel took between them and

the appellant assaulted her by wooden stick. It is clear from the record.

The appellant did not have any intention to cause death of deceased

Atram Kamla, but by causing such injuries, he must have had the

knowledge that such injuries inflicted by her would likely to cause her

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

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

satisfied the four necessary ingredients of Exception 4 to Section 300

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 appellant under

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

IPC.

18. Accordingly, conviction of the appellant under Section 302 of the

IPC is set aside and he is convicted under Section 304 Part-II of the

IPC. It is stated at the Bar that the appellant is in jail since 19.2.2012

and has completed more than 10 years of imprisonment. Considering

the fact situation of the case, we hereby sentence to the appellant to

the period already undergone by him. The appellant be released

forthwith unless required in any other case.

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

herein-above.

                   Sd/-                                      Sd/-

            (Sanjay K. Agrawal)                     (Sachin Singh Rajput)
                Judge                                      Judge
B/-