Shyam Sunder Suryawanshi vs The State Of Chhattisgarh
2022 Latest Caselaw 5748 Chatt

                                         1

                                                                           NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR
                       Criminal Appeal No. 1073 of 2015

         Shyam      Sunder          Suryawanshi     S/o      Ganesh        Ram
         Suryawanshi,        Aged    about   30   years,    R/o   Nariyara,
         Police    Station        Pamgarh,      Distt.     Janjgir­Champa,
         Chhattisgarh.
                                                            ­­­Appellant

                                       Versus

         State    of     Chhattisgarh,          through    Station       House
         Officer, Police Station Pamgarh, Distt. Janjgir­
         Champa, Chhattisgarh.

                                                            ­­­Respondent



    For Appellant            :­     Mr. Ashok Swarnkar, Advocate
    For State                :­     Mr. Kapil Maini, P.L.




             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Sachin Singh Rajput
                        Judgment on Board
                            14/09/2022


Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC

has been preferred by the appellant/accused against

the impugned judgment dated 16/07/2015 passed by

learned Sessions Judge, Janjgir­Champa in Sessions

Trial No. 132/2013 whereby he has been convicted

for offence punishable under Section 302 of IPC and

sentenced to undergo imprisonment for life with

fine of Rs. 100/­.

2. Case of the prosecution, in brief, is that on

15/04/2013 at about 04:30 AM, the appellant

murdered his wife Lalitabai by slitting her neck

with a sickle at their house in Sagar Para, Village

Nariyara and thereby, committed the aforesaid

offence.

3. Further case of the prosecution, is that, on

15/04/2013, the appellant and deceased were staying

under the same roof as husband and wife. At about

04:30 AM, deceased Lalitabai refused to cohabit with

the appellant and abused him and on that account, the

appellant became angry and slit her throat with a

sickle kept in the house. Thereafter, the appellant

himself reported about the incident at Police Station

Pamgarh pursuant to which merg intimation was

registered and dead body of Lalitabai was subjected

to postmortem which was conducted by Dr. K.K. Dahire

(P.W.­1) and as per postmortem report (Ex. P/1), the

cause of death is incised wound over neck which led

to severe hemorrhage, shock and cardiorespiratory

arrest and the nature of death is homicidal. First

information report was registered vide Ex. P/13.

Pursuant to memorandum statement of the

appellant/accused vide Ex. P/6, recovery of sickle

was made vide Ex. P/7 and though it was sent for

chemical examination but no FSL report has been

brought on record. After recording the statements of

the witnesses and after due investigation, the

appellant/accused was charge­sheeted for offence

punishable under Section 302 of IPC 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 7 witnesses and brought on record 19

documents. The statement of appellant/accused was

recorded wherein he denied guilt,,however, examined

none in his defence.

5. Learned trial Court, after appreciation of oral and

documentary evidence on record, proceeded to convict

the appellant/accused for offence punishable under

Section 302 of IPC and sentenced him as aforesaid.

6. Mr. Ashok Swarnkar, learned counsel for the

appellant, would submit that trial Court is

absolutely unjustified in convicting the appellant

for offence punishable under Section 302 of IPC as

there is no evidence to connect him with the said

offence and Section 106 of the Indian Evidence Act,

1872 is not attracted at all, therefore, the appeal

be allowed by setting aside the impugned judgment. In

alternative, he would submit that present case would

fall within exception 4 of Section 300 of IPC and as

such, the conviction of the appellant under Section

302 of IPC be converted under Section 304 Part II of

IPC and since he is in jail since 15/04/2013, he be

sentenced for the period already undergone.

7. Per contra, Mr. Kapil Maini, 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 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

Section 304 Part II of IPC, therefore, the instant

appeal deserves to be dismissed.

8. We have heard learned counsel for the parties,

considered their rival submissions made herein­above

and went through the records with utmost

circumspection.

9. The first question for consideration is whether the

death of deceased Lalitabai was homicidal in nature ?

10. Learned trial Court has recorded an affirmative

finding in this regard on the basis of medical

opinion of Dr. K.K. Dahire (P.W.­1) as well as

postmortem report (Ex. P/1) wherein it has been

categorically held that cause of death is incised

wound over neck which led to severe hemorrhage, shock

and cardiorespiratory arrest and nature of death is

homicidal. Taking consideration of the entire

evidence available on record as well as looking to

the injury sustained by the deceased on her neck

and relying upon the medical opinion of Dr. K.K.

Dahire (P.W.­1) as well as postmortem report (Ex.

P/1), we are of the considered opinion that learned

trial Court has rightly held the death of deceased

Lalitabai 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 Lalitabai

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 held that the appellant is

indeed the perpetrator of the crime as at the time

of the incident, only the appellant and deceased

were present in their house and the appellant has

not given any satisfactory explanation with regard

to the death of the deceased, as such, Section 106

of the Indian Evidence Act, 1872 would be

applicable. Moreover, pursuant to the memorandum

statement of the appellant/accused vide Ex. P/6,

recovery of sickle has been made vide Ex. P/7.

Furthermore, the appellant himself made a report

which has been taken as merg intimation vide Ex.

P/12 wherein he has admitted his guilt.

13. Although the appellant had admitted his guilt vide

Ex. P/12, but that would not be admissible in

evidence in view of the decision rendered by the

Supreme Court in the matter of Aghnoo Nageshia v.

State of Bihar1 wherein it has been held that

confession to police whether in course of

investigation or otherwise and confession made while

in police custody would be hit by Section 25 of the

Evidence Act. However, considering that pursuant to

memorandum statement of the appellant/accused vide

Ex. P/6, recovery of sickle has been made vide Ex.

P/7 which has been duly proved by the prosecution and

further considering that at the time of the incident,

only appellant and deceased were at the house and no

explanation has been given by the appellant, we are

of the considered opinion that learned trial Court is

justified in holding that appellant is the

perpetrator the crime.

14. The aforesaid finding brings us to the next

question for consideration, which 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 ?

1 AIR 1966 SC 119

15. In the matter of Sukhbir Singh v. State of

Haryana2, Their Lordships of the Supreme Court have

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."

16. Thereafter, in the matter of Gurmukh Singh v. State

of Haryana3, 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 :

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

(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."

17.Likewise, in the matter of State v. Sanjeev Nanda4,

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.

18. Further, the Supreme Court in the matter of Arjun

v. State of Chhattisgarh5 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

4 (2012) 8 SCC 450 5 (2017) 3 SCC 247

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".

19.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

Part­I 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

Part­II IPC.

20. 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 on 15/04/2013, only the appellant and

deceased, who were husband and wife, were staying

at their house. At about 04:30 AM, when the

deceased refused to cohabit with the appellant and

abused him, the appellant out of sudden anger and

in heat of passion, abused the deceased and

thereafter, slit her neck with a sickle kept in the

house which goes to show that there was no

premeditation on his part to cause the death of his

wife and only out of anger, he assaulted her.

Moreover, looking to the single injury caused by

the appellant in the neck of the deceased though

shows that he did not act in a cruel manner,

however, he must have had the knowledge that the

injury caused by him would be sufficient to cause

the death of the deceased. As such, all the four

ingredients of Exception 4 of Section 300 of IPC

are satisfied and in that view of the matter, the

conviction of the appellant for offence punishable

under Section 302 of IPC is hereby converted to

Section 304 Part II of IPC. Since the appellant is

in jail since 14/04/2013 i.e. for more than 9

years, he is sentenced to the period already

undergone. He be released forthwith, if not

required in any other case.

21.Accordingly, this criminal appeal is allowed to the

extent indicated herein­above.

                  Sd/­                             Sd/­
     (Sanjay K. Agrawal)                 (Sachin Singh Rajput)
            Judge                                  Judge

Harneet