Chattisgarh High Court
Ajay Kumar vs State Of Chhattisgarh on 15 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 761 of 2015
Ajay Kumar S/o Gangaram Vishwakarma, Aged about 25
years, R/o Village Gadhuproda, Police Station
Katghora, Distt. Korba, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh, through Station House
Officer, Police Station Katghora, Distt. Korba,
Chhattisgarh.
Respondent
For Appellant : Mr. Sumit Singh, Advocate
For State : Mr. Anmol Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
15/09/2022
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 25/04/2015 passed by
learned Additional Sessions Judge, Katghora, Distt.
Korba in Sessions Trial No. 10/2013 whereby he has
been convicted for offence punishable under Section
302 of IPC and sentenced to undergo imprisonment
for life with fine of Rs. 1,000/ and in default of
payment of fine additional R.I. for one year.
2. Case of the prosecution, in brief, is that on
20/11/2012 at about 08:30 PM in village
Gadauparoda, the appellant herein, with the
intention of causing death, assaulted Shagun
Vishwakarma with cricket stump due to which he
suffered grievous injuries on his head and on
27/11/2012, he succumbed to death.
3. Further case of the prosecution, is that, the
appellant and deceased were relatives and the
appellant had entered into an intercaste marriage
due to which he was boycotted by the members of his
community. After some time, the appellant had to
organize a feast for the members of his community
and he was also penalized Rs. 3000/ on account of
which there was enmity between the appellant and
the deceased. On 20/11/2012 at about 8 PM, Brijpal
(P.W.3), Ramnarayan (P.W.4) and Ramprasad (not
examined) were standing in the mobile shop owned by
Brijpal, when the appellant as well as the deceased
engaged in a dispute in front of the shop and they
started abusing each other and also committed
maarpeet. Thereafter, the appellant went to his
house and came back with cricket stump and with the
intention of causing death of the deceased, hit his
head with the said stump due to which the deceased
became unconscious and he was soaked in blood.
Thereafter, the deceased was admitted in a hospital
and was undergoing treatment but on 27/11/2012 he
succumbed to death.
4. On 21/11/2012, wife of the deceased Smt. Jhulbai
(P.W.1) reported the matter at Police Station
pursuant to which dehati nalishi was registered
vide Ex. P/18 and FIR was lodged against the
appellant vide Ex. P/19. After the death of
deceased, merg intimation was registered vide Ex.
P/22 and after issuing summons to the witness vide
Ex. P/2 and after conducting inquest vide Ex. P/3,
the dead body of deceased was subjected to
postmortem which was conducted by Dr. Ghanshyam
Diwan (P.W.6) and as per the postmortem report
(Ex. P/13), the cause of death is said to be coma
as a result of head injury and the nature of death
is said to be homicidal. From the spot, plain soil
as well as blood stained soil was seized vide Ex.
P/1 and pursuant to the memorandum of the appellant
vide Ex. P/4, cricket stump used by him as a weapon
of offence was seized vide Ex. P/5 and it was sent
for query to Dr. Ghanshyam Diwan (P.W.6), who in
his report vide Ex. P/12, has stated that the
injuries suffered by the deceased could have been
caused by the seized cricket stump. Statements of
the witnesses were recorded and the seized articles
were sent for chemical examination but no FSL
report has been brought on record. The appellant
was arrested and after due investigation, he was
chargesheeted with offence punishable under
Section 302 of IPC which was ultimately committed
to the Court of Sessions for hearing and disposal
in accordance with law. The appellant abjured his
guilt and entered into defence.
5. In order to bring home the offence, prosecution
examined as many as 12 witnesses and brought on
record 30 documents. The statement of
appellant/accused was recorded wherein he denied
guilt and examined none in his defence, however,
exhibited one document on record.
6. Learned trial Court, after appreciation of oral and
documentary evidence on record, finding the death of
deceased Shagun Vishwakarma to be homicidal in nature
and further finding the appellant to be the
perpetrator of the crime, proceeded to convict him
for offence punishable under Section 302 of IPC and
sentenced as aforesaid.
7. Mr. Sumit Singh, learned counsel for the appellant,
would submit that the trial Court is absolutely
unjustified in convicting the appellant for offence
punishable under Section 302 of IPC as prosecution
has failed to bring ample evidence on record to
connect the appellant with the crime in question, as
such, his conviction for offence under Section 302 of
IPC is liable to be set aside. In alternative, he
would submit that there was no intention on the part
of the appellant to cause the death of the deceased
and only on account of intercaste marriage having
been performed by the appellant, some quarrel arose
between them due to which the appellant caused
injuries to the deceased. As such, his case is
covered with Exception 4 to Section 300 of IPC and
his conviction be converted to either Part I or II of
Section 304 of IPC and since he has been languishing
in jail since 29/11/2012 i.e. for more than 9 years,
he be sentenced for the period already undergone.
8. Per contra, Mr. Anmol Sharma, 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
either Part I or Part II of Section 304 of IPC,
therefore, the instant appeal deserves to be
dismissed.
9. We have heard learned counsel for the parties,
considered their rival submissions made hereinabove
and went through the records with utmost
circumspection.
10. The first question for consideration is whether the
death of deceased Shagun Vishwakarma was homicidal in
nature ?
11. Learned trial Court has recorded an affirmative
finding in this regard on the basis of medical
opinion of Dr. Ghanshyam Diwan (P.W.6) as well as
postmortem report (Ex. P/13) wherein it has been
categorically held that cause of death is coma
because of head injury 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 his head
and relying upon the medical opinion of Dr.
Ghanshyam Diwan (P.W.6) as well as postmortem
report (Ex. P/13), we are of the considered opinion
that learned trial Court has rightly held the death
of deceased Shagun Vishwakarma 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 Shagun Vishwakarma was homicidal in
nature.
12. The next question for consideration is whether the
appellant is the perpetrator of the crime in
question ?
13. Learned trial Court has relied upon the testimonies
of Brijpal (P.W.3) and Ramnarayan (P.W.4), who
are eyewitnesses to the incident as well as on the
expert medical opinion of Dr. Ghanshyam Diwan
(P.W.6) to hold that appellant indeed is the
perpetrator of the crime in question.
14. A careful perusal of the testimony of Brijpal
(P.W.3) would show that on the date of the
incident, at about 08:30 PM, he was sitting in his
mobile shop along with Ramnarayan (P.W.4) when he
heard the voices of the appellant and deceased who
were abusing and quarreling with each other on the
pretext that appellant had performed an intercaste
marriage and when he and Ramnarayan (P.W.4) went
to interfere, they saw that the deceased was lying
on the ground soaked in blood and the appellant was
standing there with cricket stump. Thereafter, wife
of the deceased Smt. Jhulbai (P.W.1) along with
their son Ramkumar (P.W.5) came on the spot and
took the deceased to Hospital. A similar statement
has also been made by Ramnarayan (P.W.4).
15. True it is, that both the witnesses namely Brijpal
(P.W.3) and Ramnarayan (P.W.4) have admitted that
they have not seen the appellant assault the
deceased, but they have clearly stated that prior
to the assault, the appellant was quarreling with
the deceased on the pretext of the deceased
entering into an intercaste marriage and
thereafter, when they went to interfere, they found
the deceased lying on the ground soaked with blood
and the appellant standing there with a cricket
stump. Their statements have also been supported by
the medical evidence of Dr. Ghanshyam Diwan (P.W.
6) as after examining the cricket stump seized from
the appellant, he has clearly stated that the
injury sustained by the deceased on his head, could
have been caused by the said cricket stump.
16.Thus, after hearing learned counsel for the parties
and after going through the record especially the
statements of Brijpal (P.W.3) and Ramnarayan
(P.W.4) as well as considering the medical opinion
of Dr. Ghanshyam Diwan (P.W.6), we are of the
considered opinion that the finding recorded by the
trial Court that appellant is the perpetrator of
the crime in question is a finding of fact based on
evidence available on record which is neither
perverse nor contrary to the record.
17. 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 ?
18. In the matter of Sukhbir Singh v. State of
Haryana1, 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."
19. Thereafter, in the matter of Gurmukh Singh v. State
of Haryana2, Their Lordships of the Supreme Court
have laid down certain factors which are to be
taken into consideration before awarding
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
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 :
(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."
20.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.
21. 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 :
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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".
22.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.
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 appellant as well as deceased, both were
relatives and belonged to the same community, and
the only dispute and enmity between them was with
regard to the deceased entering into an intercaste
marriage. On the date of the incident, both the
appellant as well deceased were quarreling with
each other with regard to the same dispute and out
of sudden anger and in heat of passion, the
appellant went to his home and brought a cricket
stump with him and caused a single blow on the head
of the deceased, on account of which the deceased
became unconscious and fell on the ground after
which he was taken to the Hospital and was
undergoing treatment, but after 7 days, he
succumbed to death due to the injury sustained by
him on his head. As such, it is evident that there
was no premeditation on the part of the appellant
to cause the death of the deceased and moreover, he
did not act in a cruel manner as he inflicted a
single blow on the head of the deceased, however,
the injury suffered by the deceased on his head,
which is a vital part of the body, would show that
the appellant must have had the knowledge that his
act would likely cause the death of the deceased.
Thus, the case of the appellant in the present case
is covered with Exception 4 of Section 300 of IPC
and his conviction under Section 302 of IPC is
altered to Section 304 Part II of IPC. Since the
appellant is in jail since 29/11/2012 i.e. for more
than 9 years, we hereby sentence him to the period
already undergone. However, the fine sentence
imposed by the trial Court is maintained. The
appellant be released forthwith, if not required in
any other case.
24.Accordingly, this criminal appeal is allowed to the
extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
