Laxminarayan And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 5975 Chatt

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                                                                       NAFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR
                           Criminal Appeal No. 689 of 2021


           Sunaram Kamar, S/o Sonuram Kamar, Aged about 45 years,
           R/o   Village   Kholapara,    Police   Station   Mainpur,   distt.
           Gariyaband, Chhattisgarh.

                                                               ---Appellant

                                      Versus

           State of Chhattisgarh, through Station House Officer, Police
           Station Mainpur, Distt. Gariyaband, Chhattisgarh.

                                                            ---Respondent




           For Appellant     :-    Ms. Sofia Khan, Advocate
           For State         :-    Mr. Afroz Khan, P.L.




                   Hon'ble Shri Justice Sanjay K. Agrawal
                   Hon'ble Shri Justice Sanjay S. Agrawal
                            Judgment on Board
                                20/09/2022


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 08/03/2021 passed by learned Additional

Sessions Judge, Gariyaband in Sessions Case No. 01/2019

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 17/10/2018 at

about 09:10 PM at village Dhobipara, the appellant herein,

with the intention of causing death of his wife Kaushilya Bai,

assaulted her with a wooden stick (sal) and caused her death

by inflicting injuries on her head, legs and back and thereby,

committed the aforesaid offence.

3. Further case of the prosecution, is that, on 19/10/2018, Tihar

Singh (P.W.-9) informed at Police Station that on 17/10/2018,

his sister Kaushilya Bai had gone alongwith her husband

(appellant) to the house of her elder sister Ramkunwar Bai

(P.W.-3) at village Dhobipara. At night, Kaushilya Bai was

sleeping outside the house when at about 09:10 PM, appellant

asked her to sleep with him inside the house, but she refused

and on that account, out of anger, the appellant assaulted her

with wooden stick and inflicted grievous injuries and

thereafter, he did not take her to a hospital due to which she

succumbed to death on 18/10/2018 at 12 noon.

4. On the basis of the said report, merg intimation was registered

vide Ex. P/12 and FIR was lodged against the appellant for

offence punishable under Section 302 of IPC. Summons were

issued to the witnesses under Section 175 CrPC vide Ex. P/1

and after conducting inquest, the dead body of deceased

Kaushilya Bai was subjected to postmortem which was

conducted by Dr. K.D. Jogi (P.W.-4) and as per the

postmortem report (Ex. P/10), cause of death is said to be

shock due to multiple injuries and the nature of death is said

to be homicidal. Memorandum statement of the appellant was

recorded vide Ex. P/3 and pursuant thereof, the wooden stick

used by the appellant to assault the deceased was seized vide

Ex. P/4 and it was sent for query and as per the query report

(Ex. P/11), the injuries sustained by the deceased could have

been caused by the said wooden stick. After due investigation,

the appellant was charge-sheeted for offence punishable under

Section 302 of IPC which was ultimately committed to the

Court of Sessions for hearing and disposal in accordance with

law.

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

many as 9 witnesses and brought on record 19 documents.

The statement of appellant/accused was recorded wherein he

denied guilt and examined none in his defence, however,

exhibited the statements of Mansha Ram and Phool Singh

Kamar as D/1 and D/2.

6. Learned trial Court, after appreciation of oral and

documentary evidence on record, finding the death of

deceased Kaushilya Bai 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. Ms. Sofia Khan, learned counsel for the appellant, would

submit that the appellant had no intention to cause the death

of his wife and only out of sudden anger and in heat of

passion, he assaulted her, therefore, his conviction for offence

punishable under Section 302 of IPC be modified to Section

304 Part II of IPC as his case is covered with Exception 4 to

Section 300 of IPC and since the appellant is in jail since

20/10/2018, i.e. for more than three years, he be sentenced

to the period already undergone.

8. Per contra, Mr. Afroz Khan, learned State counsel, would

submit that the trial Court has rightly convicted the appellant

for offence punishable under Section 302 of IPC as his case is

not covered with Exception 4 to Section 300 of IPC, as such,

the instant appeal deserves to be dismissed.

9. We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went through

the records with utmost circumspection.

10.The first question for consideration is whether the death of

deceased Kaushilya Bai was homicidal in nature ?

11. Learned trial Court has recorded an affirmative finding in this

regard on the basis of medical opinion of Dr. K.D. Jogi (P.W.-

4) as well as postmortem report (Ex. P/10) wherein it has been

categorically held that cause of death is shock due to multiple

injuries and 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 all over

her body and relying upon the medical opinion of Dr. K.D.

Jogi (P.W.-4) 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 Kaushilya Bai 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 Kaushilya Bai was homicidal in nature.

12. The next question for consideration is whether the appellant is

the perpetrator of the crime in question ?

13. On the fateful day of 17/10/2018, appellant and deceased,

both had gone to the house of Ramkunwar Bai who has been

examined as P.W.-3. In her statement before the Court, she

has clearly stated that on the fateful day, her younger sister

(deceased) had come to her house with her husband

(appellant) and at night, all of them had their meals and

thereafter, they also took liqour and then Ramkunwar Bai

(P.W.-3) and her husband Phool Singh Kanwar (P.W.-2) went

to sleep inside the new house whereas the appellant and

deceased remained in the old house. In the morning, when

she went to the old house, she found the deceased lying on

the floor with swollen face and neck and she had also suffered

various injuries all over her body, but although she was

conscious and was breathing very lightly but she was not able

to speak and the appellant was not present in the house.

Pursuant thereof, she called her husband Phool Singh Kanwar

(P.W.-2) and thereafter, the Kaushilya Bai succumbed to death

and Ramkunwar Bai (P.W.-3) informed the same to her

brother Tihar Singh (P.W.-9). She has also stated that when

the appellant returned to the house, on being asked, he

admitted that he has assaulted his wife, which is also

corroborated from the merg intimation (Ex. P/12).

14. Moreover, pursuant to the memorandum statement of the

appellant vide Ex. P/3, recovery of wooden stick has also been

made vide Ex. P/4 which has been proved by Mansha Ram

(P.W.-1) and Phool Singh (P.W.-2). The wooden stick so seized

was also sent for query and as per the query report (Ex. P/11),

the injuries suffered by the deceased could very well have

been caused by the said wooden stick. As such, from the

aforesaid incriminating circumstances, having duly been

proved by the prosecution, it has been established that

appellant is indeed the perpetrator of the crime, which in our

considered opinion, has rightly been recorded by the trial

Court and we hereby affirm the said finding recorded by the

trial Court that appellant is the perpetrator of the crime.

15. 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 ?

16. In the matter of Sukhbir Singh v. State of Haryana 1, 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 1 (2002) 3 SCC 327

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."

17. 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 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;

2 (2009) 15 SCC 635

(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."

18.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.

19. 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 :-

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

"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. 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".

20.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.

21. 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 husband and wife and on the fateful day,

they had gone to the house of Ramkunwar Bai (P.W.-3), elder

sister of deceased, and at night after having dinner, all of

them took liqour brought by the appellant and thereafter,

Ramkunwar Bai (P.W.-3) and her husband Phool Singh

Kanwar (P.W.-2) went to the new house to sleep whereas the

appellant and deceased remained in the old house and on

account of some dispute between them which arose when the

appellant asked the deceased to come inside the house to

sleep with him and she refused, out of sudden anger and in

heat of passion, the appellant assaulted her with wooden stick

on her head, legs and back due to which she died on the next

day. As such, it is evident that there was no premeditation on

the part of the appellant to cause the death of the deceased,

however, the injuries suffered by the deceased all over her

body, would show that the appellant must have had the

knowledge that his act would likely to 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 and in view of the decisions rendered by the

Supreme Court in the matters of Willie (William) Slaney v.

State of Madhya Pradesh5 as well as in Joseph v. State of

Kerala6, we hereby sentence the appellant to undergo rigorous

imprisonment for five years. However, the fine sentence

imposed by the trial Court is hereby maintained.

22.Accordingly, this criminal appeal is allowed to the extent

indicated herein-above.

                    Sd/-                           Sd/-
      (Sanjay K. Agrawal)                  (Sanjay S. Agrawal)
                Judge                            Judge


Harneet




5 AIR 1956 SC 116
6 1995 SCC (Cri.) 165