Naresh Singh vs State Of C.G
2023 Latest Caselaw 1068 Chatt

                                    1



                                                                NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Criminal Appeal No. 873 of 2013


Naresh Singh, S/o. Dalpratap Singh, Aged About 24 Years, R/o.
Bharda, Rohinipara, Thana Khadgawa, Distt. Korea, Chhattisgarh

                                                     ---Appellant
                                  Versus
State Of Chhattisgarh, Through In Charge Police Station- Khadgawa
Distt. Korea, Chhattisgarh
                                                      ---Respondent


For Appellant           :-     Mr. Goutam Khetrapal, Advocate
For State/Respondent :-        Mr. Sudeep Verma, Dy. Govt. Advocate


                             (Division Bench)

            Hon'ble Shri Justice Sanjay K. Agrawal
           Hon'ble Shri Justice Radhakishan Agrawal

                         Judgment on Board

                               (20.02.2023)

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. is directed

against the impugned judgment dated 29.08.2013 passed by

learned Additional Sessions Judge, Manendragarh, District

Koriya, in Sessions Trial No.105/2011, by which the appellant

herein has been convicted for the offence under Section 302 of

I.P.C. and sentenced to life imprisonment with fine of Rs.2000/-

and in default of payment of fine, 6 months additional rigorous

imprisonment.

2. Case of the prosecution, in brief, is that on 08.07.2011 at 6:00

p.m., at the village Bharda, Rohinapara, P.S. Khadgawa, the

appellant assaulted Kalyan Singh by bamboo stick, by which he

suffered grievous injuries and died; thereby the offence has

been committed. Further case of the prosecution is that the

appellant and deceased both were residents of village Bharda

and the house of deceased Kalyan Singh is situated in front of

house of appellant and on 08.07.2011, on the date of offence,

the wife of the appellant Vrindawati had gone to the house of

Sahdeo Singh (PW-6) and after fishing, the appellant also

reached there, then his wife enquired where he was on the

entire day, then he replied that he was fishing and on that count,

dispute arose in between the appellant and his wife Vrindawati

(DW-1), which was intervened by deceased Kalyan and Sahdeo

(PW-6) and after getting the dispute settled, they were sent to

their home and immediately thereafter after reaching the home,

the appellant and his wife again started quarreling and after

some time, the deceased who was sitting in the house of

Sahdeo, being his brother, went to the house of the appellant

herein and again got the dispute settled between them, but

thereafter the appellant immediately reached to the house of

deceased Kalyan and assaulted him by bamboo stick twice by

which he suffered grievous injuries and he was taken to the

hospital at Baikunthpur and thereafter to Raipur where he

succumbed to death, which was informed by Sahdeo, son of

Balram Singh on 09.07.2011 to Police Station Khadgawa,

pursuant to which merg intimation was registered vide Ex.P-11.

FIR was registered for the offence under Section 302 of I.P.C.

vide Ex.P-11A. Nazri-naksha was prepared and inquest was

conducted and thereafter, the dead body was sent for post

mortem, which was conducted by Dr. R.P.Singh (PW-4), who

proved the post mortem report Ex.P-7A, in which cause of death

was stated to be head injury and death was homicidal in nature.

Pursuant to memorandum statement of appellant, bamboo stick

was seized vide Ex.P-10, but no FSL report has been brought

on record. After due investigation, the appellant was charge-

sheeted for the aforesaid offence under Section 302 of I.P.C.

before the jurisdictional criminal court, which was ultimately

committed to the Court of Sessions for hearing and disposal in

accordance with law, in which the appellant abjured his guilt and

entered into defence stating that he has not committed any

offence and he has been falsely implicated.

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

many as 16 witnesses and exhibited 17 documents and the

appellant-accused in support of his defence has examined 3

witnesses and exhibited 3 documents.

4. The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellant herein for the

offence under Section 302 of I.P.C. and sentenced him as

mentioned in the opening paragraph of the judgment, against

which this appeal has been preferred.

5. Mr. Goutam Khetrapal, learned counsel for the appellant, would

submit that present is a case where while the appellant was

beating his wife, the deceased intervened and during scuffle, the

appellant is said to have caused one club blow on the head of

the deceased. He submits that even if the entire prosecution

story is taken as it is, at the most the act of the appellant falls

under Section 304 Part-II of I.P.C., as such, the appeal may be

allowed in part. He relied upon the decision of the Supreme

Court in the matter of Suresh Singh & Anr. v. State of

Haryana1.

6. Per contra, Mr. Sudeep Verma, learned State counsel, would

submit that the prosecution has been able to prove the offence

beyond reasonable doubt and the learned trial Court has rightly

convicted the appellant for the offence under Section 302 of

I.P.C, as such, the instant appeal deserves to be dismissed.

7. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the

records with utmost circumspection.

8. The first question for consideration as to whether the death of

deceased Kalyan Singh was homicidal in nature, has been

answered by the trial Court in affirmative relying upon the post-

mortem report Ex.P-7A proved by Dr. R.P.Singh (PW-4). In our

considered opinion, the finding recorded by the trial Court

holding the death of Kalyan Singh to be homicidal in nature is

1 (2007) 13 SCC 518

correct finding of fact based on evidence available on record, it

is neither perverse nor contrary to the record and accordingly

we hereby affirm the said finding.

9. Now, the next question is, whether the appellant is the author of

the crime ?

10. Sahdeo Singh (PW-6) is eye-witness in whose house, the first

incident took place where the appellant abused his wife and

thereafter on understanding given by him, the appellant and his

wife Vrindawati were sent to their home, but thereafter again the

appellant after going back to his house quarreled with his wife,

which was intervened by deceased Kalyan Singh, which was

seen by Ramkunwar (PW-8) wife of deceased and Mankunwar

(PW-9) mother of deceased. Pursuant to memorandum

statement of the appellant, bamboo stick has been seized from

the possession of the appellant, though no FSL report has been

brought on record, but considering the testimony of these three

witnesses Sahdeo Singh (PW-6), Ramkunwar (PW-8) and

Mankunwar (PW-9), in our considered opinion, the trial Court

has rightly held that the appellant is the author of the crime.

11. Now, the question that requires consideration is whether the trial

Court is justified in convicting the appellant for offence

punishable under Section 302 of I.P.C. or his case is covered

under Exception 4 to Section 300 of I.P.C. and as such, his

conviction can be altered to either Part-I or Part-II of Section 304

of I.P.C, as contended by learned counsel for the appellant ?

12. In order to consider whether the case of the appellant is covered

within Exception 4 to Section 300 of I.P.C., it would be

appropriate to notice the decision rendered by the Supreme

Court in the matter of Sukhbir Singh v. State of Haryana 2

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."

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

Haryana3, 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 :-

"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.

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

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."

14. 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.

15. 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

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

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

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.

17. 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."

18. Reverting to the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme

Court, it is quite vivid that there was no dispute in between the

appellant and deceased and in-fact, the appellant was

quarrelling with his wife Vrindawati (DW-1), which was

intervened by the present appellant and on account of that, the

appellant became angry and in a sudden quarrel and sudden

altercation, appellant is said to have caused one bamboo stick

blow on the head of the deceased, as such, there was no

intention on the part of the appellant to cause death of deceased

Kalyan Singh, but the appellant must have had knowledge that

the injury caused by him is likely to cause death of the deceased

and as such all the four ingredients of Exception 4 to Section

300 of I.P.C. are satisfied in this case.

19. Considering the facts of the case and in view of law laid down in

Suresh Singh (supra), we are of the opinion that the case of the

appellant is covered within Exception 4 to Section 300 of I.P.C.

and the conviction of the appellant for offence under Section

302 of I.P.C. is altered to Section 304 Part II of I.P.C. and he is

sentenced to undergo 5 years rigorous imprisonment. However,

the fine sentence and default sentence imposed upon the

appellant by the learned trial Court shall remain intact. The trial

Court will see and ensure that the appellant to suffer 5 years

rigorous imprisonment as directed, if not already suffered.

20. Accordingly, this criminal appeal is partly allowed to the extent

indicated herein-above.

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

Ashok

The appellant is on bail, he need not surrender; however, his bail bonds

shall remain in operation for a period of 6 months in view of the

provisions contained in Section 437-A of Cr.P.C.