Chattisgarh High Court
Asif Ahmad vs State Of Chhattisgarh on 7 February, 2023
1
CRA No. 309 of 2014
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 309 of 2014
Asif Ahmad S/o Mohd. Haroon, aged about 28 years, R/o. Quarter
No.756, Machchi Bazar, Kamalpura, Sherali Chowk, Malegaon, P.S.
Malegaon, District Nasik (Maharastra)
---- Appellant
Versus
State of Chhattisgarh, through P.S. G.R.P. Raipur, District Raipur,
Civil and Revenue District Raipur (C.G.)
---- Respondent
For Appellant :- Mr. S.P. Sahu, Advocate
For Respondent :- Mr. Animesh Tiwari, Dy. Advocate General.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
(07.02.2023)
Sanjay K. Agrawal, J
1. This criminal appeal under Section 374(2) of the CrPC has been
preferred by the appellant-accused against the impugned judgment of
conviction and order of sentence dated 26.09.2013 passed by the
learned First Additional Sessions Judge, Raipur, in Sessions Trial
No.98/2013 by which appellant has been convicted for offences under
Section 302 of the IPC and sentenced to undergo imprisonment for
CRA No. 309 of 2014
life and fine of ₹ 5000/-; in default of payment of fine additional R.I. for
one year and also under Section 394 of the IPC and sentenced to
undergo rigorous imprisonment for five years and pay fine of ₹ 5000/-;
in default of payment of fine, additional rigorous imprisonment for one
year.
2. Case of the prosecution, in short, is that on 07.12.2013 at about 05:45
pm between railway station Raipur and railway station Bhatapara, in
General coach of train No.12809, Mumbai - Hawrah Mail, appellant
had stolen the purse along with ₹ 1300/- of Shesh Narayan (PW-6)
and when he was caught red handed he took deceased-Gariba
Mahaar in the bathroom of the train and caused his murder by
strangulation and thereby committed the aforesaid offence.
3. Further case of the prosecution is that on 07.02.2013 Shesh Narayan
Sharma (PW-6) / complainant along with deceased-Gariba Mahaar
was traveling from Raipur to Calcutta (now Kolkata) by train Mumbai -
Hawrah Mail, train No. 12809. In running train, appellant is said to
have stolen the purse along with ₹ 1300/- of Shesh Narayan Sharma
(PW-6) and when he was caught red handed by Shesh Narayan
Sharma (PW-6) and deceased - Gariba Mahaar, appellant took
deceased - Gariba Mahaar in the bathroom. Shesh Narayan Sharma
(PW-6) got the door open with the help of other passengers and when
accused and deceased came out from the bathroom, deceased fell
down and thereafter, he was escorted to the hospital where he was
declared dead by the doctors. The said offence was reported by
CRA No. 309 of 2014
Shesh Narayan Sharma (PW-6) to the Police Station pursuant to
which Merg Intimation (Ex.P/5) and FIR (Ex.P/9) were registered.
Inquest proceedings were conducted vide Ex.P/2 and the dead body
was sent for postmortem. Postmortem was conducted by Dr.
Rajendra Maheshwari (PW-10) and in the postmortem report
(Ex.P/15), Dr. Rajendra Maheshwari (PW-10) opined the cause of
death to be asphyxia due to throttling (manual strangulation) and
nature of death is homicidal. Pursuant to memorandum statement of
the appellant (Ex.P/10) purse along with ₹ 1300/- were recovered vide
Ex.P/11.
4. After due investigation, appellant was charge-sheeted for the
aforesaid offences before the Special Railway Magistrate, Raipur and,
thereafter, the case was committed to the Court of Sessions for trial in
accordance with law. The appellant / accused abjured his guilt and
entered into defence stating that he has not committed the offence.
5. In order to bring home the offence prosecution has examined as
many as 12 witnesses and exhibited 24 documents and defence in
support of his case has neither examined any witness nor exhibited
any document.
6. The learned trial Court after appreciating the oral and documentary
evidence available on record convicted the appellant / accused for the
offences as mentioned in the opening paragraph of the judgment,
CRA No. 309 of 2014
against which this appeal has been preferred questioning the
impugned judgment of conviction and order of sentence.
7. Mr. S.P. Sahu, learned counsel for the appellant, would argue that
even if the evidence of eyewitness Shesh Narayan Sharma (PW-6) is
read as it is, it is doubtful that the appellant had any intention to cause
death of deceased. The background in which the dispute had arisen
which led to dragging of the deceased allegedly by appellant into
bathroom is followed by statement of prosecution witness that
thereafter deceased came out alive but later on died. Therefore,
scope and ambit of criminal overt act would not travel beyond Section
304 Part II of the IPC and thus, the case of the present appellant falls
within the purview of Exception 4 to Section 300 of the IPC and, as
such, offence under Section 304 (Part-II) would be made out and the
appellant be sentenced to the period already undergone by him and
appeal may be allowed in part.
8. On the other hand, Mr. Animesh Tiwari, learned State counsel, would
support the impugned order and submit that evidence of Shesh
Narayan Sharma (PW-6) which has remained firm even in cross-
examination has been found reliable by the trial Court that the
appellant had caught hold of the deceased by neck and dragged him
into bathroom and thereafter, closed the door from inside and when
bathroom was opened and both were taken out, soon thereafter death
took place and as per the postmortem report and evidence of
Rajendra Maheshwari (PW-10) deceased died due to throttling as a
CRA No. 309 of 2014
result of extraordinary pressure exerted in the neck resulting in
fracture of thyroid cartilage and obstruction of windpipe and,
therefore, there is sufficient evidence against the appellant herein and
the instant appeal deserves to be dismissed.
9. The first question is as to whether the death of the deceased was
homicidal in nature, which the learned trial Court has recorded the
finding in affirmative on the basis of postmortem report (Ex.P/15)
which is proved by Dr. Rajendra Maheshwari (PW-10) which is the
finding of fact based on evidence available on record, it is neither
perverse nor contrary to the record and we hereby affirm the said
finding.
10. Now, the next question is, whether the appellant is author of the
crime in question?
11. In the instant case, the trial Court has relied upon the statement of
eye witness Shesh Narayan Sharma (PW-6). Shesh Narayan Sharma
(PW-6) in his statement before the Court has supported the case of
the prosecution and clearly stated that appellant has stolen his purse
and got himself hidden in the bathroom of the train and when the door
was got opened and on that count, appellant had caught hold of the
deceased by neck and dragged him in the bathroom and strangulated
him and when they came out of the bathroom, the deceased fell down
and died which has been supported by Dushyant Katiyar (PW-11),
eye witness. Apart from these two eye witnesses, pursuant to the
CRA No. 309 of 2014
memorandum statement of the appellant, purse in question containing
₹ 1300/-, driving license in the name of Shesh Narayan Sharma (PW-
6), photos of husband [Shesh Narayan Sharam (PW-6)] & wife [wife
of Shesh Naraya Sharmna (PW-6)] and train ticket were seized from
the possession of the appellant herein and, as such, the appellant is
the author of the crime which has rightly been recorded by the trial
Court.
12. Now, the question is, whether the case of the appellant would fall
under Exception 4 to Section 300 of IPC?
13. 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
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."
14. 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
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
CRA No. 309 of 2014
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 relations;
(m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the
CRA No. 309 of 2014
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."
15. 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.
16. 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.
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
CRA No. 309 of 2014
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
CRA No. 309 of 2014
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".
17. 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 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.
18. 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."
19. Reverting to the facts of the present case in light of above principles
of law laid down by their Lordships of Supreme Court, it is quite vivid
that there was no premeditation on the part of the appellant to cause
death of the deceased, they were strangers to each other and the
5 (2019) 6 SCC 122
CRA No. 309 of 2014
appellant is said to have stolen the purse of Shesh Narayan Sharma
(PW-6) along with whom the deceased was traveling. The dispute
arose when the appellant was caught red handed by Shesh Narayan
Sharma (PW-6) and Dushyant Katiyar (PW-11) and on that count, the
appellant in the spur of moment had taken deceased in his custody in
the bathroom and said to have manually strangulated him. As such,
there was no premeditation on the part of the appellant to cause
death but in the spur of moment, on the allegation of false theft being
levelled, he said to have assaulted the deceased in the sudden
quarrel and caused his death. However, the appellant must have had
knowledge that such injury inflicted by him on the body of the
deceased would likely to cause his death, as such, this is a case
which would fall within the purview of Exception 4 of Section 300 of
IPC, as the act of the appellant herein completely satisfies 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,
the conviction of the appellant under Section 302 of IPC can be
altered/converted to Section 304 Part-II of IPC.
20. In view of the aforesaid discussion, the conviction of the appellant for
offence punishable under Section 302 of IPC as well as the sentence of
life imprisonment awarded to him by the learned trial Court is hereby set
aside. Considering that there was no premeditation on the part of the
appellant to cause death of the deceased but the injuries caused by him
CRA No. 309 of 2014
were sufficient in the ordinary course of nature to cause death, the
appellant is convicted for offence punishable under Section 304 Part-II of
IPC. Since the appellant is in jail from 08.02.2013 i.e. 10 years, taking into
consideration the period he has already undergone, we award him
sentence already undergone by him, but the fine amount imposed by the
learned trial Court shall remain intact. The conviction of the appellant
awarded by the learned trial Court under Section 394 of the IPC and his
respective sentence as stated in the opening paragraph of the judgment
is hereby maintained/affirmed. Consequently, since the accused-appellant
is in jail since 08.02.2013 i.e. 10 years, he be released from jail forthwith,
if not required in any other matter.
21. This criminal appeal is party allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ankit
