Jeevan Vishwakarma vs State Of Chhattisgarh
2023 Latest Caselaw 785 Chatt

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                                                                         NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                               CRA No. 477 of 2014

      Jeevan Vishwakarma S/o Shri Laxmiprasad Vishwakarma, aged
       about 25 years R/o. Vill. Gardewra, P.S. Baxwan, District:
       Chhatarpur, Madhya Pradesh
                                                                ---- Appellant
                                    Versus
      State of Chhattisgarh through P.S. Dongripali, District: Raigarh,
       Chhattisgarh
                                                              ---- Respondent



       For Appellant      :-     Mr. Bhaskar Payashi, Advocate
       For State          :-     Mr. Sudeep Verma, Dy. G.A.



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

                               Judgment on Board
                                  08/02/2023

Sanjay K. Agrawal, J.

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

against the impugned judgment dated 31.01.2014 passed by learned

Additional Sessions Judge, Sarangarh, District: Raigarh, (C.G.) in

Sessions Trial No. 20/2013 by which the appellant herein has been

convicted for the offence under Section 302 of I.P.C. and sentenced

for life imprisonment with fine of Rs.2,000/- and in default of payment

of fine amount, S.I. for six months.

2. Case of the prosecution, in brief, is that, on 28.02.2013, at about

07:30 AM, the appellant assaulted his wife Smt. Basanti with the help

of stone, due to which the victim sustained grievous injury and died

on the spot. Thereafter, the matter was reported by Gajadhar

Vishwakarma (PW-1) vide Exhibit-P/1. Thereafter, Merg intimation

was given vide Exhibit-P/2. Panchnama was prepared vide Exhibit-P/

6. Dead body of the deceased was sent for autopsy and the doctor

opined murder of the deceased vide Exhibit-P/17. Other articles were

seized. One blue jacket and blood stained soil were seized and sent

for FSL vide Exhibit-P/15 but FSL report has not been brought on

record.

3. After due investigation, the appellant was charge-sheeted for the

offence punishable under Section 302 of IPC before the jurisdictional

criminal Court and the case was committed to the trial Court for

hearing and disposal in accordance with law, in which

appellant/accused abjured his guilt and entered into defence by

stating that he has not committed the offence.

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

many as 19 witnesses and brought into record 51 documents. The

defence has examined none and not exhibited any document.

5. The trial Court, after appreciation of oral and documentary evidence

on record, convicted the appellant for the offence under Section 302

of I.P.C. and sentenced as above against which the present appeal

has been preferred.

6. Learned counsel for the appellant would submit that except the

evidence submitted by PW-1, there is no other evidence available on

record, therefore, no offence under Section 302 of IPC can be made

out against the present appellant and it is not the case of murder. In

alternative, he would submit that the case of the appellant would fall

within Exception 4 to Section 300 of I.P.C. and therefore his

conviction under Section 302 of I.P.C. be altered either to Part-I or

Part-II of Section 304 of I.P.C. and the appeal be allowed in part.

7. Per contra, learned State counsel, would support the impugned

judgment and submit that learned trial Court has rightly convicted the

appellant for offence punishable under Section 302 of IPC and it is

not the case which is covered under 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.

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

submissions made herein-above and went through the records with

utmost circumspection.

9. The first question for consideration is whether the death of deceased

Basanti was homicidal in nature ?

10. Learned trial Court has recorded an affirmative finding in this regard

relying upon the post mortem report (Ex.P-17) proved by Dr. Smt.

Kiran Rohledar (PW-18) which is a 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.

11. Admittedly, the appellant along with his wife and his minor son were

staying in the house of Gajadhar Vishwakarma (PW-1) and

thereafter, the appellant left for their own village, which was seen by

PW-1 and has been admitted by him in Para 12 of his statement.

Further, PW-4 Santra, wife of Shankar Lal, has clearly stated that

she has seen the appellant and deceased going towards their

Village: Jinjal where they used to stay. Thereafter, some altercation

took place between both of them and immediately after sometime

merg intimation vide Exhibit-P/2 was recorded. Thereafter, the dead

body of the deceased Basanti was recovered. On the same day, at

11:00 A.M, FIR was lodged by PW-1, which is Exhibit-P/1. As such

from the statements of PW-1 and PW-4, it is established that they

have seen the appellant and the deceased together in the early

morning. Thereafter, the dead body was sent and the information

was given to the Police Station on 18.02.2013. As such, on the basis

of the statement of PW-1 and PW-4 followed by FIR and merg

intimation, it is well established that the appellant and deceased were

seen together and within short span of time, immediately thereafter,

dead body of deceased was noticed by PW-1 and the matter was

informed to the police. As such, the Trial Court has rightly held that

the appellant is author of the crime.

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

Court is justified in convicting the appellant for offence punishable

under Section 302 of IPC or his case is covered under Exception 4 to

Section 300 of IPC and as such, his conviction can be altered to

either Part-I or Part-II of Section 304 of IPC, as contended by learned

counsel for the appellant ?

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

within Exception 4 to Section 300 of IPC, it would be appropriate to

notice the decision rendered by the Supreme Court in the matter of

Sukhbir Singh v. State of Haryana 1 wherein it has been observed as

under :-

1 (2002) 3 SCC 327

"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."

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

Haryana2, 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. 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;

2 (2009) 15 SCC 635

(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."

15. 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.

3 (2012) 8 SCC 450

16. 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 : 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 4 (2017) 3 SCC 247

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".

17. 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.

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 the aforesaid

principles of law laid down by their Lordships of the Supreme Court and

in view of the statement of Gajadhar Vishwakarma (PW-1) that the

appellant and the deceased were staying in his house from the last few

days and on the next day they started for their own Village: Jinjal. In the

meanwhile, on account of their minor son, a dispute arose between the

appellant and deceased pursuant to which he has caused the injury to

the deceased, as such, there was no premeditation on the part of the

appellant to cause the death of the deceased, on sudden quarrel

erupted between them and out of sudden anger and in heat of passion,

the appellant assaulted the deceased by stone by which the deceased

suffered injuries. As such, the appellant must have had the knowledge

that his act would likely to cause the death of the deceased.

20. In that view of the matter, we are of the opinion that the case of the

appellant is covered within Exception 4 to Section 300 of IPC and since

the appellant had no intention and premeditation to cause the death of

the deceased, however, he must have had the knowledge that his act of

assault would likely to cause the death of the deceased, his conviction

for offence punishable under Section 302 of IPC is altered to Section

304 Part II of IPC. Since the appellant is in jail since 01.03.2013, i.e. for

more than 9 years, we hereby sentence him to the period already

undergone, however, the sentence of fine amount as imposed by the

trial Court is hereby maintained. We direct the appellant be released

forthwith, if not required in any other case.

21. Accordingly, this criminal appeal is allowed to the extent indicated

herein-above.

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