Bhanwar Singh vs State Of Chhattisgarh
2023 Latest Caselaw 928 Chatt

                                                                              CRA-971-2016
                                        Page 1 of 13


                                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Appeal No. 971 of 2016
Bhanwar Singh, Son of Gando Ram Komre, aged about 30 years,
Resident of Village Jhitiya, Police Station Ambagarh Chauki, District
Rajnandgaon (Chhattisgarh)
                                                                             ---- Appellant
                                          Versus
State of Chhattisgarh, through the Station House Officer, Police Station
Ambagarh Chauki, District Rajnandgaon (Chhattisgarh)
                                                                         ---- Respondent
-----------------------------------------------------------------------------------------------

For Appellant : Mr. Manoj Kumar Jaiswal, Advocate For Respondent-State : Mr. Ashish Tiwari, Government Advocate

-------------------------------------------------------------------------------------------------

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board (14.02.2023) Sanjay K. Agrawal, J

(1) This criminal appeal filed by the appellant-accused under Section

374(2) of Cr.P.C. is directed against the impugned judgment of

conviction and order of sentence dated 29.08.2013, passed by the

Court of learned Sessions Judge, Rajnandgaon (Chhattisgarh) in

Sessions Trial No.24/2013 (State of Chhattisgarh vs. Bhanwar Singh),

whereby he has been convicted for offence under Section 302 of IPC

and sentenced to undergo life imprisonment with fine of Rs.5,000/- and,

in default of payment of fine, additional rigorous imprisonment for 01

year.

CRA-971-2016

(2) The case of the prosecution, in short, is that on 09.01.2013 in the

evening at about 04:00 PM, at Village Jhitiya within the ambit of police

Station Ambagarh Chowki, the accused-appellant assaulted Gour Singh

(hereinafter referred to as "deceased") by means of bamboo stick and

'paisula' (knife used to vegetable cutting) on his head and other parts of

the body, due to which he suffered grievous injuries and succumbed to

death, and, thereby, the appellant is said to have committed offence

under Section 302 of IPC.

(3) The further case of the prosecution, in brief, is that deceased was

resident of Village Mongra and, three days prior to the date of incident,

he had gone to appellant's house at Village Jhitiya for doing labour

work. Appellant's house is situated in his fields. Deceased used to do

labour work in the fields of appellant. Incident took place on 09.01.2013

and, on the next day, i.e. on 10.01.2013, in the morning, appellant

visited the house of Kotwar of the village, namely, Bihari Lal (PW-03)

and informed him about the death of deceased. Thereafter, Bihari Lal

(PW-03) alongwith other villagers, namely, Murlidhar (PW-08) and

Ghaman Singh (not examined) etc. had gone to the fields of the

appellant. Prior to that, Bhuneshwar (PW-05) informed the Kotwar of

village- Bihari Lal (PW-03) that on 09.01.2013 he had seen appellant

committing 'marpeet' with some person in his fields and, thereafter,

upon query from the appellant, he firstly denied from the said fact, but

later admitted that upon a dispute arose between the appellant and the

deceased with regard to appellant's mobile and money having been CRA-971-2016

stolen, he assaulted deceased by means of bamboo stick and caused

his murder. Pursuant to which, Bihari Lal (PW-03) lodged report at

Police Station Ambagarh Chowki, upon which marg intimation (Ex.P/04)

and FIR (Ex.P/05) were registered. Inquest proceedings were

conducted vide Ex.P/06 and summons under Section 175 of CrPC

were sent vide Ex.P/06A. Nazari Naksha was prepared vide Ex.P/08.

The dead-body of deceased was sent for postmortem examination and

in the postmortem examination report (Ex.P/01), conducted by Dr. R.R.

Dhruve (PW-01), it was opined that the cause of death of deceased is

due to shock and haemorrhage as result of head injury and nature of

death is homicidal. Thereafter, appellant-accused was arrested vide

Ex.P/16 and his memorandum statement was recorded vide Ex.P/10.

Pursuant to the memorandum statement of the appellant, blood stained

bamboo stick and 'paisula' (knife used to vegetable cutting) were seized

vide Ex.P/11. Further, from the dead-body of deceased, his full-pant

and full-shirt were seized vide Ex.P/13 and from the possession of the

appellant, his t-shirt and inner-wear were seized vide Ex.P/12. From the

place of incident, sample of blood stained soil was also seized vide

Ex.P/07. The aforesaid seized articles were sent for FSL examination

vide Ex.P/14 and in the FSL report (Ex.P/20) it has been opined that

blood has been found on the bamboo stick and 'paisula' (knife used to

vegetable cutting) seized pursuant to memorandum statement of the

appellant as well as on the full-shirt and full-pant of the deceased, on

the t-shirt of the appellant and on the soil seized from the spot.

Thereafter, statements of witnesses were recorded and, after due CRA-971-2016

investigation, the police filed charge-sheet in the competent court of

criminal jurisdiction and, thereafter, the case was committed to the

Court of Sessions. The appellant/accused abjured his guilt and entered

into defence by submitting that he is innocent and has been falsely

implicated.

(4) The prosecution in order to prove its case examined as many as

11 witnesses and exhibited 20 documents, whereas the appellant-

accused in support of his defence has neither examined any witness

nor exhibited any document.

(5) The learned trial Court after appreciating the oral and

documentary evidence available on record proceeded to convict the

appellant for offence under Section 302 of IPC and sentenced him as

mentioned herein-above, against which this appeal has been preferred

by the appellant-accused questioning the impugned judgment of

conviction and order of sentence.

(6) Mr. Manoj Kumar Jaiswal, learned counsel appearing for the

appellant submits that the learned trial Court is absolutely unjustified in

convicting the appellant for offence under Section 302 of IPC, as the

prosecution has failed to prove the offence beyond reasonable doubt.

He further submits that the appellant is said to have assaulted

deceased in spur of the moment in a sudden quarrel erupted between

them on account of appellant's mobile and money having being stolen,

as such, there was no motive or intention on the part of the appellant to

cause death of the deceased and only on account of sudden quarrel, CRA-971-2016

under heat of passion the appellant assaulted deceased, due to which

he suffered grievous injuries and died. Hence, the case of the present

appellant falls within the purview of Exception 4 to Section 300 of IPC

and the act of the appellant is culpable homicide not amounting to

murder and, therefore, it is a fit case where the conviction of the

appellant for offence under Section 302 of IPC can be

converted/altered to an offence under Section 304 (Part-I or Part-II) of

IPC. He also submits that the appellant is in jail since 10.01.2013 i.e.

more than 10 years, considering the period he has already undergone,

he be awarded the sentence to the period already undergone by him.

Hence, the present appeal deserves to be allowed in full or in part.

(7) Per-contra, Mr. Ashish Tiwari, learned State counsel supported

the impugned judgment of conviction and order of sentence and

submits that the prosecution has proved the offence beyond reasonable

doubt by leading evidence of clinching nature. The learned trial Court

has rightly convicted the appellant for offence under Section 302 of

IPC. Exception 04 to Section 300 of IPC is not attracted in this case

and it is not the case where conviction of the appellant under Section

302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC.

Thus, the present 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 and foremost question is as to whether the death of the CRA-971-2016

deceased was homicidal in nature, which the learned trial Court has

recorded in affirmative by taking into consideration the postmortem

report (Ex.P/01), wherein it has been opined that cause of death of

deceased is due to shock and haemorrhage as result of head injury and

nature of death is homicidal, which is duly proved by the statement of

Dr. R.R. Dhruve (PW-01), who has conducted the postmortem of the

dead-body of the deceased. Accordingly, taking into consideration the

postmortem report (Ex.P/01) and the statement of Dr. R.R. Dhruve

(PW-01), we are of the considered opinion that the death of deceased

is homicidal in nature, as the same is correct finding of fact based on

evidence and same is neither perverse nor contrary to the record. We

hereby affirm the said finding.

(10) Now, the next question would be whether the accused-appellant

herein is the perpetrator of the crime in question, which the learned trial

Court has recorded in affirmative by relying upon the testimonies of

eye-witness, namely, Bhuneshwar (PW-05), who has seen the

appellant assaulting deceased in his fields on the date of offence and

further pursuant to the memorandum statement of the appellant

recorded vide Ex.P/10, the weapons which were used by the appellant

in commission of offence i.e. blood stained bamboo stick and 'paisula'

(knife used to vegetable cutting) have been seized vide Ex.P/06, which

was subject to FSL examination and in the FSL report (Ex.P/20) blood

has been found on the said articles. Thus, on the basis of said facts

coupled with other evidence available on record, the learned trial Court CRA-971-2016

has rightly held that the appellant-accused is perpetrator of the crime in

question. Accordingly, we hereby affirm the finding recorded by the

learned trial Court that the appellant-accused is the perpetrator of the

crime in question, as the same is correct finding of fact based on

evidence and it is neither perverse nor contrary to the record.

(11) The aforesaid finding brings us to the next question for

consideration, which is, whether the case of the appellant is covered

within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not

amounting to murder and his conviction can be converted to Section

304 Part-I or Part-II of IPC, as contended by learned counsel for the

appellant ?

(12) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana1 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."

1 (2002) 3 SCC 327 CRA-971-2016

(13) 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 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.

2 (2009) 15 SCC 635 CRA-971-2016

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 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 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.

(15) 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

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 CRA-971-2016

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 CRA-971-2016

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 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.

(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

to 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 above

principles of law laid down by their Lordships of the Supreme Court, it is

quite vivid that there was no premeditation on the part of the appellant

to cause death of the deceased, but only on account petty dispute with 5 (2019) 6 SCC 122 CRA-971-2016

regard to appellant's mobile and money having been stolen, the

appellant assaulted deceased, who is worker/labour of his fields/house,

by means of bamboo stick, due to which he suffered grievous head

injuries and succumbed to death. As such, there was no premeditation

on the part of the appellant to cause death of the deceased and only

because of sudden quarrel, under anger and in heat of passion, the

appellant assaulted deceased and caused his death. However, looking

to the head injuries sustained by deceased, the appellant must have

had knowledge that such injuries inflicted by him on the body of the

deceased would likely to cause her death, as such, this is a case which

would fall within the purview of Exception 4 to 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.

(19) 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 were sufficient in the ordinary course of nature to cause CRA-971-2016

death, the appellant is convicted for offence punishable under Section

304 Part-II of IPC. Since the appellant is in jail from 10.01.2013 i.e.

more than 10 years, taking into consideration the period he has already

undergone, we award him sentence already undergone by him, but the

fine sentence imposed by the learned trial Court shall remain intact.

Consequently, he be released from jail forthwith, if not required in any

other matter.

(20) This criminal appeal is party allowed to the extent indicated

herein-above.

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