Chattisgarh High Court
Son Singh vs State Of Chhattisgarh on 14 February, 2023
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CRA No. 509 of 2014
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 509 of 2014
Son Singh S/o Sonuram, aged about 23 years, Caste Madiya, R/o.
Village Kotwarpara, Potanar, P.S. Badanji, Civil and Revenue District
Bastar (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through P.S. Badanji, Civil and Revenue District
Bastar (C.G.)
---- Respondent
For Appellant :- Mr. S.P. Sahu, Advocate.
For Respondent :- Mr. Ravi Bhagat, Dy. Government Advocate.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
(14.02.2023)
Sanjay K. Agrawal, J
1. This criminal appeal under Section 374(2) of the CrPC preferred by
the appellant-accused is directed against the impugned judgment of
conviction and order of sentence dated 19.03.2014 passed by the
learned Sessions Judge, Bastar at Jagdalpur, in Sessions Trial
No.40/2013 by which appellant has been convicted for offence under
Section 302 of the IPC and sentenced to undergo imprisonment for
life (till death) and fine of ₹ 2000/-.
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2. Case of the prosecution, in short, is that on 24.02.2013 appellant
assaulted his mother-Gonchibai by hand, fist & legs by which she
suffered grievous injury and died and thereby committed the offence.
3. Further case of the prosecution is that deceased-Gonchi Bai and his
husband-Sonuram (PW-2) had two sons namely Bal Singh (PW-4) &
Son Singh - appellant herein. The appellant-Son Singh had two wives
and from the first wife-Mehtarin, appellant had two sons namely
Samaru, aged about 3 years, & Sukhram. After deserting his first wife-
Mehtarin, he entered into second marriage with Chinta. Since the
appellant had entered into second marriage, Samaru & Sukhram,
sons of the appellant herein, were staying with their grand-mother,
Gonchi Bai. On the date of offence the appellant and his second wife,
Chinta, requested deceased-Gonchi Bai, mother of the appellant, to
give the custody of Samaru, aged about 3 years, which she refused
and on that account, appellant assaulted deceased-Gonchi Bai after
brief quarrel and altercation, pursuant to which she suffered grievous
injury and on the next day during treatment at Maharani Hospital
Jagdalpur, she succumbed to death, which was informed to Police
vide Ex.P/6. Merg Intimation (Ex.P/12) and FIR (Ex.P/11) were
registered. Dead body was subjected to postmortem by Dr. Sanjay
Basak (PW-9) and as per the postmortem report (Ex.P/8), the cause
of death is shock as a rupture of transverse colon (vital organ)
hemoperitoneum and nature of death is homicidal. Seized articles
were sent for chemical analysis to FSL, but FSL report has not been
brought on record.
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4. After due investigation, appellant was charge-sheeted for the
aforesaid offence and 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.
5. In order to bring home the offence prosecution has examined as
many as 10 witnesses and exhibited 23 documents and defence in
support of its 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
offence as mentioned in the opening paragraph of the judgment,
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, submits that since
the appellant demanded the custody of his son Samaru, aged about 3
years, from his mother-Gonchi Bai which she refused to give, he
assaulted her, but there is no premeditation and in the sudden
quarrel, injury is said to have been caused, 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 of the IPC would be made out and
the appellant be sentenced to the period already undergone by him
and appeal may be allowed in part.
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8. On the other hand, Mr. Ravi Bhagat, learned State counsel, would
support the impugned judgment and submit that prosecution has been
able to prove the offence beyond reasonable doubt and, therefore, the
instant appeal deserves to be dismissed.
9. We have heard the learned counsel for the parties, considered their
rival submission made herein-above and gone through the records
with utmost circumspection.
10. 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/8) which
was proved by Dr. Sanjay Basak (PW-9) 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.
11. Now, the next question is, whether the appellant is author of the crime
in question?
12. In the instant case, the trial Court has relied upon the statement of
eye witness Smt. Lachhani (PW-1), wife of the appellant's brother,
who was present on the spot and she has seen the incident,
assaulting the deceased by the appellant which has further been
corroborated by Smt. Shanti (PW-3), daughter of the deceased, who
was also present on the spot at the time of incident and, as such, on
the basis of testimony of two eye witnesses PW-1 & PW-3 it is
established that the appellant is the author of the crime which has
rightly been held by the trial Court and we hereby affirm that finding
also.
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13. Now, the question is, whether the case of the appellant would fall
under Exception 4 to Section 300 of IPC?
14. 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."
15. 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
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;
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
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(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
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."
16. Likewise, in the matter of State v. Sanjeev Nanda 3, their Lordships
3 (2012) 8 SCC 450
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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.
17. 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.
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."
4 (2017) 3 SCC 247
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CRA No. 509 of 2014
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".
18. 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.
19. 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
5 (2019) 6 SCC 122
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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."
20. 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 his mother-Gonchi Bai as the dispute arose for the
custody of appellant's son Samaru, aged about 3 years, which
appellant's mother-Gonchi Bai declined to give to the appellant and
on that account, the appellant assaulted her by hand, fist and legs by
which she suffered shock as a rupture of transverse colon (vital
organ) hemoperitoneum by which she died on the next day during
treatment in the hospital. As such, there was no premeditation on the
part of the appellant to cause death but in the sudden quarrel erupted
between the parties on account of dispute relating to custody of his
son, he said to have assaulted deceased-Gonchi Bai in the sudden
quarrel and caused her death. However, the appellant must have had
knowledge that such injury 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
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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.
21. 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 death, the
appellant is convicted for offence punishable under Section 304 Part-II of
IPC. Since the appellant is reported to be in jail from 28.02.2013 to
07.05.2013 and thereafter, from 16.08.2013 to till date i.e. almost 9 years
10 months, 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.
Accordingly, appellant be released from jail forthwith, if not required in any
other matter.
22. This criminal appeal is party allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ankit
