Chattisgarh High Court
Melaram And Anr vs State Of Chhattisgarh on 14 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 513 of 2014
1. Melaram S/o Bhawar Singh Panka, aged about 35 years R/o Village
Thengadand, PS: Gourela, District: Bilaspur, Revenue and Civil
District: Bilaspur, Chhattisgarh
2. Rajendra S/o Melaram, aged about 20 years R/o Village
Thengadand, PS: Gourela, District: Bilaspur, Revenue and Civil
District : Bilaspur, Chhattisgarh
---- Appellants
Versus
State of Chhattisgarh through PS: Gourela, District: Bilaspur,
Chhattisgarh
---- Respondent
For Appellants :- Ms. Ranjana Jaiswal, Advocate
For State :- Mr. Afroz Khan, P.L.
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 Cr.P.C. is directed
against the impugned judgment dated 31.03.2014 passed by learned
Additional Sessions Judge, Pendra Road, (C.G.) in Sessions Trial
No. 41/2013 by which the appellants herein have been convicted for
the offence under Section 302 read with 34 of I.P.C. and sentenced
for life imprisonment with fine of Rs.200/- and in default of payment
of fine amount, R.I. for 1 month.
2. Case of the prosecution, in short, is that, appellants No. 1 and 2 on
21.06.2013 at 02:00 P.M. assaulted the deceased Mulukram who is
the brother of appellant No. 1. Further case of the prosecution, in
brief, is that the appellant No. 1 assaulted the deceased Mulukram
with trident and the appellant No. 2 assaulted him with the help of
wooden stick, by which the deceased sustained grievous injury and
during the course of his treatment in the hospital, the deceased died.
The incident is said to be witnessed by Fulwati-PW-3 who was the
wife of the deceased. On being informed by the police, the merg
intimation was registered vide Exhibit-P/11. Dehati Nalsi was
registered vide Exhibit-P/12. FIR was recorded vide Exhibit-P/13.
Thereafter, inquest was conducted vide Exhibit-P/14. Panchnama
was prepared vide Exhibit-P/8. Dead body of the deceased was sent
for autopsy and the doctor opined the cause of death of the
deceased was due to excessive bleeding vide Exhibit-P/9. Pursuant
to memorandum statement of the appellants, the trident and the
wooden stick were seized vide Exhibit-P/4 to 6, and the same were
sent for chemical analysis but no FSL report has been brought on
record.
3. After due investigation, the appellants were 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
appellants/accused abjured their guilt and entered into defence by
stating that they have not committed the offence.
4. In order to bring home the offence, prosecution has examined as
many as 9 witnesses and brought into record 21 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 appellants for the offence under Section
302/34 of I.P.C. and sentenced as above against which the present
appeal has been preferred.
6. Learned counsel for the appellants would submit that if the case of
the prosecution is taken as it is, no offence under Section 302 of IPC
can be made out against the present appellants and it is not the case
of murder. The appellants are in jail since 23.06.2013, thereby, they
have completed more than 10 years in jail. As such, their conviction
is liable to be set aside. In alternative, he would submit that the case
of the appellants would fall within Exception 4 to Section 300 of I.P.C.
and therefore their 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
appellants 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 appellants 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
Mulukram was homicidal in nature ?
10. Learned trial Court has recorded an affirmative finding in this regard
relying upon the post mortem report (Ex.P-9) proved by Dr. M.S.
Marco 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. Now, the question would be, whether the appellants are the authors
of the crime in question ?
12. Considering the statement of Fulwati (PW-3) who is the wife of the
deceased and pursuant to the memorandum statement of the
appellants, one trident and one wooden stick was seized and
considering the testimony of the eye witness PW-3 and the seized
articles, it is held that the appellants are the perpetrators of the crime.
13. Now, the question that requires consideration is whether the trial
Court is justified in convicting the appellants for offence punishable
under Section 302 of IPC or their case is covered under Exception 4
to Section 300 of IPC and as such, their conviction can be altered to
either Part-I or Part-II of Section 304 of IPC, as contended by learned
counsel for the appellants ?
14. 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 Haryana1 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
1 (2002) 3 SCC 327
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
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;
(i) The criminal background and adverse history of the
accused;
2 (2009) 15 SCC 635
(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."
16. 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.
17. 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 :-
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
"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
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 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.
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
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 the aforesaid
principles of law laid down by their Lordships of the Supreme Court
and in view of the aforesaid judgments, it is quite vivid that on the
date of offence, marriage of appellant No. 2 was being solemnized,
at that time some altercation took place between the appellant No. 1
and the deceased and the appellants started assaulting the
deceased, as such, there was no premeditation on the part of the
appellants to cause the death of the deceased Mulukram, on sudden
quarrel erupted between them and out of sudden anger and in heat
of passion, the appellants assaulted the deceased by Trident and
Wooden stick by which he suffered injuries. As such, the appellants
must have had the knowledge that their act would likely to cause the
death of the deceased.
21. In that view of the matter, we are of the opinion that the case of the
appellants is covered within Exception 4 to Section 300 of IPC and
since the appellants had no intention and premeditation to cause the
death of the deceased, however, they must have had the knowledge
that their act of assault would likely to cause the death of the
deceased, their conviction for offence punishable under Section
302/34 of IPC is altered to Section 304 Part-II/34 of IPC. Since the
appellants are in jail since 23.06.2013, i.e. for more than 9 ½ years,
we hereby sentence the appellants for 10 years, however, the
sentence of fine amount as imposed by the trial Court is hereby
maintained.
22. Accordingly, this criminal appeal is allowed to the extent indicated
herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Saurabh
