Tapos Mallik And Anr vs State Of Chhattisgarh
2023 Latest Caselaw 932 Chatt

                                                                           Cr.A.No.1123/2014

                                         Page 1 of 12

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.1123 of 2014

 {Arising out of judgment dated 13-10-2014 in Sessions Trial No.93/2013
                    of the Sessions Judge, Rajnandgaon}

    1. Tapos Mallik, S/o Tapan Mallik, Aged about 18 years,

    2. Tapan Mallik, S/o Kunjbihari Mallik, Aged about 43 years

        Both R/o Srishti Colony, Atal Awas, Qr.No.9, P.S. Basantpur,
        Rajnandgaon, Civil & Revenue District Rajnandgaon (C.G.)
                                                                  (In Jail)
                                                           ---- Appellants

                                            Versus

        State of Chhattisgarh,               Through        P.S.     Rajnandgaon,          Distt.
        Rajnandgaon (C.G.)
                                                                             ---- Respondent

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For Appellants: Mr. Basant Dewangan, Advocate.
For State / Respondent: -
                        Mr. Ashish Tiwari, Government Advocate.
-------------------------------------------------------------------------------------------------

                      Hon'ble Shri Sanjay K. Agrawal and
                     Hon'ble Shri Radhakishan Agrawal, JJ.

Judgment On Board (14-2-2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the impugned judgment of conviction recorded and

sentence awarded by the learned Sessions Judge, Rajnandgaon in

Sessions Trial No.93/2013, by which the appellants herein have

been convicted and sentenced as under: -

Cr.A.No.1123/2014

Appellant No.1 Tapos Mallik (A-1)

Conviction Sentence Section 302 of the IPC Imprisonment for life & fine of ₹ 1,000/-, in default, additional rigorous imprisonment for three months

Appellant No.2 Tapan Mallik (A-2)

Conviction Sentence Section 302 read with Imprisonment for life & fine of ₹ 1,000/-, in Section 34 of the IPC default, additional rigorous imprisonment for three months

2. Case of the prosecution, in short, is that on 18-9-2013 at about 8:00

p.m., at Sweeper Mohalla, Rajnandgaon, the appellants assaulted

Shyamlal @ Gabbar Bansfod (deceased) by knife by which he

suffered grievous injuries and succumbed to death and thereby

committed the offence. Further case of the prosecution is that on

the date of offence, the appellants, who were dealing with the work

of scrap, kept the scrap on way to the house of deceased Shyamlal

which was asked by the deceased to appellant No.2 Tapan Mallik

to clear the way and on that count, the dispute arose and sudden

quarrel took place between the deceased & appellant No.2 and

thereafter, both of them came back to their respective houses and

immediately thereafter, appellant No.2 armed with danda and his

son appellant No.1 Tapos Mallik armed with knife visited the house

of the deceased and appellant No.1 caused one single stab injury

to the deceased by which he suffered injury and he was escorted to

the District Hospital, Rajnandgaon where he died. The incident is

said to have been witnessed by Tejwantin Bai (PW-1) - wife of the

deceased, Ku. Sanjana (PW-2) - daughter of the deceased,

Poonam (PW-8) and Durga Bansfod (PW-15). The matter was Cr.A.No.1123/2014

immediately reported by Tejwantin Bai (PW-1) by which morgue

intimation Ex.P-2 was registered and FIR Ex.P-1 was also

registered. Inquest was conducted vide Ex.P-6 and dead body was

sent for postmortem which was conducted by Dr. B.L. Kumre (PW-

10) vide Ex.P-13 in which cause of death was stated to be due to

shock on account of rupture of vessels of left lung and query report

was also obtained from Dr. B.L. Kumre (PW-10) which is Ex.P-14

by which it has been stated that the injury could have been caused

by knife. Memorandum statement of appellant No.1 was recorded

vide Ex.P-7 and memorandum statement of appellant No.2 was

recorded vide Ex.P-8 pursuant to which bloodstained knife was

seized from appellant No.1 vide Ex.P-9 and the same was sent for

chemical analysis to the FSL, Raipur from where report Ex.P-24

was received according to which blood was found on the knife

seized from appellant No.1 Tapos Mallik.

3. Statements of the witnesses were recorded under Section 161 of

the CrPC. After due investigation, the appellants were charge-

sheeted and charge-sheet was filed before the jurisdictional

criminal court and the case was committed to the Court of

Sessions, Rajnandgaon where the trial was conducted.

4. The accused / appellants abjured the guilt and entered into

defence. In order to bring home the offence, the prosecution

examined as many as twenty witnesses and exhibited 24

documents. The defence has examined none and not exhibited

any document. The appellants were examined under Section 313

of the CrPC in which they denied the guilt.

Cr.A.No.1123/2014

5. The trial Court after appreciating oral and documentary evidence

available on record, convicted and sentenced the appellants herein

in the manner mentioned in the opening paragraph of this judgment

holding the death of the deceased to be homicidal in nature and the

appellants herein as the authors of the crime against which the

instant appeal under Section 374(2) of the CrPC has been

preferred by the appellants.

6. Mr. Basant Dewangan, learned counsel appearing for the

appellants, would submit that the incident occurred on the spur of

moment on account of dispute between appellant No.1 and the

deceased for clearing the way said to have been blocked by

appellant No.1, as such, there was no premeditation on the part of

the appellants to cause the death of the deceased. Learned

counsel would further submit that even if the entire case of the

prosecution is accepted as it is, the appellants have an case of

alteration of their conviction to that under Section 304 Part-II of the

IPC and also for reduction of sentence as they had already

undergone more than 10 years of imprisonment. Therefore, even if

the prosecution case is taken as it is, the case of the appellants

would fall under Exception 4 to Section 300 of the IPC. The

appellants are in jail since 19-9-2013 for more than 09 years, as

such, it is a fit case where conviction of the appellants can be

converted/altered to an offence under Section 304 Part-II of the

IPC. As such, taking into consideration the period already

undergone by the appellants, the appeal of the appellants be

allowed in part.

Cr.A.No.1123/2014

7. Per contra, Mr. Ashish Tiwari, learned Government Advocate

appearing for the State / respondent, would support the impugned

judgment and oppose the appeal and would submit that it is the

appellants who had assaulted the deceased due to which the

deceased died. He would further submit that the prosecution has

been able to bring home the offence and the appellants have rightly

been convicted and sentenced, as such, no case is made out for

conversion / alteration of the offence against the appellants to an

offence under Section 304 Part-II of the IPC.

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

rival submissions made herein-above and also went through the

record with utmost circumspection.

9. The trial Court has rightly held that the death of deceased Shyamlal

@ Gabbar Bansfod is homicidal in nature relying upon the

statement of Dr. B.L. Kumre (PW-10) who has proved the

postmortem report Ex.P-13. The said finding recorded by the trial

Court is a finding of fact based on the evidence available on record,

it is nether perverse nor contrary to the record and we hereby affirm

the said finding.

10. Now, the next question is, whether the appellants are the authors of

the crime in question?

11. Taking into consideration the statements of eyewitnesses -

Tejwantin Bai (PW-1) - wife of the deceased, Ku. Sanjana (PW-2)

- daughter of the deceased, Poonam (PW-8) & Durga Bansfod

(PW-15) and further considering that pursuant to the memorandum

statement of appellant No.1 knife has been seized on which blood Cr.A.No.1123/2014

has been found and human blood has been found on the pant of

appellant No.1 as per FSL report Ex.P-24, as such, the trial Court

has rightly held the appellants to be the authors of the crime.

12. The aforesaid finding brings us to the next question for

consideration, whether the trial Court has rightly convicted the

appellants for offence punishable under Section 302 and 302 read

with Section 34 of the IPC, respectively, or their case is covered

within Exception 4 to Section 300 of the IPC vis-a-vis culpable

homicide not amounting to murder and, thus, their conviction can

be converted to Section 304 Part-II of the IPC, as contended by

learned counsel for the appellants?

13. 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."

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

1 (2002) 3 SCC 327 Cr.A.No.1123/2014

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

the 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 from 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;

2 (2009) 15 SCC 635 Cr.A.No.1123/2014

(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 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

Chhattisgarh4 has elaborately dealt with the issue and observed in

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 Cr.A.No.1123/2014

paragraphs 20 and 21 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 Cr.A.No.1123/2014

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".

17. In 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

the 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 of the IPC.

18. Further, the Supreme Court in the matter of Rambir v. State (NCT

of Delhi)5 has laid down four ingredients which should be tested for

bringing a case within the purview of Exception 4 to Section 300 of

the IPC, which read 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.

xxx xxx xxx"

19. Reverting to the facts of the present case in light of the above

5 (2019) 6 SCC 122 Cr.A.No.1123/2014

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

it is quite vivid that appellant No.2 was tenant of sister of deceased

Shyamlal @ Gabbar Bansfod and on the date of offence, which

was the day of Ganesh Chaturthi, appellant No.2 had kept scrap

on the road and blocked the road by which the deceased suffered

some inconvenience for which he requested appellant No.2 to clear

the way so that he can reach to his house and on that account,

dispute erupted between appellant No.2 & the deceased and

thereafter, the dispute also came to an end, but immediately

thereafter, the two appellants armed with knife & wooden log

reached to the house of the deceased and assaulted him by which

he suffered grievous injury and died. As such, there was no

premeditation on the part of the appellants to cause the death of

deceased Shyamlal @ Gabbar Bansfod, but considering the nature

of injuries, the appellants must have had knowledge that the

injuries caused by them on the deceased are likely to cause the

death of the deceased. Considering the nature of injury it can be

held that the appellants must have had the knowledge that such

injury inflicted by them on the body of the deceased - Shyamlal @

Gabbar Bansfod, would likely to cause his death, however, it can

safely be inferred that there was no premeditation on the part of the

appellants to cause the death of the deceased. The assault has

been made on a sudden quarrel, on a sudden dispute arisen for

clearing the way which was blolcked by appellant No.2 and the

appellants are said to have assaulted the deceased by knife &

wooden log and single injury was caused by knife by appellant Cr.A.No.1123/2014

No.1. Considering the fact that the injury caused upon the

deceased is on account of a sudden quarrel that erupted between

the parties, however, the appellants have not taken undue

advantage and have not acted in unusual manner, in our

considered opinion, this case would fall within the purview of

Exception 4 to Section 300 of the IPC.

20. In view of the aforesaid discussion, conviction of appellant No.1

under Section 302 of the IPC and that of appellant No.2 under

Section 302 read with Section 34 of the IPC as well as the

sentences awarded to them by the learned trial Court are hereby

set aside. Considering that there was no premeditation on the part

of the appellants to cause death of the deceased but the injury

caused by them was sufficient in the ordinary course of nature to

cause death, appellant No.1 is convicted for offence punishable

under Section 304 Part-II of the IPC and appellant No.2 is

convicted for offence punishable under Section 304 Part-II read

with Section 34 of the IPC. Since the appellants are in jail from 19-

9-2013 for more than 09 years, taking into consideration the period

they had already undergone, we award them the sentence already

undergone by them and the fine sentence imposed by the learned

trial Court shall remain intact. The appellants are in jail, they be

released forthwith, if not required in any other offence.

21. The criminal appeal is party allowed to the extent indicated herein-

above.

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