Indar vs State Of Chhattisgarh
2023 Latest Caselaw 960 Chatt

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                                                                  NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                    Criminal Appeal No. 23 of 2014


Indar, S/o. Makhan Ram, Aged About 55 Years, R/o. Village
Uparsemara, Thana - Kusmi, District Balrampur-Ramanujganj,
Chhattisgarh
                                             ---Appellant
                                 Versus
State Of Chhattisgarh, Through : Station House Officer, Police
Station- Kusmi, District Balrampur-Ramanujganj, Chhattisgarh.
                                                      ---Respondent


For Appellant               :-     Mr. Manoj Mishra, Advocate
For State/Respondent        :-     Mr. Afroz Khan, Panel Lawyer


                         (Division Bench)

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

                        Judgment on Board

                            (15.02.2023)

Sanjay K. Agrawal, J.

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

against the impugned judgment dated 21.11.2013 passed by

learned Additional Sessions Judge, Ramanujganj, District

Balrampur-Ramanujganj, in Sessions Trial No.404/2010, by

which the appellant herein has been convicted for the offence

under Section 302 of I.P.C. and sentenced to life imprisonment

with fine of Rs.500/- and in default of payment of fine, 6 months

additional rigorous imprisonment.

2. Case of the prosecution, in brief, is that on 25.06.2010 at 6:30

a.m., at the village Uparsemra, P.S. Kusmi, the appellant

assaulted Manesh, aged about 60 years, by which he suffered

injuries and died; thereby the offence has been committed.

Further case of the prosecution, in brief, is that on the date of

offence 25.06.2010 at 6:30 a.m., deceased Manesh along with

his grand-son Sanjay (PW-7) and Anil Kumar (PW-8) had gone

to his field for ploughing, then they noticed that it was already

ploughed by the appellant herein, then he enquired the

appellant as to on what authority of law, he is performing

agricultural work in his field and asked him not to do that as it

belongs to the deceased, then the appellant assaulted him by

stone and by sal-stick, by which he suffered grievous injury and

thereafter while bringing the deceased back by Sanjay (PW-7)

and Anil (PW-8), he fell down and died. The matter was

informed to his son Gujud Paikra (PW-3), pursuant to which, the

FIR was registered for the offence under Section 302 of I.P.C.

vide Ex.P-5 and panchnama was conducted vide Ex.P-9 and

dead body was sent for post mortem, which was conducted by

Dr. T.Sai (PW-2), who proved the post mortem report vide Ex.P-

2, in which cause of death was stated to be cardiogenic shock

and internal hemorrhage due to injury and death was homicidal

in nature. Thereafter, Nazari Naksha was prepared vide Ex.P-7

and from Anil (PW-8), sal-stick and two stones were seized vide

Ex.P-10. After due investigation, the appellant was charge-

sheeted for the aforesaid offence under Section 302 of I.P.C. to

the jurisdictional criminal court, which was ultimately committed

to the Court of Sessions for hearing and disposal in accordance

with law, in which the appellant abjured his guilt and entered into

defence stating that he has not committed any offence and he

has been falsely implicated.

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

many as 10 witnesses and exhibited 13 documents and the

appellant-accused in support of his defence has not examined

any witness, but has exhibited one document Ex.D-1.

4. The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellant herein for the

offence under Section 302 of I.P.C. and sentenced him as

mentioned in the opening paragraph of the judgment, against

which this appeal has been preferred.

5. Mr. Manoj Mishra, learned counsel for the appellant, would

submit that even if the entire case of the prosecution, based on

eye-witness account is taken as it is, all that is established is

that in a sudden fight, without any pre-meditation, assault was

given using agricultural equipment leading to death of the

deceased, therefore, the present is a case for alteration of

offence from Section 302 of I.P.C. to Section 304 Part-II of

I.P.C. He further submits that the appellant has already

undergone 9 years of jail sentence, therefore, the appeal may

be allowed in part.

6. Per contra, Mr. Afroz Khan, 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 I.P.C. and as such, the appeal deserves to

be dismissed. .

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

rival submissions made herein-above and went through the

records with utmost circumspection.

8. The first question for consideration as to whether the death of

deceased Manesh was homicidal in nature, has been answered

by the trial Court in affirmative relying upon the post-mortem

report Ex.P-2 proved by Dr. T. Sai (PW-2). In our considered

opinion, the finding recorded by the trial Court holding the death

of Manesh to be homicidal in nature is correct finding of fact

based on evidence available on record, it is neither perverse nor

contrary to the record and accordingly we hereby affirm the said

finding.

9. Now, the next question as to whether the appellant is the author

of the crime has also been answered by the trial Court in

affirmative relying upon the statement of Sanjay (PW-7) and Anil

Kumar (PW-8), who are the eye-witnesses, who had gone along

with the deceased to plough the field, which is alleged to be

owned by deceased Manesh. We have carefully gone through

the statement of Sanjay (PW-7) and Anil Kumar (PW-8) and

after going through the record, it appears that they were present

on the spot and had seen the incident that appellant assaulted

the deceased by wooden stick, as such, in our considered

opinion, the trial Court has rightly held that the appellant is the

author of the crime.

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

Court is justified in convicting the appellant for offence

punishable under Section 302 of I.P.C. or his case is covered

under Exception 4 to Section 300 of I.P.C. and as such, his

conviction can be altered to either Part-I or Part-II of Section 304

of I.P.C, as contended by learned counsel for the appellant ?

11. 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 :-

"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

1 (2002) 3 SCC 327

of Rs. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year."

12. 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;

(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;

2 (2009) 15 SCC 635

(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."

13. 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

14. 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

4 (2017) 3 SCC 247

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".

15. 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.

16. 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."

17. 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, it is quite vivid that though there was some land dispute

between the parties existed at the time of offence, but the fact

remains that when the deceased along with Sanjay (PW-7) and

Anil Kumar (PW-8) reached to the spot, the appellant was

ploughing the field and on that account, the dispute erupted in

between the appellant and deceased and in that course, the

appellant had assaulted the deceased by Lathi, by which he

suffered grievous injury, as such, there was no premeditation on

the part of the appellant to cause death of the deceased

Manesh and only because of ploughing the field owned by him,

the appellant is said to have assaulted the deceased by wooden

stick, by which he suffered grievous injury and died as stated by

Sanjay (PW-7). As such, though there was no intention to cause

death but the appellant must have had knowledge that the injury

caused by him is likely to cause death of the deceased. As

such, though the appellant was not having premeditation but on

sudden quarrel erupted between them and out of sudden anger

and in heat of passion, the appellant assaulted the deceased,

though he has not taken undue advantage and not acted in

unusual manner, but considering the nature of injury, it is a fit

case where the conviction under Section 302 of I.P.C. can be

altered to Section 304 Part II of I.P.C.

18. 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

I.P.C. and the conviction of the appellant for offence under

Section 302 of I.P.C. is altered to Section 304 Part II of I.P.C.

and he is sentenced to the period already undergone by him as

he was in jail from 26.06.2010 to atleast till 24.04.2019 i.e. when

he was granted bail by this Court. However, the fine sentence

and default sentence imposed upon the appellant by the learned

trial Court shall remain intact. The appellant is on bail, he need not

surrender; however, his bail bonds shall remain in operation for a

period of 6 months in view of the provisions contained in Section

437-A of Cr.P.C.

19. Accordingly, this criminal appeal is allowed to the extent

indicated herein-above.

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

Ashok