Kesri Mahra vs State Of Chhattisgarh
2023 Latest Caselaw 149 Chatt

                                                                                Cr.A.No.566/2014

                                           Page 1 of 10

                                                                                              NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.566 of 2014

 {Arising out of judgment dated 30-4-2014 in Sessions Trial No.105/2013 of
                   the Sessions Judge, Bastar at Jagdalpur}

Kesri Mahra, S/o Jethuram Mahra, Caste Mahra, aged about 42 years,
Occupation Agriculturist and Labour in Kawadgaon Kochlipara, R/o Village
Kochlipara, Kawadgaon, P.S. Bhanpuri, Civil and Revenue District Bastar
(C.G.)
                                                           ---- Appellant

                                              Versus

State of Chhattisgarh, through the Station House Officer, Police Station
Bhanpuri, District Bastar (C.G.)
                                                         ---- Respondent

------------------------------------------------------------------------------------------------------
For Appellant:                   Mr. Chhabileshwar Kumar Sahu, Advocate.
For Respondent / State: Mr. Anmol Sharma, Panel Lawyer.
------------------------------------------------------------------------------------------------------

                          Hon'ble Shri Sanjay K. Agrawal and
                        Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (9-1-2023)

Sanjay K. Agrawal, J.

1. The appellant has preferred this appeal under Section 374(2) of the

CrPC against the impugned judgment of conviction recorded and

sentence awarded by the learned Sessions Judge, Bastar at

Jagdalpur in Sessions Trial No.105/2013 by which he has been

convicted for offence under Section 302 of the IPC and sentenced to

undergo imprisonment for life and pay a fine of ₹ 2,000/-.

2. Case of the prosecution, in short, is that on 12-8-2013, the appellant

came back to his house after grazing his cattle and asked for food

from his wife Dayabati (since deceased) which she did not serve

because of which he became angry and consequently, thrashed the Cr.A.No.566/2014

head of his wife on a pointed stone by which she suffered injury and

also broken her leg as a result of which she succumbed to death out

of the injuries suffered by her, and thereby committed the offence.

Immediately, Tingalram Baghel (PW-4) - Sarpanch, reached to the

spot and it was informed by the accused that on account of food not

being served to him, he pushed his wife by which she suffered injury

on head and died. Similar statement was made by the accused to

Suner Das (PW-3). Thereafter, on the recommendation of panchas,

dead body was subjected to postmortem which was conducted by Dr.

B.D. Roy (PW-5) vide Ex.P-9 and cause of death was stated to be due

to excessive bleeding and death was homicidal in nature.

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

CrPC. After due investigation, the appellant was charge-sheeted and

charge-sheet was filed before the jurisdictional criminal court and the

case was committed to the Court of Sessions, Bastar at Jagdalpur

where the trial was conducted.

4. The accused abjured the guilt and entered into defence. In order to

bring home the offence, the prosecution examined as many as eight

witnesses and exhibited 20 documents. Statement of the accused

under Section 313 of the CrPC was recorded in which he denied the

guilt. However, he has examined none in his defence and exhibited

no document on his behalf.

5. The trial Court after appreciating oral and documentary evidence

available on record, convicted and sentenced the appellant 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

appellant herein as the author of the crime against which the instant Cr.A.No.566/2014

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

appellant.

6. Mr. Chhabileshwar Kumar Sahu, learned counsel appearing for the

appellant, would submit that the appellant had no intention to cause

the death of his wife, on account of sudden quarrel due to non-serving

of food, the dispute arose in which the deceased fell down and

suffered injury, as such, offence under Section 304 Part-II of the IPC

would be made out and the appellant is already in jail since 13-8-

2013. Therefore, the case of the appellant would fall under Exception

4 to Section 300 of the IPC. The appellant remained in jail for 9 years

4 months, as such, it is a fit case where conviction of the appellant can

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

IPC. Therefore, taking into consideration the period already

undergone by the appellant, the appeal of the appellant be allowed in

part.

7. Per contra, Mr. Anmol Sharma, learned Panel Lawyer appearing for

the State / respondent, would support the impugned judgment and

oppose the appeal and would submit that the prosecution has been

able to bring home the offence against the appellant beyond

reasonable doubt and the appellant has rightly been convicted and

sentenced under Section 302 of the IPC, as such, no case is made

out for conversion / alteration of the offence against the appellant 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 first question whether the death of the deceased was homicidal in Cr.A.No.566/2014

nature has been answered by the trial Court in affirmative considering

the postmortem report Ex.P-9, which has been proved by Dr. B.D. Roy

(PW-5) in which cause of death was stated to be due to excessive

bleeding and death was homicidal in nature. The finding recorded by

the trial Court that death of deceased Dayabati was homicidal in

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

it is neither perverse nor contrary to the record and we hereby affirm

the said finding.

10. Now, the question for consideration would be, whether the appellant is

the author of the crime in question?

11. Considering the evidence of Suner Das (PW-3) & Tingalram Baghel

(PW-4) and further considering the extra-judicial confession made by

the appellant to Suner Das (PW-3) & Tingalram Baghel (PW-4)

regarding the incident which is true and voluntary and also

considering the injuries suffered by the deceased, we are of the

opinion that the appellant is the author of the crime in question.

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

whether the trial Court has rightly convicted the appellant for offence

punishable under Section 302 of the IPC or his case is covered within

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

amounting to murder and, thus, his conviction can be converted to

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

the appellant?

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 1 (2002) 3 SCC 327 Cr.A.No.566/2014

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. 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

2 (2009) 15 SCC 635 Cr.A.No.566/2014

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."

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 3 (2012) 8 SCC 450 Cr.A.No.566/2014

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

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

4 (2017) 3 SCC 247 Cr.A.No.566/2014

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".

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;

5 (2019) 6 SCC 122 Cr.A.No.566/2014

(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 principles of

law laid down by their Lordships of the Supreme Court in the aforesaid

judgments and considering the fact that there was no previous dispute

between the appellant and the deceased - husband & wife, it is quite

vivid that on the fateful day, the appellant came home after grazing his

cattle and asked for food from his wife which was not served and the

appellant is said to have thrashed the head of his wife i.e. the

deceased herein, on a pointed stone by which she died. Considering

the fact that the deceased (wife of the appellant) used to quarrel with

her husband - the appellant herein, and the appellant without any

premeditation and without any intention, on a sudden quarrel arose on

account of non-serving of food to him, assaulted the deceased by

thrashing her head on a pointed stone by which the deceased died.

As such, there was no intention on the part of the appellant to cause

the death of the deceased, but he has knowledge that the injury

caused is sufficient to cause death. Considering the nature of injury it

can be held that the appellant must have had the knowledge that such

injury inflicted by him on the body of the deceased would likely to

cause her death, however, it can safely be inferred that there is no

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

deceased. Considering the fact that the injury caused upon the

deceased is on account of a sudden quarrel that erupted between the

parties, however, the appellant has not taken undue advantage and

has not acted in unusual manner, in our considered opinion, this case Cr.A.No.566/2014

would fall within the purview of Exception 4 to Section 300 of the IPC.

20. In view of the aforesaid discussion, conviction of the appellant under

Section 302 of the IPC as well as the sentence 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 injury caused by him was sufficient in the ordinary

course of nature to cause death, the appellant is convicted for offence

punishable under Section 304 Part-II of the IPC. Since the appellant

remained in jail for 9 years 4 months (he is in jail since 13-8-2013),

taking into consideration the period he had already undergone, we

award him the sentence already undergone by him and the fine

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

appellant be released forthwith, if not required in any other case.

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

above.

                 Sd/-                                             Sd/-
          (Sanjay K. Agrawal)                           (Rakesh Mohan Pandey)
                Judge                                            Judge

Soma