Reena Sandey vs The State Of Chhattisgarh
2023 Latest Caselaw 195 Chatt

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                                                                           NAFR
            HIGH COURT OF CHHATTISGARH AT BILASPUR
                          Criminal Appeal No. 451 of 2022


Reena Sandey, W/o. Ravi Sandey, Aged About 35 Years, R/o. Village
Jamgahan,       Police   Station   Malkharouda,    District   Janjgir   Champa
Chhattisgarh.

                                                                  ---Appellant

                                      Versus

The State Of Chhattisgarh, Through Station House Officer, Police Station
Malkharouda, District Janjgir Champa, Chhattisgarh

                                                                 ---Respondent


For Appellant              :-      Mr. Ashish Shukla, Advocate
For State/Respondent       :-      Mr. Avinash Singh, Panel Lawyer


                  Hon'ble Shri Justice Sanjay K. Agrawal
                Hon'ble Shri Justice Rakesh Mohan Pandey

                                Judgment on Board
                                   (11.01.2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section 374(2)

of Cr.P.C. is directed against the impugned judgment dated

14.02.2022, passed in Sessions Trial No.11/2019, by which the

learned First Additional Sessions Judge, Sakti, has convicted the

appellant herein for the offence under Section 302 of I.P.C. and

sentenced to imprisonment for life and fine of Rs.1000/-, in default of

payment of fine, additional R.I. for 6 months.

2. Case of the prosecution, in short, is that on 31.10.2018, daughter of

appellant namely Baby Anshika, aged about 8 years, went to the

house of the deceased to play and while playing accidentally the

sound box which was kept in the house of the deceased broken

down at the instance of daughter of appellant herein, on which the

deceased scolded the baby and the baby while weeping returned to

her house and told the incident to her mother, then the appellant

went to the house of the deceased Shyam Kumar Sande and used

filthy language against him and assaulted him by way of club.

Thereafter, the deceased was immediately taken to the hospital but

on account of head injury, he succumbed to death. On the basis of

information given by the Hospital to the Police Station Malkharauda,

FIR was registered vide Ex.P-25 for the offence under Sections 294,

506 Part-II and 302 of I.P.C. and panchnama was conducted vide

Ex.P-12 and on the recommendation of panchas, dead body was

sent for post-mortem, which was conducted by Dr. N.K.Dhruve (PW-

15) who prepared a report vide Ex.P-24 in which cause of death was

head injury, which is homicidal in nature. Upon the memorandum

statement of the appellant Ex.P-8, wooden club was recovered vide

Ex.P-10 and broken sound box was also seized by Ex.P-9, which

were not sent for FSL, but the query report of the Doctor was

obtained. Thereafter, after due investigation, the appellant was

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

which was ultimately committed to the Court of Sessions for hearing

and disposal in accordance with law, in which the appellant abjured

her guilt and stated that she has not committed the offence.

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

19 witnesses and exhibited 26 documents and the appellant-accused

in support of her defence has neither examined any witness nor

exhibited any document.

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 as above, against which the present appeal has

been preferred.

5. Mr. Ashish Shukla, learned counsel for the appellant makes a solitary

submission that there was no premeditation on the part of the

appellant and would submit that only at the spur of moment, injury

was caused by wooden club and no FSL report has been brought on

record. He further submits that at the most, conviction of the

appellant under Section 302 of I.P.C. can be altered to Part-II of

Section 304 of I.P.C.

6. Mr. Avinash Singh, learned State counsel, would support the

impugned judgment and submit that the prosecution has been able to

bring the offence and learned trial Court has rightly convicted the

appellant herein for offence punishable under Section 302 of IPC;

therefore, the instant 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 is whether the death of deceased

Shyam Kumar Sande was homicidal in nature, to which learned trial

Court has recorded an affirmative finding holding the death to be

homicidal in nature relying upon the post-mortem report Ex.P-24

proved by Dr. N.K.Dhruve (PW-15). In our considered opinion, the

finding recorded by the trial Court is correct finding of fact based on

evidence available on record, as such, we hereby affirm the said

finding that the death of deceased Shyam Kumar Sande was

homicidal in nature.

9. Now the next question is whether the appellant is the author of the

crime in question, to which considering the statement of daughter of

deceased Ku. Urmila Sande (PW-5) and further taking into

consideration the material available on record, the trial Court has

rightly held that the appellant is the author of the crime.

10. Now, the question would be whether the case of the appellant would

fall under Exception 4 to Section 300 of IPC and, as such, his

conviction can be altered to Part-II of Section 304 of IPC, as

contended by learned counsel for the appellant ?

11. In order to consider whether the case of the appellant is covered

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

1 (2002) 3 SCC 327

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;

(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 ?

2 (2009) 15 SCC 635

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.

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

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

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".

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 v. 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

and taking into consideration that the appellant and deceased both

were neighbours and the incident had taken place at the spur of

moment and the appellant had no premeditation on her part to

commit offence, it was happened because the appellant's daughter

had broken the sound box of the deceased while playing in his

house, due to which the deceased had scolded the child and when

the child while weeping returned home and narrated the incident to

her mother, the appellant herein; sudden quarrel erupted between

them and out of sudden anger and in heat of passion, the appellant

assaulted the deceased on his head by wooden club by which he

5(2019) 6 SCC 122

suffered injuries. As such, appellant must have had the knowledge

that her act would likely cause the death of the deceased.

18. In that view of the matter, we are of the opinion that the case of the

appellant is covered under Exception 4 to Section 300 of IPC and

since the appellant had no intention and premeditation to cause the

death of the deceased, however, she must have had the knowledge

that her act of assault would cause the death of the deceased.

Therefore, her conviction for offence punishable under Section 302 of

IPC is altered to Section 304 Part II of IPC and the appellant is

sentenced for a period of 5 years.

19. Accordingly, conviction of the appellant for offence under Section 302

of I.P.C. is set aside. Now she is convicted for the offence under

Section 304 Part-II of I.P.C. and sentenced to 5 years Rigorous

Imprisonment. However, the fine amount imposed by the trial Court

shall remain intact.

20. In view of the above, this criminal appeal is party allowed to the

extent indicated herein-above.

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

Ashok