Deepak @ Kalu Soni vs State Of Chhattisgarh
2023 Latest Caselaw 479 Chatt

                                  1

                                                                NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                         CRA No. 173 of 2014

    Deepak @ Kalu Soni, S/o Rajkumar Soni, aged about 28
     Years, R/o Sonpuri, P.S. Kotwali Mungeli, Revenue Distt.
     Mungeli, Civil Distt. Bilaspur, C.G.

                                                      ----Appellant

                               Versus

    State of Chhattisgarh, Through Station House Officer, P.S. City
     Kotwali, Mungeli, Distt. Mungeli, C.G.

                                                  ---- Respondent



For Appellant                Mr. Manoj Jaiswal, Advocate.
For Respondent / State       Mr. Avinash Singh, Panel Lawyer.


            Hon'ble Shri Justice Sanjay K. Agrawal
           Hon'ble Shri Justice Radhakishan Agrawal
                      Judgment on Board
                           24/01/2023


Sanjay K. Agrawal, J.

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

directed against the impugned judgment dated 19.08.2013

passed in Sessions Trial No. 18/2012 by which the learned

Additional Sessions Judge, Mungeli, District Bilaspur, C.G.,

while acquitting the appellant from the charge under Section

25(1-b)B of the Arms Act, convicted him for the offence under

Section 302 of IPC and sentenced for life imprisonment with

fine of Rs.1,000/- and in default of payment of fine amount,

R.I. for one year.

2. Case of the prosecution, in brief, is that on 04.04.2012 at 9:30

pm in village Sonpuri, police station Mungeli, the appellant

assaulted his uncle Balwant Kumar with knife and thereby

committed the offence in question. Further case of the

prosecution is that on account of some family dispute, the

subject land situated at Bada Bazar, Mungeli was subjected to

demarcation on the date of incident i.e. 04.04.2012. It is

further case of the prosecution is that in the night of

04.04.2012, the deceased/Balwant Kumar abused the

appellant on the said land dispute pursuant to which the

appellant went back to his house, returned with knife and

assaulted his uncle with knife, as a result of which he

sustained grievous injuries and succumbed to death. On the

report of PW-1 Anil Soni, merg intimation Ex.P-2 was recorded

and thereafter FIR Ex.P-1 was registered and spot

panchnama was prepared vide Ex.P-9. On the

recommendation of the panchas, dead body was sent for

postmortem examination which was conducted by PW-07 Dr.

Sudesh Ratre, who has proved the postmortem report

Ex.P-14. According to postmortem report, the cause of death

was due to external and internal hemorrhage leading to shock

and death was homicidal in nature. Pursuant to the

memorandum of the appellant vide Ex.P-10, knife and clothes

were seized vide Ex.P-12. Ex.P-15A is the query report,

according to which, injuries noticed on the body of the

deceased could have been caused by seized knife, which was

sent to FSL but no FSL report has been brought on record.

3. After due investigation, the appellant was charge-sheeted

before the jurisdictional criminal Court and the case was

committed to the trial Court for hearing and disposal in

accordance with law, in which appellant/accused abjured his

guilt and entered into defence by stating that he has not

committed the offence.

4. In order to bring home the offence, prosecution has examined

as many as 12 witnesses and brought on record 21

documents. The defence has examined only one witness i.e.

DW-1 Dr. Ranjana Sahu and brought on record 5 documents

i.e. Ex.D-1 to Ex.D-5.

5. The trial Court after appreciation of oral and documentary

evidence on record, convicted the appellant for the offence

under Section 302 of IPC and sentenced as above against

which the present appeal has been preferred.

6. Learned counsel for the appellant would submit that there is

no legally admissible evidence against the appellant and only

on the basis of conjectures and surmises the trial Court has

held the appellant guilty. The appellant is in jail since

06.04.2012, thereby, he has completed more than 10 years in

jail. As such, his conviction is liable to be set aside. In

alternative, he would submit that the case of the appellant

would fall within Exception 4 to Section 300 of I.P.C. and,

therefore, his 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 and sentenced the appellant for offence punishable

under Section 302 of IPC. It is not the case which is covered

under Exception 4 to Section 300 of IPC, as such, the

conviction of the appellant cannot be converted into either Part

I or Part II of Section 304 of IPC. Hence, instant appeal is

liable 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 would be whether the

death of the deceased was homicidal in nature which has

been answered by the trial Court in the affirmative relying upon

the postmortem report (Ex.P-14) proved by Dr. Sudesh Ratre

(PW-7) 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.

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

author of the crime in question ?

11. Considering the statements of PW-3 Ram Kumar, who is the

eye-witness, PW-1 Anil Soni & PW-2 Yashvant Soni and the

fact that pursuant to the memorandum statement of the

appellant, knife was recovered from the possession of the

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

perpetrator of crime in question.

12. Now, the question that requires consideration is whether the

trial Court was justified in convicting the appellant for offence

punishable under Section 302 of IPC or his case is covered

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

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

304 of IPC, as contended by learned counsel for the

appellant ?

13. 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 :-

1 (2002) 3 SCC 327

"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."

14. 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;

2 (2009) 15 SCC 635

(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 ?

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

3 (2012) 8 SCC 450

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.

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, 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 4 (2017) 3 SCC 247

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".

17. 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.

18. 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."

19. 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, indisputably, on the date of incident i.e.

04.04.2012, the disputed land situated at Bada Bazar, Mungeli

was subjected to demarcation by the revenue authorities and

in the night of 04.04.2012, PW-2 Yashvant Soni, PW-3 Ram

Kumar and PW-4 Chhedu Ram were sitting together in the

shop of PW-2 Yashvant Soni, that was joined by the appellant

which was not accepted by deceased/Balwant Kumar and he

asked the appellant to go back to his home and abused him

as well and thereafter, some altercation took place between

them. PW-2 Yashvant Soni intervened in the matter and with

the assistance of PW-2 and others, they all went back to their

respective houses. However, appellant armed with a knife

came to house of deceased/Balwant Kumar and gave him

several knife blows, as a result of which deceased/Balwant

Kumar sustained grievous injuries and died. Appellant made

extra judicial confession to PW-2 Yaswhwant Soni. The matter

was reported to the police and the appellant was

apprehended. As such, there was no premeditation on the part

of the appellant to cause death of the deceased. As per

statement of PW-3 Ram Kumar, on sudden quarrel erupted

between them, out of sudden anger and in heat of passion,

the appellant assaulted the deceased by knife causing injuries

to him. As such, appellant must have had the knowledge that

his act would likely to cause death of the deceased.

20. 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 IPC and since the appellant had no intention and

premeditation to cause the death of the deceased, however,

he must have had the knowledge that his act of assault would

likely to cause the death of the deceased. Hence, conviction of

appellant for the offence punishable under Section 302 of IPC

is altered to Section 304 Part II of IPC. Since the appellant is

in jail since 15.02.2012, i.e. for more than 10 years, we hereby

sentence him to the period already undergone, however, the

sentence of fine, as imposed by the trial Court, is hereby

maintained. We direct that appellant be released forthwith, if

not required in any other case.

21. Accordingly, this criminal appeal is allowed in part to the extent

indicated herein-above.

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



Akhilesh