Nand Kishore Giri vs State Of Chhattisgarh
2023 Latest Caselaw 51 Chatt

                                                                             Cr.A.No.889/2013

                                          Page 1 of 11

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                            Criminal Appeal No.889 of 2013

 {Arising out of judgment dated 6-8-2013 in Sessions Trial No.35/2011 of
                 the Additional Sessions Judge, Bhatapara}

Nand Kishore Giri, S/o Krishna Kumar Goswami, Aged about 21 years,
R/o Village Sinouda, Post & P.S. Nevra, Civil & Revenue Distt. Raipur
(C.G.)
                                                        ---- Appellant

                                            Versus

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

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For Appellant:          Mr. Rajesh Kumar Jain and Mrs. Kiran Jain, Advocates.
For Respondent: Mr. Ishan Verma, Panel Lawyer.
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                        Hon'ble Shri Sanjay K. Agrawal and
                      Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (4-1-2023)

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 Additional Sessions Judge,

Bhatapara in Sessions Trial No.35/2011 by which he has been

convicted for offence under Section 302, in alternative, Section 302

read with Section 34 of the IPC and sentenced to undergo

imprisonment for life and pay a fine of ₹ 2,000/-, in default of

payment of fine to further undergo additional rigorous

imprisonment for one year.

2. Case of the prosecution, in brief, is that on 28-10-2011 at 05:00 Cr.A.No.889/2013

p.m. at Village Sinoudha, the appellant and one juvenile co-

accused Dushyant Giri assaulted deceased Venkat Giri Goswami

by hands & fists by which he suffered grievous injuries and died

and thereby committed the offence. Further case of the

prosecution, in short, is that on 28-10-2011, deceased Venkat Giri

Goswami was scolding his son Dhanesh Giri Goswami for not

performing the household work, but the appellant and the juvenile

co-accused treating that they are being abused, assaulted Venkat

Giri Goswami by hands & fists which was entered into roznamcha

sanha vide Ex.P-11 at Police Station Nevra by Sheikh Karimuddin

Qureshi (PW-10). Venkat Giri Goswami was medically examined

vide Ex.P-12A by Dr. G.R. Agrawal (PW-13) and he was referred to

Dr. B.R. Ambedkar Memorial Hospital, Raipur where on 29-10-

2011, during the course of treatment, he succumbed to death.

Morgue intimation was recorded vide Ex.P-8 and inquest was

prepared vide Ex.P-1. Postmortem was conducted vide Ex.P-6 by

Dr. S.K. Bagh (PW-11) and cause of death was stated to be due to

cardio-respiratory failure as a result of multiple injuries suffered by

the deceased and their complications. First information report (FIR)

was registered vide Ex.P-13, spot map was prepared vide Ex.P-14

and the accused / appellant herein was arrested vide arrest memo

Ex.P-15. Patwari also prepared the spot map vide Ex.P-3.

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

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

sheeted excluding the juvenile co-accused and charge-sheet was

filed before the jurisdictional criminal court and the case was Cr.A.No.889/2013

committed to the Court of Sessions from where the learned

Additional Sessions Judge received the case on transfer for

conducting trial and hearing and disposal in accordance with law.

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

order to bring home the offence, the prosecution examined as many

as thirteen witnesses and exhibited 17 documents. Nohar Lal

Baghel, Head Master, Primary School, Sinoudha has been

examined as Court witness. The defence has examined none and

exhibited no document.

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

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

appellant.

6. Mr. Rajesh Kumar Jain, learned counsel appearing for the

appellant, would submit that even if the entire case of the

prosecution is accepted as it is, the appellant has an arguable case

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

IPC and also for reduction of sentence as he had already

undergone approximately 6 years and 7 months of rigorous

imprisonment. He would further submit that even according to the

roznamcha sanha (Ex.P-11) which has been treated as dying

declaration, a dispute arose all of a sudden between the neighbours

and the allegation is of giving assault by only hands & fists.

Cr.A.No.889/2013

Therefore, even if the prosecution case is taken as it is, the case of

the appellant would fall under Exception 4 to Section 300 of the IPC

considering the nature of injury. The appellant remained in jail for 6

years and 9 months though presently, he is on bail, 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. Ishan Verma, learned Panel Lawyer appearing for

the State / respondent, would support the impugned judgment and

oppose the appeal and would submit that it is the appellant 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 appellant has rightly been convicted and

sentenced, 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 nature has been answered by the trial Court in affirmative

considering the postmortem report Ex.P-6, which has been proved

by Dr. S.K. Bagh (PW-11) in which cause of death was stated to be

due to cardio-respiratory failure as a result of multiple injuries to the

body and their complications. The finding recorded by the trial Cr.A.No.889/2013

Court that death of deceased Venkat Giri Goswami 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, even it has

not been seriously questioned on behalf of the appellant and we

hereby affirm the said finding.

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

appellant is the perpetrator of the crime in question?

11. The trial Court has convicted the appellant relying upon the dying

declaration Ex.P-11 proved by Sheikh Karimuddin Qureshi (PW-10)

& C.D. Lahre (PW-12) treating it to be the oral dying declaration.

Both are official witnesses and we find no reason to disbelieve their

statements. However, a careful perusal of the dying declaration

Ex.P-11 and the statements of Sheikh Karimuddin Qureshi (PW-10)

& C.D. Lahre (PW-12) would show that on the fateful day, the

deceased was scolding his son namely, Dhanesh Giri Goswami

and the appellant is said to have assaulted the deceased by hands

& fists by which the deceased died. Therefore, it is clearly

established 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 Cr.A.No.889/2013

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.

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 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 Cr.A.No.889/2013

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;

(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."

Cr.A.No.889/2013

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

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,

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 Cr.A.No.889/2013

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 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 Cr.A.No.889/2013

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

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

is quite vivid that on the fateful day, the deceased was scolding his

son Dhanesh Giri Goswami and the appellant treating that he is

being scolded, is said to have assaulted the deceased by hands &

fists 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 his 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,

5 (2019) 6 SCC 122 Cr.A.No.889/2013

however, the appellant has not taken undue advantage and has 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 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 6 years 9 months, 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 is already on bail, he need

not surrender to his bail bonds, his bail bonds shall remain in

operation for a period of six months in view of the provisions

contained in Section 437-A of the CrPC.

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

above.

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

Soma