Shridhani vs State Of Chhattisgarh
2023 Latest Caselaw 515 Chatt

                                 1

                                                              NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRA No. 362 of 2014

    Shridhani, S/o Lalsay, aged about 50 Years, R/o Village Geji,
     P.S. Khadgawa, Civil and Revenue District Koriya, C.G.

                                                     ----Appellant

                              Versus

    State of Chhattisgarh, Through SHO, Police of Police Station
     Khadgawa, District Koriya, C.G.

                                                 ---- Respondent



For Appellant   Mr. Anil Gulati, Advocate.
For State       Ms. Ruchi Nagar, Deputy Government Advocate.


            Hon'ble Shri Justice Sanjay K. Agrawal
           Hon'ble Shri Justice Radhakishan Agrawal
                      Judgment on Board
                           25/01/2023


Sanjay K. Agrawal, J.

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

directed against the impugned judgment dated 28.02.2014

passed by the learned Second Additional Sessions Judge,

Manendragarh, District Korea, C.G. in Sessions Trial No.

77/2012 by which the appellant herein has been convicted for

the offence under Section 302 of I.P.C. and sentenced for life

imprisonment with fine of Rs.2,000/- and in default of payment

of fine amount, R.I. for three months.

2. Case of the prosecution, in brief, is that on 09.05.2012 at 5:00

am, the appellant assaulted his wife- Rambai/deceased with

axe, as a result of which she suffered grievous injuries and

succumbed to the same and thereby committed the offence in

question. Further case of the prosecution is that on the fateful

day at 5:00 am, the appellant along with his wife/deceased

went to the house of PW-3 Gharbharan. At that time, parents

of PW-3 Gharbharan had gone to jungle for picking tendu

leaves then appellant told PW-3 Gharbharan to inform his

family members as he is not feeling well. Thereafter, PW-3

Gharbharan went to the house of Bhuneshwar and informed

the relatives of appellant over telephone. When PW-3 returned

to his home, appellant told him that on suspicion of having an

affair of his wife- Rambai/deceased with another person, he

killed her. On the report of PW-1 Ramratan Singh to the police,

merg intimation Ex.P-2 was recorded and thereafter FIR

Ex.P-1 was registered and spot map was prepared vide

Ex.P-9. On the recommendation of the panchas, dead body

was sent for postmortem examination which was conducted by

PW-11 Dr. S. Kujur, who has proved the postmortem report

Ex.P-15A. According to postmortem report, the cause of death

was excessive hemorrhage as a result of severe and

dangerous head injury and death was homicidal in nature.

Pursuant to the memorandum of the appellant vide Ex.P-04,

axe and other articles were seized vide Exs.P-05 to P-07.

Seized axe and other articles were 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 19 witnesses and brought on record 21

documents. The defence has examined none and not

exhibited any document.

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

09.05.2012, thereby, he has completed more than 10 years

and 8 months 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-15A) proved by Dr. S. Kujur

(PW-11) 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 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 ?

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 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 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635

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 ?

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 :-

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

"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 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 above

principles of law laid down by their Lordships of the Supreme

Court, it is quite vivid that as per FIR Ex.P-1 and Ex.P-2 merg

intimation which have been lodged by PW-1 Ramratan Singh,

the appellant assaulted his wife from the blunt side of the axe

suspecting her character which also appears from the

statement of PW-11 Dr. S. Kujur wherein he noticed only one

injury on the backside of her head and there was no other injury

on her person.

18. Considering the nature of injury and further considering the

fact that on a sudden quarrel, the appellant- Shridhani

assaulted the deceased with axe, it is clear that there was no

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

deceased and only on the suspicion of having an affair of his

wife-Rambai/deceased with another person, out of sudden

anger, in heat of passion, the appellant assaulted deceased

with axe, due to which she died. However, looking to the injuries

sustained by deceased, the appellant- Shridhani must have had

the knowledge that such injuries inflicted by him on the body of

the deceased would likely to cause her death, as such, this is a

case which would fall within the purview of Exception 4 to

Section 300 of IPC, as the act of the appellant- Shridhani

completely satisfies the four necessary ingredients of Exception

4 to Section 300 IPC i.e. (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 appellant had not taken any undue

advantage or acted in a cruel or unusual manner and, therefore,

the conviction of the appellant- Shridhani under Section 302 of

IPC can be altered/converted to Section 304 (Part-II) of IPC.

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

of the appellant is covered by Exception 4 to Section 300 of

IPC as the appellant had no intention or premeditation to

cause 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. As the appellant is in jail since

09.05.2012, i.e. for more than 10 years and 8 months, 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.

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

indicated herein-above.

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


Akhilesh