Chattisgarh High Court
Ramdas Joshi vs State Of Chhattisgarh on 19 June, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:20328-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.627 of 2018
1. Ramdas Joshi S/o Late Tulsi Joshi Aged About 20
Years R/o Village Murmunda, Tahsil Dongargarh,
District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
2. Sona Bai W/o Late Tulsi Joshi Aged About 57 Years
R/o Village Murmunda, Tahsil Dongargarh, District
Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
---- Appellants (In Jail)
Versus
State Of Chhattisgarh Through The Station House
Officer, Police Station Dongargarh, District
Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
---- Respondent
For Appellants : Shri B. P. Singh, Advocate
For Respondent/State: Shri Sharad Mishra, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(19/06/2024)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by appellants herein
under Section 374(2) of the CrPC is directed against the
impugned judgment of conviction and order of sentence
Neutral Citation
2024:CGHC:20328-DB
dated 23.01.2018 passed by the Additional Judge,
Dongargarh to the Court of First Additional Sessions Judge,
Rajnandgaon in Sessions Trial No.15/2016, by which, they
have been convicted for offence punishable under Section
302 read with Section 34 and Section 450 of the IPC and
each of the appellants have been sentenced to undergo
imprisonment for life and to pay fine of Rs.5,000/- and in
default of payment of fine, they have to undergo additional
rigorous imprisonment for one year under Section 302 read
with Section 34 of the IPC and they have also been
sentenced to undergo rigorous imprisonment for five years
and to pay fine of Rs.1,000/- and in default of payment of
fine, they have to undergo additional rigorous imprisonment
for six months under Section 450 of the IPC.
2. The case of the prosecution, in brief, is that on
16.01.2016 at about 8 PM, in furtherance of common
intention, the appellants trespassed into the house of the
deceased-Hemlal Joshi and assaulted him with the help of
cricket bat and bamboo stick, by which, he suffered
grievous injuries and died. Merg intimation was recorded
vide Ex.P-18 by Sakhuram Dhruv (PW-7) and on the basis
of the same, FIR (Ex.P-16) was registered against the
Neutral Citation
2024:CGHC:20328-DB
appellants herein at the Police Station Dongargarh, District
Rajnandgaon by Shri K. K. Rai, A.S.I. (PW-6), pursuant to
which, offence under Sections 302, 34 & 450 of the IPC was
registered and the wheels of investigation started running.
Thereafter, inquest was conducted vide Ex.P-6 and spot
map was prepared vide vide Ex.P-1. Pursuant to the
memorandum statement of Appellant No.1-Ramdas Joshi
and Appellant No.2-Sona Bai (Ex.P-8 & Ex.P-10), bamboo
stick and cricket bat were seized vide Ex.P-12 & Ex.P-13,
but, the seized articles were not subjected to forensic
examination. Dead body was subjected to postmortem and
postmortem of the dead body of the deceased-Hemlal Joshi
was conducted by Dr. M. Nirala (PW-10) and his report is
Ex.P-23 and cause of death was due to cardio-respiratory
failure as a result of head injury and cervical injury and it
was stated to be homicidal in nature. The jurisdictional
police carried out the investigation and charge-sheeted the
appellants under Sections 450, 302 and 34 of the IPC. The
appellants abjured the guilt and entered into defence. Their
defence was that they have not committed the offence and
they have been falsely implicated in the offence in question.
3. In order to bring home the offence, the prosecution
Neutral Citation
2024:CGHC:20328-DB
has examined as many as 13 witnesses and exhibited 27
documents (Ex.P-1 to Ex.P-27). Statement of the appellants-
accused were recorded under Section 313 of the Cr.P.C.,
wherein they denied guilt, however, they examined none in
their defence.
4. The learned trial Court, after appreciating oral and
documentary evidence on record, convicted and sentenced
the appellants under Sections 302, 34 & 450 of the IPC in
the manner mentioned in the opening paragraph of this
judgment, against which, the instant appeal has been
preferred.
5. Mr. B. P. Singh, learned counsel for the appellants,
would submit that conviction of the appellants is based on
the testimony of eye-witnesses Hembai (PW-2) and Damini
Joshi (PW-3), according to which, the appellants herein
have assaulted the deceased-Hemlal Joshi with the help of
cricket bat and bamboo stick and caused grievous injuries,
as a result of which, he died. It is further submitted that
taking the prosecution case as it is and considering the
nature of injury and that death has occurred, to which, the
appellants had knowledge, but there was no intention to
Neutral Citation
2024:CGHC:20328-DB
cause death, at the most, the case of appellants would fall
under Exception 4 to Section 300 of I.P.C. and the alleged
offence is liable to be converted to Part-II of Section 304 of
I.P.C. and appellants be sentenced for the period already
undergone, as appellant No.1-Ramdas Joshi is in jail since
14.02.2016 and appellant No.2-Sona Bai is already on bail,
and as such, the appeal be allowed in part.
6. Mr. Sharad Mishra, learned State counsel, would
submit that the learned trial Court has rightly convicted the
appellants herein for the aforesaid offence and it is not a
case where the sentence of the appellants can be converted
to Section 304 Part-II of I.P.C. and, as such, 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 as to whether the
death of deceased-Hemlal Joshi was homicidal in nature,
has been answered by the trial Court in affirmative relying
upon the postmortem report Ex.P-23 proved by Dr. M.
Nirala (PW-10), according to which, cause of death was due
Neutral Citation
2024:CGHC:20328-DB
to cardio-respiratory failure as a result of head injury and
cervical injury and it was stated to be homicidal in nature,
which in our considered opinion is a correct finding of fact
based on evidence available on record, it is neither perverse
nor contrary to the record and accordingly, we hereby affirm
the said finding.
9. Now, the next question is, whether the appellants have
assaulted Hemlal Joshi by cricket bat and bamboo stick
and have caused the death ?
10. Conviction of the appellants is based on the
statements of eye-witnesses Hembai (PW-2), wife of the
deceased and Damini Joshi (PW-3), daughter of the
deceased. Hembai (PW-2), wife of the deceased-Hemlal
Joshi, who has clearly seen the incident, has stated that on
the date of incident, while she was in the house, the
appellants herein trespassed into the house and have
assaulted her husband-Hemlal Joshi by cricket bat and
bamboo stick, as a result of which, he suffered grievous
injuries and died thereafter. Hembai Joshi (PW-2) was
subjected to lengthy cross-examination, but nothing has
been extracted to show that the appellants have assaulted her
Neutral Citation
2024:CGHC:20328-DB
husband and false explanation has been given before the
Court.
11. Damini Joshi (PW-3), daughter of the deceased-Hemlal
Joshi, who is a child witness, has supported the case of the
prosecution and clearly stated that appellant No.1-Ramdas
with the help of bat and appellant No.2-Sona Bai with the
help of bamboo stick have assaulted her father, due to
which, he sustained grievous injuries and thereafter died
three days after the incident i.e. on 19.01.2016. As such,
the trial Court has rightly recorded a finding that it is the
appellants, who have caused death of deceased, which is a
correct finding of fact based on evidence available on record
and accordingly, we hereby affirm the said finding.
12. Now, the question would be whether the case of the
appellants would fall under Exception 4 to Section 300 of
IPC and, as such, their conviction can be altered either to
Part-I or Part-II of Section 304 of IPC, as contended by
learned counsel for the appellants ?
13. In order to consider whether the case of the appellants
is covered under Exception 4 to Section 300 of IPC, it would
be appropriate to notice the decision rendered by the
Neutral Citation
2024:CGHC:20328-DB
Supreme Court in the matter of Sukhbir Singh v. State of
Haryana1 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."
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
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
Neutral Citation
2024:CGHC:20328-DB
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;
Neutral Citation
2024:CGHC:20328-DB
(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
Neutral Citation
2024:CGHC:20328-DB
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 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)
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
Neutral Citation
2024:CGHC:20328-DB
"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)
Neutral Citation
2024:CGHC:20328-DB
"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
Neutral Citation
2024:CGHC:20328-DB
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
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."
19. Bearing in mind the aforesaid principles of law laid
down by their Lordships of the Supreme Court and further
5 (2019) 6 SCC 122
Neutral Citation
2024:CGHC:20328-DB
considering the charge levelled upon the appellants, it is
quite vivid that, as per the statement of eye-witnesses
Hembai (PW-2), wife of the deceased and Damini Joshi (PW-
3), daughter of the deceased, when the deceased-Hemlal
Joshi scolded their son and daughter regarding studies, the
appellants herein trespassed into the house and considered
that they were being abused and the appellants herein in a
fit of anger have assaulted the deceased-Hemlal Joshi with
the help of cricket bat and bamboo stick, due to which, he
suffered grievous injuries and died, but, there was no
premeditation or motive to cause death and they must have
had knowledge that those injuries would likely to cause
death and the appellants had not taken any undue
advantage and have not acted in unusual manner; thus, the
case of the appellants would fall under Exception 4 to
Section 300 of I.P.C.
20. In view of the above, the impugned judgment of
conviction and order of sentence dated 23.01.2018 passed
by the Additional Judge, Dongargarh to the Court of First
Additional Sessions Judge, Rajnandgaon in Sessions Trial
No.15/2016 is hereby set aside. The conviction of
appellants for offence punishable under Section 302 of
Neutral Citation
2024:CGHC:20328-DB
I.P.C. is altered to Section 304 Part-II of I.P.C. and they are
sentenced to rigorous imprisonment for six years. Appellant
No.1-Ramdas Joshi has already completed six years in jail
as he is in jail since 14.02.2016, he shall be released
forthwith from jail, unless he is required in any other
offence. Appellant No.2-Sona Bai, who is already on bail,
need not surrender. Her bail bond/surety bond shall
remain in operation for a period of six months in the light of
provision under Section 437-A of the Cr.P.C.
21. In view of the above, this criminal appeal is partly
allowed to the extent indicated herein-above.
22. Let a certified copy of this judgment along with the
original record be transmitted to the trial Court concerned
for necessary information and action, if any. A certified copy
of the judgment may also be sent to the concerned Jail
Superintendent forthwith wherein the appellant No.1-
Ramdas Joshi is suffering the jail sentence.
SD/- SD/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Tumane
