Chattisgarh High Court
Lachu Ram Markam @ Motu vs State Of Chhattisgarh on 27 June, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:22588-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.1121 of 2018
Lachu Ram Markam @ Motu S/o Santu Ram Aged
About 50 Years R/o Village Mohpal Beechpara, P. S.
Bade Dongar, Distt. Kondagaon Chhattisgarh
---- Appellant (In Jail)
Versus
State Of Chhattisgarh Through P. S. Farasgaon, Distt.
Kondagaon Chhattisgarh
---- Respondent
For Appellant : Shri Vikas A. Shrivastava, Advocate
For Respondent/State: Shri Ashish Shukla, Additional AG
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(27/06/2024)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein
under Section 374(2) of the CrPC is directed against the
impugned judgment of conviction and order of sentence
dated 29.06.2018 passed by the learned Sessions Judge,
Kondagaon in Sessions Trial No.82/2016, by which, he has
been convicted for offence punishable under Section 302 of
the IPC and sentenced to undergo imprisonment for life and
to pay fine of Rs.200/-, in default of payment of fine, to
further undergo additional rigorous imprisonment for three
months.
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2. The case of the prosecution, in brief, is that on
31.08.2016 at about 5 PM in the evening, the appellant
herein along with his wife-deceased-Hiramdai went to the
house of Ramchandra (PW-1) at Village Bhanpuri Bedapara,
where Ramchandra (PW-1) was there along with his wife
Smt. Maheshwari Bai (PW-4) and the appellant herein and
his wife both have consumed liquor and thereafter, the
appellant herein asked his wife to go back to their house, to
which, she refused by saying that it's night, we will go
tomorrow, as a result thereof, there was an altercation took
place between the appellant herein and the deceased wife-
Hiramdai and Ramchandra (PW-1) solved the dispute, but,
after sometime, the appellant herein started abusing his
wife and also assaulted her, on which, Ramchandra (PW-1)
and his wife Smt. Maheshwari (PW-4) tried to rescue her,
then, the appellant herein dashed Ramchandra also. After
that, the appellant herein caught hold of hair of his wife-
Hiramdai and dashed into the stone embedded in the floor
of the house, which has been used in the work of
blacksmith, as a result thereof, she sustained grievous
injuries and died. Merg intimation was recorded by
Ramchandra (PW-1) vide Ex.P-1. Ramchandra (PW-1)
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reported the matter to the Police Station-Farasgaon, District
Kondagaon and FIR (Ex.P-2) was lodged against the
appellant herein, pursuant to which, offence under Section
302 of the IPC was registered against him and the wheels of
investigation started running. Thereafter, inquest was
conducted vide Ex.P-5 and spot map was prepared vide
Ex.P-11. Pieces of bangles and clothes of the deceased-
Hiramdai were seized vide Ex.P-6 & Ex.P-8. Dead body of
the deceased-Hiramdai was subjected to postmortem and
postmortem of the dead body of the deceased-Hiramdai was
conducted by Dr. Lakhan Lal Jurri (PW-5) and his report is
Ex.P-7 and cause of death was stated to be head injury &
coma due to contusion & bruise over skull and it was stated
to be homicidal in nature. The jurisdictional police carried
out the investigation and charge-sheeted the appellant
under Section 302 of the IPC and the final report was
accordingly submitted before the Court of Chief Judicial
Magistrate, Kondagaon, who in turn, committed the matter
before the learned Sessions Judge, Kondagaon, for trial in
accordance with law. The appellant has denied the charge
so framed and claimed to be tried.
3. In order to bring home the guilt of the appellant, the
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prosecution has examined as many as 10 witnesses and
produced 15 documents, Ex.P-1 to P-15, while none was
examined by the appellant in rebuttal.
4. The learned trial Court, after appreciating oral and
documentary evidence on record, convicted and sentenced
the appellant under Section 302 of the IPC in the manner
mentioned in the opening paragraph of this judgment,
against which, the instant appeal has been preferred.
5. Mr. Vikash A. Shrivastava, learned counsel for the
appellant, would submit that considering the
circumstances, in which, the appellant herein and his wife-
deceased-Hiramdai both consumed liquor and thereafter
altercation took place between them and in a sudden heat
of passion, the appellant herein caught hold of hair and
dashed her head over the stone, by which, she suffered
grievous injuries and died, offence under Section 302 of the
IPC is not made out against the appellant, but, at the most,
offence under Section 304 Part-II of the IPC only is made
out and appellant be sentenced for the period already
undergone by him, as he is in jail since 01.09.2016 i.e.
almost eight years and the appeal be allowed in part.
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6. Mr. Ashish Shukla, learned State counsel, would
submit that the learned trial Court has rightly convicted the
appellant herein for the aforesaid offence and it is not a
case where the sentence of the appellant 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-Hiramdai was homicidal in nature, has
been answered by the trial Court in affirmative relying upon
the postmortem report Ex.P-7 proved by Dr. Lakhan Lal
Jurri (PW-5), according to which, cause of death was stated
to be head injury & coma due to contusion & bruise over
skull 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 appellant has
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assaulted his wife-Hiramdai by dashing her head over the
stone and he has caused death of the deceased-Hiramdai ?
10. Admittedly, the appellant herein and his wife-
deceased-Hiramdai went to the house of Ramchandra (PW-
1) and Smt. Maheshwari (PW-4) and stayed there and
thereafter, both consumed liquor and in the late night, an
altercation took place between them, as a result thereof,
Ramchandra (PW-1) and his wife-Maheshwari (PW-4) woke
up and seen that the appellant herein abusing and
assaulting his wife by dashing her head over the stone, on
account of which, she sustained grievous injuries and died.
The finding recorded by the learned trial Court that the
appellant has caused grievous injuries to his wife-deceased-
Hiramdai and died instantaneously as also the medical
evidence in the shape of Dr. Lakhan Lal Jurri (PW-5) and
his report Ex.P-7, is a correct finding of fact based on the
evidence available on record that it is the appellant, who
has caused death of his wife-deceased-Hiramdai, and
accordingly, we hereby affirm the said finding.
11. Now, the question would be whether the case of the
appellant would fall under Exception 4 to Section 300 of
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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 appellant ?
12. 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
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
1 (2002) 3 SCC 327
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fine of Rs. 5000. In default of payment
of fine, he shall undergo further
rigorous imprisonment for one year."
13. 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
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(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
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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."
14. 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.
15. Further, the Supreme Court in the matter of Arjun v.
State of Chhattisgarh4 has elaborately dealt with the issue
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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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 proves fatal,
he would be entitled to the benefit
of this exception provided he has
not acted cruelly."
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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
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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".
16. 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.
17. 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
5 (2019) 6 SCC 122
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(iv) The offender had not taken any
undue advantage or acted in a
cruel or unusual manner."
18. Bearing in mind the aforesaid principles of law laid
down by their Lordships of the Supreme Court and further
considering the charge levelled upon the appellant, it is
quite vivid that the appellant herein and his wife-deceased-
Hiramdai both have consumed liquor in the house of
Ramchandra (PW-1) and Maheshwari (PW-4) and the
appellant stayed there along with his wife-Hiramdai and in
the influence of liquor, on a petty dispute, the appellant
started abusing and dashed his wife's(deceased-Hiramdai)
head over the stone, due to which, she suffered grievous
injuries and died, but, there was no premeditation,
intention or motive to cause death and he must have had
knowledge that those injuries would likely to cause death
and the appellant had not taken any undue advantage and
has not acted in unusual manner; thus, the case of the
appellant would fall under Exception 4 to Section 300 of
I.P.C.
19. In view of the above, the impugned judgment of
conviction and order of sentence dated 29.06.2018 passed
by the learned Sessions Judge, Kondagaon in Sessions Trial
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No.82/2016 is hereby set aside. The conviction of appellant
for commission of offence punishable under Section 302 of
I.P.C. is altered to Section 304 Part-II of I.P.C. and he is
sentenced to the period already undergone by him.
Appellant has already completed almost eight years in jail
as he is in jail since 01.09.2016, therefore, he shall be
released forthwith from jail, unless he is required in any
other offence.
20. In view of the above, this criminal appeal is partly
allowed.
21. 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 is suffering
the jail sentence.
SD/- SD/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Tumane
