Chattisgarh High Court
Manharan Das Deshlahre vs State Of Chhattisgarh on 21 June, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:21040-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.620 of 2018
Manharan Das Deshlahre S/o Shri Tilak Ram
Deshlahre Aged About 22 Years Caste Satnami R/o
Pasaud, Police Station Devri, District Balod,
Chhattisgarh
---- Appellant (In Jail)
Versus
State Of Chhattisgarh Through Police Station Devri,
District Balod, Chhattisgarh
---- Respondent
For Appellants : Shri Basant Kaiwartya appears along
with Shri S. P. Sannat, Advocates
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
(21/06/2024)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by appellant herein
under Section 374(2) of the CrPC is directed against the
impugned judgment of conviction and order of sentence
dated 27.03.2018 passed by the First Additional Sessions
Judge, Balod in Sessions Trial No.58/17, by which, he has
been convicted for offence punishable under Sections 302 &
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326 of the IPC and sentenced to undergo imprisonment for
life and to pay fine of Rs.2,000/-, in default of payment of
fine, to further undergo additional rigorous imprisonment
for six months under Section 302 of the IPC and he has also
been sentenced to undergo rigorous imprisonment for three
years and to pay fine of Rs.1,000/-, in default of payment of
fine, to further undergo additional rigorous imprisonment
for three months under Section 326 of the IPC. Both the
sentences were ordered to run concurrently.
2. The case of the prosecution, in brief, is that on
25.01.2017 at about 11.30 AM at Village Pasoud, there was
an altercation which took place between the appellant
herein and the deceased-Gour Bai regarding theft of brick
and sand and thereafter, the appellant assaulted the
deceased-Gour Bai with the help of a sharp-edged weapon
i.e. axe (tangi), by which, she suffered grievous injuries and
died. The appellant herein has also caused grievous injury
to Likhan Das, (PW-6), who came in rescue of Gour Bai.
Dehati Merg intimation was recorded vide Ex.P-1 and
Dehati Nalishi was registered vide Ex.P-2 against the
appellant herein at Police Station Devri, District Balod by
Santram (PW-1), son of the deceased-Gour Bai. Santram
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(PW-1), son the deceased-Gour Bai, reported the matter to
the Police Station-Devri, District Balod and FIR (Ex.P-22)
was registered against the appellant herein under Sections
302 & 307 of the IPC, pursuant to which, offence under
Sections 302 & 307 of the IPC was registered against him
and the wheels of investigation started running. Thereafter,
inquest was conducted vide Ex.P-7 and spot map was
prepared vide vide Ex.P-4. Pursuant to the memorandum
statement of Appellant-Manharan Das Deshlahre (Ex.P-12),
axe and clothes of the appellant herein were seized vide
Ex.P-8. Plain Soil, bloodstained soil and cap were seized
from the place of incident vide Ex.P-10 and Ex,P-11 and
from the injured witness-Likhan Das, his clothes and
discharge ticket were seized vide Ex.P-5. The seized articles
were subjected to forensic examination and vide FSL Report
(Ex.P-20), it was opined that the aforesaid seized articles
contained human blood. Dead body was subjected to
postmortem and postmortem of the dead body of the
deceased-Gour Bai was conducted by Dr. N. S. Bhandari
(PW-8) and his report is Ex.P-13 and cause of death was
stated to be syncope due to shock as a result of extensive
injury and severe haemorrhage and it was stated to be
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homicidal in nature. The jurisdictional police carried out
the investigation and charge-sheeted the appellant under
Sections 302 and 307 of the IPC. The appellant abjured the
guilt and entered into defence by stating that he has not
committed the offence and he has been falsely implicated in
the offence in question.
3. In order to bring home the offence, the prosecution
has examined as many as 13 witnesses and exhibited 27
documents (Ex.P-1 to Ex.P-27). Statement of the appellant-
accused was recorded under Section 313 of the Cr.P.C.,
wherein he denied guilt, however, he examined none in his
defence.
4. The learned trial Court, after appreciating oral and
documentary evidence on record, convicted and sentenced
the appellant under Sections 302 & 326 of the IPC in the
manner mentioned in the opening paragraph of this
judgment, against which, the instant appeal has been
preferred.
5. Mr. Basant Kaiwartya appearing along with Mr. S. P.
Sannat, learned counsel for the appellant, would submit
that evidence of so-called injured witness Likhan Das
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(PW-6) is liable to be disbelieved, because he has not lodged
the FIR and there were two other persons, who were present
at the spot and who have not been examined by the
prosecution. He would also submit that the so-called eye-
witness Likhan Das (PW-6) has stated that at the time of
quarrel, the appellant was engaged in washing mouth and
no weapon was seen in his hand. The witnesses of
memorandum and seizure as also FSL report have not
supported the case of the prosecution. It is lastly submitted
that even according to the injured eye-witness, the
deceased-Gour Bai had started blaming and accusing the
appellant, therefore, it was only of such provocation, which
was grave in nature, the incident might have happened and
therefore, in any case, the culpability could not travel
beyond the ambit and scope of Section 304 Part-II IPC and
appellant be sentenced for the period already undergone, as
he is in jail since 25.01.2017 and the appeal be allowed in
part.
6. Mr. Sharad Mishra, 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
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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-Gour Bai was homicidal in nature, has
been answered by the trial Court in affirmative relying upon
the postmortem report Ex.P-13 proved by Dr. N. S.
Bhandari (PW-8), according to which, cause of death was
syncope due to shock as a result of extensive injury and
severe haemorrhage 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
assaulted Gour Bai by tangi (axe) and he has caused death
of the deceased-Gour Bai ?
10. Conviction of the appellant is based on the statement
of injured eye-witness Likhan Das (PW-6) as well as the
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statement of Santram (PW-1), son of the deceased-Gour Bai,
who has clearly stated that on the date of incident, an
altercation took place between his deceased mother and the
appellant with regard to theft of brick and sand, on account
of which, the appellant has assaulted his mother-Gour Bai.
However, Likhan Das, (PW-6), who is an eye-witness, has
clearly stated that after brief altercation, the appellant has
assaulted the deceased-Gour Bai with the help of axe (tangi)
as a result of which, she suffered grievous injuries and died
thereafter. Likhan Das (PW-6) has also stated in his cross-
examination that on the date of incident, while the
deceased-Gour Bai abusing the appellant regarding theft of
articles i.e. bricks and sand, the appellant replied that he
has not stolen the articles and at that time, the appellant
was not armed with any weapon. As such, the trial Court
has rightly recorded a finding that it is the appellant, who
has 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.
11. Now, the question would be whether the case of the
appellant would fall under Exception 4 to Section 300 of
IPC and, as such, their conviction can be altered either to
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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
fine of Rs. 5000. In default of payment
1 (2002) 3 SCC 327
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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;
(f) The age and general health
condition of the accused;
2 (2009) 15 SCC 635
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(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
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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
and observed in paragraphs 20 and 21, which reads as
under :-
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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"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
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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
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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
(iv) The offender had not taken any
undue advantage or acted in a
cruel or unusual manner."
5 (2019) 6 SCC 122
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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 as per the statement of injured eye-witness
Likhan Das (PW-6) that on the date of incident, an
altercation took place between the deceased-Gour Bai and
the appellant, in which, the deceased-Gour Bai was the
aggressor and abusing the appellant regarding stealing of
brick and sand, on account of which, due to sudden
provocation and in a fit of anger, the appellant has
assaulted the deceased-Gour Bai with the help of axe
(tangi), due to which, she suffered grievous injuries and
died thereafter, but, there was no premeditation 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 27.03.2018 passed
by the First Additional Sessions Judge, Balod in Sessions
Trial No.58/17 is hereby set aside. The conviction of
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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. Conviction and sentence awarded to the appellant
under Section 326 of the IPC shall remain intact. Appellant
has already completed more than seven years in jail as he is
in jail since 25.01.2017, 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
