Chattisgarh High Court
Smt.Amar Bai Manhar @ Harrihin vs State Of Chhattisgarh on 7 February, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.No.431/2014
Page 1 of 12
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.431 of 2014
{Arising out of judgment dated 8-1-2014 in Sessions Trial No.27/2012 of
the Additional Sessions Judge, Sarangarh, District Raigarh}
Smt. Amar Bai Manhar @ Harrihin, W/o Kamal Singh Manhar, Aged
about 45 years, R/o Village Path, P.S. Kosir, Distt. Raigarh (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through District Magistrate, Raigarh, Distt. Raigarh
(C.G.)
---- Respondent
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For Appellant: Mr. Dheerendra Pandey, Advocate.
For State / Respondent: -
Mr. Sudeep Verma, Deputy Government Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Radhakishan Agrawal, JJ.
Judgment On Board (7-2-2023) Sanjay K. Agrawal, J.
1. This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Additional Sessions Judge, Sarangarh, District Raigarh in Sessions Trial No.27/2012 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 5,000/-, in default of payment of fine to further undergo additional simple imprisonment for one year.
2. Case of the prosecution, in short, is that on 26-8-2012 at about 11:00 p.m., at Village Path, Police Station Kosir, District Raigarh, Cr.A.No.431/2014 Page 2 of 12 the appellant assaulted deceased Nakchhedin Bai by hand & fist and wooden log by which she suffered injuries and died and thereby committed the offence. Further case of the prosecution is that on 26-8-2012, the appellant came into the house of deceased Nakchhedin Bai and brought out sugar kept by the deceased which was protested by the deceased, 'why she is taking sugar kept by her' as she used to drink tea in the night in place of dinner and on hearing this, the appellant had thrown the sugar therein and assaulted the deceased, aged about 70 years, who is a feeble bodied woman, by walking stick of the deceased herself, which she used to take help of for leading her life pursuant to which the deceased sustained injuries and rupture of spleen and she died at home. Inquest was conducted vide Ex.P-1 and dead body of the deceased was subjected to postmortem which was conducted by Dr. J.R. Ghritlahre (PW-10) who proved the postmortem report Ex.P-11 in which cause of death was stated to be haemorrhagic shock due to injuries of vital organs and death was homicidal in nature. Pursuant to the memorandum statement of the appellant vide Ex.P-3, danda was seized vide Ex.P-4. Seized articles were sent for chemical examination to the FSL, but no FSL report was brought on record for the reasons best known to the prosecution.
3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the appellant was charge- sheeted and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Raigarh from where the learned Additional Sessions Cr.A.No.431/2014 Page 3 of 12 Judge, Sarangarh received the case on transfer for conducting trial and for hearing and disposal in accordance with law.
4. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as fifteen witnesses and exhibited 21 documents. The defence has examined none and exhibited no document. The appellant was examined under Section 313 of the CrPC in which she denied the guilt.
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. Dheerendra Pandey, learned counsel appearing for the appellant, would submit that even if the evidence of eye-witnesses account Dimni Mahilane (PW-3), Bhupendra Manhar (PW-5), Rajender Mahilane (PW-6) & Dhaneshwari Bai (PW-14) is taken as it is, the prosecution evidence itself proved that present is a case of sudden quarrel in which the assault was given only by a club on non-vital parts of the body of the deceased, without any premeditation, but the death took place because the victim was an old lady and her spleen was ruptured. He would further submit that the appellant had already undergone almost 6½ years of imprisonment and present is a case where conviction of the Cr.A.No.431/2014 Page 4 of 12 appellant would not travel beyond the scope of Section 304 Part-II of the IPC. 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, 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. As such, taking into consideration the period already undergone by the appellant, the appeal of the appellant be allowed in part.
7. Per contra, Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and oppose the appeal and would submit that the appellant was knowing that the deceased, who was her sister- in-law, is an old lady and on giving repeated assaults on various parts of the body, her internal organ spleen was ruptured and thus, it is a clear case of the offence punishable under Section 302 of the IPC, as such, 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 for consideration is, whether the death of the deceased was homicidal in nature, which has been answered in Cr.A.No.431/2014 Page 5 of 12 affirmative by the learned trial Court and the trial Court has rightly held that the death of deceased Nakchhedin Bai was homicidal in nature relying upon the statement of Dr. J.R. Ghritlahre (PW-10) who has proved the postmortem report Ex.P-11. The said finding recorded by the trial Court is a finding of fact based on the evidence available on record, it is nether perverse nor contrary to the record and we hereby affirm the said finding.
10. Now, the next question is, whether the appellant is the author of the crime in question or not, which also the trial Court has answered in affirmative relying upon the statements of Dimni Mahilane (PW-3) & Dhaneshwari Bai (PW-14). A careful perusal of the statements of these two witnesses would show that they have clearly seen the incident by which the appellant assaulted the deceased by wooden log, as such, the appellant is the author of the crime in question.
11. 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 her case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, her conviction can be converted to Section 304 Part-II of the IPC, as contended by learned counsel for the appellant?
12. The Supreme Court in the matter of Sukhbir Singh v. State of 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 1 (2002) 3 SCC 327 Cr.A.No.431/2014 Page 6 of 12 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."
13. 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 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 Cr.A.No.431/2014 Page 7 of 12
(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."
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 3 (2012) 8 SCC 450 Cr.A.No.431/2014 Page 8 of 12 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.
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 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."
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 4 (2017) 3 SCC 247 Cr.A.No.431/2014 Page 9 of 12 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".
16. 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.
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 bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read as under:
5 (2019) 6 SCC 122 Cr.A.No.431/2014 Page 10 of 12 "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"
18. 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 the deceased was a feeble bodied woman aged about 70 years and suffering from Blood Pressure & sugar (diabetes) and was also having kidney and other diseases, and on account of falling down, she suffered rupture of spleen and on account of excessive bleeding, she died. Dispute between the appellant and the deceased arose on account of a small quantity of sugar which the appellant was taking from the house of the deceased, as such, there was no premeditation on the part of the appellant to cause the death of the deceased and the appellant is said to have assaulted the deceased by walking stick which was kept by the deceased herself. Therefore, the incident took place on a sudden quarrel, but considering the nature of injuries, the appellant must have had knowledge that the injuries caused by her on the deceased are likely to cause the death of the deceased. Considering the nature of injuries it can be held that the appellant must have had the knowledge that such injury inflicted by her on the body of the deceased, would likely to cause her death, Cr.A.No.431/2014 Page 11 of 12 however, it can safely be inferred that there was no premeditation on the part of the appellant to cause the death of the deceased. The assault has been made on a sudden quarrel, on a sudden dispute erupted between the appellant and the deceased. Considering the fact that the injury caused upon the deceased is on account of a sudden quarrel that erupted between the parties, 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.
19. In view of the aforesaid discussion, conviction of the appellant under Section 302 of the IPC as well as the sentence awarded to her by the learned trial Court are 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 her 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 was in jail from 27-8-2012 to at least till 8-2-2019 when she was granted bail by this Court i.e. for 6 years 6 months, taking into consideration the period she had already undergone, we award her the sentence already undergone by her and the fine sentence imposed by the learned trial Court shall remain intact. The appellant is on bail. She need not surrender. However, her bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
Cr.A.No.431/2014Page 12 of 12
20. The criminal appeal is party allowed to the extent indicated herein- above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Soma