Chattisgarh High Court
(Deleted) Chandrashekhar Tiwari ... vs State Of Chhattisgarh on 5 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-991-2013
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 991 of 2013
1. Chandrashekhar Tiwari [died and deleted by order dated
19.12.2022]
2. Lalan Prasad Tiwari, S/o Gayachand Tiwari, aged about 39
years, Resident of Village Jarhadih, Police Station Balrampur,
Civil District Surguja, Revenue District Balrampur (Chhattisgarh)
---- Appellants
Versus
State of Chhattisgarh, through the Station House Officer, Police
Station Sitapur, Civil & Revenue District- Surguja (Chhattisgarh)
---- Respondent
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For Appellant : Ms. Priyanka Mehta, Advocate For Respondent-State : Mr. Avinash Singh, Panel Lawyer
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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ Judgment on Board (05.01.2023) Sanjay K. Agrawal, J (1) This criminal appeal filed by the appellants-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 31.07.2013, passed by the Court of learned Addl. Sessions Judge, Ambikapur, District Surguja (C.G.) in S.T. No.386/2011, whereby the appellants-accused have been convicted for offence under Section 302/34 of IPC and CRA-991-2013 Page 2 of 14 sentenced to undergo life imprisonment with fine of Rs.5000/- and, in default of payment of fine, additional rigorous imprisonment of 06 months.
(2) Before proceeding further, it is important to note here that during the pendency of present appeal, accused-appellant No.1- Chandrashekhar Tiwari has died and, therefore, his name has been deleted from this appeal vide order of this Court dated 19.12.2022. (3) The case of the prosecution, in short, is that on 05.07.2011 at about 12 noon, at Village Dandapara Dharampur within the ambit of Police Station Sitapur, the appellants-accused assaulted Dhankaliya Bai (herein after referred to as the "deceased") by means of hand, fist and legs, due to which she suffered injuries and succumbed to death and, thereby, committed the offence under Section 302/34 of IPC. (4) The admitted facts in the present case are that: Roopnarayan (PW-02) has two sons, namely, Dhaniram and Shivram; Uderam Tiwari (PW-01) is son of Shivram, whose wife is Dhankaliya Bai (deceased herein) and the appellant No.01- Chandrashekhar is son of Dhaniram, who died and deleted in this appeal; there was dispute with regard to possession of suit land between the appellant-accused and the deceased family.
(5) The further case of the prosecution, in nutshell, is that: on the date of offence i.e. on 05.07.2011 at about 11 AM, accused-appellants were forcibly sowing/ploughing land in dispute, on which Uderam CRA-991-2013 Page 3 of 14 Tiwari (PW-01) objected, but accused-appellants refuted and continued sowing the land; thereafter, Uderam Tiwari (PW-01) returned to his house and informed his wife Dhankaliya Bai (deceased) that accused-appellants are forcibly sowing her land in dispute, to which she reached to the fields and asked the accused- appellants not to sow/plough the land, in turn, after a brief quarrel, accused-appellants assaulted deceased by means of hand fist and legs, which incident was seen by Devmati (PW-04), who took the deceased to her house and, thereafter, in the early morning on 06.07.2011, deceased succumbed to death. Thereafter, marg intimation was registered vide Ex.P/01 and FIR was also registered vide Ex.P/11. Inquest proceedings were conducted vide Ex.P/07. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/09), conducted by Dr. A.K. Nagdeve (PW-07), it was opined that the cause of death of deceased is due to hemothorax and shock resulted by indirect injury over chest and skull and nature of death is homicidal. Appellant-accused were arrested vide Ex.P/13 & P/14 respectively. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Sitapur (CG) and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and CRA-991-2013 Page 4 of 14 has been falsely implicated.
(6) The prosecution in order to prove its case examined as many as 9 witnesses and exhibited 14A documents, whereas the appellant- accused in support of his defence has not examined any witness, but exhibited 04 documents.
(7) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302/34 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.
(8) Ms. Priyanka Mehta, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that a bare perusal of statement of Uderam Tiwari (PW-01), Roopnarayan (PW-02) and Devmati (PW-04) would show that there was no intention on the part of the appellant to cause death and all of a sudden at the spot, a quarrel arose and certain kicks were given and no weapon was used. The cause of death of deceased is that her ribs were fractured. Hence, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is CRA-991-2013 Page 5 of 14 culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be allowed in full or in part. (9) Per-contra, Mr. Avinash Singh, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Section 302/34 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant under Section 302/34 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC, thus, the present appeal deserves to be dismissed. (10) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
(11) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/09), wherein it has been opined that the cause of death of deceased is due to hemothorax and shock resulted by indirect injury over chest and skull and nature of CRA-991-2013 Page 6 of 14 death is homicidal, which is duly proved by the statement of Dr. A.K. Nagdeve (PW-07), who has conducted the postmortem of the dead- body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. A.K. Nagdeve (PW-07), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. (12) Now the next question would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the statements of Uderam Tiwari (PW-01), Roopnarayan (PW-02) and Devmati (PW-
04) and recorded a finding that it is the appellant who has assaulted the deceased by means of hand, fist and legs, due to which she succumbed to death. Thus, considering the aforesaid fact coupled with other evidence available on record, the learned trial Court has rightly held that the appellant-accused is perpetrator of the crime in question. Accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the perpetrator of the crime in question, as the same is neither perverse nor contrary to the record.
(13) The aforesaid finding brings us to the next question for CRA-991-2013 Page 7 of 14 consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302/34 of IPC or his case is covered under Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant ?
(14) 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 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."
(15) 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 of IPC, which 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 CRA-991-2013 Page 8 of 14 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 fro 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 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.
CRA-991-2013 Page 9 of 14
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."
(16) 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 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.
(17) 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 CRA-991-2013 Page 10 of 14 "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 CRA-991-2013 Page 11 of 14 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".
(18) In the matter of 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 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.
(19) 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."
(20) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of Supreme Court, it is 5 (2019) 6 SCC 122 CRA-991-2013 Page 12 of 14 quite vivid that there was no premeditation on the part of the appellant No.02- Lalan Prasad Tiwari to cause death of the deceased, but only on account of sudden dispute arose on the date of incident, as the accused-appellant was forcibly sowing the subject land, on which deceased asked him not to do so, but accused-appellant after brief quarrel assaulted deceased by means of hand, fist and legs, due to which deceased suffered injury and her ribs were found fractured and she died on the next day, as such, there was no premeditation on the part of the appellant No.02- Lalan Prasad Tiwari to cause death of the deceased and only because of a dispute pertaining to sowing of land, out of sudden anger, in heat of passion, the appellant assaulted deceased, due to which she died and the accused-appellant and the deceased were closly related to each other and between them a dispute with regard to possession of the suit land existed. However, looking to the injuries sustained by deceased, the appellant No.02- Lalan Prasad Tiwari must have had the knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein 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 CRA-991-2013 Page 13 of 14 or unusual manner and, therefore, the conviction of the appellant No.02- Lalan Prasad Tiwari under Section 302/34 of IPC can be altered/converted to Section 304 (Part-II) of IPC. (21) In view of the aforesaid discussions, the conviction of the appellant No.02- Lalan Prasad Tiwari for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant No.02- Lalan Prasad Tiwari to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant No.02- Lalan Prasad Tiwari is convicted for offence punishable under Section 304 (Part II) of IPC. Since the appellant No.02- Lalan Prasad Tiwari is in jail for last 05 years and 08 months, taking into consideration the period he has already undergone, we award him sentence already undergone by him, but the fine sentence imposed by the learned trial Court shall remain intact. Since the appellant is already on bail, he need not surrender before the learned trial Court. However, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of CrPC..
(22) This criminal appeal is party allowed to the extent indicated herein-above.
Sd/- Sd/-
CRA-991-2013
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(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
s@if