Chattisgarh High Court
Than Singh vs State Of Chhattisgarh on 3 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-1066-2013
Page 1 of 13
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1066 of 2013
Than Singh, Son of Daryab Singh, aged about 45 years, Resident of
Village Vicharpur, Police Station Ambagarh Chowki, District
Rajnandgaon (CG), Civil and Revenue District Rajnandgaon
(Chhattisgarh)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, through Police Station Ambagarh Chowki,
District Rajnandgaon (Chhattisgarh)
---- Respondent
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For Appellant : Mr. Abhishek Sharma, Advocate For Respondent-State : Mr. Sudeep Verma, Deputy G.A. and Mr. Somya Rai, 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 (03.12.2022) Sanjay K. Agrawal, J This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27.08.2013, passed by the Court of learned Sessions Judge, District Rajnandgaon (C.G.) in S.T. No.64/2012 (State of CG vs. Than Singh), whereby the he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/-, and in default of fine, additional rigorous imprisonment for one year.
CRA-1066-2013 Page 2 of 13 (2) The case of the prosecution, in brief, is that on 11.08.2012, at about 09:00 PM in the night, within the ambit of Police Station Ambagarh Chowki at Village Vicharpur, in the house of Bahur Singh (deceased), the accused-appellant herein assaulted Bahur Singh (hereinafter referred to as "deceased") by means of burnt firewood on his head and other parts of the body, due to which he caused injures and died and, thereby, committed the offence under Section 302 of IPC. (3) The further case of the prosecution, in nutshell, is that: on 11.08.2012, at about 09 PM in the night, Bahur Singh (deceased) was sitting in the courtyard of his house and was taking warmness from bonfire and, at that juncture, accused-appellant came there and started quarreling with him; after brief altercation between them, accused- appellant assaulted deceased by means of burnt firewood in his head, due to which he suffered grievous injuries and died, which incident was witnessed by Smt. Ramshila Bai (PW-02) and Smt. Amita Bai (PW-01), who were wife and daughter-in-law of deceased and they also tried to intervene between the dispute of accused-appellant and deceased, but of no avail; after commission of offence, accused-appellant immediately absconded from the spot; when deceased's son, namely, Somlal (PW-
04) came to his house and saw her father dead, her mother and wife, namely, Smt. Ramshila Bai (PW-02) and Smt. Amita Bai (PW-01) informed him about the incident and, thereafter, Somlal (PW-04) called the doctor of the village, namely, Manharan (PW-05), who upon examination of deceased had declared him dead; thereafter, on the CRA-1066-2013 Page 3 of 13 next date i.e. on 12.08.2012 Somlal lodged FIR vide Ex.P/04 against the accused-appellant at Police Station Ambagarh Chowki and and marg. intimation was also recorded vide Ex.P/05; thereafter, spot map was prepared vide Ex.P/07 and inquest was conducted vide Ex.P/10; summons under Section 175 of CrPC were sent vide Ex.P/10A; the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/08), conducted by Dr. Umesh Shrivastava (PW-06), it was opined that the cause of death of deceased is due to hemorrhage and shock, which might be due to head injury; thereafter, appellant-accused was arrested vide Ex.P/12 and his memorandum statement was recorded vide Ex.P/01, pursuant to which a burned firewood has been seized vide Ex.P/02 and from the place of incident/spot, sample of soils were also seized vide Ex.P/03; the aforesaid seized articles were sent for FSL examination and in the FSL report (Ex.P/16) it has been opined that no blood was found on the said seized firewood; thereafter, statement of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, District Rajnandgaon (CG) and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence by submitting that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 16 documents, whereas the appellant- accused in support of his defence has neither examined any witness CRA-1066-2013 Page 4 of 13 nor exhibited documents.
(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302 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.
(6) Mr. Abhishek Sharma, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. I n alternative, he submits that though the death of deceased is said to be homicidal in nature, but there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel and under heat of passion the appellant assaulted deceased by means of burned firewood, due to which he suffered injury and died and, thereby, committed the offence. 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 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.
(7) Per-contra, Mr. Sudeep Verma and Mr. Somya Rai, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence CRA-1066-2013 Page 5 of 13 beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Sections 302 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 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC, thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has not recorded specifically, but has taken into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/08), wherein it has been opined that the cause of death of deceased is hemorrhage and shock which might be due to brain injury and same is antemortem in nature and the statement of Dr. Umesh Shrivastava (PW-06), who has conducted the postmortem of the dead-body of the deceased and has also given query report (Ex.P/09), wherein it has been opined that the injuries caused to the deceased can be caused by means of firewood, which was seized vide Ex.P/02 pursuant to memorandum statement of accused-appellant (Ex.P/01). Accordingly, taking into consideration the postmortem report (Ex.P/08), query report (Ex.P/09) and the statement of Dr. Umesh Shrivastava (PW-06), we are of the considered opinion that the death of CRA-1066-2013 Page 6 of 13 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 affirmed the said finding. (10) 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. In order to demostrate that the accused-appellant is the author/ perpetrator of the crime, the learned trial Court relied upon the testimonies of Smt. Amita Bai (PW-01) and Smt. Ramshila Bai (PW-02), who are daugther-in-law and wife of the deceased and had witnessed the incident. They have stated before the Court that on the fateful night accused-appellant entered into their house by forcibly opening the door and stated that why deceased used to call him that he is involved in black-magic/witchcraft and after brief altercation the appellant assaulted deceased by means of burnt firewood, due to which deceased suffered injury on his head and died. Both the said eye-witnesses, namely, Smt. Amita Bai (PW-01) and Smt. Ramshila Bai (PW-02) were subjected to cross-examination but nothing has been brought to say them that they have not seen the incident. As such, dispute between the accused-appellant and the deceased on the date of incident, in which accused-appellant on account of sudden quarrel and under heat of passion has assaulted deceased by means of burned firewood due to which he sustained injury on head and died, has been duly proved by the ocular evidence of Smt. Amita Bai (PW-
01) and Smt. Ramshila Bai (PW-02). Apart from that, pursuant to CRA-1066-2013 Page 7 of 13 memorandum statement of accused-appellant (Ex.P/01), burnt firewood has been seized vide Ex.P/02. The said seized firewood was also subjected to FSL examination, but though in the FSL report (Ex.P/16) it has been opined that no blood has been seized in the said firewood, but fact remains that it was used by the accused-appellant to assault the deceased. Moreover, the said firewood was also sent for query to Dr. Umesh Shrivastava (Ex.P/06), who vide Query Report (Ex.P/09) opined that injuries caused to deceased can be caused by said firewood. Thus, on the basis of said facts 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. (11) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of 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 1 (2002) 3 SCC 327 CRA-1066-2013 Page 8 of 13 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."
(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 of 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 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 2 (2009) 15 SCC 635 CRA-1066-2013 Page 9 of 13 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 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 3 (2012) 8 SCC 450 CRA-1066-2013 Page 10 of 13 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 :-
"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 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 4 (2017) 3 SCC 247 CRA-1066-2013 Page 11 of 13 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 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.
(17) 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:
5 (2019) 6 SCC 122 CRA-1066-2013 Page 12 of 13
(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."
(18) 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 quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased, but only on account of brief quarrel and under heat of passion on a petty dispute that deceased used to call that accused-appellant is involved in black-magic/witchcraft, the appellant assaulted deceased by means of burnt firewood, due to which he sustained grievous head injuries and died, as such, there was no premeditation on the part of the appellant to cause death of the deceased and only because of a petty dispute, out of sudden anger and in heat of passion, the appellant assaulted deceased and caused his death. However, looking to the injuries sustained by deceased, as recorded by Dr. Umesh Shrivastava (PW-06), which have been caused on his head, the appellant must had 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 or CRA-1066-2013 Page 13 of 13 unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.
(19) In view of the aforesaid discussions, the conviction of the appellant for offence punishable under Section 302 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 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 is convicted for offence punishable under Section 304 (Part-II) of IPC. Since the appellant is in jail since 12.08.2012 i.e. more than 11 years, taking into consideration the period he has already undergone, we award him the sentence already undergone by him, but the fine sentence imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case. (20) This criminal appeal is party allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
s@if