Chattisgarh High Court
Chandrabhan Rajwade @ Chamru vs State Of Chhattisgarh on 22 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 455 of 2018
Chandrabhan Rajwade @ Chamru S/o Shri Raghunandan
Rajwade, Aged about 33 years, Occupation
Agriculturist, R/o Village Korja Yadav Muhalla,
Thana Lakhanpur, Distt. Sarguja, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through District Magistrate,
Ambikapur, Distt. Sarguja, Chhattisgarh.
Respondent
For Appellant : Mr. R.V. Rajwade, Advocate
For State : Mr. Arjit Tiwari, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
22/07/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 03/01/2018 passed in Sessions Trial No. 63/2017 whereby learned Session Judge, Ambikapur, Distt. Sarguja has convicted the appellant for offence punishable under Section 302 of IPC and sentenced him to life 2 imprisonment and fine of Rs. 500/, in default of payment of fine additional R.I. for six months.
2. The case of the prosecution, in brief, is that on 07/05/2017 at about 03:00 PM at Village Korja, P.S. Lakhanpur, Distt. Sarguja, the appellant herein assaulted his uncle Shyamram Rajwade with a wooden stick due to which he suffered grievous injuries on his head and succumbed to death and the appellant thereby, committed the offence.
3. Further case of the prosecution, in brief, is that Amrit Rajwade (P.W.1), son of deceased Shyamram Rajwade, lodged a report at Police Station Lakhanpur on 07/05/2017 at about 04:50 PM that on that very day he and his father were at home when at about 03:00 PM, the appellant, whose house is adjacent to their house, started burning waste in between their houses. Deceased Shyamram Rajwade and his son Amrit Rajwade (P.W.1) came outside and asked the appellant not to burn waste in front of their house as his paira (material left after taking out paddy) was likely to burn as well but the appellant did not accept and dispute arose between the appellant and the deceased in this regard and out of anger, the appellant caused a wooden stick blow on the head on the deceased by which he suffered grievous injuries and ultimately 3 succumbed to death. On the said report, merg intimation was registered vide Ex. P/2 and FIR was registered against the appellant vide Ex. P/1 for offence punishable under Section 302 of IPC. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/3 and inquest was conducted vide Ex. P/4 and thereafter, dead body of the deceased was sent for postmortem, which was conducted by Dr. I.D. Bhatnagar (P.W.5) and the postmortem report has been filed as Ex. P/12 according to which the cause of death is coma and shock due to head injury on the occipital bone and the nature of death is said to be homicidal. Nazri naksha was prepared vide Ex. P/5 and after taking the appellant into custody, his memorandum statement was recorded vide Ex. P/6 and on that basis, wooden stick was seized from his possession vide Ex. P/7 and it was though sent for chemical examination, but FSL report has not been brought on record. After due investigation, the appellant/accused was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.
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4. In order to bring home the offence, prosecution examined 7 witnesses and brought into record 14 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt and he examined one witness but did not exhibit any documents.
5. Learned trial Court, after appreciating the oral and documentary evidence on record, finding the death of deceased Shyamram Rajwade to be homicidal in nature and further finding the appellant to be the author of the crime, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid which has been called in question by way of this appeal.
6. Mr. R.V. Rajwade, learned counsel for the appellant, would submit there is no evidence available on record against the appellant and he has perversely been convicted for offence punishable under Section 302 of IPC by the trial Court, as such, the impugned judgment of conviction is liable to be set aside. In alternative, he would submit that appellant was the nephew of the deceased and their houses were adjacent to each other and the relationship between them were cordial and out of sudden quarrel and anger, the dispute arose on the fateful day and the appellant 5 assaulted the deceased with a wooden stick, as such, this is a case which is covered with Exception 4 of Section 300 of IPC and thus, the conviction of the appellant under Section 302 of IPC be converted to Section 304 Part II of IPC.
7. Per Contra, Mr. Arjit Tiwari, learned State counsel, would submit that prosecution has brought sufficient evidence in shape of oral and documentary evidence to convict the appellant for offence punishable under Section 302 of IPC, as such, he has rightly been convicted by the trial Court for offence punishable under Section 302 of IPC and it is not a case where his conviction can be converted to Section 304 Part II of IPC as the appellant assaulted the deceased with a wooden stick on his head which is a vital part of the body and knowing fully well that the deceased was aged about 65 years which goes to show that he assaulted the deceased with the intention of causing his death, therefore, the instant 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.
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9. The first question for consideration would be whether the death of deceased Shyamram Rajwade was homicidal in nature ?
10. Learned trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/12) wherein Dr. I.D. Bhatnagar (P.W.5), who has conducted postmortem, has clearly stated that the cause of death is coma and shock due to head injury on the occipital bone and the death of deceased was homicidal in nature. Moreover, the fact that the death of deceased Shyamram Rajwade was homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, after hearing learned counsel for the parties and after going through the postmortem report (Ex. P/12) as well as going through the evidence of Dr. I.D. Bhatnagar (P.W.
5), we are satisfied that learned trial Court has rightly held the death of deceased Shyamram Rajwade to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
11.The next question for consideration is whether the appellant is the author of the crime ?
12. Learned trial Court has also recorded this finding in affirmative relying upon the testimony of Amrit 7 Rajwade (P.W.1), son of the deceased, who is an eyewitness of the incident. In his statement before the Court, Amrit Rajwade (P.W.1) has clearly stated that on the fateful day, the appellant was burning waste in between their houses due to which the wooden boundary of their house started burning aswell, thereafter, he and his father (deceased) came out of their house and asked the appellant not to burn waste near their house but the appellant did not listen and upon feeling insulted, he assaulted the deceased on his head with a wooden stick due to which he suffered grievous injuries and succumbed to death. Despite being subjected to crossexamination, Amrit Rajwade has remained consistent and has supported the case of the prosecution.
13. Apart from that, though recovery of wooden stick has been made from an open place pursuant to the memorandum statement of the appellant/accused but the statement of Dr. I.D. Bhatnagar (P.W.5), who has conducted postmortem of the deceased, would show that the injuries suffered by the deceased can be caused by a wooden stick and he has clearly stated in his statement as well as in the postmortem report (Ex. P/12) that the death of deceased is indeed homicidal in nature. As such, 8 looking to the testimony of eyewitness Amrit Rajwade (P.W.1) as well as looking to the aforesaid medical evidence, it can safely be held that appellant indeed is the author of the crime.
14. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC and thus, his conviction can be converted to Section 304 Part II of IPC ?
15. At this stage, it would be appropriate to notice Exception 4 of Section 300 of IPC, which states as under : "Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
16. The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 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) 1 (2017) 3 SCC 247 9 "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 10 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".
17.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 PartI 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 PartII IPC.
18.Reverting to the facts of the present case in light of the principle of law laid down by the Supreme Court in the matter of Arjun (supra), it is quite vivid that on the fateful day, at about 03:00 PM, the appellant herein was burning waste in between his house and the house of the deceased due to which the wooden boundary erected outside the house of the deceased also caught fire and started burning, the deceased along with his son Amrit Rajwade (P.W.1) came outside and asked the appellant not to burn waste near his house but the appellant did not listen to him and a sudden 11 quarrel occurred between them and upon feeling insulted the appellant assaulted the deceased on his head with a wooden stick, therefore, looking to the entire evidence available on record, it can safely be held that there was no premeditation on the part of the appellant to commit the offence in question and he had no intention to cause the death of the deceased which is apparent from the fact that he did not take any undue advantage or did not act in a cruel way. However, the appellant caused the blow on the head of the deceased which is a vital part of the body, as such, he must have had the knowledge that such injury inflicted by him on the head of the deceased would likely cause his death, as such, this is a case which would fall under Exception 4 of Section 300 of IPC.
19.In view of the aforesaid discussion, conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh2 as well as in 2 AIR 1956 SC 116 12 Joseph v. State of Kerala3, the appellant is convicted for offence punishable under Section 304 Part II of IPC. Since he is in jail since 08/05/2017, we hereby award the sentence for the period already undergone. The appellant be released forthwith if not required in any other case.
20.Accordingly, this criminal appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet
3 1995 SCC (Cri.) 165