Chattisgarh High Court
Manoj Kumar vs State Of Chhattisgarh on 25 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 577 of 2017
Mahesh Ram W/o Manoj Kumar, Aged about 35 years,
R/o Village Banahil Police Station Bilaigarh, Civil
and Revenue Distt. Baloda Bazar, Bhatapara,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Bilaigarh, Civil and
Revenue Distt. Balodabazar/Bhatapara, Chhattisgarh.
Respondent
Criminal Appeal No. 437 of 2017
Manoj Kumar S/o Balduram Sahu, Aged about 65 years,
R/o Village Banahil, Police Station Bilaigarh,
Civil and Revenue Distt. Baloda Bazar/Bhatapara,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Bilaigarh, Civil and
Revenue Distt. Balodabazar/Bhatapara, Chhattisgarh.
Respondent
Criminal Appeal No. 396 of 2017
Bhuwan Bai, W/o Ashok Kumar, Aged about 37 years,
R/o Village Banahil Police Station Bilaigarh, Civil
and Revenue Distt. Baloda Bazar, Bhatapara,
Chhattisgarh.
Appellant
2
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Bilaigarh, Civil and
Revenue Distt. Balodabazar/Bhatapara, Chhattisgarh.
Respondent
Criminal Appeal No. 461 of 2017
Kachara Bai W/o Manoj Kumar, Aged about 60 years,
R/o Village Banahil, Police Station Bilaigarh,
Civil and Revenue Distt. Baloda BazarBhatapara,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Bilaigarh, Civil and
Revenue Distt. Balodabazar/Bhatapara, Chhattisgarh.
Respondent
For Appellants : Mr. Satya Prakash Verma, Advocate
For State : Mr. Sameer Uraon, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
25/07/2022
Sanjay K. Agrawal, J.
1. These four criminal appeals under Section 374(2) of CrPC emanate from impugned judgment dated 02/02/2017 passed in Special Sessions Trial No. 11/2015, therefore, all these appeals have been clubbed together, heard together and are being 3 decided by this common judgment. Vide the impugned judgment of conviction and order of sentence, learned Session Judge and Special Judge (Atrocities), Balodabazar has convicted the appellants and awarded sentence as follows : Sr. Offence Sentence Fine other No.
1. Section 294 r/w R.I. for 1 149 IPC month
2. Section 148 r/w R.I. for 6 149 IPC months
3. Section 324 r/w R.I. for 6 149 IPC months
4. Section 302 r/w Life Rs. 500/ In 149 IPC imprisonment each default of payment of fine, S.I. for 6 months
2. The case of the prosecution, in brief, is that on 19/06/2015 at about 05:30 PM at village Banahil, P.S. Bilaigarh, the appellants, in furtherance of their common intention, abused and assaulted Chandai Bai, wife of Firatram (P.W.7), with a pickaxe due to which she suffered grievous injury and succumbed to death and thereby, committed the aforesaid offences.
3. It is admitted position on record that appellants' byara (land reserved for keeping paddy after harvesting) is adjoining to Firatram's (P.W.7) 4 byara and the vacant land opposite to their byara is Government land and a kuttcha road connects the the village and the fields.
4. Further case of the prosecution, in brief, is that on 19/06/2015 at about 06:45 PM, Navratan Kumar Chouhan (P.W.1) informed at the Police Station Bilaigarh that at about 05:30 PM, when his father Firatram (P.W.7) was returning from the fields to their home, the appellants/accused persons were trying to make a way to reach their fields and in that context, dispute occurred between them and the appellants started abusing him and even threatened to kill and thereafter, when Navratan (P.W.1) reached on the spot along with his mother Chanda Bai (deceased) and asked the appellants not to abuse, one of the appellants namely Mahesh Ram attacked Chanda Bai and caused a blow in her shoulder (scapular region) due to which she suffered grievous injury and died instantaneously and he further assaulted his father Firatram (P.W.
7). Both Firatram (P.W.7) and Chanda Bai were immediately taken to the hospital, but Chanda Bai was declared dead and appropriate treatment was given to Firatram (P.W.7). On the said information, merg intimation was registered vide Ex. P/1 and FIR was lodged against the appellants 5 for offences punishable under Sections 294, 506, 307, 302 read with Section 34 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 vide Ex. P/2. Thereafter, summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/3 and after conducting inquest vide Ex. P/4, the dead body of Chanda Bai was sent for postmortem which has been conducted by Dr. P.K. Vaishnav (P.W.9) and as per the postmortem report (Ex. P/5), the cause of death is cardiovascular and cardio respiratory arrest due to stab wound in the scapular region and the nature of death is said to be homicidal. Nazri Naksha was prepared vide Ex. P/7 and from the spot plain soil as well as blood stained soil was seized vide Ex. P/9. Pursuant to the memorandum statement of the appellant/accused Mahesh Ram vide Ex. P/11, recovery of sharp pick axe was made from his possession vide Ex. P/12 and the clothes worn by Firatram (P.W.7) were seized vide Ex. P/10 and the said seized articles were sent for chemical examination in which blood stains were found on the pick axe seized from appellant Mahesh Ram vide FSL report (Ex. P/29) although the blood stains were disintegrated and so it could not be ascertained whether it was human blood or not. After due investigation, the appellants/accused 6 persons were chargesheeted which was committed to the Court of Session for hearing and disposal in accordance with law. Although one of the accused namely Bhuneshwar Sahu, being a juvenile, was tried separately by the Juvenile Justice Board. The appellants/accused persons abjured their guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 10 witnesses and brought into record 30 documents. Statements of the appellants/accused persons were recorded under Section 313 of CrPC wherein they denied guilt and examined 2 witnesses and exhibited 3 documents in their defence.
6. Learned trial Court, firstly vide order dated 07/11/2015, framed charges under Sections 294, 323, 324 and 302 read with Section 34 of IPC and Section 3(2)(v) of the Act of 1989 against the appellants/accused persons, but thereafter, vide order dated, altered it to offence under Sections 294, 148, 323, 324 and 302 read with Section 149 of IPC and Section 3(2)(v) of the Act of 1989 and after appreciating the oral and documentary evidence on record, though acquitted the appellants for offences punishable under Sections 323 read with Section 149 of IPC and Section 3(2)(v) of the 7 Act of 1989 but proceeded to convict the appellants/accused persons for offences punishable under Sections 294, 148, 324 and 302 read with Section 149 of IPC.
7. Mr. Satya Prakash Verma, learned counsel for the appellants/accused persons would make the following submissions :
(i) that, prosecution has failed to prove the ingredients of Section 141 of IPC and there is no evidence available on record to hold that the acts of the appellants would fall under any of the clauses of Section 141 of IPC, therefore, conviction of appellants under Section 149 of IPC is totally perverse and contrary to the record and as such, it is liable to be set aside.
(ii) that, learned trial Court has gravely erred in relying upon the statements of Navratan (P.W.1), Kantibai (P.W.2) and Firatram (P.W.7) while convicting the appellants for the aforesaid offences as these witnesses are close relatives of deceased Chanda Bai, being her son, her daughter inlaw and her husband, respectively and as such, their testimonies could not be relied upon.
(iii) that, conviction of appellants including Mahesh Ram under Section 302 of IPC is liable to be set aside as there is no evidence against them as 8 the pickaxe seized from the possession of the appellant Maheash Ram was though sent for chemical examination and as per FSL report (Ex. P/29), blood has been found on it but it could not be proved whether the blood found on the pickaxe was human blood, therefore, merely on the basis of FSL report, conviction of appellants under Section 302 of IPC cannot rest, as such, these appeals deserve to be allowed in toto.
In alternative, he would further submit that there was no intention on the part of the appellant Mahesh Ram to cause the death of deceased Chanda Bai as since prior to the day of the incident, the complainants had taken possession of the vacant Government land due to which the appellants could not use the common way to go towards the fields and back to the village, the appellants were trying to construct a path for the said purpose, but Firatram (P.W.7) asked the appellants to stop and thereafter, sudden quarrel erupted between them and in heat of passion, appellant Mahesh Ram assaulted Chanda Bai with pick axe due to which she suffered injury and succumbed to death. As such, the case of the appellants would fall under Exception 4 to Section 300 of IPC and thus, their conviction for 9 offence punishable under Section 302 be altered to Section 304 Part II of IPC.
8. Per contra, Mr. Sameer Uraon, learned Government Advocate, would submit that prosecution has brought sufficient evidence in the form of ocular, documentary and medical evidence to hold the appellants guilty for aforesaid offences and he would further submit that the act of the appellants would not be covered with Exception 4 to Section 300 of IPC and they have rightly been convicted for offence punishable under Section 302 of IPC, as such, the instant appeals are liable to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection.
10.The first question for consideration would be whether the death of deceased Chanda Bai was homicidal in nature ?
11. Learned trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/5) wherein Dr. P. K. Vaishnav (P.W.9), who has conducted postmortem, has clearly stated that she suffered stab wound of 5x3x15 cm on her scapular bone and the cause of her 10 death is cardiovascular and cardiorespiratory arrest because of stab wound and the death of deceased was homicidal in nature. Moreover, the fact that the death of deceased Chanda Bai was homicidal in nature has also not been seriously disputed by learned counsel for the appellants. As such, after hearing learned counsel for the parties and after going through the postmortem report (Ex. P/5) as well as going through the evidence of Dr. P.K. Vaishnav (P.W. 9), we are satisfied that learned trial Court has rightly held the death of deceased Chanda Bai to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
12.The next question for consideration is whether, as contended by learned counsel for the appellants, the conviction of the appellants with the aid of Section 149 of IPC is unsustainable and bad in law, when it has not been duly proved by the prosecution that at point of time, the appellants had constituted unlawful assembly under any of the clauses of Section 141 of IPC ?
13.For the sake of convenience, Section 141 of IPC which defines 'unlawful assembly' is reproduced below : 11 "S. 141. An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is First. To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second. To resist the execution of any law, or of any legal process; or Third. To commit any mischief or criminal trespass, or other offence; or Fourth. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation. An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly."
14. Chapter VIII of the Indian Penal Code, 1860 provides for the offences against the public tranquility. Section 141 defines "Unlawful Assembly" to be an assembly of five or more persons. They must have a common object inter alia to commit any mischief or criminal trespass or other offence. Determination of the common object of an unlawful assembly or the determination of the 12 question whether a member of the unlawful assembly knew that offence that was committed was likely to be committed is essentially a question of fact that has to be made keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and a host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration (see: Bharat Soni v. State of Chhattisgarh1). To determine the existence of common object, the Court is required to see the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot (see: Roy Fernandes v. State of Goa and others2).
15. At this stage, it would be appropriate to notice the provision contained under Section 149 of IPC, which provides as under : "S. 149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
1 2013 CrLJ 486 (SC) 2 (2012) 3 SCC 221 13
16. In the matter of Debashis Daw v. State of West Bengal3, the Supreme Court, after referring to the decision in Akhtar Alam v. State of West Bengal 4 observed that the prosecution is required to establish whether the accused persons were present and whether they shared a common object. For resorting to the provisions of Section 149 of IPC, the prosecution has to establish that: (I) there was an assembly of five persons; (ii) the assembly had a common object; and (iii) the said common object was to consist one or more of the five illegal objects specified in Section 141 of IPC. The pivotal question of applicability of Section 149 of IPC has its foundation on constructive liability which is the sine qua non for its application. It contained essentially only two ingredients, namely, (i) offence committed by any member of any unlawful assembly consisting five or more members and; (ii) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
17. Reverting to the facts of the present case in light of the aforesaid legal analysis, to find out 3 (2010) 9 SCC 111 4 (2009) 7 SCC 415 14 whether the four appellants/accused persons herein and one Bhuneshwar Sahu (who has been subjected to trial by Juvenile Justice Board) had constituted unlawful assembly or not, it would be appropriate to notice the testimony of three eyewitnesses namely Navratan (P.W.1), Kantibai (P.W.2) and Firatram (P.W.7) who is also injured witness.
18. Navratan (P.W.1), son of deceased Chanda Bai and Firatram (P.W.7), lodged the FIR (Ex. P/2) at Police Station Bilaigarh. He has clearly admitted in his statement before the Court that the byara of the appellants as well as that of the complainants is adjoining to each other and in front of that, there is vacant Government land which connects the village and the fields through a kacchhi road. He has also admitted that on 17/06/2015, the complainants went with a JCB to the village at night and they cultivated the vacant Government land in front of their byara into a field due to which the path used by the appellants to go to their kothar (barn) had been closed. He has further admitted that on 18/06/2015, two of the appellants Manoj Kumar and his wife Kachra Bai came to complainants' house and asked them to show the way which they can use to go from their byara to their field and then the complainants themselves had told 15 the appellants to construct a way adjoining the medh and on the day of the incident, the appellants were constructing the said way and they had taken spade and pickaxe with them for the said purpose.
19. Similar statements have been made by Navratan's wife Kantibai (P.W.2) and his father Firatram (P.W.7) who has also stated that earlier some dispute arose between the parties with regard to the vacant Government land in front of their byaras but that has been compromised with the intervention of the local Police. Thus, it is quite vivid that at the relevant point of time, the appellants were only constructing their way to reach their fields in the vacant Government land since the complainants had closed their path by cultivating the said Government land into a field, but when they were constructing their way, the appellants came therein and dispute arose between the parties. Thus, it is the case that the four appellants and one Bhuneshwar Sahu had only gathered with pickaxe and spade because they were constructing their way to the fields and therefore, it cannot be held that on the fateful day, at any point of time, the appellants had constituted an unlawful assembly for the purpose of Section 141 of IPC and therefore, 16 the conviction of the appellants with the aid of Section 149 of IPC is unsustainable and bad in law.
20. Now the question for consideration is, whether the appellants can be convicted for offence punishable under Section 302 of IPC simpliciter without the aid of Section 149 of IPC ?
21. The Supreme Court in the matter of Rohtas and another v. State of Haryana5 considered the question, whether a charge framed with the assistance of Section 149 of the IPC can later be converted to one read with Section 34 of the IPC or even a simplicitor individual crime ? Their Lordships considered and reviewed all the earlier case laws on the point including the Constitution Bench decision in the matter of Willie (William) Slaney v. State of M.P.6 and relying upon the decision in the matter of Nallabothu Venkaiah v. State of Andhra Pradesh7 holding that "the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence", 5 AIR 2021 SC 114 6 AIR 1956 SC 116 7 (2002) 7 SCC 117 17 observed in paragraphs 20, 21 and 22 of the report as under : "20. The aboveextracted position of law was further concretised in Willie (William) 3 Slaney v. State of MP and by the majority in Chittarmal v. State of Rajasthan8. The permissibility of convicting an accused individually under a simplicitor provision after group conviction with the aid of Section 149 of IPC fails, was further explored in Atmaram Zingaraji v. State of Maharashtra9, wherein this Court held that:
"4. The next question that falls for our determination is whether, after having affirmed the acquittal of all others, the High Court could convict the appellant under Section 302, I.P.C. (simpliciter). The charges framed against the accused (quoted earlier) and the evidence adduced by the prosecution to bring them home clearly indicate that according to its case, the nine persons arraigned before the trial Court and, none others, either named or unnamed (totalling minimum five or more persons) formed the unlawful assembly. Consequent upon the acquittal of the other eight the appellant could not be convicted with the aid of Section 149, I.P.C., more particularly, in view of the concurrent findings of the learned Courts below that the other eight persons were not in any way involved with the offences in question.
5. The same principle will apply when persons are tried with the aid of Section 34, I.P.C. In the case of Krishna v. State of Maharashtra10, a four Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, 8 (2003) 2 SCC 266 : (AIR 2003 SC 796) 9 (1997) 7 SCC 41 : (AIR 1997 SC 3573) 10 (1964) 1 SCR 678 : (AIR 1963 SC 1413) 18 the fourth accused cannot be convicted with the aid of Section 34, I.P.C. for the effect of law would be that those who were with him did not conjointly act with the fourth accused in committing the murder.
6. In either of the above situations therefore the sole convict can be convicted under Section 302, I.P.C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case, the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the eyewitnesses and the evidence of the doctor who held the postmortem examination indicate that the deceased sustained injuries by other weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty of the offence under Section 326, I.P.C. as he caused a grievous injury to the deceased with the aid of jambia (a sharp cutting instrument)."
(emphasis supplied)
21.This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of Andhra Pradesh4:
"24. Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges; (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w 19 Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."
(emphasis supplied)
22. Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such 'common intention' is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.11"
Case of Manoj Kumar, Kachra Bai and Bhuvan Bai :
22. In order to prove the offence punishable under Section 302 of IPC, the prosecution has examined three eyewitnesses namely Navratan (P.W.1), Kantibai (P.W.2) and Firatram (P.W.7). Navratan (P.W.1) has specifically stated before the Court that it was appellant Mahesh Ram who had caused injury to his mother Chanda Bai (deceased) with pickaxe in her scapular region and also assaulted his father Firatram (P.W.7) due to which he suffered injuries. Both Firatram (P.W.7) and Chanda Bai (deceased) were taken to the Hospital but Firatram was injured and was given appropriate treatment whereas Chanda Bai was declared dead.
Navratan (P.W.1) has nowhere stated in his statement that the other three appellants namely 11Mahbub Shah v. Kine Emperor, AIR 1945 PC 118, Pp. 153-154.20
Manoj Kumar, Kachra Bai and Bhuvan Bai had assisted Mahesh Ram in assaulting Chanda Bai (deceased) or her husband Firatram (P.W.7). As such, there is no specific act alleged upon the appellants Manoj Kumar, Kachra Bai and Bhuvan Bai by Navratan (P.W.
1). Similarly, Kanti Bai (P.W.2) has made a similar statement but in paragraph 5, she has stated that all the appellants/accused persons caught hold of Chanda Bai. The statement of Kanti Bai (P.W.2) has also been taken under Section 161 of CrPC which has been marked as Ex. D/1, but nothing of this sort has been stated by her in her statement under Section 161 of CrPC.
23. In this regard, the decision of the Supreme Court in the matter of V.K. Mishra and another v. State of Uttarakhand and another12 may be noticed herein whereby it has been held that the statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose : (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the reexamination of the witness if necessary. It was observed as under : 12 AIR 2015 SC 3043 21 "16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during crossexamination and also during the cross examination of the investigating officer.
Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his cross examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the 22 police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.
19. In the case at hand, PW1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW1 nor the investigating officer were confronted with the statement and questioned about it, PW1's statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW1 and the prosecution version."
24. As such, the statement of Kanti Bai (P.W.2) to the extent that all the other appellants caught hold of Chanda Bai while Mahesh Ram caused pickaxe blow on her shoulder blade is inadmissible in evidence and cannot be relied upon. Likewise, Firatram (P.W.7), who is also injured witness, has stated that it was Mahesh Ram who assaulted his wife Chanda Bai with pickaxe in her shoulder blade due to which she suffered greivous injury and died instantaneously and he also assaulted Firatram (P.W.7) by which he suffered injury. Apart from this, nothing has been recovered pursuant to the memorandum statements of appellants Manoj Kumar, Kachra Bai and Bhuvan Bai and it is not the case that they assaulted either deceased Chanda Bai or Firatram (P.W.7). As such, 23 prosecution has failed to establish offence punishable under Section 302 of IPC against these appellants and therefore, learned trial Court is absolutely unjustified in convicting them for offence punishable under Section 302 of IPC with the aid of Section 149 of IPC. In conclusion to the aforesaid discussion, the conviction of the appellants Manoj Kumar, Kachra Bai and Bhuvan Bai for offence punishable under Section 302 of IPC is hereby set aside and in view of the aforesaid finding arrived upon by this Court that unlawful assembly had not been constituted by the appellants in terms of Section 141 of IPC, their conviction for offence punishable under Section 148 of IPC is also set aside, however, their conviction for offences punishable under Sections 294 and 324 is maintained but without the aid of Section 149 of IPC.
Case of Mahesh Ram :
25. As noticed above, Navratan (P.W.1), Kantibai (P.W.2) and Firatram (P.W.7) have clearly stated in their statements that it was Mahesh Ram who had caused pickaxe blow on the shoulder (scapular region) of deceased Chanda Bai due to which she suffered greivous injury and died instantaneously. Dr. P.K. Vaishnav (P.W.9), who had conducted 24 postmortem, has clearly opined that deceased Chanda Bai died to cardiovascular and cardiorespiratory arrest on account of the stab wound caused on her scapular region and her death is homicidal in nature. Moreover, pursuant to the memorandum statement (Ex. P/11), recovery of pickaxe has been made vide Ex. P/12 in which blood has also been found vide FSL report (Ex. P/29). As such, there is ample evidence on record to hold that it is the appellant who has caused injury to the deceased Chanda Bai with a pickaxe as a result of which she died instantaneously.
26. Now it has been contended by learned counsel for the appellants that there was no intention on the part of the appellant Mahesh Ram to cause death of deceased Chanda Bai and since sudden quarrel erupted between the parties, he assaulted Chanda Bai in the heat of passion, as such, his case is covered with Exception 4 to Section 300 of IPC and therefore, his conviction under Section 302 of IPC be altered to Section 304 Part II of IPC.
27. 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 25 the offender having taken undue advantage or acted in a cruel or unusual manner."
28. The Supreme Court in the matter of Arjun v. State of Chhattisgarh13 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 13 (2017) 3 SCC 247 26 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".
29.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.
30.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 27 vivid that relationship of complainant Navratan (P.W.1) and his family Kuntibai (P.W.2) and Firatram (P.W.7) were very cordial with the appellants which is apparent from the statement of Navratan (P.W.1) wherein he has stated in paragraph 10 that prior to the fateful day, there was no dispute between them and on the fateful day, the appellants were constructing a way to connect their byara with the fields as the only way available to them through the vacant Government land was obstructed by the complainants by cultivating the said Government land into a field, the complainants raised objection due to which sudden quarrel erupted between the parties and in heat of passion, the appellant Mahesh Ram assaulted deceased Chanda Bai and her husband Firatram (P.W.
7) with the pickaxe he had carried with himself in order to construct the way. As such, it is quite apparent that 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, he assaulted the deceased with pickaxe on her scapular region and caused her death. Although the scapular region where the appellant Mahesh Ram caused injury to the deceased cannot be said to be a vital body part, however, looking to the gravity and intensity 28 of the single injury which has been caused, the appellant must have had the knowledge that such injury inflicted by him would likely cause the death of deceased Chanda Bai, as such, this is a case which would fall under Exception 4 of Section 300 of IPC.
31.In view of the aforesaid discussion, conviction of the appellant Mahesh Ram for offence punishable under Section 302 of IPC as well as under Section 148 of IPC and the sentences awarded accordingly 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 him was sufficient in the ordinary course of nature to cause death, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh14 as well as in Joseph v. State of Kerala15, the appellant is convicted for offence punishable under Section 304 Part II of IPC and he is awarded rigorous imprisonment for 8 years along with the fine as imposed by the trial Court.
32. In conclusion, the conviction of the appellants Manoj Kumar, Kachra Bai and Bhuvan Bai for offences punishable under Sections 302 and 148 of IPC and 14 AIR 1956 SC 116 15 1995 SCC (Cri.) 165 29 the sentences awarded are hereby set aside, however, their conviction for offences punishable under Sections 294 and 324 without the aid of Section 149 of IPC is maintained whereas the conviction of appellant Mahesh Ram for offence punishable under Section 302 of IPC is altered to Section 304 Part II of IPC and he is sentenced to undergo R.I. for 8 years along with fine as imposed by the trial Court and his conviction for offence punishable under Section 148 of IPC and the sentence awarded is hereby set aside and the offence punishable under Sections 294 and 324 of IPC are maintained.
33. Accordingly, all these criminal appeals are allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet