Chattisgarh High Court
Jagdish And Anr vs State Of Chhattisgarh on 23 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 689 of 2021
Sunaram Kamar, S/o Sonuram Kamar, Aged about 45 years,
R/o Village Kholapara, Police Station Mainpur, distt.
Gariyaband, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh, through Station House Officer, Police
Station Mainpur, Distt. Gariyaband, Chhattisgarh.
---Respondent
For Appellant :- Ms. Sofia Khan, Advocate
For State :- Mr. Afroz Khan, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
20/09/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant/accused against the impugned judgment dated 08/03/2021 passed by learned Additional Sessions Judge, Gariyaband in Sessions Case No. 01/2019 whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine additional R.I. for one year.
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2. Case of the prosecution, in brief, is that on 17/10/2018 at about 09:10 PM at village Dhobipara, the appellant herein, with the intention of causing death of his wife Kaushilya Bai, assaulted her with a wooden stick (sal) and caused her death by inflicting injuries on her head, legs and back and thereby, committed the aforesaid offence.
3. Further case of the prosecution, is that, on 19/10/2018, Tihar Singh (P.W.-9) informed at Police Station that on 17/10/2018, his sister Kaushilya Bai had gone alongwith her husband (appellant) to the house of her elder sister Ramkunwar Bai (P.W.-3) at village Dhobipara. At night, Kaushilya Bai was sleeping outside the house when at about 09:10 PM, appellant asked her to sleep with him inside the house, but she refused and on that account, out of anger, the appellant assaulted her with wooden stick and inflicted grievous injuries and thereafter, he did not take her to a hospital due to which she succumbed to death on 18/10/2018 at 12 noon.
4. On the basis of the said report, merg intimation was registered vide Ex. P/12 and FIR was lodged against the appellant for offence punishable under Section 302 of IPC. Summons were issued to the witnesses under Section 175 CrPC vide Ex. P/1 and after conducting inquest, the dead body of deceased Kaushilya Bai was subjected to postmortem which was conducted by Dr. K.D. Jogi (P.W.-4) and as per the postmortem report (Ex. P/10), cause of death is said to be shock due to multiple injuries and the nature of death is said to be homicidal. Memorandum statement of the appellant was 3 recorded vide Ex. P/3 and pursuant thereof, the wooden stick used by the appellant to assault the deceased was seized vide Ex. P/4 and it was sent for query and as per the query report (Ex. P/11), the injuries sustained by the deceased could have been caused by the said wooden stick. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law.
5. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 19 documents. The statement of appellant/accused was recorded wherein he denied guilt and examined none in his defence, however, exhibited the statements of Mansha Ram and Phool Singh Kamar as D/1 and D/2.
6. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Kaushilya Bai to be homicidal in nature and further finding the appellant to be the perpetrator of the crime, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced as aforesaid.
7. Ms. Sofia Khan, learned counsel for the appellant, would submit that the appellant had no intention to cause the death of his wife and only out of sudden anger and in heat of passion, he assaulted her, therefore, his conviction for offence punishable under Section 302 of IPC be modified to Section 4 304 Part II of IPC as his case is covered with Exception 4 to Section 300 of IPC and since the appellant is in jail since 20/10/2018, i.e. for more than three years, he be sentenced to the period already undergone.
8. Per contra, Mr. Afroz Khan, learned State counsel, would submit that the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC as his case is not covered with Exception 4 to Section 300 of IPC, as such, the instant appeal deserves 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 is whether the death of deceased Kaushilya Bai was homicidal in nature ?
11. Learned trial Court has recorded an affirmative finding in this regard on the basis of medical opinion of Dr. K.D. Jogi (P.W.-
4) as well as postmortem report (Ex. P/10) wherein it has been categorically held that cause of death is shock due to multiple injuries and nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased all over her body and relying upon the medical opinion of Dr. K.D. Jogi (P.W.-4) as well as postmortem report (Ex. P/10), we are of the considered opinion that learned trial Court has rightly held the death of deceased Kaushilya Bai to be homicidal in nature. Moreover, the fact that death of the deceased was 5 homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Kaushilya Bai was homicidal in nature.
12. The next question for consideration is whether the appellant is the perpetrator of the crime in question ?
13. On the fateful day of 17/10/2018, appellant and deceased, both had gone to the house of Ramkunwar Bai who has been examined as P.W.-3. In her statement before the Court, she has clearly stated that on the fateful day, her younger sister (deceased) had come to her house with her husband (appellant) and at night, all of them had their meals and thereafter, they also took liqour and then Ramkunwar Bai (P.W.-3) and her husband Phool Singh Kanwar (P.W.-2) went to sleep inside the new house whereas the appellant and deceased remained in the old house. In the morning, when she went to the old house, she found the deceased lying on the floor with swollen face and neck and she had also suffered various injuries all over her body, but although she was conscious and was breathing very lightly but she was not able to speak and the appellant was not present in the house. Pursuant thereof, she called her husband Phool Singh Kanwar (P.W.-2) and thereafter, the Kaushilya Bai succumbed to death and Ramkunwar Bai (P.W.-3) informed the same to her brother Tihar Singh (P.W.-9). She has also stated that when the appellant returned to the house, on being asked, he 6 admitted that he has assaulted his wife, which is also corroborated from the merg intimation (Ex. P/12).
14. Moreover, pursuant to the memorandum statement of the appellant vide Ex. P/3, recovery of wooden stick has also been made vide Ex. P/4 which has been proved by Mansha Ram (P.W.-1) and Phool Singh (P.W.-2). The wooden stick so seized was also sent for query and as per the query report (Ex. P/11), the injuries suffered by the deceased could very well have been caused by the said wooden stick. As such, from the aforesaid incriminating circumstances, having duly been proved by the prosecution, it has been established that appellant is indeed the perpetrator of the crime, which in our considered opinion, has rightly been recorded by the trial Court and we hereby affirm the said finding recorded by the trial Court that appellant is the perpetrator of the crime.
15. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC ?
16. In the matter of Sukhbir Singh v. State of Haryana 1, Their Lordships of the Supreme Court have 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 Sukhir 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 1 (2002) 3 SCC 327 7 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."
17. Thereafter, in the matter of Gurmukh Singh v. State of Haryana2, Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused 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 for 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 with 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 death but the death was because of shock;
2 (2009) 15 SCC 635 8
(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."
18.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 is 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.
19. 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 :-
3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 9
"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 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 10 taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provisions means "unfair advantage".
20.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 Part-I 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.
21. Reverting to the facts of the present case in light of the aforesaid principle of law laid down by Their Lordships of the Supreme Court, it is quite vivid that appellant as well as deceased, both were husband and wife and on the fateful day, they had gone to the house of Ramkunwar Bai (P.W.-3), elder sister of deceased, and at night after having dinner, all of them took liqour brought by the appellant and thereafter, Ramkunwar Bai (P.W.-3) and her husband Phool Singh Kanwar (P.W.-2) went to the new house to sleep whereas the appellant and deceased remained in the old house and on account of some dispute between them which arose when the appellant asked the deceased to come inside the house to sleep with him and she refused, out of sudden anger and in heat of passion, the appellant assaulted her with wooden stick on her head, legs and back due to which she died on the next day. As such, it is evident that there was no premeditation on the part of the appellant to cause the death of the deceased, however, the injuries suffered by the deceased all over her 11 body, would show that the appellant must have had the knowledge that his act would likely to cause the death of the deceased. Thus, the case of the appellant in the present case is covered with Exception 4 of Section 300 of IPC and his conviction under Section 302 of IPC is altered to Section 304 Part II of IPC and in view of the decisions rendered by the Supreme Court in the matters of Willie (William) Slaney v. State of Madhya Pradesh5 as well as in Joseph v. State of Kerala6, we hereby sentence the appellant to undergo rigorous imprisonment for five years. However, the fine sentence imposed by the trial Court is hereby maintained.
22.Accordingly, this criminal appeal is allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet
5 AIR 1956 SC 116
6 1995 SCC (Cri.) 165