Chattisgarh High Court
Rajesh Khurana vs State Of Chhattisgarh on 7 February, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-296-2014
Page 1 of 14
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 296 of 2014
Rajesh Khurana, Son of Ramprakash Khurana, aged about 41 years,
Caste- Munda-Punjabi, Occupation- Electronic Shop, (Navelty
Electronics), Resident of House of Taar Mohammad, Kumharpara,
Jagdalpur, Police Station City Kotwali, Jagdalpur, Revenue and Civil
District Bastar (Chhattisgarh)
---- Appellant
Versus
State of Chhattisgarh, through Police Station City Kotwali, District
Bastar (Chhattisgarh)
---- Respondent
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For Appellant : Mr. Neeraj Mehta, Advocate For Respondent-State : Mr. Ashish Tiwari, Government Advocate
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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal, JJ Judgment on Board (07.02.2023) Sanjay K. Agrawal, J (1) 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 06.01.2014, passed by the Court of learned Sessions Judge, Bastar (Chhattisgarh) in Sessions Trial No.42/2012 (State of CG vs. Rajesh Khurana), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment (till death) with fine of Rs.20,000/-.
CRA-296-2014 Page 2 of 14 (2) The case of the prosecution, in short, is that on 21.02.2012 in the night at about 11:15 PM, behind Jamal Mill, in the building of Taar Mohammad, Kumharpara, Jagdalpur, the accused-appellant herein under the influence of liquor quarreled with his wife, namely, Smt. Bindu Khurana (hereinafter referred to as "deceased") and, in furtherance thereof, assaulted her by means of iron rod, 'tava' and cooker on her head, face, neck etc. multiple times, due to which she suffered grievous injuries and succumbed to death, and, thereby, the appellant is said to have committed offence under Section 302 of IPC. (3) The admitted facts in the present case are that the appellant used to live alongwith his wife (deceased) and two children, namely, Raunak Khurana (PW-08) and Ku. Ritika Khurana (PW-09) in a rented premises/house behind Jamal Mill, at 8th floor of the apartment/building of Taar Mohammad, Kumharpara, Jagdalpur. In the same apartment/building, Akhilesh Jain (PW-01), Rashul Ahmad (PW-02) and P. Selvadurie (PW-07) also used to reside and they are known to the appellant and his family. Appellant's children used to study in Nirmal School, in which deceased also used to work as a Teacher. (4) It is further case of the prosecution that though the appellant had promised the deceased (his wife) that he will not drink, but on the fateful day the appellant came to the house under the influence of liquor vis-a-vis in breach of his promise and asked deceased to serve him food, upon which, deceased refused to serve him food, pursuant to which the appellant became angry and brief quarrel took place between CRA-296-2014 Page 3 of 14 the appellant and the deceased and, in furtherance thereof, the appellant assaulted his wife (deceased) by means of iron rod, 'tava' and cooker multiple times on her head, face and next, due to which deceased suffered grievous injuries and fell down on floor and blood was oozing out. Thereafter, 108 Ambulance with attendant was called by whom deceased was declared dead. Consequently, the matter was reported to the police of Police Station City Kotwali by Akhilesh Jain (PW-01) and FIR (Ex.P/01) was registered. Inquest proceedings were conducted vide Ex.P/04 and summons under Section 175 of CrPC were sent vide Ex.P/03. Nazari Naksha and Panchama were also prepared vide Ex.P/09. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/09), conducted by Dr. Sanjay Prasad (PW-03), it was opined that the cause of death of deceased is due to coma and multiple head injuries and nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/06. Pursuant to the memorandum statement of the appellant, blood stained iron rod has been seized vide Ex.P/06. Further, from the place of incident 'tava', pressure cooker, were siezed vide Ex.P/07. The aforesaid seized articles alongwith other seized articles were sent for FSL examination and in the FSL report (Ex.P/20) it has been opined that blood has been found on the iron rod seized pursuant to memorandum statement of the appellant as well as on the pressure cooker, tava, full-pant & shirt and inner-wear of the appellant and also on the clothes of the deceased seized vide Ex.P/08. Thereafter, CRA-296-2014 Page 4 of 14 statement of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate (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. (5) The prosecution in order to prove its case examined as many as 09 witnesses and exhibited 21 documents, whereas the appellant- accused in support of his defence has examined 02 witnesses and exhibited 02 documents.
(6) 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.
(7) Mr. Neeraj Mehta, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the appellant is said to have assaulted his wife (deceased) in spur of the moment under the influence of liquor as his wife (deceased) refused him to serve food, as such, 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, under heat of passion and CRA-296-2014 Page 5 of 14 under the influence of liquor the appellant assaulted deceased, due to which she suffered grievous injuries and died. 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 for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC. He also submits that the appellant is in jail since 22.02.2012 i.e. more than 10 years 11 months, considering the period he has already undergone, he be awarded the sentence to the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.
(8) Per-contra, Mr. Ashish Tiwari, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statement of eye-witnesses, namely, Raunak Khurana (PW-08) and Ku. Ritika Khurana (PW-09), who are children of the appellant and the deceased and have clearly seen the incident coupled with other evidence available on record i.e. FSL report, in which it has been opined that blood has been found on the iron rod seized pursuant to the memorandum statement of the appellant herein alongwith other articles i.e. pressure cooker and tava, used as weapon by the appellant in the offence in question, the learned trial Court has rightly convicted the CRA-296-2014 Page 6 of 14 appellant for offence under Section 302 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not the 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.
(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 and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has been opined that cause of death of deceased is due to coma and multiple head injuries and nature of death is homicidal, which is duly proved by the statement of Dr. Sanjay Prasad (PW-03), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. Sanjay Prasad (PW-03), we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.
(11) Now, the next question would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of CRA-296-2014 Page 7 of 14 eye-witnesses, namely, Raunak Khurana (PW-08) and Ku. Ritika Khurana (PW-09), who are children of the appellant and the deceased and have clearly seen the incident as also the statement of Akhilesh Jain (PW-01) and P. Selvadurie (PW-07) and further pursuant to the memorandum statement of the appellant recorded vide Ex.P/05, blood stained iron rod has been seized vide Ex.P/06, which was subject to FSL examination and in the FSL report (Ex.P/20) blood has been found on the said iron rod alogngwith other articles seized from the spot i.e. pressure cooker, 'tava' etc. 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 correct finding of fact based on evidence and it is neither perverse nor contrary to the record. (12) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to 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 ?
(13) The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:-
1 (2002) 3 SCC 327 CRA-296-2014 Page 8 of 14 "21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year."
(14) 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;
2 (2009) 15 SCC 635 CRA-296-2014 Page 9 of 14
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (I) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
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." (15) 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 3 (2012) 8 SCC 450 CRA-296-2014 Page 10 of 14 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.
(16) 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 4 (2017) 3 SCC 247 CRA-296-2014 Page 11 of 14 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 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 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.
(18) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)5 has laid down four ingredients which should be tested 5 (2019) 6 SCC 122 CRA-296-2014 Page 12 of 14 to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:
"16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner."
(19) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the 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 petty dispute that though the appellant had promised the deceased (his wife) that he will not drink, but on the fateful day the appellant came to the house under the influence of liquor vis-a-vis in breach of his promise and asked deceased to serve him food, upon which, deceased refused to serve him food, followed by sudden quarrel and under heat of passion and under the influence of liquor, the appellant, who is husband of deceased, assaulted her by means of iron rod, 'tava' and cooker, due to which she suffered grievous head injuries and succumbed to death, which fact has been duly established by statements of eye-witnesses, namely, Raunak Khurana (PW-08) and Ku. Ritika Khurana (PW-09), who are children of the appellant and the deceased and have clearly seen the incident. As such, there was no premeditation on the part of the appellant to cause death of the deceased and only because of CRA-296-2014 Page 13 of 14 sudden quarrel, under anger and influence of liquor and in heat of passion, the appellant assaulted deceased and caused his death. However, looking to the head injuries sustained by deceased, the appellant must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 to 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 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. (20) In view of the aforesaid discussion, 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 from 22.02.2012 i.e. almost 10 years 11 months, taking into consideration the period he has already undergone, we award him sentence already undergone by him, but the fine sentence imposed by the learned trial Court shall remain CRA-296-2014 Page 14 of 14 intact. Consequently, he be released from jail forthwith, if not required in any other matter.
(21) This criminal appeal is party allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
s@if