Chattisgarh High Court
Ajeet Singh vs State Of Chhattisgarh on 1 August, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1294 of 2014
Judgment reserved on 27/07/2022
Judgment delivered on 01/08/2022
Ajeet Singh S/o Shri Sahdev Singh, Aged about 35
years, R/o Village Laxmipara Jamul, Police Station
Jamul, Distt. Durg, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station House
Jamul, Distt. Durg, Chhattisgarh.
Respondent
For Appellant : Mr. Ravindra Sharma, Advocate
For State : Mr. Sameer Uraon, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC emanates from the impugned judgment of conviction and order of sentence dated 31/07/2014 passed in Sessions Trial No. 89/2014 whereby learned 7th Additional Session Judge, Durg has convicted the appellant for offence punishable under Section 302 of IPC and sentenced him to life imprisonment and 2 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 23/01/2014 at about 10:30 AM in Laxmipara, Jamul, the appellant herein strangulated his wife Lata Singh with a scarf and caused her death and thereby, committed the aforesaid offence.
3. Further case of the prosecution, in brief, is that the appellant used to doubt the character of his wife Lata Singh and always quarreled with her on that pretext. On the fateful day, at about 10:30 AM, the appellant asked for food from his wife to which she replied that she would serve him food after taking bath and changing clothes. Thereafter, the appellant went outside the house and returned after a few minutes and went straight to the room of deceased Lata Singh. Thereafter, Lucky Singh alias Baua (P.W.1), son of appellant and deceased Lata Singh, heard the cries of his mother seeking help and when he went inside the room he found that the appellant was strangulating his mother Lata Singh with his hands and in order to help his mother, Lucky Singh (P.W.1) interfered and hit his father with a wooden stick, but the appellant pushed his son outside the room and bolted the door from inside. Thereafter, Lucky Singh (P.W.1) saw 3 from a hole in the door that his father was strangulating his mother with a red coloured scarf and thereafter, his mother was lying unconscious on the floor. Pursuant thereof, Lucky Singh (P.W.1) closed the door from outside as well and informed his aunt (mausi) Maheshwari (P.W.18) about the incident. After some time, his younger sister Payal (P.W.12) came home from school and opened the door of the room from outside after which their father (appellant) absconded and when the kids went inside the room, they found their mother Lata Singh lying unconscious. When their aunt Maheshwari (P.W.18) came, they took Lata Singh to Jamul Nursing Home wherein the Doctor advised them to take her to Government Hospital, Supela. As advised, they took Lata Singh to the Government Hospital, Supela but the Doctor therein declared Lata Singh to be dead.
4. The said incident was informed by Lucky Singh (P.W.1) to Police Station Jamul on the basis of which merg intimation was registered vide Ex. P/1 and thereafter, FIR was registered against the appellant for offence punishable under Section 302 of IPC vide Ex. P/12. Inquest was conducted vide Ex. P/7 and summons were sent to the witnesses under Section 175 of CrPC vide Ex. P/6. On 24/01/2014, nazri naksha of the spot was prepared 4 vide Ex. P/2 and spot map was prepared by the Patwari vide Ex. P/3. The dead body of Lata Singh was subjected to postmortem which was conducted by Dr. P. Akhtar (P.W.10) and the postmortem report has been filed as Ex. P/9 according to which the cause of death is asphyxia due to strangulation and the nature of death is homicidal. Recovery of wooden stick and mobile phone was made from Lucky Singh (P.W.1) vide Ex. P/4 and P/5 and the scarf with which the appellant strangulated deceased Lata singh was also seized vide Ex. P/13. After recording the statements of the witnesses and 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.
5. In order to bring home the offence, prosecution examined as many as 19 witnesses and brought into record 15 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt and though he examined none in his defence but exhibited 7 documents.
6. Learned trial Court, after appreciating the oral and documentary evidence on record, finding the 5 death of deceased Lata Singh 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.
7. Mr. Ravindra Sharma, learned counsel for the appellant, would make a solitary submission that the case of the appellant herein is covered with Exception 4 to Section 300 of IPC and his conviction for offence punishable under Section 302 of IPC is liable to be converted to Section 304 Part II of IPC as the assault was made by the appellant purely in heat of passion as sudden quarrel erupted between the husband and his wife Lata Singh and there was no premeditation on the part of the appellant to cause the death of deceased. He would further submit that the appellant did not take any undue advantage or did not act in a cruel manner as the deceased did not die immediately after the assault rather she died after two hours and there was sufficient time wherein by extending adequate medical help, her life could have been saved. He would rely upon the decision rendered by the Supreme Court in the matter of Rambir v. State (NCT of Delhi) 1 and the 1 (2019) 6 SCC 122 6 decision rendered by the Division Bench of this Court in Raju Nag v. State of Chhattisgarh2 to buttress his submission.
8. Per Contra, Mr. Sameer Uraon, learned Government Advocate, would submit that there was premeditation on the part of the appellant to cause the death of deceased and the assault did not happen in a sudden quarrel as Lucky Singh (P.W.1), Khuman Singh (P.W.2), Payal (P.W.12) and Maheshwari (P.W.18) have clearly stated that the appellant frequently quarreled with the deceased as he used to doubt her character and even on the fateful day, he assaulted the deceased and strangulated her in a preplanned manner, as such, it is not a case where Exception 4 of Section 300 would be attracted and learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC, therefore, 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.
2 CRA No. 1136/2013 decided on 28/01/2019 7
10.The first question for consideration would be whether the death of deceased Lata Singh 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/9) wherein Dr. P. Akhtar (P.W.10), who has conducted postmortem, has clearly stated that the cause of death is asphyxia due to strangulation and the death of deceased was homicidal in nature. Moreover, the fact that the death of deceased Lata Singh 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/9) as well as going through the evidence of Dr. P. Akhtar (P.W.10), we are satisfied that learned trial Court has rightly held the death of deceased Lata Singh to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
12.The one and only contention made by learned counsel for the appellant is that the act of the appellant is covered with Exception 4 of Section 300 as it is a case of culpable homicide not amounting to murder and therefore, his conviction for offence 8 punishable under Section 302 of IPC should be altered to Section 304 Part II of IPC.
13. 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."
14. In the matter of Rambir (supra), Their Lordships of the Supreme Court have laid down the four ingredients that are required to attract Exception 4 to Section 300 of IPC, which state 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."
15. The Supreme Court in the matter of Arjun v. State of Chhattisgarh3 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) 3 (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".
16.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.
17.Reverting to the facts of the present case in light of the principle of law laid down by the Supreme Court in the matters of Rambir and Arjun (supra), so far as the first ingredient of Exception 4 to Section 300, that is, sudden fight is concerned, it is the case of the prosecution duly proved by prosecution witness Lucky Singh (P.W.1) who has stated that on the fateful day, the appellant asked for food from his wife deceased Lata Singh which she promised to serve after taking bath and changing her clothes, thereafter, the appellant went outside the house and came immediately after 5 11 to 10 minutes and silently entered the room of the deceased where she had come after taking bath and he started pressing her neck and strangulating her with his hands and in reaction of the same, the deceased cried for help which was heard by her son Lucky Singh (P.W.1) who entered the room and upon seeing his father (appellant) strangulating his mother (deceased), he hit his father with a wooden stick. The appellant then pushed his son Lucky Singh (P.W.1) outside the room and bolted the door from inside. Lucky Singh (P.W.1) has further stated that he saw from a hole in the door that appellant strangulated the deceased with a red coloured scarf and she was lying unconscious on the floor. Thereafter, he informed about the incident to his aunt Maheshwari (P.W.18) and after some time when his younger sister Payal (P.W.12) came home after school, she unlocked the door due to which the appellant absconded and they took the deceased firstly to Jamul Nursing Home and then to Government Hospital, Supela wherein she was declared dead. In crossexamination, he has clearly refuted that since the appellant asked for food and the deceased refused to served food immediately, quarrel erupted between them and he has clearly stated that after this exchange, appellant went outside and returned after ten minutes. In the 12 entire crossexamination, nothing has been brought on record to hold that there was sudden fight between the appellant and the deceased on account of which the appellant strangulated the deceased and caused her death. As such, there is no evidence available on record to hold that there was the ingredient of sudden fight involved in the present case.
18.Similarly, the second ingredient of Exception 4 to Section 300 of IPC has also not been duly established that there was no premeditation on the part of the appellant to cause the death of the deceased. Prosecution has brought ample evidence on record to show that the appellant, being a driver, came home after every 1520 days and he suspected the character of his wife (deceased) due to which they quarreled frequently. Lucky Singh (P.W.1) has even stated in paragraph 5 of his statement that his father used to commit maarpeet with his mother and on that account, he had also gone to jail once. Furthermore, Khuman Singh (P.W.2), father of deceased, has also stated in paragraph 1 of his statement that appellant used to doubt the character of deceased Lata Singh and committed maarpeet with her due to which report has been lodged in Jamul Police Station three to four times. 13 Even deceased Lata Singh had also lodged a report against the appellant at Women Police Station. On 22/01/2014 i.e. one day prior to the incident, deceased Lata Bai had called his father Khuman Singh (P.W.2) and told him that the appellant is doubting her character and is trying to degrade her. As such, the entire evidence available on record goes to show that the appellant strangulated his wife Lata Singh and caused her death with a premeditated mindset.
19.The third ingredient of Exception 4 to Section 300 of IPC is that the act must be committed in heat of passion. As noticed hereinabove, on the fateful day, at about 10:30 AM, the appellant asked for food from deceased to which she replied that she will serve food after taking bath and changing clothes which was accepted by the appellant as he went outside the house and returned after 510 minutes. After returning, he immediately went to the room of the deceased and started strangulating her firstly with his own hands and then with a red coloured scarf after being interfered by his son Lucky Singh (P.W.1). As such, prosecution has duly established that the act of the appellant was not committed in heat of passion.
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20.The fourth and last ingredient of Exception 4 to Section 300 of IPC is that the offender had not taken any undue advantage or acted in a cruel or unusual manner. Lucky Singh (P.W.1) has clearly stated that when he heard his mother crying for help, he went inside her room and found that the appellant was strangulating her with his bare hands. He intervened and caused a blow with a wooden stick to the appellant after which the appellant pushed him outside the room and bolted the room from inside and thereafter strangulated her with a red coloured scarf. The said wooden stick has also been seized vide Ex. P/4. Thus, after being intervened by Lucky Singh (P.W.1), the appellant could have stopped assaulting the deceased but he did not do so and thereafter, strangulated her with the help of a scarf. Moreover, Dr. P. Akhtar (P.W.10), who conducted postmortem, has clearly stated that upon examination, he had found that on the lower portion of neck below thyroid cartilage, there was a well defined ligature mark present on all sides of the neck. The surface of the ligature mark was pale and upon dissection of the ligature mark, he found that there were blood clots formed under the surface and the muscles below the ligature mark were torn. Thus, considering the aforesaid evidence especially 15 considering the medical evidence of Dr. P. Akhtar (P.W.10), it cannot be held that appellant did not act in a cruel or unusual manner.
21.In conclusion of the aforesaid legal discussion, it can safely be inferred that by no stretch of imagination, the case of the appellant would be covered with Exception 4 to Section 300 of IPC. As laid down by Their Lordships of the Supreme Court in Rambir (supra), none of the four ingredients are present in the case of the appellant and hence, Exception 4 to Section 300 of IPC is not attracted at all. We are of the considered opinion that learned trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of IPC and it cannot be altered to offence punishable under Section 304 Part II of IPC as contended by learned counsel for the appellant.
22.Accordingly, this criminal appeal, being devoid of merit, deserves to be and is accordingly dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet