Chattisgarh High Court
Sukhanram vs State Of Chhattisgarh on 6 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 15
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on: 01.12.2022
Judgment Delivered on: 06.12.2022
CRA No. 857 of 2013
Sukhanram, S/o Kendaram, Aged About 27 Years, R/o
Village Bakoi Belwadand, PS Udaipur, Chowki Kedma,
District- Surguja, Chhattisgarh. ---- Appellant
Versus
State of Chhattisgarh, Through- The SHO, PS Udaipur,
Chowki Kedma, District- Surguja, Chhattisgarh.
---- Respondent
For Appellant : Mr. Jitendra Shrivastava, Advocate
For Respondent/State : Mr. Saumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Sanjay K. Agrawal, J.
1) This Criminal Appeal preferred under Section 374 (2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 31.08.2013 passed by Sessions Judge, Sarguja (Ambikapur), District- Sarguja, Chhattisgarh in Sessions Trial No.271/2011, whereby the appellant herein has been convicted for the offence punishable under Section 302 of the IPC and sentenced to life imprisonment and fine of Rs.1,000/-, in default of payment of fine to undergo additional Simple Imprisonment for 6 months.
Page 2 of 15
2) Case of the prosecution, in brief, is that on 22.03.2011 at about 5.00 P.M. at village Bhelwadand, the complainant Brijmohan (PW/4) was cleaning leaves in his yard. At that time, at some distance from his house, Nohar Sai (PW/7), Manbahal and Sonu (PW/12) were drinking liquor along with deceased-Junas. Thereafter, they had gone towards house of Luthu Ram. After one hour, accused/appellant armed with wooden stick ran behind the deceased - Junas and reached in front of house of Brijmohan (PW/4). At this moment deceased-Junas asked the appellant, why he is assaulting him, to which the appellant herein did not reply and the appellant gave 5-6 blows to Junas by means of wooden stick. Brijmohan (PW/4) rushed to intervene. Smt. Thulki (PW/6), wife of the deceased also reached there. She tried to administer him water. The appellant/accused by saying that he will again assault the deceased/Junas, if he is not dead, fled away from the spot. After drinking water, deceased gained consciousness, he revealed that when he was sitting in the house of Luthu Ram (PW/13), he blamed the appellant herein for stealing of cycle. Over this short dispute, appellant assaulted the deceased. Injured deceased/Junas was taken to his house by Naimal, Bahal, Sagar, Dhansay and on next date of the incident i.e. 23.03.2011 at 6.00 A.M. Junas died.
3) Complainant Brijmohan (PW/4) lodged morgue in Chowki- Kedma. Pursuant to which unnumbered merg intimation was Page 3 of 15 registered vide Ex.P/6 and unnumbered FIR was also registered under Section 302 of IPC vide Ex.P/4.
4) Investigating Officer-Churawan Singh (PW/11) reached to the spot at 12.30, found deadbody of the deceased on his house. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/1 and after conducting inquest vide Ex.P/2, the dead body of deceased/Junas was sent for postmortem vide Ex.P/8, which was conducted by Dr. A. R. Jayant (PW/3) and opined cause of death to be on account of asphyxia due to strangulation which is homicidal in nature. Spot map was prepared vide Ex.P/11. On same day, I.O. Churavan Singh (PW/11) seized blood stained soil along with simple soil from the place of occurrence vide Ex.P/15. Shirt and lungi of the deceased, worn by him at the time of incident, were also seized vide Ex.P/18. All the seized articles were sent for chemical analysis. Memorandum statement of the appellant was recorded vide Ex.P/16 and pursuant to memorandum statement, wooden stick (of Dhoura wood) was seized vide Ex.P/17. It was sent for query vide Ex.P/9 and as per the query report Ex.P/9A, the injury sustained by the deceased could have been caused by the said wooden stick. Vide Ex.P/19. Appellant herein was arrested and information regarding his arrest was sent to Dashmat son of Rati Ram (his relatives) vide Ex.P/19A. As per F.S.L. report (Ex.P/22) presence of blood was found on Articles A, E1, E2, E3 and E4. Statements of Page 4 of 15 the witnesses were recorded under Section 161 of CrPC.
5) After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court, which was ultimately committed to the Court of Sessions for trial in accordance with law, in which appellant/accused abjured his guilt and entered into defence. He examined none in his defence, however, he exhibited two documents i.e. Ex.D/01 & Ex.D/02, which are statements of Sagar and Smt. Rajkumari. In order to bring home the offence, prosecution examined 13 witnesses and brought on record 24 documents.
6) The trial Court, after appreciating oral and documentary evidence on record, convicted the appellant/accused and awarded sentence as mentioned herein-above against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence.
7) Mr. Jitendra Shrivastava, learned counsel for the appellant/accused would submit that the prosecution has utterly failed to prove the offence under Section 302 IPC beyond reasonable doubt. Ocular evidence and medical evidence brought on record are contrary to each other. As per evidence of prosecution witnesses, namely, Brijmohan Bargah (PW/4), Rajkumari (PW/5), Thulki (PW/6), the deceased received injury at evening time, he was taken Page 5 of 15 to another village where he died on the next day morning i.e. after receiving injuries he was alive for about more than ten hours. Whereas, as per statement of Dr. A.R. Jayant (PW/3), and autopsy report vide Ex.P/8A, this is the case of strangulation and the doctor has noticed ligature mark over the neck, which is contrary to the oral evidence. In case of strangulation the deceased could have died instantaneously but in the present case as per evidence brought on record by the prosecution the deceased was alive for more than ten hours after the incident, and in that view of matter trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 IPC. He would rely upon the decision of the Supreme Court in the matters of Ram Narain Singh V. State of Punjab 1, Amar Singh And Others V. State of Punjab2, Ramanand Yadav V. Prabhu Nath Jha And Others3 and Viram Alias Virma V. State of Madhya Pradesh4 to buttress his submission. He would finally submit that appeal be allowed by setting aside the Impugned Judgment.
8) Mr. Saumya Rai, learned State counsel, would support the impugned judgment of conviction and submit that conviction of the appellant by the trial Court is well merited and same is based on ocular evidence as medical evidence which are not contrary to each other and trial court is justified in 1 (1975) 4 SCC 497 2 (1987) 1 SCC 679 3 (2003) 12 SCC 606 4 (2022) 1 SCC 341 Page 6 of 15 convicting the appellant for offence under Section 302 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 would be, whether the death of the deceased was homicidal in nature, which has been answered by the trial Court in affirmative, holding that the death of deceased/Junas was homicidal in nature, relying upon the statement of Dr. A. R. Jayant, who proved the Ex.P/8A postmortem report. As such, the finding recorded by the trial Court that deceased died on account of injuries caused by the appellant and same is homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record. We hereby affirm the said finding.
11) Now, the next question would be, whether the appellant is perpetrator/author of the crime?
12) The first submission made on behalf of the appellant is that the ocular evidence and medical evidence are contrary to each other. As per the testimony Smt. Rajkumari (PW/5), the deceased was assaulted by the appellant with hand & fist and also by wooden stick and slammed him on the ground. Brijmohan (PW/4) in his testimony also stated upon hue and cry of Smt. Thulki (PW/6), [wife of the deceased], he went Page 7 of 15 there and had seen the deceased lying unconscious on the ground. She gave him water, he was taken to his house and on the next morning, he died. However, as per the testimony of Dr. A. R. Jayant (PW/3), who conducted postmortem of the deceased in its report vide Ex.P/8A opined cause of death of the deceased on account of asphyxia due to strangulation. As such, in the case of strangulation the deceased could have died instantaneously. Therefore, in his submission, the appellant is entitled for benefit of doubt.
13) The Supreme Court in the matter of Ram Narain Singh (supra) has held in para 14 as under:-
"14.Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case."
14) The principle of law laid down by Their Lordships of the Supreme Court in Ram Narain Singh (supra) has been followed with approval in Amar Singh And Others (supra) and has further been followed in Viram Alias Virma (supra).
15) The Supreme Court in the matter of Ramanand Yadav (supra) has held that in the case of variance between medial evidence and ocular evidence, ocular evidence has to get primacy and medical evidence is basically opinionative and ocular evidence is based on version of the eye witnesses and thus observed as under:-
Page 8 of 15
"17. So far as the alleged variance between medical evidence and ocular medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the court has to draw adverse inference."
16) Reverting to the facts of the present case in the light of the this aforesaid principle of law laid down by Their Lordships of the Supreme Court in Ramanand Yadav (supra), Ram Narain Singh (supra), Amar Singh And Others (supra) and Viram Alias Virma (supra), it is quite vivid that in the instant case, Smt. Rajkumari (PW/5), who is eye witness, she clearly stated that she had gone to house of her father-in-law Luthuram (PW/13), when she was in yard, at that time, on account of stealing of the cycle, quarrel took place between the deceased and the appellant herein. Thereafter, the appellant assaulted the deceased with hand and fist, then slammed him down on the ground, when deceased tried to escape, he was again assaulted by the appellant by wooden stick on his head. She was threatened by the appellant when she tried to intervene. On being scared, she went towards her sister-in-law's house. Then she informed about the incident to Thulki (PW/6), wife of the deceased. Thulki (PW/6) immediately reached to the spot with water. Accused/appellant had already absconded from the spot. Thulki (PW/6), wife of the deceased tried to administer water to the deceased but he took some water with great difficulty. Thulki (PW/6), wife of the deceased, in Page 9 of 15 her deposition stated that the deceased after gaining consciousness, made oral dying declaration that it is the appellant who assaulted him, as he accused him of stealing of cycle, by which he suffered injuries. In the cross- examination she maintained her version and nothing has been elicited from her to hold that she is not supporting the case of the prosecution. Statement of Dr. A. R. Jayant (PW/
3) who examined the deceased, has clearly stated that on the neck of the deceased he noticed ligature mark and in its report vide Ex.P/8A stated that cause of death on account of asphyxia due to strangulation, which is homicidal in nature. Even otherwise, the appellant was examined u/s. 313 of the CrPC and he has not explained the incriminating circumstances found proved against him, as such, we do not find any inconsistency between medical and ocular evidence and we hold that the appellant is author of the crime in question.
17) The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be altered to Section 304 Part II of the IPC, as contended by learned counsel for the appellant?
18) The Supreme Court in the matter of Sukhbir Singh v. State of Haryana5 has observed as under:-
5(2002) 3 SCC 327 Page 10 of 15 "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."
19) The Supreme Court further, in the matter of Gurmukh Singh v. State of Haryana6 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 the 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 from 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;
6(2009) 15 SCC 635 Page 11 of 15
(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 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 Page 12 of 15 kept in view while convicting and sentencing the accused."
20) Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh7 has elaborately dealt with the issue and observed in paragraphs 20 and 21 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 premeditation; (b) in a sudden fight; (c) without the offender's having taken undue 7(2017) 3 SCC 247 Page 13 of 15 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".
21) Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)8 has laid down four ingredients which should be tested for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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.
22) Reverting to the facts of the present case in light of 8(2019) 6 SCC 122 Page 14 of 15 aforesaid principle of law laid down by their Lordships of Supreme Court in aforementioned judgments pointing out the ingredients to attract Exception 4 to Section 300 of IPC, it is quite vivid that in the instant case only on account of the allegation having being made by the deceased on the appellant that he has stolen his cycle, the appellant quarreled with deceased and further under sudden anger and heat of passion has assaulted him, as such, there was no premeditation on the part of the accused-appellant to cause death of the deceased. However, looking to the injuries sustained by deceased, the appellant must have had the knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients to invoke 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 is altered to Section 304 (Part-II) of IPC.
23) Accordingly, the conviction of the appellant under Section 302 of the 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 Page 15 of 15 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, the appellant is convicted for offence punishable under Section 304 Part II of the IPC and he is sentenced to undergo R.I. for 5 years. He is reported to be on bail. The appellant is directed to surrender forthwith to serve out the remaining sentence awarded herein, failing which he will be apprehended.
24) The criminal appeal is, accordingly, allowed in part to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nadim