Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 12, Cited by 0]

Chattisgarh High Court

Madwari Majhwar vs State Of Chhattisgarh on 14 June, 2022

Author: Sanjay K. Agrawal

Bench: Sanjay K. Agrawal

                                         1

                                                                        NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Criminal Appeal No. 1091 of 2013


          Madwari Majhwar S/o Duhan Majhwar, Aged about 28
          years,        R/o        Village         Aamgaon­Bhouradand­
          Manjhwarpara,          P.S.    Kamleshwarpur,       Civil     and
          Revenue District Surguja, Chhattisgarh.
                                                            ­­­Appellant

                                        Versus

          State    of     Chhattisgarh        through    Police    Station
          Kamleshwarpur, District Surguja, Chhattisgarh.

                                                          ­­­Respondent




    For Appellant           :­     Ms. Savita Tiwari, Advocate
    For State               :­     Mr. Himanshu Kumar Sharma, P.L.


                Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Sachin Singh Rajput
                           Judgment on Board
                               14/06/2022
Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 07/09/2013 passed by learned Session Judge, Surguja (Ambikapur) in Sessions Trial No. 554/2011 whereby the appellant/accused has been convicted for offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and 2 fine of Rs. 1,000/­, in default of payment of fine S.I. for six months.

2. The case of the prosecution, in brief, is that on 27/10/2011 at about 5:00 PM in Village Aamgaon­ Bhouradand, the appellant/accused assaulted Ramprasad Majhwar and when father his father Budhu Majhwar came to intervene, the appellant/accused assaulted him with a wooden stick and caused his death and thereby, committed the offence.

3. It is admitted fact on record that the appellant/accused is the nephew of Sainath Majhwar (P.W. ­1) and the deceased Budhu Majhwar was younger brother of Sainath Majhwar (P.W.­1).

4. Further case of the prosecution, in brief, is that on 28/10/2011, at about 09:20 AM, Sainath Majhwar (P.W.­1) lodged report at Police Station Kamleshwarpur that on 27/10/2011 at 05:00 PM, he had gone towards the fields and his wife Kunti (P.W.­2) was at home. When he heard her wife shouting, he ran back towards his home and found that the appellant was hitting his younger brother Budhu Majhwar with a genda (wooden stick) and on account of the injuries suffered by his brother, blood was oozing out of his 3 head. When the complainant (P.W.­1) asked the appellant not to further hit his brother Budhu Majhwar, the appellant threatened that he would also hit Ramprasad, son of Budhu Majhwar and thereafter, he ran away in search of Ramprasad. On account of grievous injuries suffered by Budhu Majhwar, he died instantaneously. On the basis of the said report (Ex. P/1) and merg intimation (Ex. P/2), offence punishable under Section 302 of IPC was registered against the appellant herein. The dead body of deceased Budhu Majhwar was sent for postmortem and the postmortem report has been filed as Ex. P/7 in which Dr. R.S. Singh (P.W.­4), who has conducted the postmortem, has opined that cause of death is coma due to head injury and the death of deceased Budhu Majhwar is homicidal in nature. Thereafter, the Investigating Officer prepared Spot Map (Ex. P/6) and recorded the statements of the witnesses. Pursuant to the memorandum statement of the appellant/accused recorded on 28/10/2011, the wooden stick used in the incident was recovered in four parts vide Ex. P/11 which was sent for chemical examination along with plain soil and blood­stained soil seized from the spot. The FSL report has been 4 filed as Ex. P/17 and as per the said report, blood has been found in all the three articles, i.e. plain soil, stained soil as well as pieces of wooden stick and it has further been held that human blood has been found on stained soil but the blood found on pieces wooden stick could not be classified as human blood. After due investigation, the appellant 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 6 witnesses and brought into record 17 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt. On behalf of the defence, none was examined however, the statement of complainant's wife namely Kunti Majhwar has been brought on record as Ex. D/1.

6. Learned trial Court, after appreciating the oral and documentary evidence on record and after finding the death of deceased Budhu Majhwar to be homicidal in nature, proceeded to convict the 5 appellant/accused for offence punishable under Section 302 of CPC and sentenced him as aforesaid.

7. Ms. Savita Tiwari, learned counsel for the appellant/accused, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC as there is no evidence on record to convict him for offence punishable under Section 302 of IPC and Kunti Majhwar (P.W.­2), being the only eye­witness, has also not supported the prosecution version. She would further submit that looking to the single injury which is said to have been caused by the appellant herein by which the deceased died on the spot, it is evident that the appellant had no intention of causing death of the deceased as such, at the best, the appellant can be convicted for offence punishable under Section 304 Part II of IPC and since he is in jail since 28/10/2011 i.e. for more than 11 years, his sentence be awarded for the period already undergone and he be released from jail.

8. Per Contra, Mr. Himanshu Kumar Sharma, learned State counsel, would submit that prosecution has 6 brought sufficient evidence in shape of oral and documentary evidence to convict the appellant for offence punishable under Section 302 of IPC, as such, learned trial Court has rightly convicted him for the said offence. He would also submit that it is not a case where the appellant's conviction under Section 302 of IPC can be converted under Section 304 Part II of IPC as appellant assaulted the deceased with full intention of causing death, 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 deceased Budhu Majhwar 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/7) wherein Dr. R.S. Singh (P.W.­4), who has conducted the postmortem, has opined that the deceased had suffered grievous injuries on his head on account of which his right temporal bone and right parietal bone 7 had been fractured and the said injuries have been caused by a hard and blunt object. He has further stated in the report that cause of death is coma due to head injury and death of the deceased is homicidal in nature. As such, after going through the postmortem report (Ex. P/7) and after going through the medical evidence of Dr. R.S. Singh (P.W.­4), we are of the considered opinion that learned trial Court is absolutely justified in holding that death of deceased Budhu Majhwar was homicidal in nature. Moreover, the fact that the death of deceased Budhu Majhwar is homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, the finding recorded by the trial Court that the death of deceased Budhu Majhwar is homicidal in nature is hereby affirmed.

12. The next question for consideration is whether the appellant/accused has caused the death of deceased Budhu Majhwar and has thereby committed the offence ?

13. Sainath Majhwar (P.W.­1), who is the elder brother of deceased Budhu Majhwar, has though been cited as an eye­witness, but in view of paragraph 8 of his statement wherein he himself 8 has stated that when he reached the spot hearing the shouts of his wife, he found his brother to be dead, as such, he cannot be relied upon as an eye­witness.

14. Kunti Majhwar (P.W.­2), who is the wife of Sainath Majhwar (P.W.­1), has clearly stated before the Court that the appellant suspected that Ramprasad (son of deceased Budhu Majhwar) had an affair with his wife and he was asking the deceased to warn his son Ramprasad about the said relationship and immediately thereafter, the appellant hit the deceased four times on his head with the wooden stick on account of which deceased died instantaneously on the spot. Though Kunti Majhwar (P.W.­2) has been subjected to some extent of cross­examination, but she remained intact and supported the version of the prosecution, as such, she has rightly been held to be an eye­witness by the trial Court. However, she has also stated in paragraph 3 of her statement that there was no previous enmity between the appellant and the deceased.

15. It is also evident from the record that pursuant to the memorandum statement of the appellant/accused (Ex. P/10), the wooden stick 9 used in the incident was recovered in four parts vide Ex. P/11 and it was sent for chemical examination. It has been clearly stated in the FSL report (Ex. P/17) that blood has been found on the pieces of the wooden stick. As such, prosecution has successfully been able to connect the appellant with the aforesaid offence of committing murder of deceased Budhu Majhwar and we hereby affirm the finding so recorded by the trial Court.

16. Now the next question is whether the offence committed by the appellant/accused would fall within Exception 4 of Section 300 of IPC ?

17. 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."

18. Thus, To invoke exception 4 of Section 300 of IPC, 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 10 of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.

19. In the matter of Raj Paul Singh and Another v.

State Through P.S. Musheerabad, Hyderabad 1, their Lordships of the Supreme Court have quoted the decisions rendered in Narayanan Nair Raghvan Nair v. State of Travancore­Cochin2 and Kikar Singh v. State of Rajasthan3 and have held as under :­ "9. In Narayanan (supra), a three­Judge Bench of this Court speaking through Bose, J. held: (AIR p. 101, para 11) "11. .... It is enough to say that the Exception requires that no undue advantage be taken of by the other side. It is impossible to say that there is no undue advantage when a man stabs an unarmed person who makes no threatening gestures and merely asks the accused's opponent to stop fighting. Then also, the fight must be with the person who is killed."

This view on Exception 4 to Section 300 IPC, has also been taken by this Court in Kikar Singh (supra) wherein it has been held :

(SCC p. 243, para 9) "9. .... Where the deceased was unharmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section
302."

Thus, in a case where a man stabs another person, unless it is established that there was some threat from that person to the offender, the court cannot possibly hold that the offender by stabbing that person 1 (2012) 10 SCC 144 2 AIR 1956 SC 99 3 (1993) 4 SCC 238 11 has not taken any undue advantage or has not acted in a cruel or unusual manner."

20. 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 the 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) 4 (2017) 3 SCC 147 12 "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".
21. 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.
13
22. Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in Arjun (supra), it is quite vivid that in the present case, though it is the case of the prosecution that Ramprasad, son of deceased Budhu Majhwar, had illicit relationship with the wife of the appellant on account of the which the appellant/accused firstly assaulted Ramprasad and when his father deceased Budhu Majhwar came to intervene, the appellant/accused caused his death by hitting him with a wooden stick, however, in paragraph 3 of the statement of Kunti Majhwar (P.W.­2), she has clearly stated that there was no previous enmity between the appellant and the deceased. More particularly, it is quite established that the allegation of illicit relationship, if any, was upon Ramprasad and not upon his father Budhu Majhwar (deceased), as such, there was no premeditation on the part of the appellant/accused to cause his death. It was solely on sudden quarrel that the incident happened and the appellant caused the death of deceased in the heat of passion. Although looking to the injury caused by the appellant on the head of the deceased, it is apparent that the appellant must have had the knowledge that his 14 act is likely to cause death of the deceased as he assaulted the deceased in his head which is a vital part of the body. Thus, the conviction of the appellant under Section 302 of IPC can be converted under Section 304 Part II of IPC.

Accordingly, the conviction of the appellant under Section 302 of IPC is modified under Section 304 Part II of IPC. As stated at the bar, the appellant is in jail since 28/10/2011 and he has completed more than 11 years of imprisonment, his sentence is modified to that of the period already undergone. The appellant be released forthwith unless required in any other case.

23. The appeal is allowed to the extent indicated herein­above. 

                Sd/­                                  Sd/­
     (Sanjay K. Agrawal)                   (Sachin Singh Rajput)
             Judge                                    Judge


Harneet