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2022 DIGILAW 549 (CHH)

Itwaru Ram, S/o Bahadur v. State of Chhattisgarh

2022-11-29

RAKESH MOHAN PANDEY, SANJAY K.AGRAWAL

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JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs. 1,000/-, in default, to further undergo additional simple imprisonment for two months. 2. Case of the prosecution, in brief, is that on 1-2-2012 at 11.30 p.m. at Village Banskund, in the house of Sahdev, the appellant assaulted deceased Prem Singh by axe by which he suffered injuries and died instantaneously. Further case of the prosecution is that on the date of incident, birthday party of Kumari Kunti Teta (PW-4) was organised in which Satish Kumar Vishwakarma (PW-1), deceased Prem Singh & appellant Itwaru Ram, all participated and since appellant Itwaru Ram was under the influence of liquor, some altercation took place and Prem Singh slapped him and thereafter, in the late night at 11.30 p.m., when Prem Singh was sleeping in separate part along with Haresh (PW-2), then the appellant armed with axe came and assaulted Prem Singh on his neck and other parts of the body by which he suffered grievous injuries and died. Morgue was registered vide Ex.P-2 and FIR was registered vide Ex.P-1. Panchnama was prepared vide Ex.P-8. Dead body of the deceased was sent for postmortem which was conducted vide Ex.P-12 by Dr. S.S. Nag (PW-6) in which cause of death was stated to be cardio-pulmonary arrest and successive haemorrhage due to rupture of heart & lung and death was homicidal in nature. Axe was seized vide Ex.P-5 from Haresh (PW-2). Plain soil and bloodstained soil were seized from the spot vide Ex.P-4. Other articles were also seized from the spot. Seized articles were sent for forensic examination to the FSL, Raipur from where report Ex.P- 16 was received in which blood was found on all articles except plain soil. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Kanker, and the case was committed to the Court of Sessions, North Bastar Kanker, where trial was conducted. 4. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Kanker, and the case was committed to the Court of Sessions, North Bastar Kanker, where trial was conducted. 4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as eight witnesses and exhibited 16 documents. The defence has examined none, but exhibited three documents Exs.D- 1 to D-3 i.e. the statements of Haresh Kumar, Sahdev Ram & Ku. Kunti Teta recorded under Section 161 of the CrPC. 5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred. 6. Mr. Sudhir Kumar Sahu, Advocate, appearing on behalf of Mr. Kunal Das, learned counsel for the appellant, would submit that the evidence of sole eyewitness Haresh (PW-2) is not reliable and it is not a corroborative piece of evidence, therefore, conviction of the appellant cannot be rested on the sole testimony of the said eyewitness. In alternative, he would further submit that the case of the appellant would fall under Exception 4 to Section 300 of the IPC. Therefore, it is a fit case where conviction of the appellant can be converted/altered to an offence under Section 304 Part-II/Part-I of the IPC, as such, the appeal be allowed in part. 7. Mr. Ashish Tiwari, learned Government Advocate appearing for the State/respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the evidence of eyewitness Haresh (PW-2) is reliable and the trial Court has rightly convicted him for offence under Section 302 of the IPC, as such, conviction of the appellant is in accordance with law. He would further submit that it is not the case where the offence against the appellant can be converted to Section 304 Part-II/Part-I of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. He would further submit that it is not the case where the offence against the appellant can be converted to Section 304 Part-II/Part-I of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem report Ex.P- 12, which has been proved by Dr. S.S. Nag (PW-6), has recorded a finding that death of the deceased was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the next question is, whether the appellant is the author of the crime? 11. On the fateful day, birthday party of Kumari Kunti Teta (PW-4) was organised in which Satish Kumar Vishwakarma (PW-1), appellant Itwaru Ram, deceased Prem Singh, Sahdev Ram and other persons were present, in which the appellant and deceased Prem Singh also came as invitees. Since the appellant was abusing Dinesh – brother of Kumari Kunti Teta (PW-4), it was intervened by deceased Prem Singh, but the appellant continued to do his illegal act and also abused deceased Prem Singh and on that account, Prem Singh slapped the appellant twice, thereafter, Satish Kumar Vishwakarma (PW-1) also intervened and sent appellant Itwaru Ram to his house and thereafter, appellant Itwaru Ram again came to the house of Dinesh, but somehow, he was sent back to his home and then Satish (PW-1), deceased Prem Singh & Haresh (PW-2), all were sleeping. As stated by Haresh (PW-2), the appellant came to the house of Satish where deceased Prem Singh was sleeping with Haresh (PW-2), then all of a sudden, the appellant assaulted Prem Singh twice by which Satish (PW-1), his father Sahdev Ram Vishwakarma (PW-3) and his brother Ravishankar, caught hold of the appellant and tied him by rope. 12. As such, from the evidence of Haresh (PW-2), it is quite vivid that he is eyewitness to the incident and it is the appellant who has assaulted Prem Singh by axe by which he suffered grievous injuries and died. Axe was also recovered vide Ex.P-5 from Haresh. 12. As such, from the evidence of Haresh (PW-2), it is quite vivid that he is eyewitness to the incident and it is the appellant who has assaulted Prem Singh by axe by which he suffered grievous injuries and died. Axe was also recovered vide Ex.P-5 from Haresh. Not only this, seized articles were sent for forensic examination to the FSL, Raipur and as per the FSL report Ex.P-16, blood was found on axe, shirt & full pant of the appellant and also on the clothes of the deceased. On Articles A, E, F, G, H & I i.e. soil seized from the spot, full pant of the appellant, jacket, vest, lower & underwear of the deceased, respectively, human blood was found and on Articles C & D i.e. axe & shirt of the appellant, respectively, blood was found, but its origin could not be ascertained. Therefore, in that view of the evidence, oral and documentary, the trial Court has rightly held that the appellant is the author of the crime. 13. Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of the IPC, as contended by learned counsel for the appellant? 14. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 has 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 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.” 15. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 15. The Supreme Court further, in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 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; (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 kept in view while convicting and sentencing the accused.” 16. 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.” 16. Likewise, in the matter of State v. Sanjeev Nanda. (2012) 8 SCC 450 , 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 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. 17. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh, (2017) 3 SCC 247 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. 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 taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 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”. 18. In 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 the 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 of the IPC. 19. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi), (2019) 6 SCC 122 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. By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a “saria” and compressing forcefully the neck of his wife by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife’s neck also depicts an act of extreme cruelty. 17. From the evidence on record it is clear that the incident occurred in a sudden fight and there was no premeditation. Even the primary witness PW 7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother, deceased, with the “saria” when she had taken out some money from the appellant’s wallet. It is not as if “saria” was brought in a pre-planned way to murder the wife of the appellant. Even the primary witness PW 7, the son of the accused and deceased, has deposed that he had seen the appellant strangulating his mother, deceased, with the “saria” when she had taken out some money from the appellant’s wallet. It is not as if “saria” was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria) was picked up at the spur of the moment at the time of incident and used to compress the neck forcefully. In that view of the matter it is nothing but an act committed by the appellant in a heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section 300 IPC on the ground that appellant compressed his wife’s neck also depicts an act of extreme cruelty. Having regard to the nature and manner of incident it cannot be said that act of the appellant was extremely cruel. Unless it is barbaric, torturous and brutal, strangulation of the appellant’s wife cannot be said to be an act of extreme cruelty for denying the benefit of Exception 4 to Section 300 IPC.” 20. Reverting to the facts of the present case, it is quite vivid that there was no such premeditation on the part of the appellant to cause the death of deceased Prem Singh, but since in the birthday party of Kumari Kunti Teta (PW-4), the deceased has assaulted the appellant 2-4 times and since the appellant was in intoxicated condition, he came back and though after gap of two hours, again came to the house of Satish (PW-1) where Haresh (PW-2) was also sleeping and assaulted Prem Singh on his chest by which he suffered grievous injuries and died. As such, there was intent and knowledge to the appellant that the injuries caused to the deceased were likely to cause his death. Though the appellant has not taken unusual advantage and not acted in unusual manner, act of the appellant would fall under Exception 4 to Section 300 of the IPC. 21. As such, there was intent and knowledge to the appellant that the injuries caused to the deceased were likely to cause his death. Though the appellant has not taken unusual advantage and not acted in unusual manner, act of the appellant would fall under Exception 4 to Section 300 of the IPC. 21. In that view of the matter, 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, and instead thereof, the appellant is convicted for offence punishable under Section 304 Part-I of the IPC and he is sentenced to the period already undergone by him, as he is in jail for more than ten years, however, fine sentence and default sentence imposed upon him by the trial Court shall remain intact. The appellant be released forthwith, if not required in any other offence. 22. The criminal appeal is partly allowed.