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2024 DIGILAW 597 (CHH)

Sumar Sai S/o Late Biran v. State of Chhattisgarh

2024-08-22

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

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JUDGMENT : Per, Radhakishan Agrawal, J 1. This criminal appeal filed under Section 374(2) of the Cr.P.C. preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 12.02.2021 passed by the Sessions Judge, Surajpur, District – Surajpur, Chhattisgarh in Sessions Trial No.36/2019 by which appellant has been convicted for offence under Section 302 of the Indian Penal Code, 1860 and sentenced to undergo life imprisonment with fine of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for 15 days. 2. Case of the prosecution, in nutshell, is that on 04.06.2019 at about 12:00 noon at village Mauharipara, Gauripur District Premnagar, Chhattisgarh, the appellant- Sumari Sai assaulted Samaylal (hereinafter referred to as ‘the deceased’) by iron crowbar (sabbal) by which he suffered grievous injuries and died. Further case of the prosecution is that on the date of offence, deceased- Samaylal had gone to village Gauripur to take his wife. He had also brought 3 bottles of liquor along with him and the same was consumed by him, his brother, Sumar Sai (appellant) and his sister-in-law. After consuming liquor, the deceased pulled his wife’s hand and told her to go to home situate at Maheshpur and while pulling, she fell down on the ground, due to which, her brother (appellant) got annoyed and assaulted his brother-in-law (deceased) on his head with a crowbar kept in the varandah of the house, due to which, he suffered injury and died. 3. Merg Intimation and FIR were registered vide Ex.P/10 & Ex.P/17, respectively by Surmila (PW-06), who is the wife of the deceased. Spot map was prepared vide Ex.P/16. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8) proved by Dr. Vivek Tiwari (PW-5), cause of death was opined to be cardio-respiratory arrest due to brain hemorrhage and nature of death was homicidal. Pursuant to memorandum statement of appellant (Ex.P/6), one iron crowbar (sabbal) has been seized from his possession vide Ex.P/7. However, there is no F.S.L report brought on record. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant accused abjured his guilt and entered into defence. 5. However, there is no F.S.L report brought on record. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant accused abjured his guilt and entered into defence. 5. In order to bring home the offence, prosecution has examined as many as 13 witnesses and exhibited 26 documents and defence in support of its case has not examined any witness. 6. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. 7. Ms. Nirupama Bajpai, learned counsel for the appellant, would submit that the appellant has falsely been implicated in crime in question and he has been convicted by the trial Court only on the basis of evidence of PW-6 Surmila, who is eye-witness to the incident and also wife of the deceased, but her evidence does not inspire confidence and untrustworthy. She would further submit that there is no eye-witness to the incident. It would next contend that the appellant out of anger and without any premeditation caused the death of deceased by giving a single blow and if the case of the prosecution is taken as it is, then at the most, it would be a case of commission of offence under Section 304 Part-II of the IPC. It would next contend by her that appellant is in jail since 05.06.2019 i.e., more than 5 years have been completed and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-II of IPC, therefore, he may be sentenced for the period already undergone by him. Thus, the present appeal deserves to be allowed either in full or in part. 8. On the other hand, Mr. Thus, the present appeal deserves to be allowed either in full or in part. 8. On the other hand, Mr. Akhilesh Kumar, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence falling from Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, 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 gone through the records with utmost circumspection. 10. Now, the first question is, whether the death of the deceased was homicidal in nature? 11. In this regard, the learned trial Court, in its impugned judgment, has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis statement of Dr. Vivek Tiwari (PW-05) who proved the postmortem report (Ex.P/8), which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 12. Now, the question for consideration would be whether the appellant is the perpetrator of the crime in question? 13. In the present case, Surmila (PW-6) is the wife of the deceased, who has stated that on the date of incident, the deceased/husband-Samaylal came to village Gauripur from village Maheshpur to take her back and thereafter, her husband (deceased) told her to go to village Maheshpur, whereupon she told that it was 3:00 clock and there was severe heat, therefore, she would go later on. It is also stated by her that the accused/appellant suddenly assaulted her husband (deceased) by iron crowbar, as a result of which, her husband/deceased sustained injury over his head and died in the house of appellant. In cross-examination, she admitted that the appellant got annoyed when she fell down and out of anger, appellant assaulted the deceased with iron crowbar, resulting into his death. In cross-examination, she admitted that the appellant got annoyed when she fell down and out of anger, appellant assaulted the deceased with iron crowbar, resulting into his death. Supporting the statement of PW-6 Surmila, PW-1 Kawal Sai has stated that the dead body of deceased was lying in the varanda of appellant and he came to know that when deceased-Samay Lal was pulling his wife/PW-6 to take back her to village Maheshpur, then PW-6 Surmila fell down and upon seeing it, out of anger, the appellant assaulted the deceased by iron crowbar resulting into his death. Corroborating the above evidence, pursuant to memorandum statement of appellant, vide Ex.P/6, iron crowbar has been seized from his possession vide Ex.P/7. Dr. Vivek Tiwari (PW-5) who has examined the deceased found that one lacerated wound was present over left tempo-parietal part and the said injury could be caused by seized weapon i.e. iron crowbar and opined that the death of deceased was homicidal. 14. Thus, considering the statements of Surmila (PW-06), Kawal Sai (PW-01) coupled with the medical evidence of Dr. Vivek Tiwari (PW-5) who found one single injury over head (left tempo-parietal region) in the postmortem report (Ex.P-8) and further considering the memorandum statement of appellant and seizure made thereof, the trial Court has rightly held that it is the present appellant who assaulted the deceased by iron crowbar by which he suffered grievous injury and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. 15. Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC? 16. 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.” 17. The Supreme Court 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 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; (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. 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.” 18. 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. 19. 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, 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 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 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 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”. 20. 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. 21. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi), (2019) 6 SCC 122 has laid down four ingredients which should be tested for 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.” 22. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid from the statements of Surmila (PW-6) and Kawal Sai (PW-1) that on the date of incident the deceased came to the village Gauripur to take back her wife Surmila (PW-6) to village Maheshpur and told her to go to village Maheshpur, whereupon, she told him that she would go later on as on that date there was severe heat wave and despite that he insisted his wife by pulling her, due to which she fell down, which enraged the appellant to assault the deceased by giving a single blow on his head with iron crowbar which led to his death. The weapon i.e. iron crowbar by which the appellant has assaulted the deceased was seized vide Ex.P/7 from the memorandum statement of appellant. The weapon i.e. iron crowbar by which the appellant has assaulted the deceased was seized vide Ex.P/7 from the memorandum statement of appellant. Considering the nature of injury which has been sustained over the body of the deceased, it is quite vivid that appellant must have had knowledge that such single injury 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 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 the IPC. 23. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of the IPC and the appellant is sentenced to seven years rigorous imprisonment in place of life imprisonment, however, the fine amount imposed by the learned trial Court shall remain intact. 24. This criminal appeal is partly allowed. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is languished and suffering jail sentence, forthwith for necessary information and action, if any.