Sukhram Mandavi v. State Of Chhattisgarh

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CRA No. 1366 of 2015

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 1366 of 2015

 Sukhram Mandavi S/o Mangia Ram Mandavi, aged about 40 years, R/o Village Sangwel (Kolengpara), P.S. Mardum, District (Revenue - Civil) - Bastar (Jagdalpur), Chhattisgarh.

---- Appellant Versus

 State of Chhattisgarh, through District Magistrate, Bastar (Jagdalpur), Chhattisgarh.

---- Respondent

For Appellant :- Mr. Yogesh Pandey, Advocate. For State/Respondent :- Mr. Sameer Oraon, Government Advocate.

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal

Judgment On Board

(29.08.2023)

Sanjay K. Agrawal, J

1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 26.08.2015 passed by the learned Third Additional Sessions Judge, Bastar at Jagdalpur, Chhattisgarh in Sessions Trial No. 45/2015 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine

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of 100/-; in default of payment of fine additional imprisonment₹ for one month.

2. Case of the prosecution, in nutshell, is that on 27.04.2015 at about 10:00 am, at village Sangwel Kolengpara, Police Station Mardum, District Bastar (Jagdalpur) (C.G.), appellant assaulted his wife deceased Samlo on her head by axe by which she suffered grievous injuries and died and thereby, committed the aforesaid offence. It is further case of the prosecution that on 27.04.2015 at about 10:00 am appellant came back home from the field and saw the children who were crying due to hunger so he asked for reason for not preparing food from the deceased and in reply she told that she has not prepared the food, on account of which appellant started quarreling with the deceased and in the spur of moment, out of anger, assaulted her by axe by which she suffered grievous injuries and during the course of treatment on 28.04.2015, she died. FIR and Merg Intimation were registered vide Ex.P/1 & Ex.P/2, respectively. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/18) conducted by Dr. N. S. Nag (PW-8), cause of death was internal hemorrhage, shock due to head injury and nature of death is homicidal. Pursuant to the memorandum statement of the appellant (Ex.P/6) axe has been seized vide Ex.P/7. Seized articles were sent for chemical analysis to FSL, but in the FSL report (Ex.P/24) on Article C i.e. axe blood has not been found.

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3. After due investigation, appellant 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.

4. In order to bring home the offence, prosecution has examined as many as 9 witnesses and exhibited 27 documents and defence in support of its case has neither examined any witness nor exhibited any document.

5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

6. Mr. Yogesh Pandey, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits since food was not prepared by the deceased for his children and children were crying due to hunger, out of which quarrel took place between the appellant and the deceased and out of anger, he assaulted the deceased, in the spur of moment. He further submits that appellant is in jail since 30.04.2015 and it is a fit case where conviction of the appellant for offence under Section 302 of the

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IPC can be converted / altered to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be allowed in full or in part.

7. On the other hand, Mr. Sameer Oraon, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and it is not the case of conversion where the conviction of the appellant can be converted for lesser offence, therefore, the instant appeal deserves to be dismissed.

8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

9. Now, the first question is, whether the death of the deceased was homicidal in nature?

10.In this regard, the learned trial Court has recorded the finding in affirmative on the basis of the postmortem report (Ex.P/18), proved by Dr. N.S. Nag (PW-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.

11. Now, the question for consideration would be whether the appellant has assaulted the deceased?

12. Considering the statement of Chaprasi Ram (PW-2) and pursuant to the memorandum statement of the appellant

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(Ex.P/6), axe has been recovered vide Ex.P/7, we are of the considered opinion that the trial Court has rightly held that the appellant has assaulted the deceased by which she suffered grievous injures and died, which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record. We hereby affirm the said finding recorded by the trial Court.

13. Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

14. The Supreme Court in the matter of Sukhbir Singh v. State Of Haryana . of Haryana¹has 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. The Supreme Court in the matter of Gurmukh Singh v. The State of Haryana²has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the

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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

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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. Likewise, in the matter of State v. Sanjeev Nanda³, 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 Chhattisgarh⁴has 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)

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"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 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".

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18. 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.

19. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)⁵has 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."

20. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that on the date of incident, when appellant came from the field, children were crying due to hunger and food was not prepared on account of which quarrel took place between the appellant and the deceased and out of anger appellant assaulted deceased Samlo by axe and further considering the statement of Chaprasi Ram (PW-2) the appellant is said to have assaulted his wife deceased Samlo by axe by which she suffered grievous

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injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her 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 IPC.

21. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of 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 the appellant to cause death of deceased Samlo, but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC. The appellant is reported to be in jail since 30.04.2015 i.e. more than 8 years, taking into consideration the period he has already undergone, we award the sentence already undergone by him,

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but the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

22. This criminal appeal is partly allowed.

23. 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 he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal)

Judge Judge Ankit