Partly allowed

Laxman Muchaki v. State Of Chhattisgarh

Chhattisgarh HC12 Oct 2022CRA/1282/2014

Case brief

AI extract

What is this about?

Division Bench of the Chhattisgarh High Court set aside the murder conviction of two appellants due to lack of evidence. It modified the conviction of a third appellant from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part-II IPC) under Exception 4, involving a sudden fight without premeditation.

What did the court decide?

Appellant Laxman Muchaki reconvicted under Section 304 Part-II IPC; fine remains. Appellants Aytu and Sahebo Muchaki acquitted. All acquitted persons released forthwith.

Laxman Muchaki Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1282 of 2014

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Laxman Muchaki S/o Liti Muchaki Aged About 40 Years R/o Vil. Mutanpal, Muskonta, Dulgopara, PS Kodenaar, Civil And Rev. Distt. Bastar C.G

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---- Petitioner

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Versus

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State Of Chhattisgarh Through the PS Kodenaar, Distt. Bastar C.G

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---- Respondent

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CRA No. 948 of 2016

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Aytu Muchaki S/o Liti Muchaki, Aged About 45 Years

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Sahebo Muchaki S/o Tingru Muchaki, Aged About 22 Years

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Both are R/o Mutanpal, Muskonta Dulgopara, Police Station Kodenar, District Bastar, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Station House OfÏce, Police Station Kodenar, District Bastar, Chhattisgarh

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---- Respondent

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For Appellants Ms. Savita Tiwari, Advocate For Respondent /State Mr. Sudhir Verma, Dy. GA

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DIVISION BENCH

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ.

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Judgment on Board

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(12/10/2022)

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Sanjay K. Agrawal, J.

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Criminal Appeal No.1282 of 2014 preferred by sole appellant Laxman Muchaki and Criminal Appeal No.948 of 2016 preferred by two appellants Aytu Muchaki and Sahebo Muchaki are being disposed of by this common judgment since they arise out of the same incident.

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Both the criminal appeals filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure are directed against the impugned judgment of conviction and order of sentence dated 29.10.2014 passed by the Third Additional Sessions Judge, Bastar at Jagdalpur (CG) in ST No.66/2014, whereby, each of the appellants have been convicted for offence under Sections 302/34 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.200/-, in default of payment of fine, to undergo additional imprisonment for 1 month and also under Section 323/34 of the IPC and sentenced to undergo imprisonment for 6 months.

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Case of the prosecution, in brief, is that on 6.5.2014, at 7:00 am, on account of some land dispute, deceased Bomda Muchalki, and his son Panduram (PW-4) were abused, assaulted and thrashed by the appellants in front of their house. During the scufÒe, the appellants threw Bomda Muchalki on the ground and assaulted him with a stone on his head, chest and neck, due to which, he died. Panduram (PW-4) was also assaulted by hands and legs, on which, he ran away from the spot out of fear

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and thereby the appellants committed the offence under Sections 302 and 323 read with Section 34 of the IPC. Further case of the prosecution, in brief, is that on account of some land dispute between appellant Laxman Muchaki and deceased Bomda Muchalki, on 6.5.2014, the appellants and other villagers called Bomba Muchalki while he was ploughing the field and in furtherance of a common intention, threatened, abused and assaulted the deceased and his son. In the said incident, the deceased received fatal injuries on his head, neck and other parts of the body and subsequently, he died. Thereafter, the FIR-Ex.P/7 was registered. The merg intimation was given to the Police vide Ex.P/8, inquest was conducted vide Ex.P/2 and the dead body was sent for postmortem examination, which was conducted by Dr. D.P. Bharadwaj vide Ex.-P/31, in which, he opined that the cause of death is on account of head injury, excessive external bleeding and cardio pulmonary arrest. In pursuance of the memorandum statement of appellant Laxman Muchaki-Ex.-P/10., blood stained stone was recovered vide Ex.P/11. Blood stained soil and plain soil was also recovered from the place of the incident vide Ex.P/12. Thereafter, the stone, blood stained soil and plain soil were sent for FSL examination to ascertain whether the blood was found on the aforesaid article or not. However, the FSL report would suggest that the blood was found on the aforesaid articles.

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After due investigation, the appellants were charge-sheeted for offences punishable under Sections 302/34 & 323/34 of the IPC,

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which was committed to the Court of Sessions for hearing and disposal in accordance with law.

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The accused/appellant abjured the guilt and pleaded innocence. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 33 documents.

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The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Sections 302/34 & 323/34 of the IPC in the manner mentioned in the opening paragraph of the judgment against which the instant appeal under Section 374 (2) of the Cr.P.C. has been preferred.

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Ms. Savita Tiwari, learned counsel for the appellants, would submit that the trial Court has relied upon the evidence of Panduram (PW-4) and Smt. Podiye Muchaki (PW-5), son and wife of the deceased respectively, to convict the appellants for the aforesaid offence. She would submit that the above witnesses are not reliable as they have not seen the incident. Apart from the appellants, other villagers, who assaulted the deceased, have been named but no investigation was conducted by the IO against these villagers. She further submits that at the most, the appellants could have been convicted for offence punishable under Section 304 Part II of IPC as their case is covered with Exception 4 to Section 300 of IPC as they had no intention to cause the death of the deceased and sentenced to the period already undergone.

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Per contra, Mr. Sudeep Verma, learned Dy. GA, would support the impugned judgment on submission that the trial Court has rightly convicted the appellants herein for offence punishable under Section 302 & 323 read with Section 34 of IPC and it is not a case which is covered with Exception 4 to Section 300 of IPC and hence, the instant appeals deserve to be dismissed.

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

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The trial Court after appreciating the medical evidence particularly the evidence of PW-10 Dr. D.P. Bharadwaj and after taking into account the postmortem report-Ex.P/31, has rightly come to the conclusion that the death was homicidal in nature. The finding recorded by the trial Court that death of deceased Bomda Muchalki is homicidal in nature is a correct finding of fact based on the evidence available on record which is neither perverse nor contrary.

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Learned trial Court has recorded an afÏrmative finding with regard to it on the basis of the evidence of PW-4 Panduram, son of the deceased and PW-5 Smt. Podiye Muchaki, wife of the deceased. Appellant Laxman Muchaki and the deceased both are relatives and there was a land dispute between them. On account of the said dispute, it is the case of the prosecution that the appellants and other villagers came and called the deceased while he was ploughing the field. When they reached near the place of incident i.e. Mahua Jhad , a dispute arose between

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them. Some other villagers were also present on the spot. The appellants were demanding the land held and owned by the deceased. PW-4 Panduram, son of the deceased, stated that though villagers namely Liti, Madda, Jobo, Maso, Dasa, Jayman also assaulted the deceased, but firstly it was appellant Laxman Muchaki who assaulted the deceased with a stone and subsequently, appellants Aaytu Muchaki and Sahbo Muchaki also assaulted him with the stone. PW-5 Smt. Podiye Muchaki, wife of the deceased, also stated when the appellants and other villagers were assaulting the deceased, her son PW-4 Panduram, out of fear, ran away from the place of occurrence. Pursuant to the memorandum statement-Ex-P/10 of appellant Laxman Muchaki, which has been proved by N.L. Rathia, Sub-Inspector, (PW-9), blood stained stone has been seized vide Ex.P/11 and in FSL Report-Ex.P/28, human blood has been found on the said stone and as such, the complicity of appellant Laxman Muchaki in the offence in question is fully established. The question as to whether his case is covered by Exception 4 to Section 300 of the IPC will be discussed later.

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So far as appellants Aytu Muchaki and Sahebo Muchaki are concerned, PW-4 Panduram has stated that they have assaulted the deceased by stone but no stone has been recovered at their instance. Except the statements of Panduram (PW-4) and Smt. Podiye Muchaki (PW-5), there is no evidence on record to connect these two appellants with the crime in question.

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Therefore, conviction and sentence imposed on the appellants are liable to be set-aside.

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Now the question is whether appellant Laxman Muchaki has rightly been convicted under Section 302 of the IPC or his case would fall under Exception 4 to Section 300 of the IPC?

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In order to consider whether the case of the appellant/accused Laxman Muchaki is covered with Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 wherein it has been observed as under :-

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“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 Sukhir 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.”

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1 (2002) 3 SCC 327

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Thereafter, in the matter of Gurmukh Singh v. State of Haryana 2, Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused which state as under :-

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“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 for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufÏcient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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2 (2009) 15 SCC 635

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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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.”

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Likewise, in the matter of State v. Sanjeev Nanda 3, 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 is 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.

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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“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.”

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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)

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“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

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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 sufÏcient 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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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 Part-I 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.

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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 to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“ 16 . A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Reverting back to the facts of the present case in the light of parameters laid down by the Hon’ble Supreme Court, it is quite vivid that on account of some land dispute appellant Laxman Muchaki and other villagers called the deceased from his field and a dispute arose between them near Mahua Jhad and thereafter, the appellants assaulted the deceased, on account of which, he suffered injuries on his head, neck and other parts of the body. In view of the above, it can be inferred that there was no premeditation on the part of appellant Laxman Muchaki to cause death of Bomda Muchalki (deceased) as there was a sudden quarrel between them, but the appellant have had knowledge that the injury is likely to cause death of the deceased. In view of the above, in our opinion, the offence would fall under Exception-4 to Section 300 IPC and is punishable under Section 304 Part-II of the IPC and as such, he is guilty of committing offence under Section 304 Part-II of the IPC

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In the result, Criminal Appeal No.1282 of 2014 preferred by appellant Laxman Muchaki is partly allowed. Conviction and sentence imposed on him under Section 302/34 & 323/34 of the IPC are set aside and instead thereof, he is convicted under Section 304 Part-II of the IPC. The appellant is in jail since 8.5.2014 i.e. more than 8 years, therefore, ends of justice would be served if he is sentenced to the period already undergone by him. The fine sentence awarded by the trial Court shall remain intact. Ordered accordingly.

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Criminal Appeal No.948/2016 preferred by appellants Aytu Muchaki and Sahebo Muchaki is allowed. Conviction and sentenced imposed upon them under Sections 302/34 & 323/34 of the IPC are set-aside and they are acquitted of the said charges. The appellants are in jail. They be released forthwith if not required in any other case.

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Sd/- Sd/- (Sanjay K. Agrawal) ( Deepak Kumar Tiwari) Judge Judge

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Shyna

Laxman Muchaki v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Laxman Muchaki v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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