Partly allowed

Ratandas Mahant v. State Of Chhattisgarh

Chhattisgarh HC12 Oct 2022CRA/269/2016

Case brief

AI extract

What is this about?

High Court Criminal Appeal challenging conviction for murder under Section 302 IPC. The High Court held that due to lack of premeditation and heat of passion, the offence falls under Exception 4 to Section 300 IPC. Conviction for murder was set aside and substituted with Section 304 Part II IPC for culpable homicide not amounting to murder.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside. Appellant convicted under Section 304 Part II IPC with sentence of imprisonment for the period already undergone.

Ratandas Mahant 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 Criminal Appeal No.269 of 2016

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Ratandas Mahant S/o Rahasdas Mahant Aged About 28 Years R/o Aara Machine Basti, Police Station Kotwali, Korba, Civil And Revenue District Korba, Chhattisgarh. ---- Appellant

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Versus

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State Of Chhattisgarh Through The Police Outpost Rampur, P.S. Kotwali, District Korba, Chhattisgarh. ---Respondent

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For Appellant: Shri BL Dembra, Advocate For Respondent/State: Shri Sudeep Verma, Dy. G.A.

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DB: Hon'ble Shri Justice Sanjay K Agrawal and Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 12.10.2022

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Sanjay K Agrawal, J

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This Criminal Appeal preferred by the accused/Appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 29.12.2015 passed by learned Sessions Judge, Korba (CG) in Sessions Trial No.54/2015 whereby he has been convicted for the offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.2,000/- with usual default stipulation.

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Case of the prosecution in brief is that on the date of incident i.e. 27.01.2015 at 9.30 p.m, when deceased Santosh was going to the house of Ramashankar in Scorpio vehicle along with Mahendra and Amit, en route, near Saw Machine Square, they were stopped by the accused/Appellant. It is alleged that deceased Santosh alighted from the vehicle and asked the accused/Appellant to give them way but he

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refused to do so due to which, some altercation took place between them and thereafter, Amit Rathia (PW-11) and Ramashankar convinced deceased Santosh and took him to the house of Ramashankar. It is further alleged that on the next day i.e. 28.01.2015, deceased Santosh and Amit proceeded to Saw Machine Square, where Dhanidas (PW-6) also joined them. When they reached the said Square, accused/Appellant Ratandas Mahant also reached there and started confronting with him upon which, Amit and Dhanidas intervened. It is further alleged that at the relevant time, the accused/Appellant assaulted deceased Santosh on his stomach with the knife kept in his shoe as a result of which, he received grievous injury. Thereafter, when he was taken to the District Hospital, he was declared brought dead. Merg intimation was registered in Police Station Korba vide Ex.-P-1. During enquiry, Panchanama was prepared and on the recommendation of the Panchas, the dead body was sent to the CHC, Korba for postmortem examination, which was conducted by (PW-3) Dr. Ashok Shakya, who gave his report (Ex.-P-6) and opined that the cause of death was hemmoragic shock due to stab injury penetrated into lower abdomen causing tear of mesentery with haemoperitonium. Thereafter the Appellant was arrested and on his memorandum statement, the knife was seized, however, the same was not sent for FSL examination. The Appellant was arrested for offence under Section 302 IPC and thereafter the case was committed to the Court of Sessions.

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In order to bring home the charge, the prosecution examined as many as 12 witnesses and exhibited 23 documents. The Appellant has

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abjured his guilt and neither examined any witness nor exhibited any document in his defence.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the Appellant as mentioned above against which, this Appeal has been preferred by him.

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Shri Dembra, learned counsel for the Appellant submits that the trial Court has committed an illegality in holding that the Appellant has committed the offence. He further submits that the offence would fall under Exception 4 to Section 300 of the IPC. Hence the present Appeal deserves to be partly allowed.

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Per contra, Shri Verma, learned State Counsel supported the impugned judgment of conviction and submitted that the Appellant has rightly been convicted for the offence punishable under Section 302 IPC and it is not a case where conviction of the Appellant under Section 302 of the IPC requires to be converted to Section 304 Part-II IPC. Thus, the present Appeal deserves to be dismissed.

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

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The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report vide Ex.P-3 of Dr. Ashok Shakya (PW-3), wherein it was opined that the death occurred as a result of hemorrhagic

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shock due to stab injury, we do not find any illegality in the said finding, as the same is neither perverse nor contrary to the record.

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Now the next question would be whether the accused/Appellant herein is the author of the crime in question?

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In the case at hand, on the date of the incident, when deceased Santosh was going along with Ramashankar, Mahendra and Amit, they were stopped by the accused/Appellant and some altercation took place between both the parties and thereafter, on the next day i.e. 28.01.2015, deceased Santosh and Amit along with Dhanidas (PW-6) went to Aara Machine Square where, accused/Appellant also reached and started confronting with the deceased upon which, Amit and Dhanidas intervened. At that relevant time, the accused/Appellant assaulted in the stomach of the deceased Santosh with the knife kept in his shoe as a result of which, he received grievous injury. Thereafter, when he was taken to the District Hospital, he was declared brought dead. In view of the above and also from the evidence of Dr. Ashok Shakya (PW-3), Laxmi Manikpuri (PW-5) and Amit Rathiya (PW-10), we are of the view that the appellant is the author of crime in question and the finding recorded by the trial Court is hereby affirmed.

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Now the next question is whether the offence would fall under Exception 4 to Section 300 of the IPC?

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The Supreme Court in the matter of Sukhbir Singh v. State of Haryana {(2002) 3 SCC 327} has 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 Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in

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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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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 :-

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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 fro 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 without 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 sufficient in the ordinary course of nature to cause 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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(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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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.”

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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

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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 {(2017) 3 SCC 247} has elaborately dealt with the issue and observed in paragraphs 20 and 21, which read as under :-

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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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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)

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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

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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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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.

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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 for 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 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 there was no premeditation on the part of the Appellant to cause death of the deceased, but only on account of a scuffle that took place a day before, the Appellant on the next day, suddenly started quarelling with the deceased and in furtherance thereof, inflicted knife injury on his stomach pursuant to which, the deceased died on way to the hospital. In view of the above, it can safely be inferred that there was no premeditation on the part of the Appellant to cause death, but the Appellant have had knowledge that the injury is likely to cause death of the deceased. 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 view of the aforesaid discussion, conviction of the Appellant for the offence for the offence under Section 302 IPC as well as 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 the deceased but the injury caused by him was sufficient in the ordinary course of nature to cause death, the Appellant is convicted for offence under Section 304 Part II IPC. Since the Appellant has been in jail since 28.01.2015 i.e. more than 7 ½ years, taking into consideration the period he has already undergone, ends of justice would be served if the appellant is sentenced to period already undergone by him and the fine sentence imposed by the learned trial

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Court shall remain in tact. Ordered accordingly. The Appellant be released from jail forthwith, if not required in any other case.

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