Allowed

Main Prasad Sarthi v. State of Chhattisgarh

Chhattisgarh HC12 Oct 2022CRA/864/2021

Case brief

AI extract

What is this about?

In a criminal appeal, this High Court altered the appellant's conviction from Section 304 IPC to Section 304 Part II IPC by applying Exception 4 to Section 300 IPC. The court held the offence was culpable homicide in a sudden fight without premeditation. The trial court's life sentence was substituted with rigorous imprisonment for five years; fine was maintained.

What did the court decide?

Conviction altered from Section 304 IPC to Section 304 Part II IPC; sentence reduced to five years rigorous imprisonment; fine maintained.

Main Prasad Sarthi Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 864 of 2021

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Main Prasad Sarthi S/o Late Budhram Sarthi, Aged
about 45 years, R/o Village Baniya, Outpost Korbi,
Police Station Pasan, Distt. Korba, Chhattisgarh.

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---Appellant

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 Versus

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State of Chhattisgarh through Station House
Officer, Police of Police Station Pasan, Distt.
Korba, Chhattisgarh.

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---Respondent

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For Appellant :-Mr. Anil Gulati, Advocate
For State :-Ms. Ruchi Nagar, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari

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Judgment on Board
12/10/2022

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Sanjay K. Agrawal, J.

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1.This criminal appeal under Section 374(2) of CrPC

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has been preferred by the appellant herein
assailing the impugned judgment dated 17/02/2021
(Annexure A/1) passed by learned Additional Judge
of Additional Session Judge Katghora, Distt. Korba
in Sessions Trial No. 11/2019 whereby he has been
convicted for offence punishable under Section 304
of the IPC and sentenced to undergo imprisonment

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for life with fine of Rs. 500/- and in default of
payment of fine additional R.I. for three years.

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2.Case of the prosecution, in brief, is that on

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22/10/2018 at about 11:30 at Peepardahra Nala, the
appellant herein assaulted Jeevan Prakash Sarthi
with iron axe and inflicted a single blow on his
back with the sharp-edged side due to which he
suffered grievous injuries. Pursuant thereof, on
23/10/2018, Jeevan Prasad Sarthi lodged dehati
nalishi against the appellant vide Ex. P/7 on the
basis of which, Crime No. 98/2018 was registered
against the appellant for offence punishable under

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Section 307 of IPC and the matter was taken under
investigation. Spot map was prepared vide Ex. P/1
and nazri naksha was prepared vide Ex. P/2. Injured
Jeevan Prasad Sarthi was examined by Dr. Avinash
Kashyap (P.W.-5) vide Ex. P/10 and it was found
that the injuries suffered by him were grievous in
nature on account of which he had lost sensation in
both of his legs and his spinal cord had been
fractured. Thereafter, memorandum statement of the
appellant/accused was recorded vide Ex. P/3 and axe
was recovered from his possession vide Ex. P/4 and

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plain soil as well as blood-stained soil was
recovered seized from the spot vide Ex. P/5 and it
was sent for chemical examination, but no FSL

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report has been brought on record. The axe seized
vide Ex. P/4 was sent to Dr. Avinash Kashyap (P.W.-
5) for query and as per the query report (Ex.
P/11), he has opined that the injury suffered by
injured Jeevan Prsad Sarthi can be caused by the
said axe. After due investigation, the appellant
was charge-sheeted for offence punishable under
Section 307 of IPC which was presented before the
Court of Judicial Magistrate First Class, Katghora
on 17/12/2018 and it was committed to the Court of

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Session on 11/01/2019 for hearing and disposal in
accordance with law. The appellant/accused was
examined before this Court on 01/02/2019 wherein he

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abjured his guilt and entered into defence.
However, thereafter injured Jeevan Prasad Sarthi
died on 06/05/2019 and the appellant/accused was
then charge-sheeted and tried for offence
punishable under Section 302 of IPC.

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3.In order to bring home the offence, prosecution
examined as many as 13 witnesses and brought on
record30documents.Thestatementsof

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appellant/accused person was recorded wherein he
denied guilt, however, examined none in his defence.

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4.Learned trial Court, after appreciation of oral and
documentary evidence on record, clearly came to the
conclusion that offence punishable under Section 302

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of IPC is not made out against the appellant and
proceeded to convict him for offence punishable under
Section 304 of IPC holding his act to be culpable
homicide not amounting to murder and sentenced him as
aforesaid.

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5.Mr. Anil Gulati, learned counsel for the appellant,
would submit that the trial Court is absolutely
unjustified in convicting the appellant for offence
punishable under Section 304 of the IPC rather since
the appellant did not have any intention to cause the
death of the deceased although he must have had the
knowledge that his act is likely to cause the death
of the deceased, offence under Section 304 Part II of
IPC would be made out against him and since he is in
jail since 24/10/2018, he may be sentenced to the
period already undergone by him.

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6.Per contra, Ms. Ruchi Nagar, learned State counsel,
would support the impugned judgment and submit that
learned trial Court has rightly taken a lenient view
of the matter and convicted the appellant for offence
punishable under Section 304 of IPC, as such, the
instant appeal deserves to be dismissed.

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7.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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8. The only contention raised on behalf of the appellant is that his conviction for offence punishable under Section 304 of IPC be altered to Section 304 Part II of IPC as his case is covered with Exception 4 of Section 300 of IPC and he be sentenced to the period already undergone by him.

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9.The MLC of injured Jeevan Prasad Sarthi (deceased)
was conducted by Dr. Avinash Kashyap (P.W.-5) vide
Ex. P/10 wherein he has clearly opined that the
body of the deceased had lost all sensation below
his waist and he had suffered an incised wound of
6X3 cm on his inter-scapular region which was bone
deep. He has further opined that the said injury
has been caused by a sharp and heavy object. Upon
examination of the MRI report, Dr. Avinash Kashyap
(P.W.-5) has further stated before the Court that
on account of the injury suffered by the deceased,
the Spinus Process D4 and D5 in his spinal cord had
been broken and he had also suffered fracture in
his vertebral body and his spinal cord had almost
completely been severed.

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10.After getting medically examined and after
undergoing treatment, deceased Jeevan Prasad Sarthi
survived though he was confined to bed. He was
examined before the Court on 27/03/2019 vide Ex.
P/9 and thereafter, he died on 06/05/2019 i.e.

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after six months from the date of the incident.
After his death, his dead body was subjected to
postmortem which was conducted by Dr. Lal Bhairav
Pratap Singh (P.W.-13) vide Ex. P/30 in which cause
of death is said to be cardio-respiratory failure
due to septic shock as a result of bed sore and the
nature of death is held to be natural. However, the
trial Court, after an elaborate discussion, has
held the death of deceased to be homicidal in
nature.

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11.Taking consideration of the injuries suffered by
the deceased, it is quite vivid that the injury was
caused by the appellant/accused on the back portion
of his body and that too, a single cut has been
inflicted on his back. Moreover, after the
incident, the deceased survived for a fairly long
time and as per the postmortem report (Ex. P/30),
he died because of bed sore having been confined to

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bed. Thus, we are of the considered opinion that
the case of the appellant is covered with Exception
4 to Section 300 of IPC.

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12.At this stage, it would be appropriate to notice
the decision rendered by the Supreme Court in the

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matter ofSukhbir Singh v. State of Haryana1
wherein it has been observed as under :-

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1 (2002) 3 SCC 327

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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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13.Thereafter, in the matter of Gurmukh Singh v. State

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of Haryana2, Their Lordships of the Supreme Court

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have laid down certain factors which are to be
takenintoconsiderationbeforeawarding

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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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(c) The intention/knowledge of the accused
while inflicting the blow or injury;

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2 (2009) 15 SCC 635

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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
sufficient 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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(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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14.Likewise, in the matter of State v. Sanjeev Nanda3,

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their Lordships of the Supreme Court have held that

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3 (2012) 8 SCC 450

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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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15.Further, the Supreme Court in the matter of Arjun

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v. State of Chhattisgarh4 has elaborately dealt

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with the issue and observed in paragraphs 20 and

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21, which reads 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

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4 (2017) 3 SCC 247

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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 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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16.In the matter of Arjun(supra), the Supreme Court
has held that when and if there is intent and

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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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17.Reverting to the facts of the present case in light

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of the aforesaid principle of law laid down by
Their Lordships of the Supreme Court, it is quite
vivid that the injury has been caused by the
appellant on the back of the deceased and that too,
only a single blow was inflicted which goes to show
that the appellant did not have the intention to

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cause the death of the deceased which is also
supported by the fact that after the incident, the
deceased survived for a fairly long time and he
could have been recovered if he had been given
proper treatment. Moreover, Dr. Lal Bhairav PrataP
Singh (P.W.-13) has also opined in the postmortem

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report (Ex. P/30) that the cause of death of
deceased is cardio-respiratory failure due to
septic shock as a result of bed sore. However,
looking to the severity of the injury suffered by
the deceased as described by Dr. Avinash Kashyap
(P.W.-5), who conducted MLC, it is evident that the
appellant must have had the knowledge that his act
is likely to cause the death of the deceased. As

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such, the conviction of the appellant for offence
punishable under Section 304 of IPC is altered to
Section 304 Part II of IPC and in view of the
decisions rendered by the Supreme Court in the
matters of Willie (William) Slaney v. State of
Madhya Pradesh5 as well as in Joseph v. State of
Kerala6, we hereby sentence the appellant to
undergo rigorous imprisonment for five years.
However, the fine sentence imposed by the trial
Court is hereby maintained.

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18.Accordingly, this criminal appeal is allowed to the
extent indicated herein-above.

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

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Harneet

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5 AIR 1956 SC 116

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6 1995 SCC (Cri.) 165

Main Prasad Sarthi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Main Prasad Sarthi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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