Partly allowed

Khemanidhi v. State Of Chhattisgarh

Chhattisgarh HC5 Jul 2023CRA/1129/2014

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for murder, the High Court of Chhattisgarh held that the incident was a sudden fight without premeditation, invoking Exception 4 to Section 300 IPC. The appeal was partly allowed, conviction under Section 302 IPC altered to Section 304 Part-II, and sentence reduced to 10 years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC. Sentence reduced to 10 years rigorous imprisonment. Fine retained.

Khemanidhi Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1129 of 2014

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Khemanidhi, S/o. Momin Rout, Aged About 45 Years, CasteRout, R/o. Kenduban, Police Station- Devbhog, District Gariyaband, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through the Station House Officer, Police Station- Devbhog, District Gariyaband, Chhattisgarh.

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---Respondent

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For Appellant :- Mrs. Ranjana Jaiswal, Advocate For State/Respondent :- Mr. Afroz Khan, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment On Board (05.07.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 18.09.2014, passed by the learned Additional Sessions Judge, Gariyaband, in Sessions Trial No.26/2014, by which the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to life imprisonment and fine of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month.

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2. Case of the prosecution, in brief, is that on 17.02.2014, at about 8:00 p.m. at village Kenduban, Police Station Devbhog, the

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appellant assaulted his younger brother Santram (now deceased) by axe and caused his death; thereby offence has been committed. Further case of the prosecution is that on 17.02.2014, at about 8:00 p.m., at village Kenduban, the dispute arose between the appellant and deceased, both real brother, about the pooja to be performed of deity installed in front of their house, pursuant to which, the appellant is said to have assaulted the deceased by axe, by which he suffered grievous injuries and died, which was witnessed by wife of deceased Tilotma (PW-7), his daughter Charulta (PW-8) and his son Shekhar (PW-1) and the matter was reported by wife of the deceased Tilotma (PW-7) to Police Station Devbhog and the FIR was registered. Thereafter, the inquest was conducted and dead body was sent for post-mortem, which was conducted by Dr. Satyendra Markande (PW-2), who proved the post-mortem report Ex.P-1, in which cause of death was stated to be due to cardio respiratory arrest as a result of massive bleeding and death was homicidal in nature. Pursuant to memorandum statement of the appellant, axe was seized, which was sent for chemical examination to FSL, but the FSL report is not brought on record. After due investigation, appellant was chargesheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 23 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 & D-2.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced to life imprisonment and fine of Rs.500/-, against which the present appeal has been preferred.

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5. Mrs. Ranjana Jaiswal, learned counsel for the appellant would submit that the present case would fall under Exception 4 to Section 300 of I.P.C., as the dispute arose on account of not performing pooja by the deceased in a temple and consequently in a heat of passion and anger, the appellant is said to have caused injury to his younger brother Santram (deceased) and, as such, the alleged offence is liable to be converted to Section 304 Part-II of I.P.C. and the appellant be sentenced for the period already undergone, as he is in jail since 19.02.2014 and the appeal be allowed in part.

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6. Mr. Afroz Khan, learned State counsel would support the impugned judgment and submits that the trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of I.P.C. He further submits that considering the statement of Tilotma (PW-7) wife of deceased, Charulta (PW-8) daughter of deceased and Shekhar (PW-1) son of deceased and pursuant to memorandum statement, weapon of offence i.e.

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axe has been recovered, as such, the 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 first question for consideration as to whether the death of deceased Santram was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-1 proved by Dr. Satyendra Markande (PW-2), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question for consideration is whether the appellant has assaulted the deceased by which he suffered grievous injuries and died ?

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10. Considering the statement of the wife of deceased Tilotma (PW7), daughter of deceased Charulta (PW-8) and son of deceased Shekhar (PW-1), who are eye-witnesses and have clearly stated that they have seen the incident, have also been subjected to some extent of cross-examination, but nothing has been brought on record to disbelieve their statements; therefore, in our considered opinion, the trial Court has rightly held that the appellant has caused the death of his brother and accordingly, we hereby affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as

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such, his conviction can be altered either to Part-I or Part-II of Section 304 of I.P.C., as contended by learned counsel for the appellant ?

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12. In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of I.P.C., it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 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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13. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2, 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, 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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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 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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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

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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 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 I.P.C., 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 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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“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.

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

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 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 knowledge, the same would be case of Section 304 Part-I I.P.C. 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 I.P.C.

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17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of I.P.C., 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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18. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant, the dispute arose between the appellant and deceased, both real brother, about the pooja to be performed of deity installed in front of their house, pursuant to which, the appellant is said to have assaulted the deceased by axe, by which he suffered grievous injuries and died. There was no intention to cause death but the appellant must have had knowledge that the injury caused by him to his younger brother is likely to cause his death and the appellant had not taken any undue advantage and has not acted in unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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19. In view of the above, the impugned judgment of conviction and order of sentence dated 18.09.2014 is hereby set aside. The

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5(2019) 6 SCC 122

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conviction of the appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to 10 years rigorous imprisonment, as he is in jail since 19.02.2014; however, the fine amount imposed by the trial Court shall remain intact.

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20. In view of the above, this criminal appeal is partly allowed to the extent indicated herein-above.

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21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.

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

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Ashok

Khemanidhi v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Khemanidhi v. State Of Chhattisgarh

Case brief

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