Partly allowed

Purushottam Portey v. State of Chhattisgarh

Chhattisgarh HC24 Nov 2023CRA/1212/2021

Case brief

AI extract

What is this about?

An appeal against conviction and life imprisonment for murder under IPC 302. The High Court held defenses of sudden fight and grave provocation were not fully satisfied due to use of a weapon and cruel injuries. Conviction reversed to culpable homicide (IPC 304 Part I).

What did the court decide?

Conviction and sentence under IPC 302 set aside; appellant convicted under IPC 304 Part I; sentenced to RI for 10 years.

Purushottam Portey Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1212 of 2021

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Purushottam Portey S/o Ishwar Portey, Aged About 28 Years Sakin Harnachaka, Station Lalpur District - Mungeli, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh, Through Chauki Khudiya, Police Station Lormi District Mungeli, Chhattisgarh

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---- Respondent

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For Appellant Mr. A.S. Kachhwaha, Advocate For Respondent /State Mr. Trivikram Nayak, Panel Lawyer

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DB.: Hon'ble Mr. Justice Goutam Bhaduri &

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Hon'ble Mr. Justice Deepak Kumar Tiwari

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JUDGMENT ON BOARD

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Per Goutam Bhaduri, J.

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24/11/2023

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This criminal appeal preferred by the appellant under Section 374(2) of the Code of Criminal Procedure is directed against the impugned judgment dated 31.7.2021 passed by the learned Sessions Judge, Mungeli in Sessions Case No.10/2020, whereby, the appellant has been convicted for commission of offence

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under Section 302 of the IPC and sentenced to undergo RI for life and pay fine of Rs.2000/- , in default of payment of fine, to undergo additional RI for one year.

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Prosecution case, in brief, is that an FIR was lodged by Shivratan Dhurve (PW-1) to the effect that the appellant/accused was married to his daughter - Mamta (deceased) 6 years back. On 14.12.2019, his daughter along with her husband (appellant) and their children had come to his place at Danavkhar. They were living a happy married life. On 16.12.2019, after having their dinner, all the family members went to sleep and the appellant, his wife and their children also went to sleep in their room. At about 11:30: PM, the father (PW-1) heard loud noise of Marpeet and screaming coming from the room of the appellant. Having heard so, he climbed over the deck of their room and saw that the accused was assaulting his daughter by way of a Crowbar ( Sabbal ). He shouted at the appellant to stop the assault and thereafter, he awoke all the family members. When the family members reached the spot, they saw that the wife of the appellant was dead and it was revealed that since the appellant had a doubt that the wife had illicit relations with another man, he assaulted her on his head and face with the crowbar and thereby, killed her. The dead body was subjected to the postmortem and in the Postmortem Report-Ex.P/20, the Doctor opined that the death was homicidal in nature. Subsequently,

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when the villagers arrived, the accused admitted before them that he had killed his wife. Subsequent to that, the Police arrested the accused and crowbar (Sabbal) , jeans pant and sweater were seized vide Ex.P/7 from the possession of the appellant. The seized articles were sent for FSL examination of which the report remained unreceived.

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After recording the statements of the witnesses, the charge sheet was filed. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 22 documents. During the course of trial, the appellant abjured his guilt and claimed to be tried. On the basis of the statements of the witnesses and extra judicial confession made by the appellant, the appellant was convicted as mentioned in para 1 of this judgment. Hence, this Appeal.

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Learned counsel for the appellant would submit that the eyewitness in this case is the interested witness and the allegations have been falsely attributed to the appellant. He would submit that apart from the husband and wife, their children were also present in the room, however, their statements have not been recorded. He would further submit, without prejudice, that even if the case of the prosecution is admitted, at the most, the appellant could have been convicted for offence punishable under Section 304 Part I of IPC as his case is covered within Exception 4 to Section 300 of IPC since the incident happened in

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the spur of moment and on great provocation. However, despite having knowledge about this fact, the prosecution has not collected any evidence in this regard. Lastly, learned counsel for the appellant prays that the impugned judgment may be setaside and the appellant may be acquitted from the said charge.

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Per contra, learned counsel for the State would oppose the above submissions and submit that in view of the statement of Shivratan Dhurve (PW-1), who is an eye-witness in the case, and the extra judicial confession made by the appellant before Narottam Singh (PW-2), Purushottam (PW-3), Ishwar Singh (PW4) and Ram Das (PW-5), there is no scope left to evaluate the evidence as the same is also supported by the Postmortem Report-Ex.-P/20, which shows the nature of injuries inflicted upon the deceased. He would further submit that even in the cross-examination, nothing has been elicited to doubt the statements of eye-witness - Shivratan Dhurve (PW-1) as also that of the persons before whom the extra judicial confession has been made. The statement of the accused under Section 313 of the Cr.PC also does not disclose any factum of grave and sudden provocation. Hence, the judgment of the Court below is well merited, which does not call for any interference.

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We have heard learned counsel for the parties and also perused the record.

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The incident was that of ‘16.12.2019’ at 11:30 PM and the report

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of the incident was made on ‘17.12.2019’ at 3:10 AM, meaning thereby, the report was made just after a few hours of the incident. Reading of the said report ( Dehati Nalis i) -Ex.P/1 made by Shivratan Dhurve (PW-1) would show that on 14.12.2019, his son-in-law (appellant) and daughter (deceased) came along with their children to his house. On 16.12.2019, all the family members had their dinner and went to sleep. At11:30 AM, all of a sudden, he heard some loud noise of Marpeet and screaming from the room of the appellant. On hearing this, he climbed over the deck and saw that the accused was assaulting his daughter with a Crowbar ( Sabbal ). He shouted at the appellant to stop the assault and also awoke the other family members. Thereafter, he reached to his daughter and saw that she was dead. Dehati Merg Intimation was lodged vide Ex.P/2 and Panchnama was prepared vide Ex.P/8 on 17.12.2019. A perusal of the Panchnama shows that the incident happened in the house of PW-1 – Shivratan Dhurve. The spot map-ExP/4 is proved by PW-1.

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Now coming back to the statement of the eye-witness – Shirvratan Dhurve (PW-1), it shows that at the time of the incident, the accused and his daughter were in his house on the date of the incident and in the adjacent room, he was sleeping. At about 11:00 AM, he heard some sound of Marpeet, on which, initially, he tried to open the door, which was bolted from inside and thereafter, he climbed over the deck and saw from an open

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space that the accused was assaulting his daughter. Thereafter, he climbed over the wall and went inside the room and caught the appellant and tied him with the help of his children. Thereafter, he called the villagers and went along with them to the Police Station to lodge the report.

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In the cross-examination of this witness, it was stated by him that the marriage of the deceased and the accused took place 6-7 years back and they were living a happy married life. Further, though a suggestion was given to him that since it was dense dark night, as such, he would not have seen the incident, but such suggestion was negated and it was stated by him that he had seen the incident as there was lamp lighting inside the room. In the cross-examination of the above witness, he stated that the appellant used to doubt the character of his wife alleging that he had illicit relations with the Sarpanch. The evidence of other witness Narottam Singh (PW-2), who is the brother of PW-1, would show that after hearing the shouting of his brother Shivratan Dhurve (PW-1), he reached the spot and saw that the accused was tied by the family members and the daughter of PW1 was dead and she had sustained injury on her head. Thereafter, when the villagers reached the spot and enquired about the incident from the appellant, he stated before them that since the wife had illicit relations with the Sarpanch of Harnachaka and she used to say that she would go along with him, he killed her. In

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the cross-examination of this witness, nothing is negated instead it corroborated the extra judicial confession made by the appellant. Similar averments were made by PW-3 - Purushottam, PW-4 – Ishwar Singh and PW-5 – Ram Das, who reached the spot after the incident on hearing the shouting of the appellant. They narrated the same thing that the appellant disclosed to them that his wife had illicit relations with the Sarpanch and since she told him that she would stay along with the Sarpanch, he killed her.

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10.The Postmortem Report is Ex.P/20, which is proved by PW-10 – Dr. Pankaj Kumar Kanwar. In the Postmortem Report-Ex.-P/20, the following injuries were found on the body of the deceased :

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“Laceration seen on face.

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“1. Measurement - L x Bx H – 15 cm x 6 cm x Deep bone

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Extend from lateral angle of left eye to lateral angle of right eye

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Left frontal bone to lower border of eye socket. Left eye ball absent.

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Nose was lacerated and shifted towards right.

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At chin (Mandible) – 4 x 1 x Deep bone.

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Bone fractured observed are – left frontal bone, left temporal (anterior) nasal bone, mandible (at chin).

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Rigor mortis present in both upper and lower limb. Contusion with abrasion present in occiput region. Abrasion

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present in scapular region. No other external injury present on body.”

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The Doctor opined that the cause of death was shock because of head injury, which led to cardio-respiratory arrest and the death was homicidal in nature.

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11.After the arrest of the appellant, the crowbar ( Sabbal ), blood stained jeans and sweater were seized vide Ex.P/7 and a requisition for query report was sent vide Ex.P/22 and the query report was obtained vide Ex.P/21, wherein, the Doctor stated that the nature of injuries would show that the same could have been caused by such Crowbar ( Sabbal ). The nature of evidence, which has come on record, would show that the cause of death was on account of the assault made by the appellant.

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12.The evidence on record would further show that PW-1 – Shivratan Dhurve, who is the father-in-law of the appellant and father of the deceased, has stated that the appellant and the deceased were married 6-7 years ago and out of their wedlock, two children were born and they were living a happy married life and from nowhere, it appeared that there was any problem in their relationship. As per the evidence of PW-2 – Narottam Singh, PW-3 – Purushottam, PW-4 – Ishwar Singh & PW-5 – Ram Das, when they along with other villagers reached the spot after the incident, the appellant stated before them that he doubted the character of the deceased and because of the fact that the

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deceased told him that she would leave him and go along with the Sarpanch, he became enraged and in such state of affairs, he assaulted her.

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13.It was submitted by learned counsel for the appellant that the case would fall under Exception 4 to Section 300 of the IPC for the reason that the husband and wife were living a happy married life and all of a sudden, in a sudden provocation, when she told that she would go along with the Sarpanch, the incident happened. The above fact is corroborated by the evidence of PW2- Narottam, PW-3 – Purushottam, PW-4 Ishwar Singh and PW-5 – Ram Das, from which, this inference can also be drawn. The children were also inside the room when the incident happened but their statements have not been recorded to find out that under what circumstances the quarrel got triggered up, therefore, the extra judicial confession made before PW-2Narottam, PW-3 – Purushottam, PW-4 Ishwar Singh and PW-5 Ram Das, looses its implication except to make it real.

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14.To invoke Exception 4 to Section 300 of the IPC, there are certain requirements to be fulfilled which has been reiterated by the Supreme Court in the matter of Arjun vs. State of Chhattisgarh, (2017) 3 SCC 247 , in which, the following was held vide para 20 & 21 :

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To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v.

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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 is it 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 altercation in the beginning. A fight is a combat between two and 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 provision means “unfair advantage”.’”

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When there is an intention and knowledge on the part of the

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accused, then the offence would fall under Section 304 Part I of the IPC and if there is only knowledge and no intention to cause murder and bodily injury, then, the offence would fall under Section 304 Part-II of the IPC. The nature of injuries, which had been inflicted on the parietal region, nose, occidental region of the deceased indicate that the appellant had both intention and knowledge to cause such injuries, therefore, his case would fall under Section Section 304 Part-I of the IPC taking into account the ancillary evidence, which has been brought on record. It is obvious and can also be inferred from the evidence that the couple were living a happy married life and even they along with their children visited the parental house of the wife, where also, no quarrel took place, however, at a particular point of time, when the wife told the husband that she would leave him and go along with the Sarpanch, in the spur of moment, the husband got provoked and assaulted her.

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16.So, considering the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like Crowbar ( Sabbal ) and he inflicted the injuries on the vital parts of the body, it can be presumed that by causing such bodily injury, the accused knew that he was likely to cause death of the deceased. Therefore, the case would fall under Section 304 Part I of the IPC.

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17.Accordingly, the appeal is allowed in part. Conviction and

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sentence imposed upon the appellant vide impugned judgment passed by the concerned learned Sessions Judge under Section 302 of the IPC are set aside and instead thereof he is convicted under Section 304 Part I of the IPC and sentenced to undergo RI for 10 years with a fine of Rs.2000/ and in default of payment of fine to undergo additional RI for one year.

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Sd/- Sd/-

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( Goutam Bhaduri ) ( Deepak Kumar Tiwari ) Judge Judge

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Shyna

Purushottam Portey v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Purushottam Portey v. State of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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