This court quashed the conviction for murder (IPC 302) and remitted it to Section 304 Part I IPC, holding that the act was committed in a sudden fight without premeditation in heat of passion.
Conviction under Section 302 IPC modified to Section 304 Part I IPC; sentence reduced to 10 years rigorous imprisonment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AFR
HIGH COURT OF CHHATTISGARH BILASPUR
CRA No. 126 of 2020
Dileep Kumar @ Jhirga S/o Kishun Ram Aged About 30 Years Resident Of Village- Tripura, Ghosara, Police Station- Kusmi, DistrictBalrampur-Ramanujganj Chhattisgarh, --- Appellant
Versus
State of Chhattisgarh through Police Station- Kusmi District- BalrampurRamanujganj Chhattisgarh. --- Respondent
For the Appellant : Mr. Vikash Pandey, Advocate. For the State : Mr. Kasif Shakeel, Dy. Advocate General
Hon'ble Shri Justice Goutam Bhaduri, Judge & Hon'ble Shri Justice Deepak Kumar Tiwari, Judge
Judgment on Board
(23th November, 2023)
Per Goutam Bhaduri, J
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Dilip came with an iron Trident (Trihul) and assaulted his grand-mother Bhadail Bai by hitting her with iron Trident uttering that he will rid of her ghost. Because of serious injuries sustained by Bhadail Bai, she was admitted in Community Health Center and thereafter for better treatment, she was shifted to District Hospital, Jashpur from where she was further shifted to District Hospital Ambikapur. Thus she was admitted and stayed in hospitals from 05.10.2018 to 11.10.2018 and when no respite was found during this period, injured was brought back to home and on 13.10.2018, she died. Complainant Muneshwar on being informed by his son Sandeep (P.W.2) who was an eye witness to the incident, gave merg information to the Police on 13.10.2018 regarding the incident and death of Bhadail which was recorded as Ex.P-1 and thereafter FIR was registered as Ex.P.2. The dead body was subjected to postmortem wherein the death was reported to be homicidal in nature. The police thereafter arrested the accused and after recording his statement, the weapon was recovered at the instance of the accused and it was sent to FSL. The query report given by the Doctor also supported the fact that the injury could have been caused by such weapon and the FSL report (Ex.P-27) also corroborated the presence of human blood on the sharp side of the weapon. After recording the evidence, the charge sheet was filed.
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mother having consumed heavy dose of Desi liquor (Hadiya) was interrupting the worship of accused and in a spur of moment, the appellant picked up an iron trident (Trishul) and assaulted his grand mother. Therefore, the case would fall under section 300 Exception 4 of IPC. He placed reliance on judgments of the Supreme Court in Arjun and another Versus State of Chhattisgarh (2017) 3 SCC 247 and Rambir Versus State (NCT of Delhi) (2019) 6 SCC 122 and would submit that the conviction and sentence is required to be altered suitably.
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version in cross examination, this fact is established that the assault was caused by the accused on the person of deceased with a deadly weapon.
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accused, as such the accused lost his temper and in a spur of moment, caused injury. The fact that there was no previous enmity has also been proved by the eye witness P.W.2.
“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in S urinder Kumar v. UT, Chandigarh (1989) 2 SCC 217 , it has been explained as under : (SCC p. 220, para 7)
“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 quqarrel, a person in the heat of 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.”
21. Further in Arumugam versus State (2008) 15 SCC 590 , 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) -
“9. … ‘18. The help of Exception 4 can be invoked if death is caused (a) without
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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 with 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”.
22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapon in their hands, but the sequences of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the postmortem report also suggest that appellants have not taken ‘undue advantage” or acted in a cruel manner. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC.
23. When and if there is intent and knowledge, then the same would be a 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 the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e., right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellant
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under section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 02.03.2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed for the modified conviction under Section 304 Part IPC, the sentence is modified to that the period already undergone.”
Sd/Sd/(Goutam Bhaduri) (Deepak Kumar Tiwari) Judge Judge
R a o
2 issues framed by the court
Whether the offence falls under section 302 IPC as murder or section 304 Part I IPC as culpable homicide not amounting to murder under section 300 Exception 4 IPC.
Whether the circumstances constitute a sudden fight without premeditation and undue advantage allowing the benefit of section 300 Exception 4 IPC.
Colour shows how this judgement treated each authority
Arjun and another Versus State of ChhattisgarhDistinguished¶47
(2017) 3 SCC 247 · Who else cites this
Rambir Versus State (NCT of Delhi)Referred¶19
(2019) 6 SCC 122 · Who else cites this
Surinder Kumar v. UT, ChandigarhExplained¶38
Surinder Kumar v. UT, Chandigarh (1989) 2 SCC 217 · Who else cites this
Arumugam versus StateExplained¶40
(2008) 15 SCC 590 · Who else cites this
3 provisions across 1 enactments
Dileep Kumar @ Jhirga
State of Chhattisgarh
Goutam Bhaduri
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
