Partly allowed

Bhagchand v. State Of Chhattisgarh

Chhattisgarh HC22 Jun 2023CRA/1273/2014

Case brief

AI extract

What is this about?

In a criminal appeal against a life sentence for murder, the High Court of Chhattisgarh examined whether the appellant's conduct falls under Exception 4 to Section 300 IPC. The court found the incident was a sudden fight without premeditation in a heat of passion, leading to the alteration of the conviction from murder to culpable homicide not amounting to murder.

What did the court decide?

The appeal was partly allowed. The conviction under Section 302 IPC was altered to Section 304 Part-II IPC, and the appellant was sentenced to ten years rigorous imprisonment. The conviction for murde

Bhagchand 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 Criminal Appeal No. 1273 of 2014

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Bhagchand S/o Budru, aged about 50 years, Caste - Madiya, Occupation - Labour, R/o Village - Chhaparbhanpuri, Dengpara, Police Station - Badanji, Civil And Revenue District Bastar, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, Through Station House Ofcer, Police Station Badanji, District Bastar, Chhattisgarh.

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---Respondent

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For Appellant :- Shri C.P.Laharey, Advocate For State/Respondent :- Shri Sameer Oraon, Govt. Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Arvind Singh Chandel

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Judgment On Board (22.06.2023)

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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 16.10.2014, passed by the learned Sessions Judge, Bastar, Place - Jagdalpur, (C.G.) in Sessions Trial No.40/2014, by which the appellant herein has been convicted for the ofence under Section 302 of Indian Penal Code and sentenced to imprisonment for life and further sentenced to fne of Rs.1000/- with default stipulations.

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2. Case of the prosecution, in brief, is that on 17.07.2011 in between 5:00-6:00 PM at village Chhaparbhanpuri Deng Para, District – Bastar, the appellant assaulted his wife Faguni Bai (deceased) by low stool ( pidha) due to which she sufered grievous injury on her head. On 25.07.2011, about 11:00 PM, the deceased succumbed to the injury at B.R. Ambedkar Memorial Hospital, Raipur, thereby the appellant committed the ofence.

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3. Further case of the prosecution is that on the date of ofence, Narsu (PW-5), who is the minor son of the appellant, had gone to graze the cattle and returned to the house at about 6:00 PM, where he saw that his mother was lying on the ground in unconscious and injured condition and his father was standing there holding a low stool ( pidha) in his hand and was very angry. On account of fear, Narsu did not ask anything from his father (appellant) and went to his uncle Manglu and informed him about the incident. Then his uncle Manglu and other neighbour came to the spot. On being asked by them, the appellant confessed that on account of quarrel between him and his wife, he assaulted her on her head with low stool (pidha) . The deceased sufered grievous injury on her head. MLC was conducted vide Ex.P-8 and she was referred to District Hospital Jagdalpur. MLC was conducted by Dr.N.S. Nag (PW-15) and the report is Ex.P-14. On the basis of the Dehati Nalishi (Ex.P-1), FIR (Ex.P-2) was lodged against the appellant under Section 307 of the IPC. On 18.07.2011, X-ray (Ex.P-5) and CT Scan (Ex.P-6) of the victim was conducted. Seized articles were sent for FSL. During course of treatment, victim died on 25.07.2011. Merg intimation vide Ex.P-10 was lodged by Sakhu Ram Dhruw (PW-12). Dead body of the

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deceased was sent for postmortem. Dr.Rajkumar Patel (PW-17) conducted the postmortem of the deceased who proved the postmortem report Ex.P-17, in which cause of death was stated to be cardio-respiratory failure as a result of head injury and its complication. FSL report has not been brought on record. After due investigation, appellant was charge-sheeted for the aforesaid ofence and 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 ofence and he has been falsely implicated.

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4. In order to bring home the ofence, prosecution examined as many as 17 witnesses and exhibited 17 documents and the appellantaccused in support of his defence has neither examined any witness nor exhibited any document.

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5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the ofence under Section 302 of Indian Penal Code and sentenced to life imprisonment and fne of Rs.1000/-, against which the present appeal has been preferred.

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6. Learned counsel for the appellant would submit that there was no intention of appellant to cause death and under the heat of passion on a dispute, appellant assaulted his wife (deceased), which would fall under Exception 4 to Section 300 of I.P.C. and the sentence awarded is liable to be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as such, the appeal be allowed in part.

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7. Mr. Sameer Oraon, learned State counsel, would support the impugned judgment and submits that the trial Court has rightly convicted the appellant herein for ofence punishable under Section 302 of I.P.C. He further submits that it is not a case of conversion and it is a case of murder, therefore, the instant appeal deserves to be dismissed.

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8. 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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9. The frst question for consideration as to whether the death of deceased was homicidal in nature, which has been answered by the trial Court in afrmative relying upon the post-mortem report Ex.P17 proved by Dr. Rajkumar Patel (PW-17), which in our considered opinion is a correct fnding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby afrm the said fnding.

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10. Now, the next question for consideration is whether the appellant has caused the death of the deceased?

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11. Admittedly, on the date of ofence, Narsu (PW-5) who is the son of the appellant, had gone to graze the cattle and returned to house at about 6:00 PM, where he noticed that his mother was lying on the ground in unconscious and injured condition, as such appellant and his wife both were only in the house. Therefore, by virtue of Section 106 of the Evidence Act, the appellant was required to explain as to under what circumstances his wife sufered grievous injury on 17.07.2011 and ultimately on 25.07.2011 she died which appellant has not explained. Further, immediately after the

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incident, the appellant remained absconded and arrested on 08.02.2014. As such, subsequent conduct of absconding immediately after the incident is relevant under Section 8 of the Evidence Act. Thus, the trial Court has rightly held that the appellant has assaulted the deceased, by which she sufered injuries and died.

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12. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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13. In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of IPC, 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

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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 ofence of culpable homicide without premeditation in a sudden fght 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 fnding of the courts below holding the aforesaid appellant guilty of ofence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of ofence 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 fne of Rs. 5000. In default of payment of fne, he shall undergo further rigorous imprisonment for one year.”

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1 (2002) 3 SCC 327

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14. 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 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 fght;

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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 sufcient 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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2 (2009) 15 SCC 635

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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 ofence. 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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15. 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 fne or with both. It is further been held that to make out an ofence 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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16. Further, the Supreme Court in the matter of Arjun v. State of

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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 fulflled 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 satisfed, namely, (I) it was a sudden fght; (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

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

is not relevant nor its I relevant who ofered 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 ofender must have acted in a ft of anger. Of course, the ofender 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 beneft 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 fght; (c) without the ofender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fght 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 “fght” occurring in Exception 4 to Section 300 IPC is not defned in the Penal Code, 1860. It takes two to make a fght. 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 fght 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 sufcient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the ofender 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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17. 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 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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18. Further, the Supreme Court in the matter of Rambir v. State (NCT

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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 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 fght;

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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 ofender had not taken any undue advantage or acted in a cruel or unusual manner.”

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19. 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 his wife (deceased) and the appellant in a heat of passion assaulted the deceased due to which she sufered grievous injury and after 8 days of the incident she died. As such, there was no intention to cause death but the appellant must have had knowledge that the injury caused by him to his wife (deceased) is likely to cause death and the appellant had not taken any undue advantage and has not acted in

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5(2019) 6 SCC 122

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unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of IPC.

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20. In view of the above, the conviction and sentence of the appellant awarded by the trial Court for ofence punishable under Section 302 of IPC is hereby set aside. Now his conviction for ofence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC and the appellant is sentenced to 10 years rigorous imprisonment, as he is in jail since 08.02.2014; however, the fne amount imposed by the trial Court shall remain intact.

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

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22. Let a certifed 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) (Arvind Singh Chandel) Judge Judge

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Prakash

Bhagchand v. State Of Chhattisgarh

Case brief

What is this about?

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Bhagchand v. State Of Chhattisgarh

Case brief

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