Partly allowed

Tirith Ram Banjare v. The State Of Chhattisgarh

Chhattisgarh HC4 Oct 2023CRA/1355/2015

Case brief

AI extract

What is this about?

Appeal against conviction for murder and life imprisonment. Court held death occurred during a sudden fight without premeditation in heat of passion. Conviction altered from Section 302 IPC to Section 304 Part-I IPC.

What did the court decide?

Conviction under Section 302 IPC set aside; altered to Section 304 Part-I IPC with 10 years rigorous imprisonment; fine remains intact.

Tirith Ram Banjare Vs The State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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Cr.A. No. 1355/2015

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 1355 OF 2015

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• Tirith Ram Banjare, S/o Pahruram Banjare, aged about 51 years, R/o near House of Raju Raghav, Telibandha, Raipur (C.G.) Pemanant R/o. Manpur (Pateva), Police Station Pateva, Civil & Revenue District Mahasamund, Chhattisgarh.

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... Appellant(s)

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Versus

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• The State of Chhattisgarh, through: Police Station Telibandha, District Raipur, Chhattisgarh.

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... Respondent(s)

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For Appellant	:- Mr. Rishikant Mahobia, Advocate.
For Respondent-State	:- Mr. Afroz Khan, Panel Lawyer.

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Division Bench

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

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Judgment on Board (04.10.2023)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 04.09.2015 passed by learned Special/Additional Sessions Judge, Raipur in Sessions Trial No.75/2014, by which the appellant herein has been convicted for the offence under Section 302 of IPC and sentenced

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Cr.A. No. 1355/2015

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to undergo Life Imprisonment with fine of Rs.1000/- and in default of payment of fine amount, to undergo additional R.I. for six months.

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Case of the prosecution, in short, is that in the intervening night of 4^th & 5^th December, 2013, the appellant had strangulated his wife Teras Bai to death and thereby committed the offence of murder punishable under Section 302 of IPC.

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Further case of the prosecution is that the appellant along with his wife Teras Bai and his grand-daughter Ku. Vandana (PW-13) was residing in the house of his sister Amrautin Bai (PW-1). In the evening of 04.12.2013, the appellant and his wife had gone to the house of his younger sister Ramla Bai (PW-2) where they consumed liquor and came back to their house and after taking their meal they went to sleep in their room along with their grand-daughter (PW-13). Thereafter, in the morning of 5.12.2013, when Amrautin Bai (PW-1) went into the room of Teras Bai, she found her unwell and she immediately called the doctor and the said doctor then declared Teras Bai dead. The appellant was absconding and is said to have made extra-judicial confession to his brother-in-law Chhabiram (PW-8), daughter-inlaw Tushpa (PW-12) and sister-in-law Payal (PW-15) that he has killed his wife Teras Bai.

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On the report by Amrautin Bai (PW-1), Merg Intimation was recorded and FIR (Exhibit P-18) was registered. Panchnama was

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Cr.A. No. 1355/2015

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conducted and Nazri Naksha was also prepared. Dead body of deceased Teras Bai was subjected to post-mortem, which was conducted by Dr. N.S. Barmate (PW-7) who proved the postmortem report (Exhibit P-8) in which the cause of death was opined to be strangulation and the nature of death was stated to be homicidal. Pursuant to the memorandum statement (Exhibit P-12) of the accused-appellant, his shirt buttons and other articles were seized.

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During investigation, statements of the witnesses were recorded and the appellant was arrested vide Exhibit P-15. After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Court from where the case was committed to the Court of Sessions for trial in accordance with law.

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During trial, in order to bring home the offence, the prosecution has examined as many as 23 witnesses and exhibited 22 documents. In defence, Savitri and Maniram have been examined as DW-1 & DW-2 and the statements of Chhabiram Ghritlahare and Ahwani Ghritlahare have been exhibited as D-1 & D-2. Statement of the accused-appellant was also recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

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Cr.A. No. 1355/2015

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The trial Court, vide impugned judgment dated 04.09.2015, after appreciation of the oral and documentary evidence which have come on record, convicted the appellant for the offence under Section 302 of IPC and sentenced him to undergo Life Imprisonment and fine of Rs.1000/- with default stipulation, against which the present appeal has been preferred by the appellant before this Court.

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Mr. Rishikant Mahobia, learned counsel appearing for the appellant, would submit that the appellant has not committed any offence and he has been falsely implicated in the instant case. He further submits that as per the statements of Ramla Bai (PW-2) and her husband Ranjeet Kumar (PW-3), the appellant along with his wife had come to their house on the pretext of consuming liquor and thereafter a quarrel took place between the appellant and the deceased on which the appellant is said to have assaulted his wife, which is apparent from the statements of PW-16 Gautamram Kurre and PW-13 Ku. Vandana and even in the post-mortem report (Exhibit P-8) liquor has been found in the body of deceased Teras Bai. As such, at the most, the case of the appellant would fall under Exception 4 to Section 300 of IPC and the alleged offence is liable to be converted to Part-I or Part-II of Section 304 of IPC and the appeal be allowed in part.

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Cr.A. No. 1355/2015

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Mr. Afroz Khan, learned State Counsel, on the contrary, submits that the prosecution has been able to bring home the offence beyond reasonable doubts and learned trial Court has rightly convicted the appellant herein for the offence under Section 302 of IPC. As such, it is not a case where the sentence of the appellant can be converted and the instant appeal deserves to be dismissed.

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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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The first question for consideration as to whether the death of deceased Teras Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. N.S. Barmate (PW-7) who has proved the postmortem report (Exhibit P-8) in which the cause of death has been opined to be strangulation and the nature of death has been stated to be homicidal, which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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Now, as regards the next question whether the appellant has caused murder of his wife Teras Bai, it is quite apparent that the case of the prosecution is based on eye-witness account of PW-13, Ku. Vandana, the grand-daughter of the appellant and

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the deceased, who was present at the time of offence and being aged about 5 years, she has partly supported the case of the prosecution. Furthermore, the appellant has given extra-judicial confession to his brother-in-law Chhabiram (PW-8), his daughterin-law Tuspha (PW-12) and Payal (PW-15) who is the wife of Chhabiram (PW-8) that he has killed his wife Teras Bai and which appears to be true and voluntary. As such, we are of the considered opinion that the finding recorded by the trial Court that the appellant has caused death of his wife, is correct finding of fact based on evidence available on record. Accordingly, we hereby affirm the said finding also.

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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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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 Haryana 1 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

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1 (2002) 3 SCC 327

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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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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;

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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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

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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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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 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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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

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

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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. 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

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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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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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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 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 fight;

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(ii) There was no premeditation;

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5(2019) 6 SCC 122

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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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Bearing in mind 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 to cause death of his wife, but since the appellant and his wife (deceased) had gone to the house of PW-3 Ranjeet Kumar and there they had consumed liquor along with the deceased and thereafter a dispute arose between the appellant and the deceased on which the appellant is said to have strangulated his wife to death, as is evident from the statements of PW-16 Gautamram Kurre which is corroborated by the evidence of PW-13 Ku. Vandana. The motive of the offence has also not been proved. Thus, the appellant must have had intention as well as knowledge that the assault made by him to his wife is likely to cause her death. As such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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In view of the above, the impugned judgment dated 04.09.2015 whereby the appellant has been convicted and sentenced for the offence punishable under Section 302 of IPC is hereby set-aside. The conviction of the appellant for offence punishable under Section 302 of IPC is altered to Section 304 Part-I of IPC and the appellant is sentenced to undergo R.I. for 10

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years. However, the fine amount with default stipulation imposed by the trial Court shall remain intact.

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Resultantly, this criminal appeal is partly allowed to the extent indicated herein-above.

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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. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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

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sharad

Tirith Ram Banjare v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Tirith Ram Banjare v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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