Partly allowed

Gajadhar @ Gajju Yadav v. State Of Chhattisgarh

Chhattisgarh HC6 Mar 2023CRA/189/2014

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court affirmed that the appellant killed his father in a sudden fight without premeditation. Applying Exception 4 to Section 300 IPC, the court altered the conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC) and allowed the appeal to this extent.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part I IPC; appellant released from jail forthwith.

Gajadhar @ Gajju Yadav Vs State Of… — 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. 189 of 2014

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Gajadhar @ Gajju Yadav, S/o. Sitaram Yadav, Aged About 32 Years, R/o. Village & Post Khuteri, P.S. Somni, Civil & Revenue Distt. Rajnandgaon, Chhattisgarh

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---Appellant

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Versus

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State Of Chhattisgarh, Through P.S. Somni, Civil & Revenue Distt. Rajnandgaon, Chhattisgarh

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---Respondent

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For Appellant : Mr. Akhilesh Kumar, Advocate For State/Respondent : Mr. Neeraj Pradhan, Panel Lawyer

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput

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Judgment on Board

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(06.03.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 22.11.2013 passed by learned Sessions Judge, Rajnandgaon, in Sessions Trial No.19/2013, by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to life imprisonment with fine of Rs.5000/- and in default of payment of fine, to further undergo 1 year additional rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 25.11.2012 at 12:30 p.m. at village Khuteri, P.S. Sonmi, District Rajnandgaon, the appellant assaulted his father Sitaram by axe, by which he died

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and thereby the offence has been committed. Further case of the prosecution is that the appellant’s wife Maltibai (PW-8) had gone to her parental house at village Litiya on 25.11.2012 and his mother Smt. Durpat Bai (PW-3), wife of deceased, had gone for work as labourer and at the afternoon at 12:30 p.m., the appellant and deceased both were in the house and on the fateful day and time, deceased asked the appellant, why he has sent his wife to her paternal house thrice and on that count, the appellant took out his axe and assaulted his father Sitaram, by which he suffered grievous injuries and died. Immediately, thereafter, the brothers of the deceased Bisnath (PW-1) and Rajbhan (PW-4) both came on the spot and seen the dead body stained with blood and on being asked by Bisnath (PW-1) & Rajbhan (PW-4) together, the appellant made extra judicial confession that he has killed his father, as he has asked, why he has sent his wife Maltibai (PW-8) to her parental house. Thereafter, the matter was informed to Police Station- Somni and I.O. Yogita Khaparde (PW-14) reached to the spot and Dehati Nalsi (Ex.P-1) and merg intimation (Ex.P-2) were registered by Bisnath (PW-1) and inquest was conducted vide Ex.P-5 and dead body was sent for post-mortem, which was conducted by Dr. Y.K.Tiwari (PW-17), who proved the post mortem report vide Ex.P-11A, in which cause of death was stated to be due to head injury and spinal shock and death was homicidal in nature. Pursuant to memorandum statement of the appellant, bloodstained axe was seized, which was sent for FSL, in which blood was found on the axe and on other articles

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also, human blood was found. It is pertinent to mention here that at the time of order framing charge in the statement recorded under Section 313 of Cr.P.C., the appellant has admitted that he has killed his father.

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3. In order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 17 documents and the appellant-accused in support of his defence has neither examined any witness, nor exhibited any document.

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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 I.P.C. and sentenced him as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred.

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5. Mr. Akhilesh Kumar, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence under Section 302 of I.P.C. and there is no legally admissible evidence on record to convict the appellant under Section 302 of I.P.C. and at the most, it would fall under Exception 4 to Section 300 of I.P.C. as the appellant is in jail since 25.11.2012; therefore, the appeal may be allowed in part.

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6. Per contra, Mr. Neeraj Pradhan, learned State counsel, would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of I.P.C. and as such, the appeal deserves to be dismissed. He further submits that there is an extra judicial

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confession given to the prosecution witnesses as well as at the time of framing of charge under Section 313 of Cr.P.C. while answering the question Nos.4, 23 & 29 wherein the appellant has admitted the incriminating circumstances and, as such, the appellant has rightly been convicted under Section 302 of I.P.C.

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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 is, whether the death of deceased Sitaram was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of the Medical Officer Dr. Y.K.Tiwari (PW-17) who has conducted the post-mortem and has proved the post-mortem report vide Ex.P-11A. We are of the considered opinion that the finding recorded by the trial Court holding the death of Sitaram to be homicidal in nature is 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 is whether the appellant is the author of the crime ?

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10. The appellant is said to have given extra judicial confession to brothers of the deceased namely Bisnath (PW-1), Rajbhan (PW4) and Jagat Ram (PW-9) who have reached immediately to the spot and on question being asked, the appellant told them that he had killed his father and not only this, pursuant to the memorandum statement of the appellant, bloodstained axe has

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been recovered from the possession of the appellant, which has been duly established and from the FSL report, blood has been found on the axe and from the seized articles i.e. shirt & gamchha also, human blood has been found. Further, the appellant on the date of framing charge admitted that he has killed his father by axe and also in the statement under Section 313 of Cr.P.C. while recording his statement, on being asked, he has stated that he has killed his father and even while answering question Nos.4, 16, 23 & 29, he has admitted the incriminating circumstances and on that basis the learned State counsel has contended that the appellant has admitted the commission of offence and conviction be upheld.

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11. Now, the question is, whether the alleged admission on the part of the appellant made by the accused during the course of trial would make him liable for the commission of offence ? The Supreme Court in the matter of State of Maharashtra v. Sukhdev Singh¹ , has held that since no oath is administered to the accused, the statement made by the accused under Section 313 Cr.P.C. will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 Cr.P.C., but by virtue of sub-section (4) answers given by the accused in response to his examination under Section 313 Cr.P.C. can be taken into consideration in such an inquiry or trial. Similarly, in case of Hate Singh Bhagat Singh v. State of Madhya Bharat² their Lordships of the

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1 (1992) 3 SCC 700

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2 AIR 1953 SC 468

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Supreme Court have held that the answers given by the accused under Section 313 Cr.P.C. examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab³ the Supreme Court held that when the accused confesses to the commission of the offence with which he is charged, the court may rely upon the confession and proceed to convict him.

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12. Similarly in Mohan Singh v. Prem Singh⁴ , their Lordships of the Supreme Court held as under :

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“27.The statement made in defence by the accused under Section 313 Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Cr.P.C. cannot be made the sole basis of his conviction.”

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13. In the matter of Devender Kumar Singla v. Baldev Krishan

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Singla⁵ and Bishnu Prasad Sinha v. State of Assam⁶ their Lordships of the Supreme Court have clearly held that the statement of the accused under Section 313 Cr.P.C. for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.

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14. The aforesaid judgments of the Supreme Court have been followed with approval in the matter of Ashok Debbarma v.

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3 (1963) 3 SCR 678

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4 (2002) 10 SCC 236

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5 (2005) 9 SCC 15

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6 (2007) 11 SCC 467

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State of Tripura⁷ and it has been held that if answers given by the accused under Section 313, corroborate the evidence of prosecution then admission of guilt under Section 313 Cr.P.C. statement cannot be brushed aside.

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15. In this case also, particularly while answering question Nos.4, 16, 23 & 29, in which the fact of extra judicial confession and other incriminating evidence have been admitted by the appellant and in that view of the matter, it is held that the trial Court has rightly held that the appellant has assaulted the deceased by axe, by which he suffered injuries and died.

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

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17. In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Arjun v. State of Chhattisgarh 8 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

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7 (2014) 4 SCC 747

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8 (2017) 3 SCC 247

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assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its 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 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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18. 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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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 in Arjun (supra), it is quite vivid that from the Dehati Nalsi (Ex.P-1) and Merg intimation (Ex.P-2) lodged by brother of the deceased Bisnath (PW-1), it is clear that on being informed, he immediately reached to his nephew–appellant herein and asked him as to why he has killed his father, then he informed that his father was repeatedly asking why he has sent his wife Maltibai to his parental house and on account of that he has killed him. This fact also finds place in the Dehati Nalsi Ex.P-1) and FIR (Ex.P-8A), as such, it is quite vivid that from the material and evidence available on record and as per the statement of Bisnath (PW-1). It is clearly established that there was no premeditation or plan on the part of appellant to put to an end to the life of the deceased, but the appellant must have had the knowledge that the injury caused to him is likely to cause his death and thereby in a spur of moment the appellant is said to have caused the injury. Though he has not taken undue advantage and not acted in unusual manner, but considering the nature of injury, it is a fit case where the conviction under Section 302 of I.P.C. can be altered to Section 304 Part I of I.P.C.

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20. In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of I.P.C. and the conviction of the appellant for offence under Section 302 of I.P.C. is altered to Section 304 Part I of I.P.C. and he is sentenced to the period already undergone by him as he was in jail from 25.11.2012 i.e. for more than 10 years; however, the fine sentence and default sentence imposed upon the appellant by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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21. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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Ashok

Gajadhar @ Gajju Yadav v. State Of Chhattisgarh

Case brief

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Gajadhar @ Gajju Yadav v. State Of Chhattisgarh

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