Partly allowed

Shiva Ram Pando @ Ganjedi v. The State Of Chhattisgarh

Chhattisgarh HC11 Jul 2023CRA/232/2015

Case brief

AI extract

What is this about?

High Court of Chhattisgarh allowed criminal appeal partly, altering appellant's conviction under Section 302 IPC to Section 304 Part-II IPC as a sudden fight in heat of passion without premeditation, but maintained conviction under Section 450 IPC and fine.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; sentence of ten years awarded; fine maintained; conviction under Section 450 IPC maintained.

Shiva Ram Pando @ Ganjedi Vs The State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 232 of 2015

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Shiva Ram Pando @ Ganjedi, S/o Late Dhaniram Pando, aged about 51 Years, R/o Village Coldiha Pandopara, Police Station Jainagar, District Surajpur, Civil and Revenue District Surajpur, C.G.

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----Appellant

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Versus

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The State of Chhattisgarh, Through P.S. Jainagar, Distric Surajpur, C.G.

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---- Respondent

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For Appellant Mr. A.K. Prasad, Advocate. For State Mr. Sameer Oraon, Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ.

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Judgment on Board

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(11.07.2023)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 20.11.2014 passed in Sessions Trial No.221/2013 by the 3^rd Additional Sessions Judge, Surajpur, District Surajpur, C.G., by which the appellant stands convicted & sentenced as under:-

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Conviction	Sentence
Under Section 302 of Indian	Imprisonment for life and fine of
Penal Code	Rs.500/-, in default of payment
	of fine additional rigorous

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		imprisonment for six months
Under Section Penal Code	450 of Indian	Rigorous Imprisonment for 10 years and fine of Rs.500/-, in default of payment of fine additional rigorous imprisonment for six months

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(Both sentences were directed to run concurrently)

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Case of the prosecution, in brief, is that, in the intervening night of 22^nd - 23^rd March, 2013, appellant trespassed the house of deceased- Biran Ram Pando and assaulted upon him with axe (tangi) , as a result of which deceased sustained grievous injuries over his body and died instantaneously and thereby committed the offence. Further case of the prosecution is that the matter was reported to the Police by PW-1 Ramesh Pando to the effect that since the son of the appellant, under the influence of liquor, had committed marpeet with the deceased and on the report made by the deceased- Biran Ram Pando, son of the appellantJagarnath Pando was arrested and detained in jail, for taking revenge, on the date of incident, appellant- Shiva Ram Pando @ Ganjedi, under the influence of liquor, entered the house of deceased, abused him in filthy language, threatened him of life and assaulted upon him with axe, as a result of which he suffered grievous injuries and succumbed to the same. Thereafter, FIR (Ex.P-1) was registered against the appellant, merg intimation (Ex.P-2) was recorded and spot map was prepared vide Ex.P-4. Inquest proceeding was conducted vide Ex.P-06 and dead body

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was sent for postmortem examination which was conducted by PW-10 Dr. Deep Kumar, who has proved the postmortem report Ex.P-12. According to postmortem report, cause of death of the deceased was haemorrhagic shock and the death was homicidal in nature. Memorandum statement of the appellant was recorded vide Ex.P-8, pursuant to which axe has been recovered vide Ex.P-9. Seized axe was sent to FSL for chemical examination but no FSL report has been brought on record.

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After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 11 witnesses and brought on record 16 documents. The defence has examined none and not exhibited any document.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Sections 302 & 450 of IPC and sentenced as above against which the present appeal has been preferred.

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Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the offence under Sections 302 & 450 of IPC, as the prosecution has failed to prove the offence beyond

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reasonable doubt. He would further submit that except the extra-judicial confession made by the appellant and seizure of axe, there is no such evidence available on record to connect the appellant with the crime in question. As such, his conviction is liable to be set aside. In alternative, he would submit that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C. Thus, the present appeal deserves to be allowed in full or in part.

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Per contra, 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 IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to Part-II of Section 304 of IPC, therefore, 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 would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-12) proved by Dr. Deep Kumar (PW-10), which is a finding of fact based on evidence available

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on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question would be, whether the appellant is the author of the crime in question ?

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Considering the extra-judicial confession made by the appellant before PW-5 Dharmu and PW-8 Bechan Ram and further considering the fact that pursuant to the memorandum statement of the appellant, axe has been recovered at the behest of the appellant though no FSL report has been brought on record, we are of the considered opinion that the trial Court has rightly come to the conclusion that the appellant is the perpetrator of crime in question, which is a pure and simple finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.

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Now, the question that requires consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either 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 within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the

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matter of Sukhbir Singh v. State of Haryana1 wherein it has been

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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 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

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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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2 (2009) 15 SCC 635

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1 (2002) 3 SCC 327

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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 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

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3 (2012) 8 SCC 450

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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 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

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4 (2017) 3 SCC 247

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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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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 vs. State

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(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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(iii) The act was committed in a heat of passion; and

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5 (2019) 6 SCC 122

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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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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 appears from the record that on the date of incident, appellant, under the influence of liquor, entered the house of the appellant, abused him filthily and assaulted him with axe, as a result of which deceased suffered grievous injuries on his body and died, which has been proved by PW-1 Ramesh Pando and PW-8 Bechan Ram. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injury found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased- Biran Ram Pando, on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with axe (tangiya) , as a result of which he suffered injuries leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased but no intention of causing his death can be attributed to him.

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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 IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of

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the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. The appellant is in jail since 27.03.2013 till now, taking into consideration the period he has already undergone, we award him the sentence for ten years which he has already undergone and the fine sentence imposed by the learned trial Court shall remain intact. However, the conviction of the appellant under Section 450 of IPC and sentence thereunder imposed by the trial Court are hereby maintained. The appellant is reported to be in jail since 27.03.2013, therefore, he is directed to be released forthwith, if not required to be detained in connection with any other offence.

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In the result, the 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.

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

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Akhilesh

Shiva Ram Pando @ Ganjedi v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shiva Ram Pando @ Ganjedi v. The State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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