Partly allowed

Jai Kishan @ Mantu Dewangan v. State of Chhattisgarh

Chhattisgarh HC21 Jul 2023CRA/331/2019

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against murder conviction and sentence. The court held the death was homicidal but the appellant acted in a sudden fight without premeditation in the heat of passion, without undue advantage, under Exception 4 to Section 300 IPC. Conviction was altered to culpable homicide not amounting to murder under Section 304 Part-II IPC.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC. Appellant sentenced to same period already undergone in jail. Fine and default sentence remain intact.

Jai Kishan @ Mantu Dewangan Vs 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.331 of 2019

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Jai Kishan @ Mantu Dewangan, aged about 25 years, son of late Shri Madho Ram Dewangan, resident of Near Nageshwar Temple Gabharapara, Police Station Tikrapara, Raipur, District Raipur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station Tikrapara, Raipur, District Raipur, (C.G.)

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---- Respondent

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For Appellant Mr. Suresh Tandon, Advocate. For State Mr. Afroj Khan, P.L.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ. Judgment on Board (21.07.2023)

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Radhakishan 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 22.01.2019 passed in Sessions Trial No.187/2017 by the Sessions Judge, Raipur (C.G.), by which the appellant stands convicted & sentenced as

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under:-

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Conviction	Sentence
Under Section 302 of Indian	Imprisonment for life with fine
Penal Code	of Rs.1,000/- and in default to pay fine amount, additional RI for three months.

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Case of the prosecution, in brief, is that the appellant is the son of deceased Madho Ram. The appellant is engaged in doing welding work. Prior to incident, he was not doing any work for about 4 months, to which, his father used to quarrel and abuse him with respect to his unemployment. On the fateful day, i.e. on 07.05.2017 at about 6.00 pm, Madho Ram started quarrelling with the appellant and the brother of the appellant assaulted the appellant, then at about 9.00 pm, the appellant/accused, annoying over the dispute, went to the shed and took out the stick, assaulted his father Madho Ram severely, resulting into, he sustained serious injuries over his head, nose, head and forehead and blood was oozing. The incident was witnessed by one Ratna Bhoyar (P.W.1). On account of injuries sustained by Madho Ram, he fell in unconscious and thereafter he died. Matter of incident was reported to the Police Station Tikrapara where Dehati Nalishi vide Ex.P.1 was lodged against the appellant, then Dehati merg vide Ex.P.2 was recorded, based on which, merg intimation vide Ex.P.19 was registered. F.I.R. was lodged against the appellant

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vide Ex.P.16. Spot map was prepared vide Ex.P.3. Memorandum of statement of the accused/appellant was recorded vide Ex.P.5, on the basis of which, the stick used in crime in question was recovered at the behest of the appellant vide Ex.P.6. Inquest proceedings were prepared vide Ex.P.8. Thereafter, dead body of Madho Ram was sent to Dr. Bhimrao

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Ambedkar Hospital, Raipur for examination where Dr. Ullhas Gonnade conducted the post-mortem vide Ex.P.11 and opined that death of deceased was due to cardio-respiratory failure as a result of complications arising out of head injury. Vide Ex.P.14 plain and bloodstained soils, broken teeth, cloths, Kathri and broken stick were seized. Seized articles were sent for chemical examination to F.S.L. vide Ex.P.9 and F.S.L. report was brought on record vide Ex.P.18. Query report was also obtained vide Ex.P.13 from Dr.Ulhas Gonnadey, according to whom report, injuries found over the body of Madho Ram could have been caused by the seized stick. During investigation, the appellant was arrested vide arrest memo Ex.P.21.

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After recording the statements of the witnesses and after due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the Court of Sessions 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 17 witnesses and brought on record 26 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he abjured the guilt although he did not examine anyone in his defence but the statement of one Ratna Moyar under Section 161 Cr.P.C has been exhibited as

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Ex.D/1.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 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 conviction of the appellant is based on the statement of P.W.1 Ratna Bhoyer, whose evidence does not inspire confidence and untrustworthy. He would next submit that on a sudden quarrel and on a spur of moment the appellant caused injuries to the deceased by a stick. If the case of the prosecution is taken as it is, no offence under Section 302 of IPC can be made out against the present appellant as it is not the case of murder and at the most, case of the appellant would fall within Exception 4 to Section 300 of I.P.C. He would further submit that the appellant is in jail since 08.05.2017. On these premises, he urged that the present appeal deserves to be allowed in full or in part and the appellant may be acquitted of the charge levelled against him.

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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 where the appellant can be given benefit of Exception 4 to Section 300 of IPC, as such, the

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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 our consideration would be, whether the death of the deceased was homicidal in nature? The trial Court relying upon the postmortem report (Ex.P-11) proved by Dr. Ullhas Gonnadey (PW-8) and after appreciation of medical evidence on record, has come to the conclusion that the death of deceased Madho Ram Dewangan was homicidal in nature, which is a finding of fact based on evidence available 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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Admittedly, conviction of the appellant is based on the evidence of PW-1 Smt. Ratna Bhoyar, who is the eye-witness to the incident. P.W.1 Ratna Bhoyar has testified that she is neighbour of the appellant; on the date of incident upon hearing the sounds of assault, she came out and went to the house of deceased Madho Ram where she saw the appellant assaulting

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Madho Ram with stick; upon which, this witness asked the appellant not to assault him like that while taking the appellant out and while the appellant was assaulting his father, she pulled him. It has come in her evidence that the deceased was habitual drinker and consumes liquor daily. Statement of P.W.1 Smt. Ratna Bhoyar has been corroborated by the statement Bijju Dewangan (P.W.2) to some extent that when she raised cries about the assault by the appellant, he rushed to the house of Madho Ram. Girdhar Dewangan P.W.7 in his statement, has stated that he came to know the death of Madho Ram from Manoj Dewangan. From their evidence, it is clear that on the date of incident, the deceased was taunting, upon which quarrel took place between them, which has prompted the appellant to assault his deceased father by stick in which, the deceased and caused injuries over his body resulting into the death of deceased on account of injuries sustained by him. Their evidence with respect to appellant assaulting the deceased with stick cannot be discarded. Furthermore, at the behest of the appellant, stick has been recovered. As such, considering the statements, particularly, statement of PW-1 Ratna Bhoyar and further considering the fact that stick (weapon of offence) has been recovered at the behest of the appellant, 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

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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 for our 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 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 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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1 (2002) 3 SCC 327

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14. 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,

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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 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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2 (2009) 15 SCC 635

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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 which may extend to 10 years or with fine or with both. It has 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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4 (2017) 3 SCC 247

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3 (2012) 8 SCC 450

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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 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

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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 (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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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Returning 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 as per Ex.P.1 (Dehati Nalishi) and other evidence available on record, it was found that on the date of incident, Madho Ram started quarrelling with

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5 (2019) 6 SCC 122

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the appellant and the brother of the appellant assaulted the appellant, then at about 9.00 pm, the appellant/accused, annoying over the dispute, went to the shed and took out the stick, out of anger and in a fit of rage, assaulted his father Madho Ram, resulting into, he sustained injuries over his body, resulting into death of Madho Ram. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries 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 his father Madho Ram, but on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with stick, 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 considered 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 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 08.05.2017 and thus

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has incarcerated jail sentence for a period of more than 7 years. He is sentenced to the period already undergone by him. The fine and default sentence will remain in tact.

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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 and concerned Superintendent of Jail forthwith for necessary information and action, if any.

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Sd/-

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Sd/-

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

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Anjani

Jai Kishan @ Mantu Dewangan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jai Kishan @ Mantu Dewangan v. State of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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