Partly allowed

Saroj @ Sanjay Kamar v. The State Of Chhattisgarh

Chhattisgarh HC14 Mar 2023CRA/347/2014

Case brief

AI extract

What is this about?

Criminal appeal against murder conviction. High Court acquitted the appellant of murder (Section 302 IPC) on grounds of sudden fight and heat of passion. It reconvicted him under Section 304 Part-I IPC as culpable homicide not amounting to murder under Exception 4, incorporating prior jail sentence.

What did the court decide?

Conviction altered from Section 302 IPC to Section 304 Part-I IPC; appellant to be released from jail forthwith if not required in other cases.

Saroj @ Sanjay Kamar Vs The 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. 347 of 2014

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Saroj @ Sanjay Kamar, S/o. Ghasiya Ram Kamar, Aged About 24 Years, R/o. Kamarpara Khadma, Police Station- Magarlod, Civil & Revenue Distt. Dhamtari, Chhattisgarh

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---Appellant

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Versus

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The State Of Chhattisgarh, Through the Police Station- Magarlod, Civil & Revenue Distt. Dhamtari, Chhattisgarh

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---Respondent

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For Appellant : Mr. Pushpendra Kumar Patel, 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 Radhakishan Agrawal

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Judgment on Board

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(14.03.2023)

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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 07.03.2014 passed by learned Sessions Judge, Dhamtari, in Sessions Trial No.28/2012, by which the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to life imprisonment with fine of Rs.100/- and in default of payment of fine, 3 months simple imprisonment.

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2. Case of the prosecution, in brief, is that on 19.03.2012 at 10:00 p.m. at village Kamarpara Khadma, Police Station- Magarlod,

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District Dhamtari, the appellant assaulted his brother Beniram by knife, by which he suffered grievous injuries and died; thereby the offence has been committed. Further case of the prosecution is that deceased Beniram and Saroj @ Sanjay Kumar both are sons of Ghasiyaram (PW-5) and Ku. Sareshwari (PW-6) is daughter of Ghasiyaram whereas Bisahin Bai (PW-7) is mother of Ghasiyaram. On 19.03.2012 at 10:00 p.m., deceased Beniram went into the house of his grand-mother Bisahin Bai (PW-7) and asked for money to purchase liquor and to consume it, which Ghasiyaram (PW-5) advised not to give money and on hearing that, deceased Beniram had caught hold of Ghasiyaram (PW-5) which was intervened by the appellant, but he did not release him and seeing this the appellant is said to have assaulted Beniram by knife on his neck, by which he suffered grievous injury and died, pursuant to which, Ghasiyaram (PW-5) reported the matter to the Police Station Magarlod and Merg Intimation vide Ex.P-13 was registered and FIR vide Ex.P-14 was registered against the appellant. Thereafter, Naksha-panchnama vide Ex.P-7 was prepared and the dead body was sent for post-mortem, which was conducted by Dr. Smt. Sharda Thakur (PW-4), who proved the postmortem report vide Ex.P-10, in which cause of death was stated to be cardio respiratory failure and death was homicidal in nature. Pursuant to memorandum statement of the appellant, knife was seized and it was sent for chemical analysis to the FSL alongwith other articles and in FSL report (Ex.P-25), human blood was found on the knife. After due investigation, the

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appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately 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 offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 26 documents and the appellant-accused in support of his defence has neither examined any witnesses nor exhibited any documents.

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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. Pushpendra Kumar Patel, 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 in alternative, he submits that at the most, the offence under Section 304 Part-II is made out considering the statement of Ghasiyaram (PW-5), Ku. Sareshwari (PW-6) and Bisahin Bai (PW-7) as at the spur of moment, knife injury is said to have been inflicted by the appellant to his brother, as such, the appeal deserves to be allowed in part.

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6. Per contra, Mr. Neeraj Pradhan, learned State counsel, would submit that the prosecution has been able to prove the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the offence under Section 302 of I.P.C. He further submits that it is not a case wherein the offence can be converted to Section 304 Part-II of I.P.C. as such, the instant appeal deserves to be dismissed.

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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 for consideration as to whether the death of deceased Beniram was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-10 proved by Dr. Smt. Sharda Thakur (PW-4). In our considered opinion, the finding recorded by the trial Court holding the death of Beniram 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 and deceased both were brothers and it is the case of the prosecution that when deceased Beniram demanded money for bringing liquor from his grand-mother (PW-7) then she was advised by Ghasiyaram (PW-5) not to give money and on that account, the deceased became angry and

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caught hold of Ghasiyaram (PW-5) and he was not releasing and apprehending threat to his life, the appellant is said to have assaulted his brother by knife. The aforesaid act of the appellant is supported by the statement of Ghasiyaram (PW-5), Ku. Sareshwari (PW-6) and Bisahin Bai (PW-7) and furthermore, pursuant to the memorandum statement of the appellant vide Ex.P-1, the weapon of the offence i.e. knife has been seized by Ex.P-2, which was sent for FSL and in the FSL report Ex.P-25, human blood has been found on the knife, as such, it is the appellant who has assaulted his brother by knife, by which he suffered grievous injuries and died.

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11. Now, the question for consideration is whether the case of the appellant 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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12. In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of I.P.C., 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 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

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1 (2002) 3 SCC 327

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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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13. 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 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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2 (2009) 15 SCC 635

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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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14. 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

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3 (2012) 8 SCC 450

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the act of the accused and that he knew that such act of his is likely to cause death.

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15. 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 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

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4 (2017) 3 SCC 247

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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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16. 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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17. 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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18. Reverting to the facts of this case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellant and deceased both are

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real brothers and when the deceased demanded money from his grand-mother Bisahin Bai (PW-7), she was advised by Ghasiyaram (PW-5) not to give money, then the deceased caught hold of Ghasiyaram (PW-5) and apprehending threat to his life, the appellant is said to have assaulted his brother (deceased) by knife, as such, there was intention as well as knowledge that the injury caused to the deceased is likely to cause his death, but the appellant had not taken any undue advantage and acted in unusual manner and all the four ingredients of Exception 4 to Section 300 of I.P.C. are satisfied.

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19. In view of the above, 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, as he is in jail since 21.03.2012 i.e. 11 years. However, the fine sentence and default sentence imposed upon the appellant by the learned trial Court shall remain intact. The appellant is in jail, he be released from jail forthwith, if not required in any other case.

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

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

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Ashok

Saroj @ Sanjay Kamar v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Saroj @ Sanjay Kamar v. The State Of Chhattisgarh

Case brief

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What did the court decide?

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