Allowed

Smt. Suki Bai v. State Of Chhattisgarh

Chhattisgarh HC18 Jul 2023CRA/383/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal by a woman appellant convicted of murder in a domestic dispute involving her husband. Converting the conviction from murder to culpable homicide not amounting to murder, the court acquitted her of the graver offence and awarded life imprisonment, remitting her to the criminal jurisdiction.

What did the court decide?

The conviction under Section 302 IPC was set aside and the appellant was convicted under Section 304 Part-II IPC of the IPC.

Smt. Suki Bai Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

CRA No. 383 of 2015

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 383 of 2015

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Smt. Suki Bai W/o Late Hadamo Mandavi, aged about 40 years, Caste Madiya, Occupation Agriculturist, R/o Marenga, Purana Sarpanch Para, P.S. Mardum, District Bastar Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through P.S. Mardum, District Bastar Chhattisgarh.

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---- Respondent

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For Appellant :- Ms. Prabha Sharma, Advocate. For State/Respondent :- Mr. Soumya Rai, 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 (18.07.2023)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 16.02.2015 passed by the learned Sessions Judge, Bastar, at Jagdalpur, Chhattisgarh in Sessions Trial No. 110/2014 by which appellant

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CRA No. 383 of 2015

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has been convicted for offence under Section 302 of the IPC and

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sentenced to undergo imprisonment for life.

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Case of the prosecution, in nutshell, is that on 15.09.2014 between 5 to 6 pm at village Purana Sarpanch Para Marenga, Police Station Mardum, District Bastar, C.G., on account of domestic dispute, Hadmo (deceased), husband of the appellant herein, firstly slapped the appellant, then the appellant kicked her husband Hadmo (deceased) by which he fell down and became unconscious and thereafter, she dragged her husband to the kitchen and assaulted him by fire wood on his legs and back and burnt him by which he suffered grievous injuries and died and thereby, committed the aforesaid offence.

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It is further case of the prosecution that deceased Hadmo and appellant were husband and wife. On the date of offence domestic dispute took place between appellant and deceased Hadmo and on that account, deceased Hadmo slapped appellant herein and did not stop, even though requested by the appellant, and out of anger, appellant kicked deceased by which he fell down and became unconscious and thereafter, she dragged the deceased to the kitchen and assaulted him by fire wood on his legs and back and burnt him by which he suffered grievous injuries and died. Appellant had given extra judicial confession to Lakhmu (PW-1), younger brother of the deceased and Sudu

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(PW-2). Lakhmu (PW-1) informed the said incident to Police Station Mardum. Unregistered FIR and Merg Intimation were registered vide Ex.P/1 & Ex.P/2, thereafter, FIR and Merg Intimation were registered vide Ex.P/12 & Ex.P/11. Inquest proceedings were conducted vide Ex.P/5 and dead body was sent for postmortem. As per postmortem report (Ex.P/16) conducted by Dr. Narayan Nag (PW-9) cause of death was due to cardio respiratory arrest and shock due to chest injury and nature of death is homicidal. Pursuant to memorandum statement of appellant (Ex.P/6), fire wood was seized vide Ex. P/7.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured her guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 9 witnesses and exhibited 17 documents and defence in support of its case has neither examined any witness nor exhibited any document.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening

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paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

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Ms. Prabha Sharma, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and she has been convicted by recording a finding which is perverse to the record. She also submits that due to domestic dispute, deceased Hadmo slapped the appellant, even she requested the deceased to stop, but deceased did not stop himself, thereafter, in anger, appellant is said to have assaulted deceased Hadmo, in the spur of moment, by which deceased suffered grievous injuries. She further submits that appellant is in jail since 18.09.2014 and it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Soumya Rai, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and it is not the case of conversion where the conviction of the appellant can be converted for lesser offence, 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 gone through the records with utmost circumspection.

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The first question is whether the death of deceased Hadmo was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/16) which was proved by Dr. Narayan Nag (PW-9), which is the 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 next question for consideration would be whether the appellant has assaulted the deceased?

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Taking into consideration the fact that the incident took place inside the house and the appellant and deceased were living alone in the house and no one has entered in the house of the deceased on the date of offence; also considering the statements of Lakhmu (PW-1), younger brother of the deceased, and Sudu (PW-2), to whom appellant had given extra judicial confession that she assaulted the deceased (her husband) and further considering the fact that pursuant to the memorandum statement of the appellant (Ex.P/6), fire wood has been recovered vide Ex.P/7, it is the appellant who caused injury to the deceased. As

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such, the finding recorded by the trial Court that the appellant has assaulted the deceased is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record.

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Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

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The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 has 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 Sukhbir 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 Haryana 2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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CRA No. 383 of 2015

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accused with reference to Section 302 or Section 304 Part II of

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IPC, 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 fro 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 without 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 to cause 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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24.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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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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

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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 if there is intent and knowledge, the same would be case of Section 304 Part-I of 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.”

5 (2019) 6 SCC 122

CRA No. 383 of 2015

Returning to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that the deceased and appellant were husband and wife and on the date of offence, domestic dispute took place between them and firstly, deceased Hadmo slapped the appellant and he did not stop himself even on the request of the appellant then she kicked the deceased, who fell down and became unconscious, thereafter, appellant dragged the deceased to the kitchen and assaulted him

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by fire wood and burnt him, in anger, in the spur of moment, by which he suffered grievous injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by her on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e.

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(i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant

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under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC.

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In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to her by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of deceased Hadmo but the injuries caused by her were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC. The appellant is reported to be in jail since 18.09.2014 i.e. more than 8 years, taking into consideration the period she has already undergone, we award the sentence already undergone by her. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

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This criminal appeal is allowed to the extent indicated hereinabove.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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

Smt. Suki Bai v. State Of Chhattisgarh

Case brief

What is this about?

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Smt. Suki Bai v. State Of Chhattisgarh

Case brief

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