Appeal against murder conviction. Held death was homicidal but caused in sudden fight without premeditation. Conviction u/s 302 IPC altered to u/s 304 Part II IPC. Initial fine ordered maintained in default of other punishment.
Conviction under Section 302 of IPC altered to Section 304 Part II of IPC. Initial sentence including fine maintained.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 392 of 2015
---- Appellant
Versus
---- Respondent
| For Appellant | : Ms. Laxmeen Kashyap, Advocate. |
|---|---|
| For State | : Mr. Soumya Rai, P.L. |
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board 17.07.2023
Sanjay K. Agrawal, J.
(Ambikapur) (C.G.) by which the appellant stands convicted & sentenced as under:-
| Conviction | Sentence | In Default |
|---|---|---|
| U/s 302 of IPC | RI for life with a fine | In default of payment of |
| amount of Rs.1,000/- | fine amount additional | |
| RI for 3 months |
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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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to either Part-I or Part-II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.
10. Learned trial Court has recorded an affirmative finding that the death of the deceased was homicidal in nature relying upon the post mortem report (Ex.P-4) proved by Dr. Umashankar Singh (PW-03) 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.
11. Now, the question would be, whether the appellant is the author of the crime in question ?
12. The learned trial Court has answered this question in affirmative relying upon the evidence of Pramila Uraon (PW-2) and Jitan Uraon (PW-5) who are the eye witnesses and have clearly supported the case of prosecution and they have clearly stated that on the date of offence, deceased Savitri and appellant's wife Sunita have consumed liquor and the deceased has objected to the appellant's wife that why she has consumed liquor. In between the appellant came out and assaulted the deceased, due to which she died. As such, they were quarreling over some issue related to Hadiya liquor.
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As such, it has rightly been held that the appellant is the perpetrator of the crime.
13. 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 ?
14. 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 Haryana1 wherein it has been observed
as under :-
15. 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
1 (2002) 3 SCC 327
2 (2009) 15 SCC 635
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consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, which state as under :-
“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 :
(a) Motive or previous enmity;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused with premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
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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.”
16. 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 the act of the accused and that he knew that such act of his is likely to cause death.
17. 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 :-
“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)
“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
3 (2012) 8 SCC 450
4 (2017) 3 SCC 247
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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.”
“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”.
18. In the matter of Arjun (supra), the Supreme Court has held that
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19. 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:
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”
20. 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 above stated judgments, it is quite vivid that there was no premeditation on the part of the appellant to cause death as the appellant's wife Sunita is the Jethani (Sister-in-law) of deceased Savitri. Both of them were quarreling on the date of incident on the issue, that acquitted co-accused Sunita has consumed liquor. In between the appellant started assaulting deceased Savitri with the wooden stick by which she suffered grievous injury and died. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased.
21. 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 the deceased, his conviction for offence punishable under Section
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302 of IPC is altered to Section 304 Part II of IPC. Since the appellant is in jail since 23.08.2013, we hereby sentence him to the period already undergone, however, the sentence of fine amount as imposed by the trial Court is hereby maintained. We direct, the appellant be released forthwith, if not required in any other case.
22. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.
23. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.
Sd/Sd/-
( Sanjay K. Agrawal ) ( Radhakishan Agrawal ) Judge Judge
Saurabh
3 issues framed by the court
Whether the appellant's case falls under Exception 4 to Section 300 of IPC due to no premeditation and sudden fight.
Whether the conviction u/s 302 IPC should be altered to Section 304 Part II IPC.
Whether the sentencing considerations under Section 302/304 IPC are satisfied.
Colour shows how this judgement treated each authority
Sukhbir Singh v. State of HaryanaReferred¶37
(2002) 3 SCC 327 · Who else cites this
Gurmukh Singh v. State of HaryanaReferred¶40
(2009) 15 SCC 635 · Who else cites this
State v. Sanjeev NandaReferred¶65
(2012) 8 SCC 450 · Who else cites this
Arjun v. State of ChhattisgarhRelied on¶66
(2017) 3 SCC 247 · Who else cites this
Surinder Kumar v. UT, ChandigarhReferred¶67
(1989) 2 SCC 217 · Who else cites this
Arumugam v. StateReferred¶73
(2008) 15 SCC 590 · Who else cites this
Rambir vs. State (NCT of Delhi)Referred¶78
4 provisions across 2 enactments
Parashuram
State of Chhattisgarh
Sanjay K. Agrawal
Radhakishan Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
