Allowed

Bel Singh Nag v. State Of Chhattisgarh

Chhattisgarh HC13 Mar 2023CRA/577/2014

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal wherein the appellant sought to quash a conviction for murder. The court held that the death occurred during a sudden fight without premeditation, falling under Exception 4 to IPC 300. Consequently, the conviction was altered from murder to culpable homicide not amounting to murder, and the appellant was sentenced to the terms already undergone.

What did the court decide?

The conviction for murder (Section 302 IPC) was altered to Section 304 Part I IPC, and the appellant was sentenced to the period already undergone in jail.

Bel Singh Nag Vs State Of Chhattisgarh — 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. 577 of 2014

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Bel Singh Nag, S/o Late Bhadu Ram, Aged about 35 years, Caste Halba, R/o Bhaisabeda, Badedongar, P.S. Badedongar, Civil and Revenue District Kondagaon, Chhattisgarh.

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---Appellant

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Versus

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State of Chhattisgarh through P.S. Badedongar, Civil and Revenue District Kondagaon, Chhattisgarh.

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---Respondent

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For Appellant	:- Ms.	Laxmin Kashyap, Advocate
For State	:- Mr.	Neeraj Pradhan, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board 13/03/2023

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 05/05/2014 passed by learned Additional Sessions Judge, Kondagaon in Sessions Trial No. 455/2012 whereby he has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to undergo life imprisonment with fine of

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Rs. 1,000/-, in default of payment of fine, further R.I. for three months.

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Case of the prosecution, in brief, is that on 19/02/2012 at about 1 PM at Village Bhaisabheda within the ambit of Police Station Badedongar, the appellant herein assaulted his brother Chandrapal with laathi and caused his death and he, thereby, committed the aforesaid offence.

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Further case of the prosecution is that on 19/02/2012 at about 1 PM, Chandrapal's son Chaitan (P.W.-7) had gone to the ashram for watching television but when he heard noise coming from his house, he came back and saw that his uncle Belsingh (appellant) was assaulting his father Chandrapal (deceased) with laathi in the courtyard due to which his father suffered injuries on his head and face. After assaulting, the appellant took the laathi and absconded and Chandrapal was lying on the floor covered with blood. Immediately after some time, Chandrapal succumbed to his injuries and died. Thereafter, Chaitan (P.W.-7) informed the villagers about the incident and they gathered in his house. The said incident was reported at the Police Station by Shyamlal Nag (P.W.-3) on the basis of which, merg intimation was registered vide Ex. P/7 and first information report was lodged vide Ex. P/8. During investigation, nazri naksha was prepared vide Ex. P/21 and after conducting inquest vide Ex. P/19, dead body of Chandrapal was subjected to postmortem, which was conducted by Dr. Harendra Baghel (P.W.-5) and as per the

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postmortem report (Ex. P/17), cause of death is said to be coma due to head injury and nature of death is said to be homicidal. Memorandum statement of the appellant was recorded vide Ex. P/5 and pursuant thereof, blood stained laathi was seized at his instance vide Ex. P/3. The said laathi was though sent for forensic examination, but no FSL report has been brought on record. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution examined as many as 8 witnesses and brought on record 24 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

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Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Chandrapal to be homicidal in nature and further finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

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Ms. Laxmin Kashyap, learned counsel for the appellant, would submit that Gupteshwari Nag (P.W.-6) and Chaitan (P.W.-7), who have been cited as eye-witnesses by the

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prosecution, are interested witnesses being the daughter and son of the deceased, as such, their testimony could not have been relied upon by the trial Court for convicting the appellant under Section 302 of IPC. In alternative, she would submit that there was no premeditation on the part of the appellant to cause the death of the deceased and only on account of some petty land dispute between the two brothers, appellant assaulted the deceased, as such, it is a case which is covered with Exception 4 to Section 300 of IPC and since the appellant is in jail since 21/02/2012 i.e. for more than 10 years, he be sentenced to the period already undergone by allowing the instant appeal in part.

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Per contra, Mr. Neeraj Pradhan, learned State counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for the offence in question relying upon the statements of Gupteshwari Nag (P.W.-6), daughter of the deceased, and Chaitan (P.W.-7), son of the deceased, who are eyewitnesses of the incident and they have clearly stated that they have seen the appellant assaulting their father with laathi due to which he suffered grievous injuries and died on the spot, as such, the case of the appellant would not fall within Exception 4 to Section 300 of IPC and 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 deceased Chandrapal is homicidal in nature ?

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10. Learned trial Court has answered this question in affirmative and held the death of deceased Chandrapal to be homicidal in nature relying upon the expert medical opinion of Dr. Harendra Baghel (P.W.-5) who has proved the postmortem report (Ex. P/17) in which cause of death is said to be coma due to head injury and nature of death is said to be homicidal. Considering the postmortem report (Ex. P/17) as well as the statement of Dr. Harendra Baghel (P.W.-5) and looking to the injuries suffered by the deceased on his head, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Chandrapal is homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

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11. The next question for consideration would be whether the appellant is the author of the crime in question ?

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12. This question has also been answered in affirmative by the trial Court holding that appellant assaulted his brother Chandrapal with laathi on his head and face which has also been witnessed by Gupteshwari Nag (P.W.-6), daughter of the deceased as well as Chaitan (P.W.-7), son of the deceased.

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13. Gupteshwari Nag (P.W.-6), minor daughter of the deceased, has clearly stated before the Court that she had gone to fill water and when she came back home, she saw

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that appellant, who is her uncle, was assaulting her father with laathi on his head due to which blood was oozing out and after assaulting, he kept laathi and absconded and immediately thereafter, her father Chandrapal succumbed to his injuries and died. Similarly, Chaitan (P.W.-7), son of the deceased has also stated before the Court that on the date of the incident, he had gone to the ashram to watch television but at about 1 PM, hearing the noise coming from his house, he came back and saw that appellant was assaulting his father with laathi in the courtyard due to which he suffered grievous injuries and died. Even though both of these child witnesses have been subjected to some extent of cross-examination, but they have remained consistent in their version and their testimonies inspire confidence.

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14. Moreover, pursuant to the memorandum statement of the appellant recorded vide Ex. P/5, recovery of blood stained laathi has been made at his instance vide Ex. P/3 and though it has not been proved by the prosecution by bringing FSL report on record, but the fact remains that on the basis of testimonies of Gupteshwari Nag (P.W.-6) and Chaitan (P.W.-7) followed by recovery of seized weapon of offence, learned trial Court has rightly held that appellant has assaulted the deceased by laathi due to which he suffered grievous injuries and died.

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15. The third and last question for consideration would be whether the trial Court has rightly convicted the appellant

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for offence punishable under Section 302 of IPC or his case would fall within Exception 4 to Section 300 of IPC, as contended by learned counsel for the appellant ?

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16. In order to consider the plea raised by learned counel for the appellant, it would be appropriate to notice Exception 4 to Section 300 of IPC, which states as under :-

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“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

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17. With regard to the issue in hand, in the matter of Felix

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Ambrose D'Souza v. State of Karnataka 1, the Supreme

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Court has held in paragraph 7 as under :-

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“7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 Part II IPC alone could have been rendered possible. Though the learned counsel for the respondent State strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. AS noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature. Irrespective of the silent nature of ill feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due

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1 (2009) 16 SCC 361

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to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the storeroom by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with a hammer in his hand and attempts made by the appellant to physically prevent the deceased from doing so, and use of physical force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps, neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of the moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 Part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him under Section 304 Part II IPC.”

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18. The Supreme Court in the matter of Arjun v. State of Chhattisgarh 2 has elaborately dealt with the issue at hand and observed in paragraphs 20 and 21, which reads

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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 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

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2 (2017) 3 SCC 247

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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 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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19. 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

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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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20. Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in the matter of Felix Ambrose D'souza (supra) and Arjun (supra), it is quite vivid that appellant and deceased were brothers and on account of some petty land dispute between them, on the date of offence, the appellant assaulted the deceased with laathi due to which he suffered grievous injuries and died which goes to show that there was no premeditation on the part of the appellant to cause the death of the deceased and only because of some land dispute that had taken place between the brothers, appellant had assaulted his brother out of anger and in heat of passion with the intention to cause his death. Moreover, looking to the injuries suffered by the deceased on his head, appellant must have had the intention and knowledge that his act would likely cause the death of the deceased. As such, appellant's case would fall within Exception 4 to Section 300 of IPC and his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part I of IPC and since he is in jail since 21/02/2012 i.e. more than 10 years, he is sentenced to the period already undergone. He be released forthwith, if his detention is not required in any other case.

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21. Accordingly, this criminal appeal is allowed to the extent

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indicated herein-above.

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

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Harneet

Bel Singh Nag v. State Of Chhattisgarh

Case brief

What is this about?

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Bel Singh Nag v. State Of Chhattisgarh

Case brief

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