Partly allowed

Pawan Singh @ Narhar v. State Of Chhattisgarh

Chhattisgarh HC6 Mar 2023CRA/648/2014

Case brief

AI extract

What is this about?

Appellant appealed against conviction for murder (IPC 302) of his wife. High Court held death was homicidal but circumstances constituted a sudden fight without premeditation or cruel manner. Conviction altered to culpable homicide not amounting to murder (IPC 304-II) with 10 years' imprisonment.

What did the court decide?

Conviction for murder set aside; convicted under Section 304 Part-II IPC; sentenced to 10 years rigorous imprisonment; fine remains.

Pawan Singh @ Narhar Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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CRA No. 648 of 2014

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 648 of 2014

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Pawan Singh @ Narhar S/o Ramayan Singh Binjhwar, aged about 29 years, R/o Village Kesla, Police Chowki - Hardibazar at Post Dharampur, Police Station Kusmunda District (Revenue & Civil) Korba (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh through District Magistrate Korba District (Revenue & Civil) - Korba (C.G.)

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---- Respondent

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For Appellant :- Mr. Keshav Dewangan, Advocate. For Respondent :- Mr. Wasim Miyan, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput

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Judgment On Board (06.03.2023)

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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 27.03.2014 passed by the learned Additional Sessions Judge, Katghora, District Korba, in Sessions Trial No. 40/2013 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo

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imprisonment for life and fine of ₹ 1000/-; in default of payment of fine additional rigorous imprisonment for six months.

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Case of the prosecution is that on 27.04.2013 at night between 11:30 pm to 12:00 pm appellant demanded money from his wife-deceased Ganga Bai for purchasing oil which she did not give and offered him, her silver anklet but appellant refused to take her anklet and on that account appellant assaulted her by axe by which she suffered injury and died which was witnessed by Akash (PW-2) who informed the same to his maternal grand-father (PW-1) and thereafter the aforesaid offence was informed to the Police. FIR and Merg intimation were registered vide Ex.P/2 and Ex.P/1 respectively. Dead body of deceased Ganga Bai was subjected to the postmortem by Dr. R.K. Divya (PW-7) and as per postmortem report (Ex.P/17), the cause of death is shock due to massive external hemorrhage and nature of death is homicidal. As per the memorandum statement of the appellant (Ex.P/5), axe was recovered vide Ex.P/6 and sent for the chemical analysis to FSL, but FSL report has not been brought on record.

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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 his guilt and entered into defence.

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In order to bring home the offence prosecution has examined as many as 07 witnesses and exhibited 18 documents and defence in

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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 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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Mr. Keshav Dewangan, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He further submits that only in the sudden quarrel, injury is said to have been caused by the appellant to deceased-Ganga Bai therefore, scope and ambit of criminal overt act would not travel beyond Section 304 Part II of the IPC and thus, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and, as such, offence under Section 304 Part-II of the IPC would be made out and the appellant be sentenced to the period already undergone by him as he is in jail since 23.04.2013 and appeal may be allowed in part.

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On the other hand, Mr. Wasim Miyan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and, 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 the deceased – Ganga Bai was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/17) which was proved by Dr. R.K. Divya (PW-7) 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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10.Now, the next question for consideration would be whether the appellant is author of the crime in question?

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This question has also been answered in affirmative by the trial Court holding that the appellant assaulted his wife, deceased Ganga Bai, by axe. Considering the statement of Akash (PW-2) son of the deceased and appellant herein, the trial Court has concluded that it is the appellant who assaulted deceased-Ganga Bai by axe by which she suffered injury and died. The axe was recovered from the spot, which is the house by the appellant herein. As such, the trial Court has rightly held the appellant to be the author of the crime in question.

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

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13.The Supreme Court in the matter of Sukhbir Singh v. State of

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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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14.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 of 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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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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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15.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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16.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,

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

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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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17.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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18.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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19.Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that on the date of offence appellant demanded money from his wife, deceased Ganga Bai, which she did not give to him and offered him her silver anklet but he denied to take, out of which quarrel took place between them and out of anger appellant assaulted his wife, deceased Ganga Bai, by axe which was supported by the statement of Akash (PW-2) son of the deceased. Akash (PW-2) has also stated in his statement before the Court that the appellant and deceased lived happily before the aforesaid incident and, as such, there was no premeditation on the part of the appellant to cause her death and only in the spur of moment, out of anger appellant assaulted his wife, deceased Ganga Bai. However, the appellant must have had knowledge that such injury inflicted by him on the body of the

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5 (2019) 6 SCC 122

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deceased would likely to cause her 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. (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 under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC.

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20.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 him 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 the deceased but the injuries caused by him 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 and sentenced to undergo rigorous imprisonment for 10 years, but the fine sentence imposed by the learned trial Court shall remain intact.

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21.This criminal appeal is party allowed to the extent indicated hereinabove.

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit

Pawan Singh @ Narhar v. State Of Chhattisgarh

Case brief

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Pawan Singh @ Narhar v. State Of Chhattisgarh

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