Partly allowed

Gulab Bhagat v. The State Of Chhattisgarh

Chhattisgarh HC5 Dec 2023CRA/734/2016

Case brief

AI extract

What is this about?

Conviction for murder (Section 302 IPC) altered to culpable homicide not amounting to murder (Section 304 Part-II IPC) where sudden fight and heat of passion existed without undue advantage or cruelty.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; convicted under Sections 201 IPC and 27 Arms Act affirmed; appellant released from jail.

Gulab Bhagat Vs The State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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CRA No. 734 of 2016

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 734 of 2016

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Gulab Bhagat S/o Late Banu Bhagat, aged about 28 years, Caste- Uraon, R/o Village- Putri Chowra, Police out post- Lodam, P.S. & District- Jashpur, Civil & Revenue District- Jashpur(C.G.).

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---- Appellant

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Versus

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State Of Chhattisgarh Through Police Out Post- Lodam, P.s. Jashpur, District Jashpur(C.G.).

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---- Respondent

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For Appellant :- Mr. A.K.Prasad, Advocate. For State :- Mr. Ashish Tiwari, Govt. Advocate

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment On Board

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(05.12.2023)

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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 herein is directed against the impugned judgment of conviction and order of sentence dated 11.05.2015 passed by the Sessions

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Judge, Sessions Division, Jashpur, District Jashpur,

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CRA No. 734 of 2016

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Chhattisgarh in Sessions Trial No.106/2015, by which, the appellant has been convicted and sentenced as under :-

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Conviction Sentence

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U/s 302 Indian Penal Code Life imprisonment and fine of Rs. 3,000/- in default of payment of fine, 3 months R.I more.

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U/s 201 Indian Penal Code 4 years of R.I and fine of Rs. 1,000/- in default of payment of fine, 1 month R.I more.

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U/s 27 of Arms Act 3 years of R.I and fine of Rs. 500/- in default of payment of fine, 15 days R.I more.

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All the sentences were directed to run concurrently.

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Case of the prosecution, in a nutshell, is that on 26.09.2015 in the night at about 11.00 pm at village Putrichoura, Police Chowki Lodam, Police Station Jashpur, District Jashpur, Chhattisgarh, appellantGulab Bhagat has assaulted Firshila Bai (since deceased) with a sharp edged weapon (Douli), by which, she suffered grievous injuries and died and thereafter, in order to screen himself from the offence, threw the dead

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body of the deceased into the Well; and thereby committed the aforesaid offence.

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CRA No. 734 of 2016

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Further case of the prosecution is that on 26.09.2015, the appellant had gone to attend the “Chhatthi Function” in the house of one Jitu Lohar in the village, where the deceased was also present. There the appellant asked Firshila Bai (deceased) to accompany him in drinking liquor, which she refused, on that account, the appellant became angry and assaulted her with a sharp edged weapon, by which, she suffered grievous injuries and died and thereafter, he threw the dead body of the deceased into the Well. As the deceased did not reach house by the late night, husband of the deceased, namely, Jagarnath has reported the matter to the Police. Spot map was prepared vide Ex. P-2 and Inquest on the dead body was prepared vide Ex.P-14. Merg Intimation was registered vide Ex. P-12. Unnumbered F.I.R. was registered vide Ex.P-7 and thereafter numbered F.I.R. was lodged vide Ex.P-8. The dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P-4) proved by Dr. Ashutosh Tirkey (PW-4), the cause of death is excessive hemorrhage through carotid vessels and departed spinal chord at neck level and death was homicidal in nature.

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Pursuant to memorandum statement of the accused vide Ex. P-18, one sharp edged weapon (Dhouli) was seized from the possession of the appellant vide Ex.P-19. Clothes of the deceased were seized vide Ex. P-21. Plain soil and blood stained soil were seized vide Ex.P-17. The seized articles were sent for chemical examination to Forensic Science Laboratory, Jashpur vide Ex.P-24 and the FSL report is Ex.P-26.

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After due investigation, the appellant herein was chargesheeted 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 by stating that he has not committed the offence and has been falsely implicated in the offence in question.

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In order to bring home the offence, prosecution has examined as many as 15 witnesses and exhibited 27 documents and defence in support of its case has not examined any witness nor has exhibited any document.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the

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appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr.A.K. Prasad, learned counsel for the appellant,

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submits that the appellant has falsely been implicated in the crime in question and he has been convicted by recording a finding which is perverse to the record. He further submits that at the most, case of the appellant would be made out under Section 304 Part II of IPC as there was no intention or premeditation on the part of the appellant and on the spur of moment, on account of refusal of the deceased for accompanying the appellant in drinking liquor, the appellant became angry and assaulted the deceased by the sharp edged weapon (Dhouli), due to which, she received grievous injuries and died. He also submits that the appellant is in jail since 28.09.2015, i.e. for more than 8 years, and as such, it is a fit case where conviction of the appellant for offence under Section 302 of IPC can be converted / altered to an offence under Section 304 Part-II of IPC.

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CRA No. 734 of 2016

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Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Ashish Tiwari, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence; death of the deceased is homicidal in nature and the appellant has threw the dead body of the deceased into the Well in order to screen himself from the aforesaid offence. He further submits that it is not the case of alteration of offence from Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified 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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Now, the first question is, whether the death of the deceased was homicidal in nature ?

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CRA No. 734 of 2016

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In this regard, the learned trial Court has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis of postmortem report (Ex.-4) proved by Dr. Ashutosh Tirkey (PW-4), 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 question for consideration would be whether the appellant is the author of the crime in question ?

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The incident has occurred in the house of Jatro Bai (PW-6), who is real eye-witness to the incident. She has stated that the appellant had asked the deceased to accompany him for drinking liquor, which the deceased refused, on that account, the appellant took out the Dhouli (sharp edged weapon) from him and assaulted the deceased, by which, she suffered grievous injuries and died, and thereafter, he threw her dead body into the Well. Furthermore, the weapon of offence i.e. sharp edged weapon (Dhouli) has been seized by the Investigating Officer, Devendra Thakur (PW-5) vide Ex. P-19 on the basis of the memorandum statement of the appellant/ accused (Ex.P-18). Hence, the finding

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recorded by the trial Court that it is the appellant, who had assaulted the deceased Firshila Bai by the sharp edged weapon, by which, she suffered grievous injuries and died, is the correct finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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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,

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1 (2002) 3 SCC 327

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CRA No. 734 of 2016

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he shall undergo further rigorous imprisonment for one year.”

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The Supreme Court in the matter of Gurmukh Singh v.

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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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(c)The intention/knowledge of the accused while inflicting the blow or injury;

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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

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2 (2009) 15 SCC 635

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CRA No. 734 of 2016

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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,

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their Lordships of the Supreme Court have held that

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3 (2012) 8 SCC 450

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CRA No. 734 of 2016

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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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“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 it is relevant who

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4 (2017) 3 SCC 247

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CRA No. 734 of 2016

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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

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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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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

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5 (2019) 6 SCC 122

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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 (iv)The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Reverting to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, admittedly, there is recovery of a sharp edged weapon (Dhouli) pursuant to the memorandum statement of the appellant, which was sent for its chemical examination and as per F.S.L report on record, the weapon of offence was stained with human blood. The incident had occurred in the spur of moment and there was no premeditation or intention on the part of the appellant to cause death of the deceased. The appellant and the deceased had gone to attend the “Chhathhi Function” in the house of Jitu Lohar and there the appellant had asked the deceased to accompany him in drinking liquor, which she refused, on that account, the appellant became angry and assaulted the deceased with the sharp edged weapon (Dhouli), by which, she suffered

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grievous injuries and died. Considering the nature of injuries which have been occurred on the neck 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 injuries inflicted by him 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(s) 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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In view of the aforesaid discussion, the conviction of the

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appellant for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC and the appellant is sentenced to the period already undergone by him, as he is in jail since 28.09.2015, i.e. for more than 8 years. However, the fine amount imposed by the

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learned trial Court shall remain intact. The conviction of the appellant under Section 201 of IPC and Section 27 of the Arms Act are hereby affirmed. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

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This criminal appeal is partly allowed .

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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) (Sanjay S. Agrawal) Judge Judge

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sunita

Gulab Bhagat v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Gulab Bhagat v. The State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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Coram

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