Omkar Patle Vs State of Chhattisgarh

Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, the Appellants herein have preferred this criminal appeal calling in question legality, validity and correctness of

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the judgment of conviction and order of sentence dated 8.5.2018 passed by the 2^nd Additional Sessions Judge, Surajpur, District Surajpur, Chhattisgarh in Sessions Trial No.71 of 2017 by which they have been convicted and sentenced as under:

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Conviction	Sentenc	e
Under Section 302 of	Life imprisonm	ent	and
the Indian Penal Code	fine of Rs.50	i each	i , in
	default of payme i	nt of i	fine,
	additional	rigo	rous
	imprisonment months	for	3

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Name of deceased is Nanduram. According to the case of prosecution, on 9.7.2017 at about 7-8 p.m. in Village Davna, Police Station Jhilmili, District Surajpur (Chhattisgarh), the Appellants tied up both the hands of Nanduram with a gamchha (scarf) , assaulted him with lodha of silbatta and belt and thereby caused his death. The incident was reported to Police Station Jhilmili by Santu (PW8) on 10.7.2017 upon which Morgue Intimation (Ex.P21) was recorded in the said police station. Spot map (Ex.P16) was prepared. Dead

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body of Nanduram was sent to C.H.C., Bhaiyathan for post mortem examination. Post mortem report is Ex.P1. As per the post mortem report (Ex.P1), which is proved by Dr. B.C. Painkra (PW1), cause of the death was syncope, mode of the death was excessive brain haemorrhage due to head injuries and nature of the death was homicidal. First Information Report (Ex.P22 and P23) was registered. From Appellant Omkar Patle, one red-brown leather belt was seized vide Ex.P9. From the place of occurrence, one lodha made of stone and one white cotton gamchha were seized vide Ex.P12. The Appellants were arrested vide Ex.P18 and P19. The seized articles were sent to Forensic Science Laboratory (FSL) for examination. FSL Report is Ex.P17 according to which human blood was found on gamchha (article B) and lodha (article C). Statements of witnesses were recorded. On completion of investigation, a charge-sheet was filed against the Appellants. The Trial Court framed charge under Section 302 of the Indian Penal Code against them.

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To rope in the Appellants, the prosecution examined as many as 10 witnesses and exhibited 25 documents. In examination under Section 313 of the Code of Criminal Procedure, the Appellants denied the guilt and pleaded innocence. In defence, they did not examine any witness, but, exhibited 1 document.

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On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellants as mentioned in first paragraph of this judgment. Hence, the instant appeal.

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Learned Counsel appearing for the Appellants submits that the Appellants have been falsely implicated in the crime in question and they have been convicted by recording a finding which is perverse to the record. He further submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the Indian Penal Code and the Appellants are in jail since 10.7.2017, i.e., for more than 7 years, and, as such, it is a case where conviction of the Appellants for offence

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under Section 302 IPC can be converted/altered to offence under Section 304 Part-II IPC. Thus, the present appeal deserves to be allowed in full or in part.

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Per contra, Learned Counsel appearing for the Respondent/State, supporting the impugned judgment, submits that the prosecution has been able to prove the offence under Section 302 IPC beyond reasonable doubt and the Trial Court has rightly convicted the Appellants for the said offence and the present is not a fit case for alteration of the offence from Section 302 IPC to Section 304 Part-II IPC where the conviction of the Appellants could be modified for lesser offence. Hence, the appeal deserves to be dismissed.

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We have heard the rival contentions put-forth on behalf of the parties and perused the evidence available on record with utmost circumspection.

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The f i rst & foremost question for consideration is whether the death of Nanduram was homicidal in nature, which has been answered by the Trial Court in

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afrmative relying upon the post mortem report fi (Ex.P1) proved by Dr. B.C. Painkra (PW-1), which, in our considered opinion, is a correct f i nding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby afrm the said f fi i nding.

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Now, the question for consideration would be whether the Appellants assaulted the deceased?

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10. The Trial Court in paragraph 111 of its judgment has held that on the date of offence, due to an old enmity, the Appellants, out of anger, assaulted Nanduram (deceased) by lodha made of stone and belt after tyingup his hands, as a result of which, he suffered grievous injuries and died. This finding is supported by the evidence of eyewitness Barelal (PW9), who has clearly deposed that he witnessed the Appellants assaulting Nanduram by lodha made of stone and belt after tying him up with a gamchha, Santu (PW8), who is brother of the deceased and who lodged the FIR (Ex.P22 and P23) and Tarelal (PW3) in whose presence

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memorandum statement (Ex.P8) of Appellant Omkar was recorded and recovery of the weapons of offence, namely, lodha made of stone, belt and gamchha, was made from the house of the Appellants and their seizure (Ex.P9) was prepared. Taking all the aforesaid facts into consideration and further considering the FSL Report (Ex.P17) that human blood was found on gamchha and lodha , we are of the considered opinion that the finding recorded by the Trial Court that it is the Appellants who assaulted Nanduram (deceased) by gamchha , lodha made of stone and belt, by which, he suffered grievous injuries and died, is the 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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11. Now, the question is, whether the case of the Appellants would fall under Exception 4 to Section 300 of IPC?

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12. In order to consider whether the case of the Appellants is covered under Exception 4 to Section 300

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IPC, it would be appropriate to notice the decision rendered by the Supreme Court in Sukhbir Singh v. State of Haryana¹ wherein it has been 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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13. The Supreme Court in Gurmukh Singh v. State of

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Haryana² , has laid down certain factors which are to

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be taken into consideration before awarding

1 (2002) 3 SCC 327

2 (2009) 15 SCC 635

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appropriate sentence to the accused with reference to Section 302 or Section 304 Part II IPC, which state as

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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 for 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 with 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 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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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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14. Likewise, in State v. Sanjeev Nanda³ , their Lordships

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of the Supreme Court have held that once knowledge that it is likely to cause death is established but

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3 (2012) 8 SCC 450

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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.

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15. Further, the Supreme Court in Arjun v. State of Chhattisgarh⁴ 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 is it relevant who

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4 (2017) 3 SCC 247

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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

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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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16. In 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 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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17. Further, the Supreme Court in Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should

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5 (2019) 6 SCC 122

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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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18. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the Appellants to cause the death of Nanduram. It is also evident from the evidence on record that on the date of offence, out of anger that Nanduram had left Durga after a few months of marrying her, who was sister of Appellant Omkar and daughter of Appellant Shyam Bai, in a spur of moment, the Appellants assaulted Nanduram (deceased) by gamchha, lodha made of stone and belt, as a result of which he suffered

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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 record, it is quite vivid that there was no intention on the part of the Appellants to cause the death, but, they must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause his death and as such, this is a case which would fall within the purview of Exception 4 to Section 300 IPC, as the act of the Appellants 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 Appellants had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the Appellants under Section 302 IPC is altered/converted to Section 304 Part-II IPC.

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19. In view of the aforesaid discussion, the conviction of the Appellants for offence punishable under Section 302 IPC is converted to Section 304 Part-II IPC.

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20. Against the conviction under Section 304 Part-II IPC,

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the Appellants are sentenced with rigorous imprisonment for 10 years and fine of Rs.50 each and in default of payment thereof they shall be liable to undergo additional rigorous imprisonment for 1 month. The sentence imposed upon them against the

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conviction under Section 302 IPC is set aside.

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21. The criminal appeal is allowed in part to the extent

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shown above.

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22.Records of the Trial Court be sent back along with a copy of this judgment forthwith for necessary compliance.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Gopal

Omkar Patle v. State of Chhattisgarh

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Omkar Patle v. State of Chhattisgarh

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