Shankar Bhaumik @ Lalu Vs State of Chhattisgarh

learned Additional Sessions Judge, Bhanupratappur, District: North Bastar Kanker (C.G.) in Sessions Trial No. 27 of 2018 by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine amount, additional R.I. for six months.

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2 . Case of the prosecution, in brief, is that on 17.06.2018, between 9 to 10 pm, the appellant assaulted his landlord Shyam Singh with Bamboo stick as a result of which, Shyam Singh suffered grievous injuries and died. Thereafter, the matter was reported by Dinbandhu Uikey (PW-9) vide Merg Intimation Exhibit-P/13. FIR was registered vide Exhibit-P/6 and the dead body of the deceased was sent for autopsy. Inquest was conducted vide Ex. P/2. Post Mortem was conducted by Dr. Sukhdev Shinde (PW-8) and his report is Exhibit-P/11 wherein, he has opined the death of the deceased as homicidal. Pursuant to memorandum statement of appellant vide Exhibit-P/8, Bamboo stick was recovered from the possession of appellant vide Exhibit-P/9 seized articles were sent for FSL and in FSL Report (Ex.P/18), human blood was found on bamboo stick.

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3 . After due investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in

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which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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4 . In order to bring home the offence, prosecution has examined as many as 9 witnesses and brought into record 20 documents. The defence has examined none and not exhibited any document.

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5 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of I.P.C. and sentenced as above against which the present appeal has been preferred.

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6 . Learned counsel for the appellant submits that if the case of prosecution is taken as it is, at the most, offence under Section 304 Part-II of the IPC is made out against the appellant and the offence committed by the appellant would fall within Exception 4 to Section 300 of I.P.C., therefore, his conviction under Section 302 of I.P.C. be altered either to Part-I or Part-II of Section 304 of I.P.C. and the appellant is in jail since 18.06.2018, therefore, the appeal be allowed in part.

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7 . Per contra, learned State counsel, would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant

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cannot be converted to either Part-I or Part-II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.

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8 . 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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9 . The first question for consideration is, whether the death of deceased Shyam Singh was homicidal in nature ?

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10. Learned trial Court has recorded an affirmative finding in this

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regard relying upon the post mortem report (Ex.P-11) proved by Dr. Sukhdev Shinde (PW-8), which in our considered opinion, 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.

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11. Now, the question would be, whether the appellant is the author of the crime in question ?

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12. The learned trial Court has also answered this question in affirmative relying upon the statements of Kanti Bai (PW-1), Kumari Uikey (PW-2) and Sanjeet Mallik (PW-3) who were the eye witnesses and further relying upon the fact that pursuant to the memorandum statement of the appellant weapon of offence i.e. bamboo stick was seized on which in FSL Report (Ex.P/18), blood was found. The aforesaid findings recorded by the Trial Court in this regard that the appellant has caused the death of

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the deceased is correct finding based on evidence available on record and as such, it has rightly been held that the appellant is the perpetrator of the crime.

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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 their 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 ?

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14. At this stage, it would be appropriate to notice the judgment rendered by the Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 in which their Lordships have elaborately dealt with the aforesaid 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

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1 (2017) 3 SCC 247

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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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15. 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 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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16. 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 judgment, it is quite vivid that there was no premeditation on the part of the appellant to cause death, but as the finding recorded by trial Court in Para 23 relying upon the statement of PW-1 Kanti Bai and PW-3 Sanjeet Mallik, a brief altercation took place between the appellant and the deceased on account of vacating the premises in which the appellant was residing as tenant and the deceased was landlord of the said premises and the appellant out of anger in the spur of moment is said to have assaulted the deceased with bamboo stick due to which the deceased suffered injuries and died. Further considering the medical evidence proved by Dr. Sukhdev Shinde (PW-8), in his PM Report (Ex.P/11) in which the injuries were found mostly on the non-vital part of the body. As such, there was no premeditation on the part of the appellant to cause the death of the deceased Shyam Singh and only on account of sudden quarrel, erupted between them, out of sudden anger and in heat of passion, the appellant assaulted the deceased with Bamboo stick by which he suffered injuries and died. However, the appellant must have had the knowledge that his act would likely to cause the death of the deceased.

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17. In that view of the matter, we are of the considered opinion that the case of the appellant is covered within Exception 4 to Section

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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 302 of IPC is altered to Section 304 Part II of IPC. As the appellant is in jail since 18.06.2018, i.e. for more than 6 years, 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.

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18. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.

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19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.

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Sd/Sd/( Sanjay K. Agrawal ) ( Radhakishan Agrawal ) JUDGE JUDGE

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Saurabh

Shankar Bhaumik @ Lalu v. State of Chhattisgarh

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Shankar Bhaumik @ Lalu v. State of Chhattisgarh

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