Rajesh Dhruw Vs State Of Chhattisgarh

1. This criminal appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been preferred by the appellant-accused herein against the impugned judgment dated 08.05.2017, passed by the Sessions Judge, Dhamtari (C.G.) in Sessions Trial No.26 of 2016, by which, appellant has been convicted for offence punishable under Section 302 of Indian Penal Code (for short “IPC”) and sentenced to undergo life imprisonment with fine of Rs.1000/-, in default of payment of fine amount, additional rigorous imprisonment of 1 month.

¶15

2. The case of the prosecution, in a nutshell, is that, on 12.04.2016, at about 7:00 AM, near Kahuva Dabri Sagon Nursery at village Aroud

¶16

2

¶17

within the ambit of Police Station Arjuni, District Dhamtari (C.G.), the appellant-accused has assaulted his sister-in-law by means of pick-axe, due to which, she suffered grievous injuries on her head and back and died.

¶18

3. Further case of the prosecution is that on 12.04.2016, at about 7:00 AM, Pooja Dhruw (since deceased) and Suhasini Sinha went for doing the work under MNREGA, when they reached near Kahuva Dabri Sagon Nursery at village Aroud, at that relevant time, the appellant-accused came and altercation took place between him and Pooja Dhruw (his sister-in-law). Thereafter, appellant-accused has quarreled with her and on sudden anger, he assaulted her by means of pick-axe, due to which, she suffered grievous injuries on her head and back. She was taken to Masihi Hospital, Dhamtari, where doctors declared her dead, pursuant to which, merg intimation was given to the Police vide Ex.P/19 on the basis of which, First Information Report was registered against the appellant-accused vide Ex.P/20. Inquest proceedings were conducted vide Ex.P/4. The dead body of deceased Pooja Dhruw was sent for postmortem examination and in the postmortem report (Ex.P/15), Dr. D.K. Bisen (PW-6) opined that the cause of death seems to be hemorrhagic and neurogenic shock which was caused by multiple injuries over vital organs and nature of death was homicidal. Thereafter, appellant-accused was arrested vide Ex.P/11 and his memorandum statement was recorded vide Ex.P/7, pursuant to which, seizure of blood stained pick-axe was

¶19

3

¶20

affected vide Ex.P/8. The said pick-axe was subjected to FSL examination vide Ex.P/25 and according to FSL report (Ex.P/27), blood was found on the seized pick-axe.

¶21

4. After completion of the investigation, the appellant was chargesheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Court and thereafter, the case was committed to the Court of Sessions Judge, Dhamtari (C.G.) for hearing and trial in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entered for trial.

¶22

5. During the course of trial, in order to bring home the offence, prosecution has examined as many as 10 witnesses and exhibited 27 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

¶23

6. After conclusion of the trial, the learned trial Court, by impugned judgment dated 08.05.2017, on appreciation of the oral and documentary evidence available on record, has convicted and sentenced the appellant-accused as mentioned herein-above, against which, this appeal has been preferred by the appellantaccused calling in question the legality, validity and correctness of

¶24

4

¶25

the impugned judgment.

¶26

7. Mr. Suresh Tandan, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that testimonies of eye-witnesses, namely, Smt. Fuleshwari Sahu (PW-1), Smt. Suhasini (PW-3) and Ganga Prasad Dhruv (PW-5) are doubtful. Their statements are not trustworthy and cannot be relied upon to rest the conviction of the appellant. In alternative, learned counsel for the appellant submits that if the entire prosecution case is accepted as it is, then also the appellant is said to have committed death of the deceased in spur of the moment and there was no motive or premeditation on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant assaulted the deceased by means of pick-axe on her head, due to which she suffered grievous injuries and died. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the 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 and as the appellant is in jail since 16.04.2016 i.e. more than 7 years, he be awarded the sentence for the period already undergone by him. Hence, the present appeal

¶27

5

¶28

deserves to be allowed in full or in part.

¶29

8. Per contra, Mr. S.S. Baghel, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant-accused for offence under Section 302 of IPC. Exception 4 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant-accused under Section 302 of IPC requires to be converted/altered to Section 304 Part-II of IPC, thus, the present appeal deserves to be dismissed.

¶30

9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

¶31

10. The first and foremost question is as to whether the death of the deceased was homicidal in nature ?

¶32

11. The learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly, considering postmortem report (Ex.P/15) which is duly proved by the evidence of Dr. D.K. Bisen (PW-6) and the statement of eyewitnesses Smt. Fuleshwari Sahu (PW-1) and Smt. Suhasini (PW-3). Accordingly, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased Pooja Dhruw is homicidal in nature,

¶33

6

¶34

as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

¶35

12. Now, the next question would be whether the accused-appellant herein is the author of the crime in question ?

¶36

13. Eyewitnesses Smt. Fuleshwari Sahu (PW-1) and Smt. Suhasini (PW-3) have stated that appellant-accused came on the way to workplace of Pooja Dhruw and were quarelling on the issue that Pooja Dhruw separated the brothers, the appellant-accused seems to be in evasive mood, he is said to have started abusing as well as assaulting his sister-in-law with pick-axe, pursuant to which, she suffered grievous injuries on her head and back and died. Thereafter, the matter was reported to the police and investigation was carried out, in which memorandum statement of appellantaccused (Ex.P/7) was recorded pursuant to which, blood stained pick-axe is said to have been recovered vide seizure memo (Ex.P/8). The said pick-axe was sent for FSL examination vide Ex.P/25, and in FSL report (Ex.P/27), blood was found on the said pick-axe. The fact remains that it is the appellant-accused who on sudden quarrel and under heat of passion, assaulted his sister-inlaw by means of pick-axe, due to which, she suffered grievous injuries on multiple parts of the body, which is duly proved by the postmortem report (Ex.P/15) conducted by Dr. D.K. Bisen (PW-6). Accordingly, we hereby affirm the finding recorded by the learned

¶37

7

¶38

trial Court that the appellant-accused is the author of the crime in question.

¶39

14. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant-accused for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellant-accused ?

¶40

15. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under :-

¶41

“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.”

¶42

16. The Supreme Court in the matter of Gurmukh Singh v. State of

¶43

Haryana2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the

¶44

1 (2002) 3 SCC 327

¶45

2 (2009) 15 SCC 635

¶46

8

¶47

accused with reference to Section 302 or Section 304 Part II of IPC, which state as under :-

¶48

“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 :

¶49

(a) Motive or previous enmity;

¶50

(b) Whether the incident had taken place on the spur of the moment;

¶51

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

¶52

(d) Whether the death ensued instantaneously or the victim died after several days;

¶53

(e) The gravity, dimension and nature of injury;

¶54

(f) The age and general health condition of the accused;

¶55

(g) Whether the injury was caused without premeditation in a sudden fight;

¶56

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

¶57

(i) The criminal background and adverse history of the accused;

¶58

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

¶59

(k) Number of other criminal cases pending against the accused;

¶60

(l) Incident occurred within the family members or close relations;

¶61

(m) The conduct and behaviour of the accused after the incident.

¶62

Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

¶63

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

¶64

The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view,

¶65

9

¶66

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.”

¶67

17. Likewise, in the matter of State v. Sanjeev Nanda3 their Lordships

¶68

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.

¶69

18. Further, the Supreme Court in the matter of Arjun v. State of 4

¶70

Chhattisgarh , has elaborately dealt with the issue and observed

¶71

in paragraphs 20 and 21, which reads as under :-

¶72

“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)

¶73

“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

¶74

3 (2012) 8 SCC 450 4 (2017) 3 SCC 247

¶75

10

¶76

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.”

¶77

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)

¶78

“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”.”

¶79

19. In the matter of Arjun (supra), the Supreme Court has held that if

¶80

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

¶81

11

¶82

intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

¶83

20. Further, the Supreme Court in the matter of Rambir v. State (NCT 5

¶84

of Delhi) , 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 :-

¶85

“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

¶86

(i) There must be a sudden fight;

¶87

(ii) There was no premeditation;

¶88

(iii) The act was committed in a heat of passion; and

¶89

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

¶90

21. 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 there was no premeditation on the part of the appellant-accused to cause death of the deceased. Smt. Fuleshwari Sahu (PW-1) has stated in her cross-examination that she saw that deceased and appellant were shouting upon each other and there was a scuffle between them. Smt. Suhasini (PW-3) has stated in her cross-examination that she heard after the incident that there was an illicit relationship between appellant and deceased. Likewise, Ganga Prasad Dhruv (PW-5) has stated in his cross-examination that he told to the Police about illicit relations of appellant and deceased. He further stated that several meetings were convened in the society and in the meetings, instructions

¶91

5 (2019) 6 SCC 122

¶92

12

¶93

were given to the deceased that she would not have any relation with the appellant. Hence, after examining the evidence of aforementioned eye-witnesses, it cannot be said that there was premeditation on the part of the appellant to commit murder of deceased. However, looking to the injuries sustained by deceased, as recorded by Dr. D.K. Bisen (PW-6), which have been caused on the body of the deceased, the appellant-accused must have had the knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant-accused completely satisfies the four necessary ingredients of Exception 4 to Section 300 of 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-accused under Section 302 of IPC can be altered/converted to the Section 304 Part-II of IPC.

¶94

22. In view of the aforesaid discussion, the conviction of the appellantaccused 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-accused to cause death of the deceased but the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant-

¶95

13

¶96

accused is convicted for offence punishable under Section 304 Part II of IPC. Since the appellant-accused is in jail from 16.04.2016 i.e. more than 7 years, taking into consideration the period he has already undergone, we award him sentence already undergone by him and the fine sentence imposed by the learned trial Court shall remain intact. Accordingly, the appellant-accused be released from jail forthwith, if not required in any other case.

¶97

23. This criminal appeal is partly allowed to the extent indicated herein-above.

¶98

24. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

¶99

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

¶100

Yogesh

Rajesh Dhruw v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajesh Dhruw v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sukhna Pahadi Korwa Vs State Of Chhattisgarh

Panchram Vs State Of Chhattisgarh

Akela Prasad Basor @ Chhod Bigan Vs State Of Chhattisgarh

G.S. Dewangan Vs Union Of India and Ors.

Chain Singh Dhanuhar @ Chainu Vs State Of Chhattisgarh

Premlal Sahu Vs State Of Chhattisgarh