Partly allowed

Somar Sai Pando v. State Of Chhattisgarh

Chhattisgarh HC18 Feb 2024CRA/1350/2017

Case brief

AI extract

What is this about?

Conviction under Section 302 IPC based on extra-judicial confession and recovery of a bamboo stick in a circumstantial evidence case. High Court affirmed homicidal death and guilt but altered conviction to culpable homicide not amounting to murder under Exception 4, sentencing to period already undergone.

What did the court decide?

Conviction altered from S.302 to S.304 Part-II IPC; sentenced to period already undergone; release directed if not required elsewhere; fine intact.

Somar Sai Pando Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr. A. No. 1350 of 2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1350 OF 2017

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(Arising out of Judgment & Order dated 20.7.2017 passed by Sessions Judge, Ambikapur, District Surguja in Sessions Case No.13/2017)

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Somar Sai Pando, S/o Amarsai Pando, aged about 36 years, R/o Village Phoolchuhi (Pandopara), Police Station Udaipur, District Surguja (C.G.) ... Appellant(s)

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Versus

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State of Chhattisgarh, Acting through: Station House Officer, Police Station Udaipur, District Surguja (C.G.)

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... Respondent(s)

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____________________________ For Appellant	______ :-	________________________ Mr. Anand Gupta, Advocate.
For Respondent/State	:-	Mr. Arvind Dubey, Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (19.02.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against the judgment and order dated 20.7.2017 passed by Sessions Judge, Ambikapur, District Surguja in Sessions Case No.13/2017, by which the appellant has been convicted for the offence punishable under Section

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(Cr. A. No. 1350 of 2017)

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302 of IPC and sentenced to undergo Imprisonment for Life with fine of Rs.500/- and in default of payment of fine amount, to undergo additional six months' rigorous imprisonment.

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Case of the prosecution, in brief, is that on 3.11.2016 at about 9:00 p.m., in Village Phulchuhi under Police Station Udaipur, District Surguja, the appellant assaulted his wife, Malti Bai, with bamboo stick by which she sustained grievous injuries and died. Thereafter, the appellant is said to have made extrajudicial confession to his father PW-2 Amar Sai and PW-8 Sukhdev, brother of the deceased, stating that out of anger he has assaulted his wife with bamboo stick.

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Merg Intimation regarding the death of Malti Bai was recorded vide Exhibit P-1 and on that basis, F.I.R. was registered against the appellant for the offence punishable under Section 302 of IPC vide Exhibit P-2. Sketch Map of the place of incident was prepared vide Exhibit P-3 and Nazri Naksha was also prepared by the Patwari vide Exhibit P-9. Inquest was conducted vide Exhibit P-13 and the dead-body of deceased Malti

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(Cr. A. No. 1350 of 2017)

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Bai was subjected to post-mortem which was conducted by Dr. P.S. Marco (PW-5) vide Exhibit P-10 in which the cause of death of deceased Malti Bai was opined to be hemorrhagic shock due to heady injury and the death was homicidal in nature. Clothes of the deceased were seized vide Exhibit P-19. Appellant was taken into custody and his memorandum statement was recorded vide Exhibit P-15 pursuant to which, a bamboo stick was recovered vide Exhibit P-16. In the F.S.L. report (Exhibit P-22), no blood was found on the seized bamboo stick.

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After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the Court of Chief Judicial Magistrate, Ambikapur from where, after committal, the matter was submitted for trial and its disposal in accordance with law before the Trial Court where charge for the said offence was framed and read out to the appellant who abjured his guilt, pleaded for false implication and entreated for trial.

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During the course of trial, in order to bring home the offence, the prosecution examined as many as 8

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(Cr. A. No. 1350 of 2017)

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witnesses and exhibited 22 documents. Statement of the accused-appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited.

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After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 20.7.2017, on appreciation of the oral and documentary evidence available on record, reached to the conclusion that the appellant has caused death of his wife, Malti Bai, and accordingly convicted him for the offence punishable under Section 302 of IPC and sentenced him to undergo Life Imprisonment and fine of Rs.500/- with default stipulation, against which the present appeal has been filed by the appellant.

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Mr. Anand Gupta, learned counsel appearing for the appellant, would submit that there is no eye-witness account to the incident and the appellant has been convicted solely on the basis of circumstantial

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(Cr. A. No. 1350 of 2017)

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evidence. He would further submit that the Trial Court has convicted the appellant mainly on the alleged extra-judicial confession made by the appellant before his father PW-2 Amar Sai and the brother of deceased, PW-8 Sukhdev, which is a weak piece of evidence and cannot be used unless corroborated by other substantive piece of evidence. He would further submit that even otherwise if the entire prosecution case is taken as it is, the case of the appellant would fall under Exception 4 to Section 300 of IPC and the alleged offence is liable to be converted to one under Section Section 304 (Part-II) of IPC and the appellant be sentenced for the period already undergone, as he is in jail since 4.11.2016 i.e., for a period of more than 7 years, and the appeal be allowed accordingly.

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Mr. Arvind Dubey, learned Government Advocate, however, would submit that the present is a case of house murder where the appellant has killed his wife and her body was recovered from his house and no probable explanation has been offered by him in his statement recorded under Section 313 of CrPC. Moreover, the appellant has made extra-judicial

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(Cr. A. No. 1350 of 2017)

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confession before PW-2 Amar Sai and PW-8 Sukhdev. As such, the Trial Court has rightly convicted the appellant for the offence in question and the instant appeal is liable to be dismissed.

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

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The first question for consideration, as to whether the death of deceased Malti Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. P.S. Marco (PW-5) who has conducted the post-mortem of deceased Malti Bai and proved the post-mortem report (Exhibit P-10) in which the cause of death of deceased Malti Bai has been opined to be hemorrhagic shock due to head injury and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court, holding that the death of deceased Malti Bai was homicidal in nature.

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(Cr. A. No. 1350 of 2017)

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Now, the next question for consideration is, as to whether the appellant has caused death of his wife Malti Bai?

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It is not the case of direct evidence, rather it is based on circumstantial evidence. In order to convict the appellant for the offence in question, the Trial Court has culled out following incriminating circumstances in paragraph 16 of the impugned judgment:-

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(i) On the date of incident, the appellant and the deceased were alone in the house and to which no explanation has been given by the appellant.

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(ii) The appellant made extra-judicial confession to PW-2 Amar Sai and PW-8 Sukhdev in respect of death of his wife.

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(iii) Pursuant to memorandum statement of the appellant, a bamboo stick has been recovered.

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Taking into consideration the finding recorded by the Trial Court and also considering the fact that the appellant himself has made extra-judicial confession before his father Amar Sai (PW-8) admitting that out of anger and on the spur of the moment, he had assaulted his wife by bamboo stick. Similarly, the appellant has also made extra-judicial confession before PW-8 Sukhdev, brother of the deceased Malti

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(Cr. A. No. 1350 of 2017)

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Bai, of his assaulting his wife Malti Bai by bamboo stick. A bamboo stick has also been seized pursuant to the memorandum statement of the appellant. In that view of the matter, the finding recorded by the Trial Court that the appellant has caused death of his wife Malti Bai is correct finding of fact based on evidence available on record. We hereby also affirm the said finding of the Trial Court, holding that the appellant has caused death of his wife Malti Bai.

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However, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered to Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 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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1 (2017) 3 SCC 247

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(Cr. A. No. 1350 of 2017)

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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, 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

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(Cr. A. No. 1350 of 2017)

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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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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) 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) of IPC.

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(Cr. A. No. 1350 of 2017)

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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 appellant to cause death of his wife Malti Bai, as stated by the appellant before his father Amar Sai (PW-2) that the deceased was abusing him and out of anger and on the spur of the moment, he assaulted her by bamboo stick and she died and he had brought her home. Thus, it is quite established that though the appellant had no intention but he must have had knowledge that the assault made by him on the deceased is likely to cause her death. As such, the case of the appellant would fall under Exception 4 to Section 300 of IPC and his conviction under Section 302 of IPC can be altered to one under Section 304 (Part-II) of IPC and it is accordingly held so.

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Consequently, we set aside the conviction of the appellant for the offence punishable under Section 302 of IPC and the sentence of Life Imprisonment awarded thereunder as well, except the fine amount and its default clause which shall remain intact. Instead, we convict him for the offence punishable

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(Cr. A. No. 1350 of 2017)

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under Section 304 (Part-II) of IPC and sentence him to the period already undergone, as he is in jail since 4.11.2016 i.e., for a period of more than 7 years. The appellant is directed to be released from jail forthwith, if his detention is not required in connection with any other offence.

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In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary, if any, at the earliest.

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

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sharad

Somar Sai Pando v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Somar Sai Pando v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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