Sarju Ram Dhankar Vs the State of Chhattisgarh

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.08.2019, passed by the learned Eighth Additional Sessions Judge, Durg, in Sessions Trial No.21/ 2018, by which, the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 3 months.

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2 . Case of the prosecution, in brief, is that on 21.10.2017 at 8:30 P.M. near Borewell, Aamroad, Police Station- Patan, District Durg, the appellant herein assaulted his elder brother Narayan Dhankar (now deceased) by wooden stick, by which, he suffered grievous injuries and died; thereby, the offence has been committed. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-4, FIR was registered vide Ex.P-5, Inquest was conducted vide Ex.P-2 and dead body of deceased Narayan Dhankar was subjected to post-mortem, which was conducted by Dr. Ashish Sharma (PW-21), who proved the post-mortem report vide Ex.P-17, in which,

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cause of death was stated to be severe head injury. Pursuant to memorandum statement of the appellant (Ex.P-8), wooden stick was seized vide Ex.P-9, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-27), human blood was found on the seized weapon of offence i.e. wooden stick. After due investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 25 witnesses and exhibited 32 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for

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life imprisonment against which the present appeal has been preferred.

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5 . Mr. Anupam Dubey, learned counsel for the appellant, would submit that, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant, as the appellant, who is younger brother of deceased, has caused the death of his elder brother by wooden stick on the fight taken place between them and only one major injury on the vital part of the body was found as per the post-mortem report. As such, there was no premeditation & intention on the part of the appellant, but he had knowledge that the injury caused by him is likely to cause death. Therefore, the conviction of appellant for offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he is in jail since 22.10.2017.

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6 . Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 304

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Part-II of I.P.C., therefore, the appeal deserves to be dismissed.

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

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8 . The first question for consideration as to whether the death of deceased Narayan Dhankar was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-17) proved by Dr. Ashish Sharma (PW-21), according to which, cause of death was stated to be severe head injury and also considering the statement of eye-witness and other evidence available on record, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . Now, the next question is, whether the appellant has caused the death of his brother Narayan Dhankar ?

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10. Considering the finding of the trial Court relying upon the statement of Dhuleshwar Kumar @ Dileshwar (PW-3) who is the eye-witness and further considering the fact that pursuant to memorandum statement of the appellant, weapon of offence i.e. wooden stick was seized on which

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human blood was found as per the FSL report (Ex.P-27), we are of the considered opinion that the finding recorded by the trial court that it is the appellant who had caused the death of deceased is a correct finding of fact based on evidence available on record and accordingly, we affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ?

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12. 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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“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 offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but

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1 (2017) 3 SCC 247

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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 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

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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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13. 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 of I.P.C. 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 I.P.C.

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14. 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, as the fight has taken place between the two brothers and appellant has assaulted his elder brother by the wooden stick lying therein, by which, he suffered grievous injuries and died. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death and, as such, the case of appellant would fall under Exception 4 to Section 300 of I.P.C.

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15. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section

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304 Part-II of I.P.C. and the appellant is sentenced to 8 years rigorous imprisonment.

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

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17. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Ashok

Sarju Ram Dhankar v. the State of Chhattisgarh

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Sarju Ram Dhankar v. the State of Chhattisgarh

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