Vimal Setiya Vs State of Chhattisgarh

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Digitally signed by AKHILESH BEOHAR Date: 2024.12.05 18:26:08 +0530

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2024:CGHC:47707-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1432 of 2019

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Vimal Setiya, S/o Santosh Setiya, aged about 38 Years, R/o Shankarpara, Udiya Mohalla, Ward No.6, Supela, Police Station, District- Durg, Chhattisgarh.

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...Appellant

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versus

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State of Chhattisgarh, Through Police of Police Station Supela, District- Durg, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Govind Dewangan, Advocate. For Respondent : Mr. Ashutosh Shukla, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and

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Hon'ble Shri Radhakishan Agrawal, JJ.

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Judgment on Board

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(04.12.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27.06.2019 passed in Sessions Trial No.26/2019 by the 4^th Additional Sessions Judge, Durg, C.G., by which the appellant stands convicted for the offence under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.500/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month.

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Case of the prosecution, in brief, is that in the intervening night of 1-2/12/2018 in between 10:00 pm to 1:30 am at village Shankarpara, Udiya Mohalla, Police Station Supela, District Durg, present appellant committed the murder of his wife- Basanti Sethiya (hereinafter called as 'deceased') by strangulation and thereby committed the aforesaid offence. The matter was reported to the police station by PW-3 Ku. Anjali Sethiya, pursuant to which, merg intimation Ex.P-9 was recorded and FIR Ex.P-7 was registered against the appellant. Spot map Ex.P-2 was prepared. Inquest proceeding was conducted vide Ex.P-4 and dead body was sent for postmortem examination which was conducted by PW-6 Dr. S.K. Agrawal, who has proved the postmortem report Ex.P-12. According to postmortem report, cause of death of the deceased was asphyxia due to antemortem strangulation. During investigation, memorandum statement of the appellant was recorded vide Ex.P-13, pursuant to which, one scarf was seized vide Ex.P-14 .

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Statements of the witnesses were recorded under Section 161 Cr.P.C. After due investigation, appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 9 witnesses and brought on record 20 documents. However, in his defence, he has examined none and not exhibited any documents.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the aforesaid offences and sentenced as above against which the present appeal has been preferred.

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Learned counsel for the appellant submits that considering the finding of the learned trial Court, at the most, offence under Section 304 Part-II IPC is made out against the appellant as there was no intention or premeditation on the part of the appellant to cause death of deceased. The appellant is in jail since 02.12.2018 i.e. 6 years years. Therefore, conviction of the appellant under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C and he be sentenced to the period already undergone by him.

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Per contra, learned State counsel supports the impugned judgment and submits 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 cannot be converted to Part-II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.

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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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The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-12),

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in which, cause of death of deceased was opined to be asphyxia due to antemortem strangulation , proved by Dr. S.K. Agrawal (PW-5), which 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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Now, the question would be, whether the appellant is the author of the crime in question ?

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Considering the statement of PW-3 Ku. Anjali Sethiya, who is the eye-witness to the incident and has clearly supported the case of the prosecution, it is the appellant, who on the date of incident, under the state of intoxication, quarreled with the deceased and caused her death. This apart, pursuant to the memorandum statement of appellant, one scarf was seized. The trial Court, after considering the oral and documentary evidence available on record, clearly recorded a finding that it is the appellant who has committed the aforesaid offence. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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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 his 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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The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1

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has elaborately dealt with the issue and observed in paragraphs 20 and

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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 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

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1 (2017) 3 SCC 247

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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 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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Reverting to the facts of the present case in light of the aforesaid decision of Supreme Court in the matter of Arjun (supra), it is quite vivid that there was no intention or premeditation on the part of the appellant to cause death of the deceased as on the date of incident, both appellant and deceased were sleeping along with their daughter in the house and all of a sudden, in the state of intoxication, appellant quarreled with the deceased and caused her death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased, but no intention of causing death of deceased can be attributed to him.

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In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and as 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, therefore, his conviction for offence punishable under Section 302 of IPC is altered to

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Section 304 Part-II of IPC and he is sentenced to ten years rigorous imprisonment in place of life imprisonment. However, fine amount with default stipulations imposed thereunder by the trial Court shall remain intact.

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In the result, the criminal appeal is partly allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith for necessary information and 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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Akhilesh

Vimal Setiya v. State of Chhattisgarh

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Vimal Setiya v. State of Chhattisgarh

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