Partly allowed

Soma Ram v. State Of Chhattisgarh

Chhattisgarh HC19 Feb 2024CRA/1445/2017

Case brief

AI extract

What is this about?

The Division Bench allowed the appeal partly, setting aside the murder conviction. The court found the death was homicidal but resulted from a sudden fight in heat of passion without undue advantage, converting the charge to under Section 304 Part-II IPC.

What did the court decide?

Conviction for murder under Section 302 IPC set aside and convicted for Section 304 Part-II IPC. Sentenced to period already undergone in jail. Fine remains intact. Appellant released if not implicate

Soma Ram Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1445 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1445 of 2017

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(Arising out of judgment dated 21.06.2017 passed in Sessions Trial No.21/2017 by the Sessions Judge, Jashpur, District Jashpur, C.G.)

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Soma Ram S/o Lohara Nagesiya aged about 52 years, R/o Village Kawai, Police Station Sanna, District Jashpur Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through Police Station Sanna, District Jashpur Chhattisgarh.

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---- Respondent

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For Appellant	:- Mr. Arpit Agrawal, Advocate/Panel
	Lawyer appointed by High Court
	Legal Services Committee.
For State/Respondent	:- Mr. Shaleen Singh Baghel, Deputy
	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 Judgment On Board (20.02.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence

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CRA No. 1445 of 2017

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dated 21.06.2017 passed by the Sessions Judge, Jashpur, District Jashpur, Chhattisgarh in Sessions Trial No. 21/2017 by which appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of 1,000/-;₹ in default of payment of fine additional rigorous imprisonment for 2 months.

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Case of the prosecution in, nutshell, is that on 19.01.2017 at about 6:00 pm at village Kawai, Ganjhutola, Police Station Sanna, District Jashpur Chhattisgarh, appellant assaulted Sukhdev Nagesiya (now deceased) by axe by which he suffered grievous injuries and died. The said incident was witnessed by Jatru Ram (PW-2), who informed the same to Ramdhani Ram (PW-1) pursuant to which Ramdhani Ram (PW-1) reported the matter to the police that under the influence of liquor appellant assaulted Sukhdev Nagesiya (deceased) by which he suffered grievous injuries and died. Merg intimation and FIR were registered vide Exs. P/2 & P/1, respectively. Nazari Naksha was prepared vide Ex.P/6. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/14) proved by Dr. Sunil Kumar Lakda (PW-12)

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CRA No. 1445 of 2017

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cause of death was coma due to head injury and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/9) weapon of offence i.e. axe has been seized vide Ex.P/10. Seized articles were sent for chemical analysis to FSL and in FSL report (Ex.P/22) on the weapon of offence i.e. axe (Article C) stains of blood was found and on clothes of the deceased (Article D) human blood was found.

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After due investigation, appellant herein was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 13 witnesses and exhibited 23 documents and defence in support of its case has neither examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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CRA No. 1445 of 2017

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Arpit Agrawal, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that taking the case of the prosecution as it is, at best, the conviction for offence under Section 304 Part II would be made out and the appellant is in jail since 20.01.2017, more than 7 years, and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Shaleen Singh Baghel, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the

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CRA No. 1445 of 2017

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offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, 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 gone through the records with utmost circumspection.

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard, the learned trial Court has recorded the finding in affirmative that the death of Sukhdev Nagesiya (deceased) was homicidal in nature on the basis of postmortem report (Ex.P/14) proved by Dr. Sunil Kumar Lakda (PW-12), which is the 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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CRA No. 1445 of 2017

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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Considering the statement of eye witness Jatru Ram (PW2), in which he has clearly implicated the appellant herein in crime in question by stating that he has seen the appellant herein assaulting the deceased by axe by which he suffered grievous injuries and died and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/9) axe was seized (Ex.P/10) on which in FSL report (Ex.P/22) blood was found, the trial Court has rightly held that it is the appellant who assaulted the deceased by axe by which he (deceased) suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 has elaborately dealt with the issue and

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1 (2017) 3 SCC 247

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CRA No. 1445 of 2017

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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 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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CRA No. 1445 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 the matter of Arjun (supra), the Supreme Court has held that 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 IPC.

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Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)² has laid down four ingredients which should be tested for bring a case within the purview

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2 (2019) 6 SCC 122

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CRA No. 1445 of 2017

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of Exception 4 to Section 300 of IPC, which reads as

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under:-

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

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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

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

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Bearing in mind the principles of law laid down by their

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Lordships of the Supreme Court in above-stated judgments, it is quite vivid that there was no premeditation on the part of the appellant to cause death of Sukhdev Nagesiya (deceased) and only under the influence of liquor, he (appellant) is said to have assaulted the deceased by axe by which he (deceased) suffered grievous injuries and died. As per medical report only two injuries were found on the head of the deceased and no fracture was found. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause his death, as such, this

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CRA No. 1445 of 2017

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is a case which would fall within the purview of Exception

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4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 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 under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC.

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In view of the aforesaid discussion, the conviction of the appellant 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 to cause death of Sukhdev Nagesiya (deceased) and the injuries caused by him were not sufficient in the ordinary course of nature to cause death of Sukhdev Nagesiya, the appellant is convicted for offence punishable under Section Section 304 Part-II of the IPC and he is sentenced to the period already undergone, as he is in jail since 20.01.2017, more than 7 years, however, the fine amount imposed by the learned trial Court shall

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CRA No. 1445 of 2017

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remain intact. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

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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 to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Soma Ram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Soma Ram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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