Partly allowed

Kamla Kindo v. State of Chhattisgarh

Chhattisgarh HC27 Nov 2024CRA/1521/2019

Case brief

AI extract

What is this about?

Appellant appealed conviction for murder and life sentence arising from death of his wife by iron rod assault. High Court held no premeditation or intention to kill existed, finding case covered by Exception 4 IPC. Conviction altered to culpable homicide not amounting to murder (Section 304 Part-II IPC) with imprisonment reduced to eight years; fine retained.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; sentence reduced from life imprisonment to eight years rigorous imprisonment.

Kamla Kindo Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Digitally signed by AKHILESH BEOHAR Date: 2024.11.29 16:46:21 +0530

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2024:CGHC:46768-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1521 of 2019

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Kamla Kindo, S/o Chhotya Kindo, aged about 46 Years, Occupation- Agriculture/ Labour, Caste - Uranw, R/o VillageUalkiya, Samratpara, Thana Sitapur, District- Sarguja, Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh, Through - The Police Station Sitapur, District Sarguja, Chhattisgarh.

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... Respondent

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For Appellant : Mr. K.K. Dewangan, Advocate. For Respondent : Mr. Amit Buxy, 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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(28.11.2024)

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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 04.09.2019 passed in Sessions Trial No.18/2019 by the Sessions Judge,

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Ambikapur, District Sarguja, C.G., by which the appellant stands convicted & sentenced as under:-

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Conviction		Sentence
Under Section 302 of Indian Penal Code (for short, ‘IPC’)	Imprison Rs.500/- of fine rigorous months.	ment for life and fine of , in default of payment to undergo additional imprisonment for six

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Case of the prosecution, in brief, is that in the intervening night of 4-5/12/2018 in between 1:00-2:00 am at village Ulkiya, BarbehlaSamratpara, District Sarguja, present appellant assaulted his wife-Josfina Kindo (hereinafter called as 'deceased') by iron rod, due to which, she suffered grievous injuries over her body and succumbed to the injuries. The matter was reported to the police station by PW-1 Ku. Anjali, pursuant to which, merg intimation Ex.P-1 was recorded, FIR Ex.P-2 was registered against the appellant and spot map Ex.P-4 was prepared. Inquest proceeding was conducted vide Ex.P-9 and dead body was sent for postmortem examination which was conducted by PW-6 Dr. Martin Nikunj, who has proved the postmortem report Ex.P-15. According to postmortem report, cause of death of the deceased was due to haemorrhagic shock on account of excessive blood loss and head injury . During investigation, memorandum statement of the appellant was recorded vide Ex.P-10, pursuant to which, one iron rod was seized vide Ex.P-11. Seized iron rod was sent to FSL for chemical examination and as per FSL report

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vide Ex.P-24, human blood has been found on the seized iron rod .

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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 24 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 appellant has been convicted on the solitary statement of PW-1 Ku. Anjali, daughter of the appellant & deceased whose evidence is not reliable and that the prosecution has not brought home the offence against the appellant beyond reasonable doubt. In alternative, he submits that at the most, offence under Section 304 Part-II IPC is made out against the appellant as there was no

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intention or premeditation on the part of the appellant to cause death of deceased and as per the evidence of PW-6 Dr. Martin Nikunj, only one injury has been found on the vital part of the body of deceased. The appellant is in jail since 05.12.2018 i.e. more than 5 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.

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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-15), in which, cause of death of deceased was opined to be due to haemorrhagic shock on account of excessive blood loss and head injury , proved by Dr. Martin Nikunj (PW-6), which is a finding of fact based on evidence available on record,

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it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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10.Now, the question would be, whether the appellant is the author of the crime in question ?

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11.Considering the statement of PW-1 Ku. Anjali, who is the eyewitness to the incident and has clearly supported the case of the prosecution, it is the appellant, who has assaulted the deceased with iron rod , by which, she suffered grievous injuries and died. This apart, pursuant to the memorandum statement of appellant, iron rod was seized, in which, human blood has also been found as per FSL report vide Ex.P-24. 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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12.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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15.The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 has elaborately dealt with the issue and observed

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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 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

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1 (2017) 3 SCC 247

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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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17.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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19.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 is evident from the statement of PW-6 Dr. Martin Nikunj, who found only one injury on the vital part of the body of deceased and other injuries were on leg and non-vital parts of the body. 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

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under Section 302 of IPC is altered to Section 304 Part-II of IPC and he is sentenced to eight 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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21.In the result, the criminal appeal is partly allowed.

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22.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

Kamla Kindo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kamla Kindo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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