Virat Rathiya Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1547 of 2017

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[Arising out of judgment dated 29.08.2017 passed by the Special Judge (Under Atrocities Act), Raigarh, District Raigarh (C.G.) in Sessions Case No.205900000/14/2016]

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Virat Rathiya, Son of Dev Singh, aged about 32 years, Occupation Cultivator, resident of Village Bhagora, Police Station Chakradharnagar, District Raigarh, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Chakradharnagar, Civil and Revenue District Raigarh, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Pushpendra Kumar Patel, Advocate For Respondent/State : Mr. Tarkeshwar Nande, Panel Lawyer

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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 ( 13. 03.2024)

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Sanjay Kumar Jaiswal, J.

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1 . In this criminal appeal filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.), the appellant-accused has called in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 29.08.2017, passed by the Special Judge (under Atrocities Act), Raigarh, District Raigarh, Chhattisgarh in Sessions Case No.205900000/14/2016, whereby he has been convicted and sentenced as under :-

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Conviction	Sentence
Under Section 302 of IPC	Imprisonment for life with fine of Rs.5000/-, in default of payment of fine amount, additional rigorous imprisonment for 4 months.
Under Section 324 of IPC (2 counts)	Rigorous imprisonment for 1 year with fine of Rs.1000/- (on each count), in default of payment of fine amount, additional rigorous imprisonment for 1 month (on each count).

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Both the sentences were directed to run concurrently.

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2 . The case of the prosecution, in nutshell, is that, on 06.10.2015, at about 8:00 P.M., Appellant Virat Rathiya was quarrelling with his wife Nanmati and when his daughter-in-law Jyotika Rathiya (PW-10) came to stop, appellant tried to assault her also, then she ran away towards her house. The appellant assaulted his wife in parchhi of his house by means of pointed iron rod. When Jageshwar Rathiya tried to intervene and make him understand, why do you quarrel with your wife, then appellant assaulted him on his chest with the pointed iron rod, due to which, rod penetrated into his chest. Again, he assaulted Jageshwar Rathiya into his ribs with the same iron rod. Jageshwar Rathiya got scared and ran away towards his badi . Appellant also assaulted Mangli (PW-9) wife of Jageshwar Rathiya on her chest by means of same iron rod, due to which, Mangli (PW-9)

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suffered injuries over her person. Thereafter, appellant ran away from the spot. On account of injuries sustained, Jageshwar Rathiya fell into the badi and died. After the death of the deceased, on the basis of information given by Mangli (PW-9), merg intimation was recorded vide Ex.P/24, on the basis of which, First Information Report was registered vide Ex.P/25 and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/16. The dead body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/9), conducted by Dr. Nityanand Kumar (PW-5), it was opined that the cause of death was due to hemorrhage and shock as a result of penetrating wound caused by sharp pointed object and nature of death was homicidal. Injured Mangli (PW-9) and Jyotika Rathiya (PW-10) were also medically examined by Dr. S. Lakda (PW-11) vide Ex.P/21 & Ex.P/19 respectively. Thereafter, memorandum of appellant was recorded vide Ex.P/12, pursuant to which, an iron rod and shirt of appellant were recovered at his instance vide Ex.P/11, which was sent for its chemical examination to Forensic Science Laboratory, but FSL report has not come for the reasons best known to the prosecution.

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3 . After completion of the investigation, the appellant was chargesheeted for the offence punishable under Sections 302 & 324 (2

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counts) of IPC before the concerned jurisdictional Criminal Court and thereafter, the case was committed to the Court of Sessions Judge, Raigarh from where the learned Special Judge (under Atrocities Act), Raigarh received the case on transfer for hearing and trial in accordance with law, in which the appellant abjured his guilt, took the plea of false implication and entered into trial.

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4 . During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 30 documents. In defence, appellant has not examined any witness. Statement of the appellant was recorded under Section 313 of Cr.P.C., 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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5 . After conclusion of the trial, the trial Court, by impugned judgment dated 29.08.2017, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offence punishable under Sections 302 & 324 (2 counts) of IPC and sentenced him as mentioned hereinabove, against which, the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence.

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6 . Mr. Pushpendra Kumar Patel, learned counsel appearing for the appellant submits that the learned trial Court is absolutely

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unjustified in convicting the appellant for offence under Sections 302 & 324 (2 counts) of IPC as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that injuries found on the body of Mangli (PW-9) and Jyotika Rathiya (PW-10) were simple in nature and the doctor has opined that such injuries occurred during agricultural work, hence, their evidence is not reliable and credible. Statements of Mangli (PW-9) and Jyotika Rathiya (PW-10) regarding Jageshwar Rathiya being murdered by the appellant are also not clear and reliable. He also submits that no seizure has been made from the appellant and no FSL report has come on record for the reasons best known to the prosecution. It is contended that if the appellant is found to have committed the crime, then only one injury was found on the body of Jageshwar Rathiya and he has no enmity with appellant. It is further contended that there was no motive or premeditation on the part of the appellant to cause death of deceased and only because of some altercation, on sudden provocation, he assaulted the deceased, due to which, he died. As such, the case of the present appellant would fall within the purview of Exception 4 to Section 300 of IPC, as his act is culpable homicide not amounting to murder and, therefore, the conviction of the appellant herein for offence under Section 302 of IPC can be converted/altered to an offence under

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Section 304 Part-II of IPC and as the appellant is in jail since more than 8 years, he be sentenced for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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7 . Per contra, Mr. Tarkeshwar Nande, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of statements of the prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 324 (2 counts) of IPC and it is not the case where conviction of the appellant for offence under Section 302 of IPC requires to be altered to Section 304 Part-II of IPC. Thus, the present appeal deserves to be dismissed.

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8 . 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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9 . The first and foremost question is as to whether the death of the deceased Jageshwar Rathiya was homicidal in nature ?

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10. The learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/9), wherein it has been opined that the cause of death was due to hemorrhage and

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shock as a result of penetrating wound caused by sharp pointed object, which was conducted by Dr. Nityanand Kumar (PW-5). Accordingly, taking into consideration the postmortem report (Ex.P/9) and the statement of Dr. Nityanand Kumar (PW-5), we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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11. Now, the next question would be whether the accused-appellant is the author of the crime in question, which the learned trial Court has recorded in affirmative by mainly relying upon the evidence of Mangli (PW-9) and Jyotika Rathiya (PW-10) ?

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12. The case of the prosecution against the appellant is based on direct evidence. The direct witnesses of the incident are Mangali (PW-9) and Jyotika Rathiya (PW-10), who themselves were injured in the incident as a result of death of Jageshwar Rathiya. Mangli Bai (PW-9) wife of deceased Jageshwar Rathiya has deposed in her Court statement that appellant was quarreling with his wife and when her husband Jageshwar Rathiya went to stop him, appellant came running and assaulted her husband on the chest with an iron rod, then, he assaulted him near neck as well as stomach with same iron rod. Thereafter, appellant assaulted her with the same iron rod near her chest and above

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stomach near ribs. Due to the said fight/quarrel, her husband Jageshwar Rathiya fled towards badi and shouted to Manisha and Jyotika, when they came, they saw that Jageshwar Rathiya had died.

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13. Similarly, Jyotika Rathiya (PW-10) has deposed in her Court statement that appellant was quarreling with his wife and after hearing, she went to the house of appellant where she saw that appellant had thrown his wife away after quarreling and he was strangulating the neck of his father, to which she released. After the fight, when she was standing near gate, appellant came running with an iron rod and assaulted her over the chest, then he assaulted Jageshwar Rathiya over his neck and chest with the iron rod. Jageshwar Rathiya fled towards badi where he died. Mangli Bai (PW-9) had stated her that appellant had also assaulted her with an iron rod.

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14. Mangli Bai (PW-9) and Jyotika Rathiya (PW-10) remained consistent in their statements and their statements have not been rebutted. Thus, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant who had not only caused injuries to Mangli Bai (PW-9) and Jyotika Rathiya (PW-10) by assaulting them with an iron rod, but, in fact, he also assaulted Jageshwar Rathiya with an iron rod, as a result of which, he died. Accordingly, we hereby

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affirm the said finding as same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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15. The aforesaid finding brings us to the next question for consideration, which is, whether the learned trial Court is justified in convicting the appellant herein for offence under Section 302 of IPC or same is liable to be converted to offence under Section 304 Part-I or Part-II of IPC ?

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16. The Supreme Court in the matter of Sukhbir Singh v. State of

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Haryana1 has observed as under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

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17. The Supreme Court in the matter of Gurmukh Singh v. State of

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Haryana2 has laid down certain factors which are to be taken

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part-II of IPC, which state as under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the Court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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18. Likewise, in the matter of State v. Sanjeev Nanda3 their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part-II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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19. Further, the Supreme Court in the matter of Arjun v. State of 4

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Chhattisgarh , has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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

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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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20. 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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21. Further, the Supreme Court in the matter of Rambir v. State 5

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(NCT of Delhi) , has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as 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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5 (2019) 6 SCC 122

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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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22. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite clear from the statements of Mangli (PW-9) and Jyotika Rathiya (PW-10) that appellant did not have a dispute with Jageshwar Rathiya or them, rather appellant himself had a dispute with his wife and father in his family. Being neighbors and close relatives, Jyotika Rathiya (PW-10) and Jageshwar (deceased) had come to dissuade and pacify them, but then appellant got angry with them, chased them and assaulted them with an iron rod, in which, Mangli (PW-9) and Jyotika Rathiya (PW-10) suffered injuries of normal nature. They have not suffered any fracture or grievous injury in the incident, but Jageshwar died due to wound penetrated by iron rod through his ribs and heart as well as pericardium were damaged, which became the cause of his death.

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23. As such, it is quite clear that there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellant assaulted Jageshwar Rathiya, due to which, he died. Thus, in view of dictum of the Supreme Court in the above-

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referred cases and looking to the cause of death, the appellant must have had knowledge as well as intention that such injuries inflicted by him on the body of the deceased would likely to cause his death, therefore, the act of the appellant herein would fall within the purview of Exception 4 to Section 300 of IPC, as it completely satisfies the four necessary ingredients of Exception 4 to Section 300 of 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, consequently, 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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24. Considering that there was no premeditation on the part of the appellant to cause death of Jageshwar Rathiya, but the injuries caused by him are likely to cause death, appellant is convicted for offence punishable under Section 304 Part-II of IPC and we award him sentence for a period of 10 years rigorous imprisonment by reducing it from imprisonment for life. The fine sentence awarded by learned trial Court shall remain intact. However, in view of the discussion made herein above, the conviction and sentence of the appellant for offence under Section 324 (2 counts) of IPC, as awarded by the learned trial Court, is hereby maintained and shall remain as it is.

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25. The criminal appeal is allowed in part to the extent indicated herein-above.

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26. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and needful action, if any.

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

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Yogesh

Virat Rathiya v. State Of Chhattisgarh

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Virat Rathiya v. State Of Chhattisgarh

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