Ishwar Kamar Vs State of Chhattisgarh

----------------------------------------------------------------------------------------------- For Appellant : Mr.Ravindra Sharma, Advocate For Respondent-State : Mr.Sanghrash Pandey, Dy.G.A. -----------------------------------------------------------------------------------------------

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Sachin Singh Rajput, Judge

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Judgment on Board

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Per Ramesh Sinha, C.J.

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20/06/2024

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This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 07.10.2023 passed by the Additional Sessions Judge, Gariyaband, in Sessions Trial No.30/2021, whereby the appellant-accused has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine, to further undergo RI for six months.

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Case of the prosecution, in brief, is that complainant Dhanesh

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Kumar (PW-1) lodged the complaint stating that on 30.07.2020 at about 4 P.M. when he was returning at village Churra, he demanded bidi from one Kodo Gada (PW-5) to which he denied and in the meantime from inside the house of Kodo Gada, the appellant raised alarm and thereafter some dispute arose between complainant Dhanesh Kumar Netam (PW-1) and the appellant, in the meantime, Amrit Bai came on the spot and stopped them. After sometime of the incident, the complainant went for washing rice in his field along with Amrit Bai, his daughter Mukti, son Vikas Netam, daughters of Kodo @ Rajkumar namely Anjali and Dhani also there, at about 6 P.M. the appellant came with intent to kill the complainant with bow and arrow. During the dispute, deceased Amrit Bai came in front of the appellant and provoked him to kill her before killing the complainant and during the dispute, the appellant caused injury to her with arrow, as a result, Amrit Bai died.

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On the basis of complaint of the complainant, police of Police Station Chhura registered the FIR No.102/2020 (Ex.P-1) for offence under Section 302 of the IPC against the appellant. Morgue Intimation No.32/2020 (Ex.P-3) was registered and during morgue intimation Police Station Chhura recorded the memorandum statement of the appellant vide Ex.P-17 and on the basis of his memorandum statement, seized the bow from the appellant vide Ex.P-18. The appellant was arrested on 9.8.2020

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vide arrest memo Ex.P-19. Dead body of the deceased was sent for postmortem to the Community Health Center, Chhura where Dr.B.K.Arya (PW-9) vide Ex.P-12 conducted postmortem and found following injuries:-

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Left side near Arela lacerated wound 2-3 cm with blood deep inside appox. 8-10 cm.

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Abdomen – NAD

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Both upper limb and lower limb extend with pallor.

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Rigor mortis present all over body.

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The doctor has opined that cause of death was deep insion lacerated wound in left side lung to heard with hemothorax due to sharp pointed long object penetration to lead cardiopulmonary arrest and according to postmortem report, it may be homicidal death in nature .

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Statements of the witnesses were recorded. After due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Gariyaband, who in turn, committed the case to the Court of Additional Sessions Judge, Gariyaband on transfer for trial. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has been falsely been implicated in crime in question.

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In order to bring home the offence, the prosecution examined as

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many as 14 witnesses and exhibited 31 documents. The appellantaccused examined none in his defence nor any document has been exhibited in his support.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 07.10.2023 convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

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Mr.Ravindra Sharma, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment. There was no motive or intention on the part of the appellant to cause death of the deceased and during the quarrel between the complainant and the appellant, deceased Amrit Bai came in between and suffered injury and died. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence,

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the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr.Sanghrash Pandey, learned Deputy Government Advocate for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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

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The first question for consideration would be, whether death of deceased Amrit Bai was homicidal in nature ?

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The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.B.K.Arya (PW-9), who conducted postmortem, has come to the conclusion that cause of death was deep insion lacerated wound in left side lung to heard with hemothorax due to sharp pointed long object penetration to lead cardiopulmonary arrest and according to postmortem report, it may be homicidal death in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Amrit Bai was homicidal in nature is the finding of fact based on

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evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

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Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of witnesses Dhanesh Kumar Netam (PW-1) (son of the deceased), Ku.Dhani Shatre (PW-2), Ku.Anjali Shatre (PW-3) and Vikas Netam (PW-4) (grandson of the deceased). Thus, on the basis of testimonies of Dhanesh Kumar Netam (PW-1), Ku.Dhani Shatre (PW-2), Ku.Anjali Shatre (PW-3) and Vikas Netam (PW-4), it is clear that it is the appellant who on the fateful date and time has caused grievous injuries to the deceased, due to which she died. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused her death. Accordingly, we hereby affirm the said finding.

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The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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

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Haryana 1 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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The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the 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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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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Likewise, in the matter of State v. Sanjeev Nanda 3, 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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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 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

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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(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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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 the 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 of the IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to 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; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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In the present case, Dhanesh Kumar Netam (PW-1) (son of the deceased), Ku.Dhani Shatre (PW-2), Ku.Anjali Shatre (PW-3) and Vikas Netam (PW-4) are eyewitnesses of the incident. Dhanesh Kumar Netem (PW-1) in para 2 of his statement has stated that the incident happened about a year ago. On the date of incident,

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5 (2019) 6 SCC 122

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he had gone to his neighbour Kodo’s house to ask for bidi. When Kodo came out of his house, he asked bidi, but Kodo said that he did not have bidi. Then accused Ishwar asked from inside the house who is there, then Kodo said that it is Dhanesh Bhaiya, then the accused said call him, then he did not go inside, he was sitting outside only. After that, accused Ishwar came from inside with a stick and started abusing him. Hearing the above incident, his mother deceased Amritbai came, his son Vikas was also there with him. In para 3 of his statement, he has stated that his daughter Mukti Netam asked him to wash rice and bring it for cooking. While he was washing rice, his son Vikas Netam and daughter Anjali Dhani told him that accused Ishwar has come from his house with bow and arrow. When the children told him that the accused was coming with bow and arrow, he thought that the accused would not kill with bow and arrow and he was washing rice at that time. The accused had pointed a bow and arrow at him to kill him, then his mother Amrit Bai came to the place where he was washing rice and said why would you kill her son, if you want to kill her, then kill her. After this, the accused pointed the arrow and killed his mother Amrit with arrow and ran away. The arrow hit his mother in the chest.

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Child witness Ku.Dhani (PW-2) has stated in para 2 of her evidence that on the date of incident her great father (bade papa) was washing rice in the field, at that time, accused Dhanesh came

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with bow and arrow saying that he will kill Dhanesh, at that time, deceased Amrit Bai came forward and started saying why would you kill her son Dhanesh, she said you will kill her. Then the accused killed Amrit Bai with arrow. Amrit Bai was hit by an arrow in her chest. After that Amritbai pulled out the arrow herself. The accused ran away from there after killing Amrit Bai with arrow. Ku.Anjali (PW-3) and Vikas Netam (PW-4) have also deposed the same version as deposed by Ku.Dhani (PW-2).

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Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that the during the dispute, deceased Amrit Bai came in front of the appellant and provoked him to make assault with her before assault to the complainant and during the dispute, the appellant caused injury to her with arrow, as a result, Amrit Bai died. There was no premeditation on the part of the appellant to cause death of deceased Amritbai. The appellant did not have any intention to cause death of deceased Amritbai, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Amritbai, as such, his case would fall within the purview of Exception 4 of 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

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committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner.

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Considering the above-stated facts, also considering the evidence of eyewitnesses Dhanesh Kumar Netam (PW-1), Ku.Dhani Shatre (PW-2), Ku.Anjali Shatre (PW-3) and Vikas Netam (PW-4) and taking into consideration that the appellant is in jail since 9.8.2020, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC.

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Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo RI for 7 years.

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The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court.

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The criminal appeal is partly allowed to the extent indicated hereinabove.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/-

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(Sachin Singh Rajput) (Ramesh Sinha) Judge Chief Justice

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Bablu

Ishwar Kamar v. State of Chhattisgarh

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Ishwar Kamar v. State of Chhattisgarh

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