Brother convicted under Section 302 IPC for strangulating his sibling during a quarrel after the deceased returned home drunk and broke household articles. The High Court found a sudden fight without premeditation in heat of passion and altered the conviction to Section 304 Part-II IPC, sentencing him to period already undergone.
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(Criminal Appeal No.1642 of 2017)
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1642 of 20 17
[Arising out of judgment dated 13.09.2017, passed in Sessions Case No.72 of 2016 (State of Chhattisgarh v. Bhuvan Patel), by the Sessions Judge, Bemetara (C.G.)]
Bhuvan Patel, Son of Lohit Ram Patel, aged about 51 years, Resident of Village Lodhi, Semariya, Police Station Bemetara, District Bemetara (Chhattisgarh)
---- Appellant (In jail)
Versus
State of Chhattisgarh, through Police Station Bemetara, District Bemetara (Chhattisgarh)
---- Respondent
----------------------------------------------------------------------------------------- For Appellant : Mr. Sameer Singh, Advocate For Respondent : Mr. Rahul Tamaskar, G.A.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board (15.02.2024)
Sanjay K. Agrawal, J
(1) This criminal appeal filed by the appellant-accused herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 13.09.2017, passed by the Sessions Judge, Bemetara in Sessions Case No.72 of 2016, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine amount,
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sentenced to undergo additional rigorous imprisonment for 03 months.
(2) The case of the prosecution, in brief, is that on 11.07.2016, at about 08:15 PM in the night, at Village Lodhi, Semariya, within the ambit of Police Station Bemetara, the accusedappellant herein with the intent to kill his younger brother, namely, Angeshwar Patel (hereinafter referred to as the “deceased”) strangulated his neck, due to which he died and, thereby, the appellant is said to have committed offence under Section 302 of IPC.
(3) The further case of the prosecution is that from 15 days prior to the incident, the deceased used to return his house under the influence of liquor and thereafter used to abuse other family members and break the household articles, which he repeated on the date of the offence, upon which, the appellant herein, who is elder brother of the deceased, asked him to behave properly, but the deceased did not stop his act of breaking household articles and, on account of which, brief quarrel took place between them, in which, the appellant herein is said to have committed murder of the deceased by strangulating his neck. The aforesaid incident was witnessed by Maihar Bai (PW03), who is sister of the appellant and the deceased and used to reside alongwith them.
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(4) Thereafter, when the matter was reported to the police, marg intimation (Ex.P/01) and FIR (Ex.P/02) were registered and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/10. Nazari Naksha and panchnama were also prepared vide Ex.P/04 & Ex.P/07 respectively. Summons under Section 175 of CrPC were also sent vide Ex.P/09. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/19), conducted by Dr. Ashish Verma (PW-18), it was opined that the cause of death of deceased is asphyxia due to throttling and nature of death seems to be homicidal. Thereafter, the appellant was arrested and his memorandum statement was recorded vide Ex.P/05. Further, one wooden stick has been seized from the house of the deceased vide Ex.P/06. However, the aforesaid seized article was not sent for chemical examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Chief Judicial Magistrate, Bemetara and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/ accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.
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(5) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 22 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.
(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.
(7) Mr. Sameer Singh, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at best offence under Section 304 (Part-I or Part-II) would be made out against the appellant herein because the appellant is said to have assaulted the deceased in spur of the moment, as on the date and time of the offence, when deceased came to the house under the influence of liquor and started abusing other family members and further started breaking household articles, the appellant herein being elder brother of the deceased, asked him to behave
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properly, upon which, the deceased did not stop his act, on account of which, brief altercation took place between the appellant and the deceased, in which, the appellant under anger and in heat of passion strangulated the neck of the deceased, due to which deceased died. As such, there was no motive or premeditation on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under anger and in heat of passion the appellant strangulated the neck of the deceased, due to which he 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 IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and as the appellant is in jail since 12.07.2016 i.e. almost 07 years 07 months, he be sentenced for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.
(8) Per-contra , 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 the statements of prosecution witnesses coupled with other material available on
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record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be dismissed.
(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/19), wherein it has been opined that cause of death of deceased is asphyxia due to throttling and nature of death is homicidal, which is duly proved by the statement of Dr. Ashish Verma (PW-18). Accordingly, taking into consideration the postmortem report (Ex.P/19) and the statement of Dr. Ashish Verma (PW-18), who has conducted postmortem of the dead-body of the deceased, 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 accusedappellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statement of Maihar Bai (PW-03), who is sister of the appellant and the deceased and was residing alongwith them in the same house and has clearly seen the appellant herein strangulating the neck of the deceased on the date and time of the offence, due to which, deceased succumbed to the injuries and died. Maihar Bai (PW-03) was subjected to some length of cross-examination, but nothing could be extracted from her to hold that she has not seen the incident or telling lie before the Court in order to falsely implicate the appellant. As such, her testimony is trustworthy, inspire confidence and can be relied upon. Thus, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which he died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.
(12) The aforesaid finding brings us to the next question for
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consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of 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 IPC, as contended by learned counsel for the appellant?
(13) The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
“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)
“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 is it 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.”
1 (2017) 3 SCC 247
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(Criminal Appeal No.1642 of 2017)
“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 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”.
(14) 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
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not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.
(15) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)2 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:
(16) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the instant case, prior to 15 days of the incident, the deceased used to return his house under the influence of liquor and thereafter used to abuse other family members and break the household articles, which he also repeated on the date of the offence, therefore, the appellant herein, who is elder brother of the deceased, asked him to behave properly, but the deceased did not stop his act of breaking household articles, on account of which, brief quarrel took place between them, in which, the appellant herein under anger and in
2 (2019) 6 SCC 122
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(Criminal Appeal No.1642 of 2017)
heat of passion strangulated the neck of the deceased, due to which he died. As such, 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 strangulated the neck of the deceased, due to which he died. However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 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.
(17) 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
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the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and, since he remained in jail from 12.07.2016 i.e. for almost 07 years and 07 months, he is sentenced to the period already undergone by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Consequently, the appellant be released from jail forthwith, if not required in any other matter/crime.
(18) This criminal appeal is partly allowed to the extent indicated herein-above.
(19) Let a certified copy of this order 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 action, if any.
Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge
s@if
3 issues framed by the court
Whether the death was homicidal in nature.
Whether the accused caused the injuries leading to death.
Whether Exception 4 to Section 300 IPC applied so conviction under Section 302 could be altered to Section 304 Part-II.
Colour shows how this judgement treated each authority
Arjun v. State of ChhattisgarhRelied on¶13
Arjun v. State of Chhattisgarh, (2017) 3 SCC 247 · Who else cites this
Rambir vs. State (NCT of Delhi)Relied on¶15
Rambir vs. State (NCT of Delhi), (2019) 6 SCC 122 · Who else cites this
4 provisions across 2 enactments
Bhuvan Patel
State of Chhattisgarh
Sanjay K. Agrawal
Sachin Singh Rajput
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
