Allowed

Amar Vilas Dhanuwar v. State Of Chhattisgarh

Chhattisgarh HC15 Feb 2024CRA/185/2017

Case brief

AI extract

What is this about?

Chhattisgarh High Court allowed criminal appeal against conviction for murder (IPC 302) and life imprisonment. Court reclassified offence to culpable homicide not amounting to murder (IPC 304 Part-II) invoking Exception 4 to Section 300 IPC due to sudden fight and lack of premeditation, and ordered immediate release.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304 Part-II IPC; ordered released from jail immediately.

Amar Vilas Dhanuwar Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 185 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 185 of 2017

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(Arising out of judgment dated 07.12.2016 passed in Sessions Trial No.83/2016 by the 1^st Additional Sessions Judge, Raigarh, C.G.)

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Amar Vilas Dhanuwar S/o Mangtu Dhanuwar, aged about 19 years, Occupation Labourer, R/o Village Gerupani, Police Station Lailunga, 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 Lailunga, District Raigarh Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Sudhir Kumar Bajapi, Advocate. For State/Respondent :- Mr. Ankur Kashyap, Dy. Government Advocate.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput

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Judgment On Board

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(16.02.2024)

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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. 185 of 2017

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dated 07.12.2016 passed by the 1^st Additional Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No. 83/2016 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 3 months and also for offence under Section 450 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of 1,000/-; in₹ default of payment of fine additional imprisonment for 3 months. Both sentences were directed to run concurrently.

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Case of the prosecution in, nutshell, is that on 14.04.2016 at about 11:00 am at village Gerupandi in anganbadi center, appellant herein assaulted his step-mother Kanti Dhunwar by wooden stick by which she suffered grievous injuries and died, pursuant to which Kaliya (PW-3) reported the matter to the police. It is further case of the prosecution that appellant's 500/- was missing and he₹ suspected that the said money was stolen by the deceased due to which, out of anger, he assaulted his step mother Kanti Dhanuwar by wooden stick by which she suffered grievous injuries and died. Merg intimation (Ex.P/3) and FIRs were registered vide Exs. P/2 & P/15. Inquest

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CRA No. 185 of 2017

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proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/6) proved by Dr. Manoj Kumar (PW-6), cause of death was neurogenic with haemorragic shock due to skull fracture from hard and blunt object and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/8) wooden stick has been seized vide Ex.P/9. Seized articles were sent for chemical analysis to FSL and in FSL report (not exhibited) dated 27.06.2016 on the weapon of offence i.e. wooden stick stains of blood was found.

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After due investigation, appellant herein was chargesheeted for the aforesaid offences 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 offences, prosecution has examined as many as 9 witnesses and exhibited 20 documents and defence in support of its case has not examined any witness, but exhibited 1 document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the

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CRA No. 185 of 2017

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circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences 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. Sudhir Kumar Bajpai, learned counsel for the appellant, submit 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 as per the statement of Dr. Manoj Kumar (PW-6) the deceased did not receive the proper medical treatment, even otherwise, her (deceased) life could be saved. He further 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 even otherwise and the appellant is in jail since 16.04.2016 more than 7 years 9 months, and, as such, it is a fit case

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CRA No. 185 of 2017

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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. Ankur Kashyap, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences 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 an affirmative that the death of Kanti Dhanuwar

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CRA No. 185 of 2017

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(deceased) was homicidal in nature on the basis of postmortem report (Ex.P/6) proved by Dr. Manoj Kumar (PW-6), 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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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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Considering the statements of eye witness Samari (PW-2), Kaliya (PW-3) & Rajni Bairagi (PW-4), in which they have clearly implicated the appellant herein in crime in question by stating that they have seen the appellant herein assaulting the deceased by wooden stick by which he suffered grievous injuries and died and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/8) wooden stick was seized (Ex.P/9) on which in FSL report dated 27.06.2016 blood was found, the trial Court has rightly held that it is the appellant who assaulted the deceased by wooden stick by which she (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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CRA No. 185 of 2017

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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 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

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1 (2017) 3 SCC 247

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CRA No. 185 of 2017

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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 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

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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.

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State (NCT of Delhi)² 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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(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 his step mother Kanti Dhanuwar (deceased) and only on account of stealing money as he suspected on her (deceased) that she had stolen the money, he (appellant) is said to have assaulted the deceased by wooden stick by

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2 (2019) 6 SCC 122

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CRA No. 185 of 2017

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which she (deceased) suffered grievous injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and also considering the medical evidence available on the record and further as per the statement of Dr. Manoj Kumar (PW-6) the deceased had not got the proper medical treatment, even otherwise, her (deceased) life could be saved, 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 her 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.

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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

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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 Kanti Dhanuwar (deceased) and the injuries caused by him were not sufficient in the ordinary course of nature to cause death of Kanti Dhanuwar, 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 16.04.2016, more than 7 years 9 months, however, the fine amount imposed by the learned trial Court shall remain intact.

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The appellant is in jail since 16.04.2016, thereby, he has already completed his imprisonment of more than 7 years including his sentence awarded for offence under Section 450 of the IPC, as it was directed to run concurrently. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

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This criminal appeal is party 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

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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) (Sachin Singh Rajput) Judge Judge Ankit

Amar Vilas Dhanuwar v. State Of Chhattisgarh

Case brief

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Amar Vilas Dhanuwar v. State Of Chhattisgarh

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