Shankar Nag Vs State of Chhattisgarh

¶1

1 / 12

¶2

2024:CGHC:36400-DB

¶3

Digitally signed by VISHAKHA VISHAKHA BEOHAR BEOHAR Date: 2024.09.20 11:43:12 +0530

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

NAFR

¶6

CRA No. 193 of 2019

¶7

1 - Shankar Nag S/o Late Shri Ganguram Nag Aged About 52 Years Cast- Dhurva, Occupation- Agriculturist, R/o Village- Kakaalgur Kanchirpara, Police Station- Darbha, District- Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

... Appellant

(In Jail)

versus

1 - State Of Chhattisgarh Through Station House Officer, Police StationDarbha, District- Bastar, Chhattisgarh., ---- Respondent

¶12

For Appellant : Mr. Vijay Kumar Sahu, Advocate. For State : Mr. Pankaj Singh, Panel Lawyer.

¶13

Division Bench : Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Amitendra Kishore Prasad

¶14

Judgment on Board

¶15

(18.09.2024)

¶16

Sanjay K. Agrawal, J.

¶17

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 07.12.2018 passed in

¶18

2 / 12

¶19

Sessions Trial No.51/2018 by the learned Sessions Judge, Bastar, Place Jagdalpur C.G., by which the appellant stands convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs.500/-, in default of payment of fine amount to undergo additional rigorous imprisonment for six months.

¶20

Case of the prosecution, in brief, is that, on 08.03.2018, at about 6:00 pm, in Village Kakalpur, Kachirpara Police Station – Darbha, District - Bastar (C.G.), the appellant, who is the husband of Kumli Dhurva, with intention to kill her, assaulted Kumli Dhurva (hereinafter called as ‘deceased’) with a wooden plank and then strangulated her with saree, as a result of which, deceased suffered grievous injuries over her body and died. Further case of the prosecution is that on the date of incident, i.e. on 08.03.2018, at about 6:00 pm, appellant and his wife/deceased consumed liquor together. Thereafter, the appellant asked the deceased to cook food, to which she refused, due to which, quarrel took place between them and the appellant pushed the deceased on the floor and assaulted on her chest, stomach, waist and head by means of a wooden plank and thereafter, appellant strangulated the deceased with her saree , due to which, she died. On the next date of incident, appellant’s son Sukaru Ram Nag (PW-07) came at the spot and saw her mother dead. Then, he informed the said matter to his uncle-aunt Hariram Nag (PW-01) and Murai Bai (PW-05). Thereafter, the matter was reported to the Police by the

¶21

3 / 12

¶22

complainant- Hariram Nag (PW-01), pursuant to which, Merg Intimation vide Ex.P-01 was recorded. FIR (Ex.P-02) was registered against the appellant and spot map (Ex.P-13) was prepared. Inquest proceeding was conducted vide Ex.P-05 and dead body of deceased was sent for postmortem examination which was conducted by PW-09 Dr. Mahendra Prasad, who has proved the postmortem report Ex.P-16. According to postmortem report, cause of death of the deceased was due to Asphyxia and the death was homicidal in nature. During investigation, memorandum statement of the appellant was recorded vide Ex.P-06, pursuant to which, a wooden plank was seized vide Ex.P-07. From the spot, three pieces of green coloured bangle was seized Ex.P-08 and clothes of the deceased were seized vide Ex.P-13, but the seized articles were not sent to FSL for chemical examination.

¶23

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.

¶24

In order to bring home the offence, prosecution has examined as many as 10 witnesses and brought on record 18 documents whereas, the appellant in defence has neither examined any witness nor exhibited any document. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the

¶25

4 / 12

¶26

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

¶27

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

¶28

Learned counsel for the appellant would submit that if the case of prosecution is taken as it is, no offence under Section 302 of IPC can be made out against the present appellant and it is not the case of murder. The appellant is in jail since 09.03.2018 i.e. for more than 6 years. As such, his conviction is liable to be set aside. In alternative, he would submit that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C. Thus, the present appeal deserves to be allowed in full or in part.

¶29

Per contra, learned State counsel would support the impugned judgment and submit 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.

¶30

5 / 12

¶31

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

¶32

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-16) proved by Dr. Mahendra Prasad (PW-02), which is a 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.

¶33

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

¶34

Considering the statement of PW-05 (Smt. Murai Bai), who is the daughter-in-law of the appellant, who has clearly stated in para 3 of her deposition that the appellant had told her that on the date of incident, he (appellant) and his wife (deceased) consumed liquor together and thereafter appellant asked the deceased to prepare food, but she refused and on account of which, appellant assaulted her with wooden plank and thereafter, appellant strangulated her with saree , due to which, she died. The trial Court, after considering oral and documentary evidence available on record, has clearly recorded a finding that it was appellant who has committed the offence. Such finding, in our considered opinion, is a finding of fact

¶35

6 / 12

¶36

based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

¶37

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 their 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?

¶38

13.In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 wherein it has been observed

¶39

as under :-

¶40

“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.”

¶41

1 (2002) 3 SCC 327

¶42

7 / 12

¶43

14.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, which state as

¶44

under :-

¶45

“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 for its special perspective. The relevant factors are as under :

¶46

(a) Motive or previous enmity;

¶47

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

¶48

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

¶49

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

¶50

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

¶51

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

¶52

(g) Whether the injury was caused with premeditation in a sudden fight;

¶53

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

¶54

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

¶55

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

¶56

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

¶57

2 (2009) 15 SCC 635

¶58

8 / 12

¶59

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

¶60

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

¶61

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

¶62

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

¶63

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.”

¶64

15.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 is 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.

¶65

16.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 :-

¶66

3 (2012) 8 SCC 450

¶67

4 (2017) 3 SCC 247

¶68

9 / 12

¶69

“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)

¶70

“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.”

¶71

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)

¶72

“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

¶73

10 / 12

¶74

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”.

¶75

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 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 of IPC.

¶76

18.Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)⁵ 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:

¶77

“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

¶78

(i) There must be a sudden fight;

¶79

(ii) There was no premeditation;

¶80

(iii) The act was committed in a heat of passion; and

¶81

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

¶82

19.Reverting to the facts of the present case and in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the statement of PW-05 (Smt. Murai Bai), who is the daughter-in-law of the appellant, who has clearly stated in para 3 of her deposition that the appellant told her

¶83

5 (2019) 6 SCC 122

¶84

11 / 12

¶85

that on the date of incident, he and his wife (deceased) consumed liquor together and after that appellant asked the deceased to cook food, but she refused and on account of which, appellant assaulted her with wooden plank and thereafter appellant strangulated her with saree, due to which, she died. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injury found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased- Kumli Dhurva, but on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with a wooden plank and thereafter strangulated her with saree, leading to her death. 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 her death can be attributed to him.

¶86

20.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 since the appellant had no intention and premeditation to cause 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, his conviction for offence punishable 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, the fine amount with default sentence imposed by the learned trial Court shall remain intact.

¶87

12 / 12

¶88