Raju Thakur Vs State Of Chhattisgarh

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CRA No. 1965 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1965 of 2017

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(Arising out of judgment dated 15.11.2017 passed in Sessions Trial No. 85/2017 by the 4^th Additional Sessions Judge, Bilaspur, Dist: Bilaspur)

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Raju Thakur S/o S/o Baisakhu Thakur Aged About 42 Years R/o Village Dhamki Kashikpara, District Kawardha Chhattisgarh Present Address Shyam Nagar Lingiyadih, House Of Kaushal Singh Police Station Sarkanda, District Bilaspur Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Sarkanda, District Bilaspur Chhattisgarh.

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---- Respondent

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For Appellant :- Ms. Ranjana Jaiswal, Advocate. For State :- Mr. Afroz Khan, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(06.03.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the Cr.P.C.

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preferred by the appellant-accused person herein is directed against the impugned judgment of conviction and

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order of sentence dated 15.11.2017 passed in Sessions Trial No. 85/2017 by the 4^th Additional Sessions Judge, Bilaspur, Dist: Bilaspur by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo Life imprisonment with fine of ₹ 500/-; in default of payment of fine additional rigorous imprisonment for 3 months.

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Case of the prosecution, in short, is that on 16.04.2017 at about 05:30 pm at Lingiyadih, P.S. Sarkanda (C.G), appellant/accused herein assaulted his brother-in-law Ravi Singh (now deceased) by hand & fist, thereafter , the appellant herein pushed the deceased-Ravi Singh from the roof of the house and the deceased fell down, subsequently, the deceased was taken to the S.I.M.S, hospital, thereafter, he referred to the Life Care Hospital, Bilaspur for treatment, during the treatment, he died.

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It is further case of the prosecution is that the complainant-Bhanu Singh (PW-01) lodged a dehati Nalsi at Police Station-Sarkanda, District: Bilaspur (C.G.) that, he lives in Lingiyadih, Sarkanda, Bilaspur and works as a laborer, his daughter and son-in-law (Raju Thakur) also lives nearby on rent in the house of his brother-Kaushal

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SIngh. Appellant-Raju Thakur used to beat his wife everyday and on the date of incident i.e. 16-04-2017, the appellant was beating his wife in the evening, due to which, Ravi(deceased), son of the complainant-Bhanu Singh Thakur, objected and made him understand not to beat again. Thereafter, Ravi went to his in-laws’ house in Chingrajpara. Then, the appellant called Ravi and saying that he would also want to go to the wedding function and took him to his house and started quarreling, on which, Varsha (PW-04) informed to Bhanu Singh (PW-01), thereafter, Bhanu Singh (PW-01) and Kumar Bai (PW-02) reached to the house of the appellant, where they saw that the appellant was abusing his son Ravi and assaulted by hands & fists, subsequently, the appellant pushed the deceased-Ravi from the roof of the house, due to which, the deceased fell down and suffered injuries on his head and back side of his body and become unconscious. Thereafter, the deceased-Ravi Singh was taken to the S.I.M.S., hospital, and after getting treatment, he referred to the Life Case Hospital and during the treatment after two days, he died. Thereafter, m erg intimation was registered as Ex.P-22 and spot map was prepared vide Ex.P-03. FIR vide Exs. P/17 & P/18 were registered

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against the appellant herein at Police Station: Sarkanda, District:Bilaspur (C.G.) in Crime No.279/17 for the offence under Section 302 of the IPC. Inquest proceedings (Ex.P/07) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/11), proved by Dr. Dharmendra Kumar (PW17), cause of death was cardio respiratory failure, due to shock, head injury and the nature of death was homicidal. After completing the investigation, the final report was prepared.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant/accused person abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 19 witnesses and exhibited 23 documents. No any defence witness examined. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, 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 offence 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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Ms. Ranjana Jaiswal, learned counsel for the appellant, submits that the appellant has been falsely implicated in the present case. Both the appellant and deceased were close relatives and taking the case of the prosecution as it is, only offence under Section 304 Part-II of IPC is made out against the appellant, as the appellant has no motive to cause death of the deceased. Thus, 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 can be converted/altered to an offence under Section 304 Part-II of IPC and, further, since the appellant is in jail since 24.04.2017 i.e. more than 06 years and 11 months, taking into consideration the period he has already

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undergone, the appellant-accused be released from jail forthwith. Hence, the present appeal deserves to be partly allowed.

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Per-contra , Mr. Afroz Khan, 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. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant 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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We have heard learned counsel for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

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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 the finding in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering

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the postmortem report (Ex.P/11) which is duly proved by the evidence of Dr. Dharmendra Kumar (PW-17). Accordingly, taking into consideration the postmortem report (Ex.P/11) and the statement of Dr. Dharmendra Kumar (PW-17), we are of the considered opinion that the learned trial Court is absolutely justified in holding 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. Accordingly, we hereby affirmed the said finding.

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11. Now the next question would be whether the accusedappellant herein is the author of the crime in question ?

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12. In the instant case, considering the statement of complainant-Bhanu Singh Thakur (PW-01) and Kumari Bai (PW-02), father and mother of Ravi Singh(deceased) resepctively, that on being informed by Varsha Thakur (PW-04), on the date of incident i.e. 16-04-2017, they reached to the house of the appellant and saw that on the influence of liquor, the appellant was quarreling with his son-Ravi Singh(deceased), then the complainant-Bhanu Singh (PW-01) intervened the matter, but the appellant also threatened to kill him, due to which, Ravi

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Singh(deceased) came and tried to stop, subsequently, the appellant started assaulted his son-Ravi Singh(deceased) by hands & fists and pushed him from the roof of the house, on account of which, the deceased fell down and he suffered injuries on his head and back side of his body. Later, the deceased was taken to the hospital and after two days, during the treatment he died, we hereby accept the finding recorded by the trial Court that it is the appellantaccused who assaulted and pushed Ravi Singh (deceased) from the roof of the house, by which he suffered grievous injuries and died. As such, the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased is based on evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

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13. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by

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learned counsel for the appellant ?

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14. It is apparent from the FIR and merg inquiry that at the time when the incident took place, the appellant-accused had assaulted Ravi Singh(deceased) by hand & fist and pushed him from the roof of the house, due to which, the deceased suffered grievous injuries and he died.

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

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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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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

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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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17. 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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18. 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 :

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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 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

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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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19. 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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20. 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:

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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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5 (2019) 6 SCC 122

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21. Returning to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased and they were also close relatives, but on on the influence of liquor, dispute arose between the appellant and Ravi Singh(deceased). At the time of incident, it is apparent from the statement of complainantBhanu Singh(PW-01) that the appellant and his son-Ravi Singh(deceased) consumed liquor together. The appellant herein used to beat his wife(Meenu), daughter of the complainant-Bhanu Singh(PW-01), due to which, it was objected by Ravi Singh(deceased), for this reason, dispute arose between them, on the influence of liquor, out of anger & in heat of passion, the appellant is said to have assaulted Ravi Singh(deceased) by hands and fists and pushed the deceased from the roof of the house , due to which deceased fell down and suffered injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that the appellant must have had the knowledge that such

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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 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 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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22. 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 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. The appellant is reported to be in jail since 24.04.2017 i.e. more than 6 years and 11 months, taking into

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consideration the period he has already undergone, we award him sentence already undergone by him, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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23. This criminal appeal is partly allowed to the extent indicated herein-above.

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24. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned 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/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Amardeep

Raju Thakur v. State Of Chhattisgarh

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Raju Thakur v. State Of Chhattisgarh

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