Radheshyam Kurre Vs State Of Chhattisgarh

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 24.08.2016 passed by the learned Second Additional Sessions Judge, Balod, District Balod in Sessions Trial No.107/2015, by which, he has been convicted and sentenced as under:-

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CONVICTION	SENTENCE
Under Section 302 of IPC	Imprisonment for life and fine of Rs.5,000/-,in default of payment of fine, additional rigorous imprisonment for five months
Under Section 201 of IPC	Rigorous Imprisonment for three years and fine of Rs.2,000/-,in default of payment of fine, additional rigorous imprisonment for two months

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The case of the prosecution, in short, is that during the period between 15.09.2015 at 05 PM and 16.09.2015 at 07 AM at Village Padkibhat, Thana Balod, District Balod, the appellant herein has assaulted his friend-Sewak Ram Yadav in his house by stone, as a result of which, he suffered grievous head injuries and died and thereafter, poured kerosene oil on the body of his friend-Sewak Ram Yadav and set him ablaze and buried the deadbody in his house and thereby committed the offence. Further case of the prosecution is that the deceased-Sewak Ram Yadav came to the house of the appellant herein as a guest and on 15.09.2015, the appellant herein and guest-Sewak Ram Yadav both consumed liquor in his house and in the influence of liquor, the guest-Sewak Ram Yadav had devil eye on the appellant’s sister-Hirmotin Bai (PW-2), due to which, quarrel took place between them and after brief quarrel, the appellant

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is said to have assaulted his friend-Sewak Ram Yadav with the help of stone, by which, he suffered grievous injuries and died and in order to screen himself from the offence, the appellant burnt the deadbody of the deceased-Sewak Ram Yadav and buried the deadbody in his house. After that, Purushottam Yadav (PW-3), Sarpanch of the Village suspected missing of Sewak Ram Yadav and reported the matter to Police Station Balod and then, the deadbody was recovered and Dehati Nalishi was registered vide Ex.P-13 against the appellant herein, pursuant to which, offence under Sections 302 & 201 of IPC was registered and the wheels of investigation started running. Thereafter, inquest was conducted vide Ex.P-5. Morgue intimation was recorded vide Ex.P-14 and pursuant to the memorandum statement of the appellant herein vide Ex.P-6, stone was seized vide Ex.P-9 and plain soil, bloodstained soil, pick-axe, Kerosene container and Matchstick box were also seized from the spot vide Ex.P-8 and the said articles were sent to the Forensic Science Laboratory for examination. In the FSL report, Ex.P-39, blood was found on the pick-axe. Dead body of the deceased-Sewak Ram Yadav was subjected to postmortem, which was conducted by Dr. K. G. Jogi, PW-7 and his report is Ex.P-17 and cause of death was

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hypovolemic shock on account of excessive bleeding through grievous head injury and it was stated to be homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellant herein under Sections 302 & 201 of IPC before the Court of Chief Judicial Magistrate, Balod, who in turn, committed the case to the Court of Sessions for trial and hearing in accordance with law. The appellant abjured the guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 42 documents Exs.P-1 to P-42. Statement of the appellantaccused was recorded under Section 313 of the Cr.P.C., wherein he denied guilt, however, he examined none in his defence.

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellant under Sections 302 & 201 of IPC in the manner mentioned in the opening paragraph of this

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judgment, against which, the instant appeal has been preferred.

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Mr. C. R. Sahu, learned counsel for the appellant, would submit that taking into consideration the prosecution case as it is as also considering the fact narrated by appellant’s sister-Hirmotin Bai (PW-3) in the FIR, Ex.P-27, proved by Premchand Sahu, PW-10 and further considering the fact that the appellant is said to have assaulted Sewak Ram Yadav by stone, due to which, he sustained only two injuries, which has been proved by Dr. K. G. Jogi, PW-7 vide his report Ex.P-17, the appellant had knowledge, but there was no premeditation or intention to cause death, therefore, at the most, the case of appellant would fall under Exception 4 to Section 300 of I.P.C. and the alleged offence is liable to be converted to Part-II of Section 304 of I.P.C. and appellant be sentenced for the period already undergone, as he is in jail since 17.09.2015 and the appeal be allowed in part.

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Ms. Nand Kumari Kashyap, learned State counsel, would submit that the learned trial Court has rightly convicted the appellant herein for the aforesaid offence and

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it is not a case where the sentence of the appellant can be converted to Section 304 Part-II of I.P.C. and, as such, 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 went through the records with utmost circumspection.

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The first question for consideration as to whether the death of deceased-Sewak Ram Yadav was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-17 proved by Dr. K. G. Jogi, PW-7, according to which, cause of death was hypovolemic shock on account of excessive bleeding through grievous head injury and it was stated to be homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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Now, the next question is, whether the appellant herein has assaulted his friend-Sewak Ram Yadav by stone and has caused the death ?

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Considering the fact that the appellant has assaulted

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the deceased-Sewak Ram Yadav and the deadbody of the deceased-Sewak Ram Yadav was found in the house of the appellant herein and the fact that the deceased-Sewak Ram Yadav has come to the house of the appellant herein as a guest, as proved by appellant’s sister-Hirmotin Bai, PW-2 and further considering the fact that as per the FSL Report, Ex.P-39, blood was found on the pick-axe, the trial Court has rightly recorded a finding that it is the appellant, who has caused death of deceased-Sewak Ram Yadav, which is a correct finding of fact based on evidence available on record and accordingly, we hereby affirm the said finding.

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Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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In order to consider whether the case of the appellant is covered under 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 Haryana1 wherein it has been observed as under :-

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1 (2002) 3 SCC 327

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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 Sukhir 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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13. The Supreme Court in the matter of Gurmukh Singh

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

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2 (2009) 15 SCC 635

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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 with 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 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

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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 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

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3 (2012) 8 SCC 450

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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 (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,

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4 (2017) 3 SCC 247

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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

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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 when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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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Further, the Supreme Court in the matter of Rambir v. 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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5 (2019) 6 SCC 122

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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 aforesaid principles of law laid down by their Lordships of the Supreme Court and the facts of the present case as also considering the fact narrated in the FIR, Ex,P-27, which has been proved by Premchand Sahu, PW-10 that the deceased-Sewak Ram Yadav had devil eye on the appellant’s sister Hirmotin Bai, PW-2, due to which, altercation took place and the appellant herein is said to have assaulted his friend-Sewak Ram Yadav with the help of stone, as a result thereof, he suffered grievous injury and died, but, there was no intention to cause death and he must have had knowledge that his act is likely to cause death and the appellant had not taken any undue advantage and has not acted in unusual manner; as such, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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In view of the above, the impugned judgment of conviction and order of sentence dated 24.08.2016 passed

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by the learned Second Additional Sessions Judge, Balod, District Balod in Sessions Trial No.107/2015 is hereby set aside. The conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to rigorous imprisonment for 10 years. However, conviction of the appellant under Section 201 of IPC and fine sentence with default stipulation awarded by the trial Court shall remain intact.

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In view of the above, this criminal appeal is partly 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 for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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[ SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Radheshyam Kurre v. State Of Chhattisgarh

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Radheshyam Kurre v. State Of Chhattisgarh

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