Partly allowed

Shivnarayan Singh v. State of Chhattisgarh

Chhattisgarh HC11 Jul 2024CRA/233/2022

Case brief

AI extract

What is this about?

The High Court altered the appellant's conviction from murder to culpable homicide not amounting to murder. Applying Exception 4 of Section 300 IPC, the Court held the assault arose from a sudden quarrel without premeditation or cruel manner.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; sentence reduced to five years Rigorous Imprisonment and fine of Rs. 1,000/-.

Shivnarayan Singh Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 233 of 2022

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Shivnarayan Singh S/o Late Manatram Aged About 35 Years Caste- Gond, R/o Nagar Panchayat, Premnagar (Boirdand), Police StationPremnagar, District-Surajpur Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police StationPremnagar, District- Surajpur Chhattisgarh.

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---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Shri KK Dewangan, Advocate For Respondent/State : Shri K Saini, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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Per Ravindra Kumar Agrawal, J. 12.07.2024

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1. The appellant/accused has filed the instant appeal under Section 374(2) of the CrPC, being aggrieved by the judgment of conviction and order of sentence dated 24.12.2021 (Annexure A1) passed by the learned First Additional Sessions Judge, Surajpur, District-Surajpur CG, in Session Trial No.59 of 2021, whereby the appellant has been convicted for commission of offence punishable under Section 302 of the IPC, and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, additional simple imprisonment for 06 months.

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2. Brief facts of the case are that complainant-Devnarayan Singh, s/o Bhupsai Gond (PW1) (appellant’s relative), son of Bhupsai Gond, had lodged a report to the Police against the present appellant, alleging that on 02.01.2021, at about 10 am, Devnarayan, brother-in-law of the appellant came to take his sister and her children with him, and when they started to proceed by his Motorcycle, near the house of one Pancham, appellant came there, asked his wife, Sarita (since the deceased), as to why she left the house without his permission, abused her and gave her a blow on her right knee with an axe. When blood was oozing out from the injury, Pancham and Devnarayan PW5, brother-inlaw of the appellant, intervened and had taken the deceased to Premnagar Hospital. The Police registered the FIR (Ex.P10) against the appellant for the offence under Sections 294, 506 and 323 of the IPC.

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3. At Premnagar hospital, she was treated by PW6, Dr Sadhana Singh, who gave her report vide Ex.P13, and while examining her, she found one incised wound on the right leg near knee of 4 x 1 x 1 cm, and opined that injury is caused by hard and sharp object, and nature of injury will be given after X-ray report. After primary treatment, she referred the patient to the Surajpur District Hospital. On 02.01.2021 itself, the deceased died and the merg intimation (Ex.P11) was given by Devnarayan (PW5), based on which another merg intimation, Ex.P15 was recorded by the Police Station-Premnagar. Inquest of dead-body of the deceased was prepared in the presence of the witnesses vide Ex.P3A, and the dead-body was sent for its post-mortem to the District

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Hospital, Surajpur, where PW11 Dr Deepshikha Lakda conducted postmortem of dead-body of the deceased and found :

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“Stitched wound on right popliteal area horizontally; 6 stitches in number after removal of stitch, lacerated wound about 4 x 1.5 x 1.5 cm, right popliteal artery and vein cut.”

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4. She opined that “Cause of death is shock due to Hemorrhage”, and mode of death was ‘Syncope’ and the nature may be homicidal or accidental.

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5. Appellant has been arrested on 03.01.2021, his memorandum statement Ex.P7 was recorded, based on which, axe, weapon of ofence has been seized from him vide seizure memo Ex.P8. Clothes of the deceased were seized vide Ex.P10, Spot Map Ex.P12 was prepared by the Police and other Spot Map Ex.P6 was prepared by the Patwari. The axe was sent for its query and its report was obtained vide Ex.P14A, given by Dr Sadhana Singh, PW6. The axe seized from the appellant, petty-coat of the deceased, blood stained soil and plain soil were sent for its FSL examination to the Regional Forensic Science Laboratory, Ambikapur, from where, Ex.P21 report was received, according to which, human blood was found on the axe, and blood stained soil. Though blood was found on the petty-coat of the deceased, but its origin cannot be determined, as the same was disintegrated. However, no blood was found on the plain soil. After recording the statement of prosecution

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witnesses under Section 161 of the CrPC, and after completion of usual investigation, Charge-sheet was filed against the present appellant before the learned Judicial Magistrate First Class, Surajpur (for short, ‘JMFC Surajpur’) for commission of offence under Sections 294, 506, 323 and 302 of the IPC.

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6. Case was committed to the Court of learned Sessions Judge, Surajpur, from where it was transferred to the learned trial Court for its trial. Learned trial Court has framed charge under Sections 294, and 302 of the IPC against the appellant, who denied the charge and claimed trial.

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7. In order to establish the charge against the appellant, prosecution has examined as many as 13 witnesses, statement of the appellant has also been recorded under Section 313 of the CrPC, in which he denied the circumstances appearing against him and submitted/pleaded that he was having property dispute with his brother-in-law Devnarayan, and therefore, he has been falsely implicated in the alleged crime, and he is innocent. After due appreciation of the evidence led by the prosecution, learned trial Court has convicted and sentenced the appellant as mentioned in the opening paragraphs of the judgment. Hence this appeal by the appellant.

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8. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the case. There is material omissions and contradictions in the evidence of prosecution witnesses,

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and the prosecution has failed to prove its case beyond any reasonable doubt. He would further submit that injury of the deceased was caused not on any vital part of the body, whereas, it was on the knee. Therefore, no offence is made out against the appellant under Section 302 of the IPC. He would also submit that deceased is appellant’s wife, despite appellant’s objection, she was going to her parents’ house along with her children. In fact, deceased was not assaulted by the appellant, she received injury on her knee by the accident, when she was going with her brother on his motorcycle, and report has been lodged against the appellant. He would further submit that the deceased died due to excessive hemorrhage, which is not direct result of the alleged act of the assault. The so called eyewitness Devnarayan, PW5, is interested witness, and his testimony is not believable. Even if it is found that the appellant has caused injuries to the deceased, the offence does not travel beyond the scope of Section 304 Part-II of the IPC, and by Converting the offence to Section 304 Part-II of the IPC, appellant may be sentenced for the period already undergone by him.

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9. On the other hand, learned counsel for the State opposes the submission of learned counsel for the appellant, and would submit that prosecution has proved its case beyond any reasonable doubt. PW5, eyewitness to the incident has duly supported the case of the prosecution that appellant has assaulted the deceased by an axe. Death of the deceased is direct result of the injury, caused by the appellant, as she died due to excessive hemorrhage because of cut of arteries and veins.

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Therefore, appellant's conviction is strictly in accordance with law, which needs no interference.

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10. We have heard learned counsel for the parties and perused the record.

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11. First and foremost question for determination would be, whether the death of appellant’s wife, namely, Sarita is homicidal or not.

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12. On 02.01.2024, PW1 Devnarayan Singh, s/o Bhupsai Gond has lodged the report to the Police alleging that deceased was being assaulted by the appellant by an axe and she was being taken to Premnagar Hospital for treatment. The offence under Section 294, 506 and 323 of the IPC was recorded. When the deceased was being taken to the Premnagar Hospital, PW-6 Dr Sadhana Singh had examined her, and gave her primary treatment. Looking to her injury and excessive bleeding, the doctor referred the deceased to the District Hospital, Surajpur, and gave her report vide Ex.P13. When she was taken to the District Hospital, Surajpur, she was declared brought dead. Merg was intimated to the Police by the District Hospital. Inquest of the dead-body of the deceased Ex.P3A was prepared before the witnesses and the body was sent for post-mortem. PW11, Dr Deepshikha Lakda has conducted the post-mortem of the dead-body of the deceased, who found a stitched wound on right popliteal area horizontally, and on opening, she found there its corresponding lacerated wound. The doctor also found that right

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popliteal artery and vein are being cut. She opined that “Cause of death is shock due to Hemorrhage”, and mode of death was ‘Syncope’.

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13. Considering the nature of injury on the body of the deceased, as also available evidence on record with respect to her death, conclusion given by the learned trial court that death of the deceased was due to the injury caused by the appellant, which is homicidal in nature, is neither perverse, nor contrary to the record.

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14. So far as the involvement of the appellant in the offence in question is concerned, PW5 Devnarayan, brother-in-law of the appellant, who is also eyewitness to the incident, has supported the prosecution case. He stated in his evidence that on 02.01.2024, when he had gone to the house of the appellant to bring back his sister along with her children, at that time, he saw that appellant was quarreling with the deceased and left his house. Thereafter, they proceeded from her house along with children. Near the house of Pancham, appellant came there, again started quarreling with the deceased, and made axe blow on her right knee, by which she received injury and blood was oozing from the injury. Thereafter, appellant fled away from the spot. They have called Ambulance, and took the deceased to the Premnagar Hospital, from where she was referred to the District Hospital, Surajpur. She died at the District Hospital, Surajpur.

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In his cross-examination, he denied about any accident by his motorcycle, when he was proceeding on the bike with her sister and

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children. But for minor contradictions, this witness has remained firm in saying that the appellant has caused injury to the deceased on her right knee. This witness has fully supported the case of prosecution that when the deceased was coming with him along with her children, on the way near the house of Pancham, the appellant came and assaulted his wife with axe, by which she received injury and ultimately, died due to excessive hemorrhage.

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15. PW1, Devnarayan Singh, s/o Bhupsai Gond, who is the complainant and lodged the FIR, has stated in his evidence that when he reached on the spot, he saw that the deceased has already received injury and then he lodged the report to the Police Station. When the leading question was asked to him by the prosecution, he admitted that the appellant raised quarrel with his wife ie the deceased and near the house of Pancham, appellant gave a blow with axe on the right leg of the deceased, by which she received cut injury and blood was coming out from there. He also stated that Pancham and brother-in-law Devnarayan, intervened into the matter.

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In his cross-examination, he admitted that when he reached on the spot, appellant has already fled away from the spot. He also denied the fact that the motorcycle of brother-in-law Devnarayan met with an accident. He further admitted that father of the appellant and he, are the real brothers. He also denied any property dispute with him.

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16. PW2, Pancham is also eyewitness to the incident. He stated in his deposition that on 02.01.2021, when the deceased was going along with her brother, PW5 Devnarayan, he stopped for a moment near his house, in the meantime, appellant came there, and made axe blow on her knee. Blood was coming out from the injury excessively, and the appellant fled away. He further admitted his signature in the memorandum statement Ex.P7 but denied from the statement made by the appellant in his presence. He supported the seizure of axe, weapon of offence from the appellant, vide seizure memo Ex.P8.

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This witness also remained firm during his cross-examination that he saw the assault made by appellant on his wife by axe, and he was not deviated from his evidence made in his chief examination, and fully supported case of the prosecution.

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17. PW-3, Smt Phulmatiya, though in her chief examination, claimed to be the eyewitness to the incident, in her cross-examination, she stated that when she reached on the spot, appellant already fled away from there.

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18. From the evidence of PW1-Devnarayan Singh, s/o Bhupsai Gond, PW2-Pancham, and PW5-Devnarayan Singh, s/o late Hari Pratap Singh, involvement of the appellant is duly proved that he is the person, who caused injury to the deceased on the date of incident, by which she suffered grievous injury, and ultimately, though she was taken to the

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hospital, she died due to excessive hemorrhage, and thus, the appellant is guilty for causing injury to his wife, the deceased.

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19. Now, the other question would be, whether act of the appellant could come under the definition of ‘murder’ or ‘culpable homicide’, not amounting to murder. Now the question again arises is as to what offence the appellant has committed. Whether the act of the appellant comes under the definition of murder or one under the culpable homicide not amounting to murder?

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20. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana¹ 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

1 (2002) 3 SCC 327

Cra 233 of 2022

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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21. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana² 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 of the 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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(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

2 (2009) 15 SCC 635

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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 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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22. Likewise, in the matter of State v. Sanjeev Nanda³ , 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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23. The Supreme Court in the matter of Arjun v. State of Chhattisgarh⁴ 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

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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 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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24. 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 the 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 the IPC.

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25. In the present case, PW2 Pancham Singh and PW5 Devnarayan, s/o late Hari Pratap Singh are the eye-witnesses to the incident. PW5 is brother of the deceased, who stated that he was being informed by one of the in-laws of his sister that appellant has committed ‘ maar-peet ’ with his sister, and she was not even able to walk and then, he came to her house for taking her back to his parents’ house. In the morning when he asked her to come with him, appellant raised quarrel with his sister, and thereafter, he left the house. When Devnarayan, along with his sister proceeded from her house, near the house of Pancham, he was stopped by the appellant, again raised quarrel, and gave a blow of axe, which he was having in his hand. By the axe blow, the deceased received injury on her right knee, and thereafter, he fled away.

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26. PW2, Pancham has also stated that when brother of the deceased was taking his sister by his motorcycle, near his house, appellant came and assaulted the deceased by an axe, due to which she received injury on her knee, and the appellant fled away.

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27. PW6, Dr Sadhana Singh, who is the Medical Officer at Community Health Centre, Prem Nagar, where the deceased was taken for her

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primary treatment, stated in her evidence that when the deceased was produced before her for her medical examination, she found that she received injury on her right leg, just above the knee on back side, which is 4 x 1 x 1 cm in size. Looking to her condition, she referred the injured to the District Hospital, Surajpur.

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28. PW11, Dr Deepshikha Lakda, who conducted the post-mortem on dead-body of the deceased, has found that the deceased received injury on her right leg near the knee, and her right popliteal artery and veins are cut.

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29. The repeated quarrel raised by the appellant with his wife from the previous day for which her brother came to her house for taking her back, which is also appellant objected, and when she proceeded to go with her brother, on the way, appellant made assault by an axe, that too from its sharp edge, which resulted into cut of her right popliteal artery and veins, due to which she suffered excessive hemorrhage, and ultimately, died. Had the appellant been intended to commit murder of his wife, he would have repeatedly assault his wife with the axe on other part of her body also, but the deceased received cut injury on her right knee, at the back side, which is caused by the sharp side of the axe. Appellant has not assaulted the deceased in a cruel or unusual Manner.

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30. Considering the entirety of facts and circumstances of the case, as also the evidence available on record, the manner of assault, part of the body on which the assault was made, and also the law laid down by the

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Hon’ble Supreme court in the above cited judgments, it emerges as plausible and possible story that out of sudden quarrel, heat of passion, and anger, appellant, without any premeditation, much less intention to cause death, assaulted his wife-Sarita with an axe. Therefore, it is difficult to hold that it is a planned murder under these circumstances, particularly, when there is no motive for any assault. However, the intention is said to have been happened all of a sudden. Therefore, in our considered opinion, criminal overt act of the appellant would only amount to culpable homicidal, not amounting to murder by application of exception 4 of Section 300 of the IPC.

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31. Since we find that there was no intention with which it can be attributed that the appellant had any premeditation to kill his wife, the appellant is liable to be convicted only under Section 304 Part-II of the IPC.

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32. In the result, the appeal is partly allowed. The conviction of the appellant under Section 302 of the IPC is altered to one under Section 304 Part-II of the IPC, and he is sentenced to under RI for five years with fine of Rs.1,000/-. In default of payment of fine amount, further RI for two months.

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33. The appellant is reported to be in jail since 03.01.2021. He be given the benefit of the period for which he has already undergone during trial, as well as after his conviction, as provided under Section 428 of the

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CrPC and the benefit of set off be given to him. He shall serve the remaining part of the sentence as ordered by this Court.

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34. The criminal appeal is partly allowed to the extent indicated herein above.

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35. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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padma

Shivnarayan Singh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shivnarayan Singh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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