Partly allowed

Naresh Kumar Dhruv v. State of Chhattisgarh

Chhattisgarh HC5 Sept 2024CRA/28/2019

Case brief

AI extract

What is this about?

Conviction under Section 302 IPC for an axe assault on the deceased was altered to culpable homicide not amounting to murder under Section 304 Part-II, as the act occurred in a sudden quarrel without premeditation, and a 10-year rigorous imprisonment sentence was imposed.

What did the court decide?

Conviction altered from Section 302 to Section 304 Part-II IPC; sentence reduced to rigorous imprisonment for 10 years; fine retained.

Naresh Kumar Dhruv Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

2024:CGHC:34800-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 28 of 2019

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(Arising out of judgment dated 06.12.2018 passed in Sessions Trial No.H05/2017 by the learned Additional Sessions Judge, Bhatapara, District-

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Balodabazar-Bhatapara C.G.)

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1 - Naresh Kumar Dhruv S/o Hariram Shruw Aged About 26 Years R/o Singarpur Police Station Bhatapara Gramin District Balodabazar Bhatapara Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through Police Station Bhatapara (Gramin ) District Balodabazar Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System)

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For Petitioner : Mr. B.L. Dembra, Advocate For Respondent/State : Mr. Soumya Rai, Panel Lawyer.

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Digitally signed by RAVI SHANKAR MANDAVI

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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Sanjay K. Agrawal, J

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06/09/2024

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of Code of Criminal Procedure has been filed by the appellant calling in question the legality, validity

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and correctness of the judgment of conviction and order of sentence dated 06.12.2018 passed by the learned Additional Sessions Judge, Bhatapara, District-Balodabazar-Bhatapara, Chhattisgarh in Sessions Trial No. H-05/2017 whereby the appellant has been convicted for offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life with fine of Rs.1,000/- and in default of payment of fine additional R.I. for 3 months.

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The case of the prosecution, in a nutshell, is that on 31.01.2017 at about 11:30 a.m. at village Singarpur, Police Station Bhatapara Gramin, District Balodabazar, Chhattisgarh, the appellant assaulted Dharmu Ram Sahu (now deceased) by axe due to which he suffered grievous injuries and died. The complainant - Jwala Prasad Sahu (PW-01) reported the matter to the police, pursuant to which, merg intimation and FIR were registered vide Exs.P/02 & P/19, respectively. Spot map was prepared vide Ex.P/08. Inquest proceedings (Ex.P/05) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/14) proved by Dr. R.N. Das (PW-18) cause of death was cardiac arrest due to cessation of function of the brain due to excessive hemorrhage in large vessels and death was homicidal in nature. Weapon of offence i.e. axe and clothes of the appellant were seized from the possession of the appellant vide Ex.P/12 and P/11, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report

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(Ex.P/22) on the weapon of offence i.e. axe (Article D) and on the clothes of the appellant (Article E1 to E5) human blood was found.

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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 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 20 witnesses and exhibited 23 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 circumstances appearing against him in the evidence brought on record, 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 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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Mr. B.L. Dembra, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable

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doubt. He further submits that even if the entire prosecution case is accepted as it is, then also the appellant is said to have assaulted the deceased in spur of the moment and there was no motive or premeditation on the part of the appellant to cause death of the deceased and only on account of sudden quarrel and out of anger the appellant assaulted the deceased, due to which he suffered grievous injuries and died. Therefore, 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 for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and as the appellant is in jail since 31.01.2017 i.e. more than 07 years, he be sentenced for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Soumya Rai, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not the case where the conviction of the appellant can be modified to a lesser offence, therefore, the appellant has rightly been convicted for the offence in question. Thus, 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 perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative by relying upon the postmortem report (Ex.P/14) proved by Dr. R.N. Das (PW-18), wherein it has been opined that cause of death of the deceased was cardiac arrest due to cessation of function of the brain due to excessive hemorrhage in large vessels and nature of death was homicidal, which in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the accusedappellant herein has caused injuries over the body of the deceased?

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Considering the testimony of eye witnesses namely Jwala Prasad Sahu (PW-01), son of the deceased, Pyari Bai (PW-02), wife of the deceased, Ku. Sonam Sahu (PW-03), daughter of the deceased, and Omin Bai (PW-16), daughter-in-law of the deceased, in which they have clearly implicated the appellant in crime in question by stating that on date of offence when the deceased reached in front of house of Girija (PW-4), the appellant assaulted him by axe on his neck & head as a result of which the deceased had suffered grievous injuries and died, they (PW-1, PW-2, PW-3 & PW-16) were

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subjected to some length of cross-examination, but nothing has been extracted to hold that they have not seen the incident or telling lie before the Court in order to falsely implicate the appellant, as such, their testimony are trustworthy, inspire confidence and can be relied upon and further considering the fact that on the weapon of of offence i.e. axe and on the clothes of the appellant human blood was found in the FSL report (Ex.P/22) which were seized from the possession of the appellant, the learned trial Court has rightly held that it is the appellant who has caused injuries over the body of the deceased, due to which he succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellantaccused who has caused injuries over the body of the deceased and the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant?

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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

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1 (2002) 3 SCC 327

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

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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 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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(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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2 (2009) 15 SCC 635

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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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24.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

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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 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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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

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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 possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section

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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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Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)5 has laid down four ingredients which should be

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tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:-

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

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(i)There must be a sudden fight;

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(ii)There was no premeditation;

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

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

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Reverting to the facts of the case in light of above principles of law, it is quite vivid that on the date and time of the offence, the dispute arose between the appellant and Jwala Prasad Sahu (PW-1) and on being called when the deceased was coming to his house, the appellant assaulted the deceased by axe on head and neck, due to which, he suffered grievous injuries and died. As such, it is quite clear that there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel and out of anger, the appellant is said to have assaulted the deceased by axe, due to which he suffered grievous injuries and died. However, looking to the injuries sustained by the deceased,

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5 (2019) 6 SCC 122

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though the appellant had no intention, but he must have had knowledge that such 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 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.

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In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering the fact 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 the IPC and sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount imposed by the learned trial Court shall remain intact.

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Accordingly, this criminal appeal is partly allowed .

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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/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ravi Mandavi

Naresh Kumar Dhruv v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Naresh Kumar Dhruv v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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