Partly allowed

Horil @ Krishna Kumar Patel v. State Of Chhattisgarh

Chhattisgarh HC16 Jan 2024CRA/290/2017

Case brief

AI extract

What is this about?

Appeal against conviction for murdering his 23-day-old daughter by throwing her on the ground after a quarrel with his wife over the girl child's birth. Court affirmed homicidal death and the appellant's act but held the sudden, unpremeditated act fell under Exception 4 to Section 300 IPC, altering conviction to culpable homicide not amounting to murder.

What did the court decide?

Conviction altered from Section 302 to Section 304 Part-II IPC; sentence reduced to 9 years rigorous imprisonment; fine retained; appeal partly allowed.

Horil @ Krishna Kumar Patel Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 290 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 290 of 2017

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Horil @ Krishna Kumar Patel S/o Ghasiram Patel, aged about 26 years, R/o Village Padaria Dalaha, Police StationAkaltara, at present residing at Piparada, Police StationBamhnidih, District - Janjgir - Champa, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station - Bamhnidih, District - Janjgir - Champa, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Ashok Kumar Swarnkar, Advocate. For State :- Ms. Nand Kumari Kashyap, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment On Board (17.01.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 08.12.2016 passed by the Sessions Judge,

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CRA No. 290 of 2017

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Janjgir-Champa, Chhattisgarh in Sessions Trial No. 107/2016 by which appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of ₹1,00/-; in default of payment of fine amount additional rigorous imprisonment for 5 days.

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Case of the prosecution in, nutshell, is that on 04.07.2016 at about 9:30 pm at village Piparada, Police StationBamhnidih, District - Janjgir - Champa, Chhattisgarh, appellant picked up her 23 days old daughter from cot and threw her on the ground by which she suffered grievous injuries and died. It is further case of the prosecution that on the date of offence i.e. 04.07.2016 under the influence of liquor, appellant cursed his wife Basanti Bai (PW-1) by saying that she has given birth a girl child and also abused her, due to which quarrel took place between them and out of anger, in the heat of moment, appellant picked his 23 days old daughter from the cot and threw her on the ground by which she suffered grievous injuries and died. The said incident was witnessed by Basanti Bai (PW-1), who after seeing the said incident shouted and fell down unconsciously. Basanti Bai (PW-1) informed the said incident to her father Rameshwar Patel (PW-2), who came

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CRA No. 290 of 2017

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at the spot immediately after hearing the shout of Basanti Bai (PW-1). Thereafter, Rameshwar Patel (PW-2) informed about the said incident to the police, pursuant to which merg intimation (Ex.P/1) was registered (information of sudden and untimely death) and FIR was also registered vide Ex.P/2). Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/9) proved by Dr. Nilesh Mahobia (PW-6) cause of death was haematoma of brain due to severe internal injury of the brain that is caused by heavy struck (contact) of the head over hard surface and homicidal in nature.

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After due investigation, appellant herein was chargesheeted 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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In order to bring home the offence, prosecution has examined as many as 7 witnesses and exhibited 13 documents and defence in support of its case has examined 2 witness and exhibited 1 document.

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CRA No. 290 of 2017

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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 questioning the impugned judgment of conviction and order of sentence.

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Mr. Ashok Kumar Swarnkar, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the IPC and the appellant is in jail since 06.07.2016, more than 7 years have been completed and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Ms. Nand Kumari Kashyap, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the

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CRA No. 290 of 2017

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offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, 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 gone through the records with utmost circumspection.

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard, the learned trial Court has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis of postmortem report (Ex.P/9 proved by Dr. Nilesh Mahobia (PW-6), which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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CRA No. 290 of 2017

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Considering the statement of Basanti (PW-1), wife of the appellant and mother of the deceased, who is the eye witness, and also considering the statement of Rameshwar Patel (PW-2), who came immediately at the spot after hearing the shout of PW-1, the trial Court has rightly held that it is the appellant who picked up his 23 days old daughter (deceased) and threw her on the ground by which she suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

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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 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

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1 (2002) 3 SCC 327

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CRA No. 290 of 2017

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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.

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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 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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(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 2 (2009) 15 SCC 635

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CRA No. 290 of 2017

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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 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

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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,

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3 (2012) 8 SCC 450

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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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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, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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4 (2017) 3 SCC 247

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CRA No. 290 of 2017

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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

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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

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CRA No. 290 of 2017

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

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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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Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that under the influence of liquor, appellant cursed his wife Basanti Bai (PW-1) by saying that she has given birth a girl child and also abused her, due to which quarrel took place between them and

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5 (2019) 6 SCC 122

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CRA No. 290 of 2017

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out of anger, in the heat of moment, appellant picked his 23 days old daughter from the cot and threw her on the ground by which she suffered grievous injuries and died. Considering the nature of injury which has occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her 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 IPC is altered to Section 304 Part-II of the IPC and the

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CRA No. 290 of 2017

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appellant is sentenced to undergo rigorous imprisonment for 9 years, however, the fine amount imposed by the learned trial Court shall remain intact.

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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 to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Ankit

Horil @ Krishna Kumar Patel v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Horil @ Krishna Kumar Patel v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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