Partly allowed

Bhagirathi Nisad v. State Of Chhattisgarh

Chhattisgarh HC20 Jun 2024CRA/33/2018

Case brief

AI extract

What is this about?

Illogical High Court acquittal in murder appeal. Convicted and sentenced accused for murder. Appeal allowed in part converting murder to culpable homicide under Section 304 IPC, reducing sentence to seven years. Bail application rejected as infructuous. Records remanded.

What did the court decide?

Conviction under Section 302 IPC set aside and convicted under Section 304 Part-I IPC. Sentenced to 7 years rigorous imprisonment and fine of Rs. 20,000. Bail I.A. rejected.

Bhagirathi Nisad 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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Criminal Appeal No.33 of 2018

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Bhagirathi Nisad, son of Jarhuram Nishad, aged about 35 years, resident of Village Gudadhar, Police Station Bhatapara, District Baloda Bazar, Chhattisgarh

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--- Appellant

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versus

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State of Chhattisgarh through Station House Officer, Police Station Bilha, District Bilaspur, Chhattisgarh

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--- Respondent

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------------------------------------------------------------------------------------------------ For Appellant : Shri Aman Upadhyay, Advocate For Respondent/State : Shri Malay Jain, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Sachin Singh Rajput, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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21.6.2024

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The instant appeal filed by the accused under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 6.10.2017 passed by the Additional Sessions Judge, Bilaspur in Sessions Trial No.46 of 2017, whereby the Appellant/accused has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs.20,000, in default of payment of which he is to undergo

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additional rigorous imprisonment for 6 months.

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Case of the prosecution, in brief, is that on 28.1.2017 Complainant Amarlal, watchman (Kotwar) of Village Udantal reported the matter to police to the effect that at about 1:30 a.m. Sanjay Kurrey informed him that Radhelal Pal has been murdered near the watchman’s room of Dr. Ashok Agrawal’s farm house. On receiving the information, he along with his co-villagers Amar Tandon, Rajendra Tandon and Hemkumar Kurrey went there and found that dead body of watchman Radhelal Pal was lying near watchman’s room and there were grievous injury marks over his head from which blood was oozing out. Empty liquor bottle, glass, tiffin-box and lock-key were lying there. On an inquiry from watchman Bhagirathi (the Appellant), he expressed ignorance about the incident. On suspicion, he was again inquired and this time he admitted his guilt of murder of Radhelal Pal and also confessed that prior to the occurrence he had consumed alcohol with Sanjay and Radhelal and thereafter he went to leave Sanjay Kurrey near the railway bridge. After return, while he and Radhelal were taking meal, Radhelal under influence of liquor started quarreling using abusive language and threw the tiffin-box. Therefore, in anger, he gave blow with a piperanch ( pipe ring pana) twice over the head of Radhelal and murdered him. On the information, Dehati Nalishi (Ex.P9) was recorded and subsequently Dehati Morgue Intimation (Ex.P8) and First Information Report (Ex.P17) was registered

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against the Appellant. On registration of the FIR, case was investigated in which statements of witnesses were recorded, disclosure statement of the Appellant was also recorded, articles were recovered, spot map was prepared, postmortem of the dead body was got conducted and opinion of the doctor was obtained. Postmortem report is Ex.P15 in which the doctor found four injuries, namely, (i) lacerated wound above left parietal region of 2 cm. x 1 cm., (ii) lacerated wound behind left ear of 1 cm. x 1 cm., (iii) tear of upper pinna of left ear of 1 cm. x 1 cm. and (iv) lacerated wound over right side of neck of 3 cm. x 1 cm. The doctor opined that the cause of death was syncope due to blood loss from the wounds and the injuries were homicidal in nature. On completion of the investigation, a charge-sheet was filed against the Appellant. He denied the guilt, pleaded innocence and claimed trial.

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In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 31 documents. Statement of the Appellant/accused was also recorded under Section 313 Cr.P.C. in which all the incriminating material was put to him and after recording his respective replies about the questions put to him he entered into defence, but, he has examined no witness in his defence.

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The Trial Court upon appreciation of the oral and documentary evidence available on record has convicted and sentenced the

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Appellant as mentioned in first paragraph of this judgment. Hence, the appeal.

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Learned Counsel appearing for the Appellant submits that the Trial Court is absolutely unjustified in convicting the Appellant for the offence under Section 302 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that even if the case of the prosecution is taken as it is then also the Appellant is said to have caused injuries to the deceased in spur of a moment. There was no motive or intention on the part of the Appellant to cause death of the deceased and the dispute arose when the deceased under influence of liquor started quarreling, used abusive language and threw the tiffin-box. Therefore, on account of the sudden quarrel, under heat of passion and in anger, the Appellant caused injuries to the deceased which caused his death. Hence, the present case falls within the purview of Exception 4 to Section 300 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 IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part.

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Per contra, Learned Panel Lawyer appearing for the Respondent/State supports the impugned judgment and submits that the case is based on the circumstantial evidence and the

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prosecution has successfully proved the complete chain of circumstances. It is not a case where the Appellant’s conviction under Section 302 IPC can be altered/converted to Section 304 Part-I or Part-II IPC and as such the instant appeal deserves to be dismissed.

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We have heard the rival contentions put-forth on behalf of the parties and perused the material available with utmost circumspection.

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The first question for consideration before us is whether the death of Radhelal was homicidal in nature?

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The Trial Court after appreciation of the oral and documentary evidence available on record, particularly, relying upon the statement of Dr. Sharad Garewal (PW4), who conducted the postmortem examination over the dead body, has come to the conclusion that cause of death was syncope due to blood loss from the wounds and the injuries were homicidal in nature. After considering the submissions made by Learned Counsel appearing for the parties, we are of the opinion that the finding recorded by the Trial Court that the death was homicidal in nature is the finding of fact based on the evidence available on record. It is neither perverse nor contrary to the record. We hereby affirm the said finding.

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Now, the next question for consideration is whether the Appellant

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is the perpetrator of the crime in question. In the present case, there is no direct evidence against the Appellant and the whole case is based on the circumstantial evidence only. The Trial Court has appreciated the evidence of Sanjay Kurre (PW1), Amarlal Gayakwad (PW2), Hem Kurre (PW7) and Panchram (PW3) minutely and found that the Appellant was the perpetrator of the crime in question. On an inquiry made by Sanjay Kurre (PW1) from the Appellant at the place of occurrence, the Appellant made an extra judicial confession before him and admitted that he caused the death of Radhelal with piperanch (pipe ring pana) blows over his head. It has not come on record that any force or inducement or coercive method has been used for the said confession. There is no delay in the confession. Based on the evidence available on record the confession made by the Appellant is found to be voluntarily made. Thus, it is clear that it was the Appellant who on the fateful date and time caused the injuries to the deceased, due to which he died. As such, the Trial Court has rightly held that it was the Appellant who caused the injuries to the deceased which resulted his death. Hence, we hereby affirm this finding.

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The aforesaid finding brings us to the next question for consideration whether the case of the Appellant falls within the purview of Exception 4 to Section 300 IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be

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converted to Section 304 Part-I or Part-II of the IPC, as contended by Learned Counsel for the Appellant?

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The Supreme Court in 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 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 Gurmukh Singh v. State of Haryana² has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the Appellant with reference to Section 302 or Section 304 Part II of the IPC, which state as under:

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2 (2009) 15 SCC 635

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1 (2002) 3 SCC 327

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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 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

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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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Likewise, in 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 an act of his is likely to cause death.

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Further, the Supreme Court in 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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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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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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

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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 Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be a 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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Further, the Supreme Court in Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of the IPC, which reads as under:

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

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(i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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In the present case, the evidence of Sanjay Kurre (PW1), Amarlal Gayakwad (PW2), Hem Kurre (PW7) and Panchram (PW3) has

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5 (2019) 6 SCC 122

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clearly established that the Appellant was the perpetrator of the crime in question and there was an extra judicial confession also made by the Appellant admitting that he caused the death of Radhelal with piperanch (pipe ring pana) blows over his head.

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Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that the dispute arose while the Appellant and deceased Radhelal were taking meal and Radhelal under influence of liquor started quarreling using abusive language and threw the tiffin-box. Then, out of anger and on a sudden quarrel, the Appellant gave blows with a piperanch ( pipe ring pana) over the head of Radhelal and murdered him. There was no premeditation on the part of the Appellant to cause death of Radhelal. Only on a petty ground the quarrel took place between the Appellant and Radhelal and out of anger and in a heat of passion, the Appellant gave pana blows which resulted into death of Radhelal. The Appellant did not have any intention to cause death of Radhelal, but, by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Radhelal. As such, his case would fall within the purview of Exception 4 to Section 300 IPC as his act completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC, namely, (i) there must be a sudden fight, (ii) there was no premeditation, (iii) the act

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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.

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Considering the facts and circumstances of the case, the evidence as discussed above and also considering that the Appellant is in jail since 28.1.2017, we are of the view that it would meet the ends of justice if the conviction of the Appellant from Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC.

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Accordingly, the conviction and sentence imposed upon the Appellant for the offence punishable under Section 302 of the IPC are set aside. However, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 7 years. He is also sentenced with fine of Rs.20,000. In default of payment of the fine, he shall be liable to undergo additional rigorous imprisonment for 4 months. If any amount has already been deposited towards fine, the same shall be adjusted in the amount of fine imposed today.

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The criminal appeal is partly allowed to the extent shown above.

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I.A. No.1 of 2024 for grant of temporary bail to the Appellant is rejected as having become infructuous.

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Records be sent back along with a copy of this judgment.

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Sd/Sd/- (Sachin Singh Rajput) (Ramesh Sinha) Judge Chief Justice

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Gopal

Bhagirathi Nisad v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bhagirathi Nisad v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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