Deepak Mangiya (Mandavi) Vs State of Chhattisgarh

present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction

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and order of sentence dated 28.01.2019 passed by the Sessions Judge, Rajnandgaon, Chhattisgarh in Sessions Trial No. 76/2017 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life.

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The case of the prosecution, in a nutshell, is that on 18.08.2017 at about 1:30 pm at village Tolum, Police Station Manpur, District Rajnandgaon, Chhattisgarh, the appellant assaulted Santari Bai (now deceased) by axe by which she suffered grievous injuries and died. The said incident was witnessed by Dasari Bai (PW-6). Dasari Bai (PW-6) reported the matter to the police pursuant to which merg intimation and FIR were registered vide Exs.P/11 & P/10, respectively. Spot map was prepared vide Ex.P/9. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12-A) proved by Dr. Govind Kaushik (PW-10) cause of death was cardio-respiratory arrest due to excessive bleeding. Pursuant to memorandum statement of the appellant (Ex.P/3) weapon of offence i.e. axe was seized vide Ex.P/4. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/22) on the weapon of offence human blood

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was found and also on the clothes of the appellant 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 10 witnesses and exhibited 22 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

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the impugned judgment of conviction and order of sentence.

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Mr. Punit Ruparel, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that as per the medical evidence (Ex.P/12A) proved by Dr. Govind Kaushik (PW-10) only one major injury was found over the body of the deceased and as such, it would be a case, at the most, of commission of offence 304 Part II of the IPC and the appellant is in jail since 19.08.2017, almost 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 PartII of the IPC. Thus, 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 also submits that Dasari Bai (PW-6), eye witness, has clearly implicated the appellant in crime in question and it is not

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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 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 in relying upon the postmortem report (Ex.P/12-A) proved by Dr. Govind Kaushik (PW-10), 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 appellants have assaulted the deceased?

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Considering the statement of eye witness Dasari Bai (PW-6) in which she has clearly implicated the appellant in crime in question by stating that she had seen the appellant assaulting deceased by axe by which she suffered grievous injuries and died and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/3) weapon of offence i.e. axe was seized vide Ex.P/4 and on which in FSL report (Ex.P/22) human blood was found and also on the clothes of the appellant blood was found, the trial Court has rightly held that it is the appellant who assaulted the deceased by axe by which she suffered grievous injuries and died 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 Arjun v. State of Chhattisgarh1 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)

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1 (2017) 3 SCC 247

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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

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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 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)2 has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:-

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

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(i)There must be a sudden fight;

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(ii)There was no premeditation;

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2 (2019) 6 SCC 122

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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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Coming 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 decisions, it is quite vivid that there was no premeditation on the part of the appellant and on suspicion that the deceased was playing witchcraft, the appellant, out of anger, is said to have assaulted the deceased by axe by which she suffered grievous injuries and died and further considering the medical evidence available on the record (Ex.P/12-A) proved by Dr. Govind Kaushik (PW-10), in which only single major was found on the vital part of the body of the deceased, 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

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acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the 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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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

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and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) Sanjay Kumar Jaiswal) Judge Judge

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Ankit

Deepak Mangiya (Mandavi) v. State of Chhattisgarh

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Deepak Mangiya (Mandavi) v. State of Chhattisgarh

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