Partly allowed

Parmeshwar Berijia v. State of Chhattisgarh

Chhattisgarh HC9 Sept 2024CRA/340/2019

Case brief

AI extract

What is this about?

Criminal appeal against conviction for murder. Bench held death was homicidal but case fell within Exception 4 to Section 300 IPC due to sudden quarrel and heat of passion. Conviction under Section 302 IPC altered to Section 304 Part-II IPC.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304 Part-II IPC and sentenced to 7 years rigorous imprisonment; fine retained.

Parmeshwar Berijia Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:35214-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 340 of 2019

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(Arising out of judgment dated 04.12.2018 passed in Sessions Trial No.R59/2018 by the learned Second Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District - Balrampur C.G.)

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1 - Parmeshwar Berijia S/o Shri Shutla Berijia Aged About 35 Years Occuapation Agriculturist R/o Village Karamdeeh Police Station Saamripath District Balrampur Ramanujganj Chhattisgarh., District : Balrampur, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Police Station Saamripaath District Balrampur Ramanujganj Chhattisgarh., District : Balrampur, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System)

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For Petitioner : Mr. Ajay Mishra, Advocate For Respondent/State : Mr. Sharad Mishra, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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(10/09/2024)

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Digitally signed by RAVI SHANKAR MANDAVI

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Sanjay K. Agrawal, J.

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of Code of Criminal Procedure

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has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 04.12.2018 passed by the Second Additional Judge to the Court of Additional Session Judge, Ramanujganj, District - Balrampur Chhattisgarh in Sessions Trial No.R 59/2018 whereby the appellant has been convicted for offence punishable under Section 302, 323 of the IPC and sentenced to undergo imprisonment for life with fine of ₹ 5,000/-; in default of payment of fine to undergo additional rigorous imprisonment 1 year under Section 302 and only fine of ₹ 500/- under Section 323 of IPC, in default of payment of fine to undergo additional simple imprisonment for 1 month. Both the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that on 07.03.2018 at about 16:00 pm at Village - Laxmanpur, Police Station Samripath, District Ramanujganj, Chhattisgarh, the appellant assaulted his fatherin-law Mansu Berijia (now deceased) by blunt side weapon axe, due to which he suffered grievous injuries and died. He has also assaulted his wife (PW-1) Gango Birijaya by wooden stick causing simple injury, thereby committed the aforesaid offence.

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The said incident was reported by Gango Birijaya (PW-1) wife of the appellant, pursuant to which merg intimation and FIR were registered vide Exs.P/12 & P/13, respectively. Spot Map was prepared vide Ex.P/3. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/9) proved by Dr. T. Sai (PW-05) cause of death was Coma, Syncope and External hemorrhage due to injury on head and

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neck. He opined that nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/04) axe and broken stick in 3 parts were seized vide Exs.P/5 and P/7, respectively. Other articels were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/18) on the axe (Article C) and on the clothes of the deceased (Articles E) human blood was found and also on the clothes of the appellant (D2) human blood was found.

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After due investigation, appellant was charge-sheeted for the aforesaid offences 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 7 witnesses and exhibited 18 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 offences 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. Ajay Mishra, learned counsel 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 doubt. He further submits that if the entire prosecution case is accepted as it is, 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 ( as 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 ) 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-II) of IPC and as the appellant is in jail since 08.03.2018, more than 6 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 the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Sharad Mishra, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt. He also submits that the trial Court has rightly convicted the appellant on the basis of statement of his wife and also on the basis of FSL report in which on the weapon of offence i.e. axe blood was found which was seized pursuant to

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memorandum statement of the appellant. He further submits that 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 appellant has rightly been convicted for the offences 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 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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The said question has been answered by the trial Court in affirmative that the death of Mansu Berijia (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/9) proved by Dr. T Sai (PW05) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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

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Considering the statement of eye witness wife of the appellant Smt. Gango Berijia (PW-1) and the statement of Mahangu Nageshiya (PW2) in which they have clearly implicated the appellant in crime in question and further considering the fact that pursuant to memorandum

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statement vide Ex.P/4 of the appellant weapons of offence have been seized vide (Ex.P/5 & P/7) on which in FSL report (Ex.P/18) human blood was found, the trial Court has rightly held that it is the appellant who assaulted his father-in-law (deceased) by axe by which the he 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 Arjun v. State of Chhattisgarh 1 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

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1 (2017) 3 SCC 247

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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 304 Part-I

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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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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 from the statement of wife of the appellant Smt. Gango Berijia (PW-1) that on the date of incident, her husband/appellant was cooking food as his wife was sleeping being unwell and at that time deceased came at the house of the appellant and asked him why he was cooking food (when his wife is there to cook the food without having knowledge of her daughter's ill health), the appellant become angry and due to which altercation took place between them and out of anger, in the spur of moment, the appellant is said to have assaulted the deceased by blunt part of axe, due to which he suffered grievous injuries and died. Considering the nature of injury which has occurred on the body of the

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2 (2019) 6 SCC 122

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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 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 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 IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of his father-in-law Mansu Berijia (deceased) and the injuries caused by him were not sufficient in the ordinary course of nature to cause death of the deceased, the appellant is convicted for offence punishable under Section Section 304 Part-II of the IPC and he is sentenced to undergo rigorous imprisonment for 7 years, however, the fine amount imposed by the learned trial Court shall remain intact. So far as the conviction and sentence along with default stipulations imposed by the learned trial Court for the offences punishable under Section 323 of IPC are not interfered with.

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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 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

Parmeshwar Berijia v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Parmeshwar Berijia v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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