Partly allowed

Ipra Venkat v. State of Chhattisgarh

Chhattisgarh HC8 Feb 2024CRA/344/2018

Case brief

AI extract

What is this about?

The High Court altered the appellants' conviction from murder under Section 302 IPC to culpable homicide not amounting to murder under Section 304 Part-II IPC. The court held that the incident constituted a sudden fight in the heat of passion without premeditation or cruelty, satisfying Exception 4 to Section 300 IPC. The appellants were sentenced to 10 years rigorous imprisonment with immediate r

What did the court decide?

Conviction altered from Section 302 IPC to Section 304 Part-II IPC; appellants sentenced to 10 years RI and released forthwith.

Ipra Venkat Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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(Arising out of judgment dated 01.10.2016 passed in Sessions Trial No. 168/2013 by the learned Additional Sessions Judge (FTC), South Baster, Dantewada, CG)

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Criminal Appeal No. 1112 of 2017

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Telam Hunga S/o Shri Telam Buchchaiya, Aged About 33 Years R/o Village Dharmapur Patelpara, Police Station Basaguda, District Bijapur, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through The Officer In Charge Of Police Station Basagudha, District Bijapur, Chhattisgarh.

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---- Respondent

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Criminal Appeal No. 344 of 2018

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Irpa Venkat S/o Irpa Hunga, Aged About 22 Years R/o- Dharmapur, Patelpara, Police StationBasaguda, District- Bijapur, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through- Station House Officer, Basaguda, District- Bijapur, Chhattisgarh.

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---- Respondent

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For Appellants : Mr. Roop Ram Naik, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(09.02.202 4)

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Sanjay K. Agrawal, J.

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1. Both the criminal appeals preferred by the appellants under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 01.10.2016, passed by the Additional Sessions Judge (F.T.C), South Baster, Dantewada, Chhattisgarh, in Sessions Trial No.168/2013, by which, the appellants herein has been convicted for offence punishable under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

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2. For convenience, accused/appellants Telam Hunga and Irpa Venkat hereinafter referred to as A1 & A2 respectively.

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3. The case of the prosecution, in brief, is that on 19.03.2013, at about 10.30 pm, the appellants herein came to the house of deceased Erpa Lallu and appellant Telam Hunga assaulted him by leg and fist and appellant Irpa Venkat by wooden stick, as a result

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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of which, Erpa Lallu (deceased) suffered grievous injuries and died. It is an admitted position that A1 is the brother-in-law of the deceased and A2 is the son of the sister of the appellant’s wife, as such, the appellants and the deceased were closely related to each other. Further case of the prosecution is that the deceased had ill-treated the sister of A1 and therefore, on the date of offence, A1 along with A2 came to the house of the deceased and assaulted him by wooden stick by saying that why had you assaulted my sister, due to which, deceased Erpa Lallu sustained grievous injuries and died. The matter was reported to the Police, pursuant to which Merg Intimation (Ex.P-01) was recorded and FIR (Ex.P/02) was registered. Inquest proceedings were conducted vide Ex.P-07 and the dead body of deceased was subjected to postmortem. As per postmortem report (Ex.P/04), proved by Dr. Shailendra Kumar (PW-02), mode of death was coma and cause of death was head injury & traumatic haemorrhage shock and death was homicidal in nature. Pursuant to memorandum statement of the appellants (Ex.P/10), weapon of

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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offence i.e. wooden stick was seized vide Ex. P-11 which was sent for chemical examination to FSL and in FSL report Ex.P-12, blood was found on the stick.

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4. After completion of investigation, appellants herein were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence stating that they have not committed any offence and they have falsely been implicated in crime in question.

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5. In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 12 documents and the appellants-accused in support of their defence have neither examined any witness nor exhibited any document.

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6. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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questioning the impugned judgment of conviction and order of sentence.

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7. Shri Roop Ram Naik, learned counsel appearing for the appellants, would submit that the appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He would further submit that if the entire case is taken as it is, at the most, only offence under Section 304 Part-II of I.P.C. is made out, therefore, the conviction of appellants under Section 302 of I.P.C. may be altered/converted to Section 304 Part-II of I.P.C. and the sentence imposed upon them be reduced to the period already undergone by them, as the appellants are in jail since 01.04.2013 i.e. almost 11 years.

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8. On the other hand, Mr. Rahul Tamaskar, 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 appellants for the aforesaid offence and it is not the case of alteration of offence

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed.

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9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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10. The first question for consideration i s whether the death of deceased Erpa Lallu was homicidal in nature , which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex. P- 04) proved by Dr. Shailendra Kumar (PW-02), 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.

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11. Now, the question for consideration would be whether the appellants have assaulted the deceased?

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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12. Considering the statements of Erpa Buchchi (PW-07)

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who is the mother of the deceased and had witnessed the incident and Erpa Nagi (PW-1)-the wife of the deceased and further considering that pursuant to the memorandum statement of the appellant, wooden stick was recovered and as per the FSL report Ex. P-12, blood was found on the seized wooden stick, we are of the considered opinion that the finding recorded by the trial Court that it is the appellants who assaulted deceased Erpa Lallu by wooden stick by which 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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13. Now, the question is, whether the case of the appellants would fall under Exception 4 to Section 300 of IPC?

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14. In order to consider whether the case of the appellants is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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Sukhbir Singh v. State of Haryana1 wherein it has

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been 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 Sukhir 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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15. The Supreme Court in the matter of Gurmukh

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Singh v. State of Haryana 2, has laid down certain

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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, which

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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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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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 for 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 with 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 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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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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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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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16. Likewise, in the matter of State v. Sanjeev

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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

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extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part II of the IPC, the

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3 (2012) 8 SCC 450

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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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17. 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 is it 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.

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4 (2017) 3 SCC 247

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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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18. In the matter of Arjun (supra), the Supreme Court

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has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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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19. Further, the Supreme Court in the matter of Rambir v. 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 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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5 (2019) 6 SCC 122

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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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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20. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellants to cause the death of deceased. From the statement of eye witnesses Erpa Buchchi (PW-07) who is the mother of the deceased & Erpa Nagi (PW-1) who is the wife of the deceased, it is clear that on the date of offence, the appellants came to the house of the deceased and A1 assaulted him by leg & fist and A2 by wooden stick, as a result of which, Erpa Lallu (deceased) suffered grievous injuries and died. Considering the nature of injuries occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that there was no intention on the part of the appellants to cause death but the appellants must

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018

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have had knowledge that such injury inflicted by them 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 appellants 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 appellants had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC.

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21. In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of the IPC and the appellants are sentenced to 10 years RI which the appellants have already undergone, as they are in jail since 01.04.2013 i.e. almost 11 years. Accordingly, the appellants be released from jail forthwith, if their

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Criminal Appeal Nos. 1112 of 2017 & 344 of 2018 detention is not required in connection with any other offence.

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22. In the result, both the criminal appeals are partly allowed to the extent indicated herein-above.

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23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, 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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Khatai

Ipra Venkat v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ipra Venkat v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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