Mitthuram Kadati Vs State of Chhattisgarh

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Page 1 of 11 IN Criminal Appeal No.428 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 428 of 20 18

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[Arising out of judgment dated 20.11.2017, passed in Sessions Case No.95 of 2015 (State of Chhattisgarh v. Mitthuram Kadati), by the Additional Sessions Judge (FTC), Dantewada (C.G.)]

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Mitthuram Kadati, Son of Lakkhuram, aged about 27 years, Resident of Village Fulgatta Banjarpara, Police Station Mirtur, District Bijapur (Chhattisgarh)

---- Appellant

(In jail)

Versus

State of Chhattisgarh, through the Station House Officer, Police Station Mirtur, District Bijapur (Chhattisgarh)

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---- Respondent

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----------------------------- For Appellant	-------------------------------------------------------------- : Ms. Sofia Khan, Advocate/Panel
	Lawyer appointed through CG
	HC Legal Services Committee
For Respondent -----------------------------	: Mr. Ashish Shukla, Addl. AG ----------------------------------------------------------------

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Division Bench

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

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Judgment on Board (11.06.2024)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed under Section 374(2) of Cr.P.C. by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 20.11.2017, passed by the Additional Sessions Judge (Fast Track Court), Dantewada in Sessions Case No.95 of 2015, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.200/- and, in default of

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payment of fine amount, sentenced to undergo additional rigorous imprisonment for 01 month.

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(2) The case of the prosecution, in short, is that on 30.01.2015, in the night at about 09:40 PM, at Village Fulgatta Banjarpara, within the ambit of Police Station Mirtur, the accused-appellant herein with the intent to kill one Lakhmu Lekami, assaulted him by means of iron rod, due to which, Lakhmu Lekami (hereinafter referred to as the “deceased”) suffered grievous injuries and died and, thereby, said to have committed offence under Section 302 of IPC.

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(3) The further case of the prosecution is that when Smt. Pandebai (PW-01) reported the matter to the police, the police registered merg intimation (Ex.P/03) and FIR (Ex.P/02) against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/05 and inquest proceedings were conducted vide Ex.P/06. Nazari Naksha was also prepared vide Ex.P/12. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/13), conducted by Dr. Abhay Pratap Singh Tomar (PW-13), it was opined that the cause of death of deceased is cardio-respiratory failure and nature of death is homicidal. Thereafter, the appellant was arrested and his memorandum statement was recorded vide Ex.P/08. Pursuant to the

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memorandum statement of the appellant, weapon of the offence i.e. iron rod has been seized vide Ex.P/09. The aforesaid seized iron rod alongwith other seized articles were sent for chemical examination and as per FSL report (Ex.P/01), it has been opined that stains of human blood were found on the said seized iron rod. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Bijapur and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 13 documents, whereas the appellant in support of his defence, though examined 04 witnesses, but not exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Ms. Sofia Khan, learned counsel appearing for the appellant

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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 even if the entire prosecution case is accepted as it is, then also 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, under anger and in heat of passion the appellant assaulted the deceased by means of iron rod, due to which he suffered grievous injuries and died. Therefore, 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 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-I or Part-II) of IPC and as the appellant is in jail since 03.02.2015 i.e. more than 09 years 04 months, he be sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses, specially Smt. Pandebai (PW-01), coupled

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with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 (Part-I or Part-II) of IPC. Thus, the present appeal deserves to be dismissed.

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(8) 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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(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/13), wherein it has been opined that cause of death of deceased is cardio-respiratory failure and nature of death is homicidal, which is duly proved by the statement of Dr. Abhay Pratap Singh Tomar (PW-13). Accordingly, taking into consideration the postmortem report (Ex.P/13) and the statement of Dr. Abhay Pratap Singh Tomar (PW-13), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby

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affirm the said finding.

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(10) Now, the next question would be whether the accusedappellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statements of eye-witness- Smt. Pandebai (PW-01), who is wife of the deceased and was also present on the spot alongwith the appellant and the deceased at the time of incident. Smt. Pandebai (PW-01) has clearly stated before the Court that the deceased used to work as a servant and reside in the house of the appellant and, on the date of offence, the appellant herein suspecting deceased’s relationship with his wife outside the marriage has assaulted the deceased, due to which he suffered grievous injuries and died. Smt. Pandebai (PW-01) was subjected to some length of cross-examination, but nothing could be extracted from them to hold that she has not seen the incident or telling lie before the Court in order to falsely implicate the appellant. As such, her testimony is trustworthy, inspire confidence and can be relied upon. Further, pursuant to the memorandum statement of the accused-appellant recorded vide Ex.P/08, the weapon of the offence i.e. iron rod has been seized vide Ex.P/09, in which, as per FSL report (Ex.P/01) stains of human blood were found. Thus, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of

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the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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(11) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant?

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(12) 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) 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

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1 (2017) 3 SCC 247

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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 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

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acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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(13) 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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(14) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)2 has laid down four ingredients which should be tested to 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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(15) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the instant case, as per Para-13 of the statement of eye-witness- Smt. Pandebai (PW-01), on the date and time of the offence, she alongwith the deceased and the appellant had consumed liquor and, thereafter, the appellant

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2 (2019) 6 SCC 122

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herein suspecting deceased’s relationship with his wife outside the marriage has assaulted him by means of iron rod, due to which he suffered grievous injuries and died. As such, it is quite clear that there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger, under heat of passion and under the influence of liquor, the appellant assaulted the deceased, due to which he suffered grievous injuries and died. However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries 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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(16) 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

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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 IPC and since the appellant is in jail from 03.02.2015 i.e. more than 09 years 04 months, he is sentenced to the period already undergone by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Consequently, the appellant be released from jail forthwith, if not required in any other matter/crime.

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(17) This criminal appeal is partly allowed to the extent indicated herein-above.

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(18) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing 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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s@if

Mitthuram Kadati v. State of Chhattisgarh

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Mitthuram Kadati v. State of Chhattisgarh

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