Bahadur Manjhhi Vs State of Chhattisgarh

 Bahadur Manjhhi S/o Dashmat Manjhhi, aged about 24 years, R/o Village Parsudi, Police Station and District Jamshedpur, presently Annapurna Bihar Sector - 03, H.No. 26, Police Station Sirgitti, District Bilaspur Chhattisgarh.

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... Appellant

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versus

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State of Chhattisgarh through Police Station Sirgitti, District Bilaspur Chhattisgarh.

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... Respondent

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For Appellant :- Mr. Utkal Pradhan, Advocate/Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee.

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For Respondent-State :- Mr. Soumya Rai, 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 Judgment On Board

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(12.09.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the

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present criminal appeal under Section 374(2) of CrPC has

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been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 24.01.2019 passed by the Sessions Judge, Bilaspur, District Bilaspur, Chhattisgarh in Sessions Trial No. 142/2017 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹3,000/-; in default of payment of fine amount the appellant has to undergo rigorous imprisonment for 6 months.

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The case of the prosecution, in a nutshell, is that on 30.08.2017 at Annapurna Colony, Ganesh Nagar, Police Station Sirgitti, District Bilaspur, Chhattisgarh, the appellant assaulted his brother-in-law Ashish Babu (now deceased) by sharp edged weapon i.e. knife by which he suffered grievous injuries, he was escorted to the hospital where he was declared dead by the doctors. The said incident was witnessed by Rashmi Manjhi (PW-6), wife of the appellant and sister of the deceased, and Nirmla Devi (PW-7), mother of the deceased. On the information of the hospital authority Ashok Miri (not examined) reported the matter to the police pursuant to which merg intimation was registered vide Ex.P/11. FIR was registered vide Ex.P/14.

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Spot map was prepared vide Ex.P/4. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12) proved by Dr. S.K. Chandel (PW-13), cause of death was haemorrhage shock due to stab injury to heart and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/7) handle of knife was seized vide Ex.P/8. Clothes of the appellant were also seized vide Ex.P/9. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/21) on the jeans of the appellant (Article A) 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 13 witnesses and exhibited 23 documents, whereas, the appellant in defence has examined 1 witness and exhibited 5 documents. S tatement of the appellant was recorded

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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 the impugned judgment of conviction and order of sentence.

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Mr. Utkal Pradhan, 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 considering the statement of Rashmi Manjhi (PW-6) and Nirmla Devi (PW-7), 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 31.08.2017, more than 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 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. 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 and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-I or Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, 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 to which, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/12) proved by Dr. S.K. Chandel (PW-13) 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 statements eye witnesses Rashmi Manjhi (PW-6), wife of the appellant and sister of the deceased, and Nirmla Devi (PW-7), mother of the deceased, in which they have clearly implicated the appellant in crime in question. Rashmi Manjhi (PW-6) in her statement before the Court has stated that at the time of incident she was pregnant and she was unwell also, but her husband i.e. appellant did not assist her and also did not take her to the hospital for treatment so she called her brother (deceased) to take her to hospital. On the date of incident, the deceased took her (PW-6) and visited to the hospital for checkups and due to which she could not prepare food for the appellant and when she came to the house, the appellant started quarreling with her and also assaulted her. She informed the said incident to her mother (PW-7) and the deceased too, thereafter, they came to the house of the appellant and the deceased. At that time the appellant was in anger and cooking food in the kitchen, the deceased entered into the kitchen to pacify the dispute, but out of anger quarrel took place between them and the appellant assaulted the deceased by knife. Similar statement has been given by

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Nirmla Devi (PW-7) that when the deceased entered into the kitchen to pacify the dispute, quarrel took place between them and the appellant assaulted the deceased by knife. They have been subjected to some extent of cross examination, but nothing has been extracted to hold that they have falsely implicated the appellant in crime in question. Further considering the fact that on the clothes of the appellant blood was found in the FSL report Ex.P/21, t he trial Court has rightly held that it is the appellant who assaulted the deceased by knife 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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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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1 (2017) 3 SCC 247

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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 combat between two or more persons whether with or without weapons. It is not possible to enunciate any

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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: (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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2 (2019) 6 SCC 122

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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 injured eye witnesses Rashmi Manjhi (PW-6), wife of the appellant, and Nirmla Devi (PW-7), mother of the deceased, that on the date of offence, PW-6 was pregnant and unwell and the appellant was not assisting her and also not taking her to the hospital for treatment so she called her brother (deceased) who took her to the hospital, due to which PW-6 did not cook food and when the appellant came to the house started quarreling with her which she informed the deceased as well as PW-7, thereafter, they came to the house of the appellant and the deceased. At that time, the appellant was in anger and cooking food in the kitchen so the deceased entered into kitchen to pacify the dispute, but quarrel took place between them and out of anger, the appellant is said to have assaulted the deceased by knife by which he suffered grievous injuries and died. Considering the nature of injury which has occurred on the body of the 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

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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 appellants 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 that there was no premeditation on the part of the appellant to cause death of his brother-in-law (deceased) and the injuries caused by the appellant were not sufficient in ordinary course of nature to cause death of the deceased, the appellant is convicted for offence under Section 304 Part-II of the IPC and he is sentenced to the period already undergone by him as he is in jail since 31.08.2017, however, the fine amount imposed by the learned trial Court shall remain intact.

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

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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 sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if

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any.

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ankit

Bahadur Manjhhi v. State of Chhattisgarh

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Bahadur Manjhhi v. State of Chhattisgarh

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