Partly allowed

Somadu Podiyami v. State of Chhattisgarh

Chhattisgarh HC2 Apr 2024CRA/47/2024

Case brief

AI extract

What is this about?

Appeal against conviction for murder under Section 302 IPC after an arrow stabbed into the deceased's abdomen during a quarrel proved fatal. Holding the death homicidal and caused by the appellant but without premeditation or intention to kill, the court invoked Exception 4 to Section 300 and altered the conviction to culpable homicide under Section 304 Part-II, sentencing him to seven years' rigo

What did the court decide?

Conviction under Section 302 IPC and life sentence set aside; appellant convicted under Section 304 Part-II IPC and sentenced to 7 years rigorous imprisonment plus Rs. 1,000 fine.

Somadu Podiyami Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 47 of 2024

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Somadu Podiyami Podiyami Podiyami Podiyami Podiyami S/o Deva Aged About 50 Years R/o Jangampal Loharpara, P.S. - Puspal, District - Sukma, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer Police Station - Puspal, District - Sukma, Chhattisgarh.

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---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Ms. Reena Singh, Advocate. For Respondent/State : Mr. Amit Buxy, Panel Lawyer.

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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03.04.2024

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This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 09.11.2023, passed by the learned Second Additional Session Judge, District – South Bastar Dantewada (C.G.) in Session Trial No. 31 of 2020, whereby the

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appellant/accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code, for short, the IPC and sentenced to undergo imprisonment for life and fine of Rs. 500/-, in default of payment of fine additional rigorous imprisonment for 03 months.

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Case of the prosecution, in brief, is that on 28.12.2019, day Saturday, complainant – Joga Podiyami had gone to the chicken market, when he came back home at around 07:00 P.M. in the evening, his brother Masa and his son were seated in a vehicle. When complainant – Joga Podiyami asked to his son that where they are going he stated that he is in hurry, his wife would tell him that what was happened and went to Chindgarh Hospital. Daughter-in-law of the complainant – Joga Podiyami, namely, Hungi narrated him that in the evening her uncle Masa and Somdu Podiyami used to fight in an intoxicated state and at the same time, on the issue of old rivalry, Somdu brought an arrow from his house saying that he will kill him today and with the intention of killing him, he hit the uncle Masa with an arrow and caused serious injury at three place. On the basis of complaint received from complainant – Joga Podiyami, the Police of Police Station Puspal was registered Morgue Intimation (Ex.P-15) and after registration of First Information Report (FIR), investigation was started. During investigation, Crime Details Form (Ex.P-07) was prepared by the Investigating Officer and Spot Map (Ex.P-10) obtained from the Patwari. Panchanama of the body was prepared (Ex.P-11) and postmortem of the deceased was conducted at C.H.C. Chhindgarh.

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After taking into custody, the memorandum statement of the accused – Somdu was recorded (Ex.P-01) and on the production of accused Samdu, a bamboo bow was seized and Property Seizure Memo (Ex.P-03) was prepared. On production of witness Hadma Podiyamia white half t-shirt with blue strips whcihw as pereced by an arrow near the stomach and there was a hole mark on the left side of the chest. There was blood stain on the said half t-shirt and one arrow broken arrow was seized and Property Seizure Memo (Ex. P-02) was prepared. The said seized properties were sent to Regional Forensic Science Laboratory, Jagdalpur for chemical testing.

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After completion of investigation, charge-sheet was filed against the appellant in the Court of learned Chief Judicial Magistrate, Sukma, District – Sukma (C.G.). Charge under Section 302 of the IPC was framed against the appellant. The case was committed to the learned Sessions Judge, South Bastar, Dantewada and on the direction of the learned Sessions Judge, South Bastar, Dantewada, the matter was committed to the learned 2^nd Additional Sessions Judge, Dantewada, District – South-Bastar Dantewada for trial, hearing and disposal in accordance with law. Statements of the witnesses were recorded. The appellant / accused abjured his guilt and entered into defence that he is not committed any offence and he has been falsely implicated in crime in question.

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Dr. N.V.N. Nagarjun (PW-9) was conducted the medical examination of the deceased and the body of the deceased Masa Podiyami was sent for postmortem where Dr. N.V.N. Nagarjun (PW-

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has also conducted the postmortem over the body of the deceased vide Ex.P/13 and found that the injuries caused to the deceased was grievous in nature, which caused due to sharp object and the cause of death was due to septic shock resulting from the injury in his small intestine by an arrow and the nature of death was homicidal.

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In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 22 documents. The appellantaccused examined none in his defence.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 09.11.2023, convicted the accused/appellant for the offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

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Ms. Reena Singh, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that the prosecution witness Hungi Podiyami (PW-5), who is the star witness of the case and said to be an eye-witness has stated in her examination-in-chief that both the deceased and the appellant were in intoxicated state and on sudden dispute them, the appellant brought bow and arrow and assaulted the deceased with arrow. She further submitted that the appellant was in state of intoxiation, he was not aware of the consequences of his act and the incident was result of suddent

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provocation and not of premeditation of mind set. Further more, Dr. N.V.N. Nagarjun (PW-9), who has done MLC of the wound of the injured / deceased on 28.12.2019 has stated that the deceased had one lacerated wound of 2 x 1 c.m. and his condition was normal but looking to his wound he has referred the injured / deceased to higher centre and whose MLC report is Ex. P-12. She also submitted that the case of the present appellant falls within the purview of Exception 4 to Section 300 of the 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 the offence punishable under Section 302 of the IPC can be converted/ altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as appellant is in jail since 30.12.2019 and he has completed near about 43 years 03 months and 4 days, and therefore, considering the period he had already undergone, he may be awarded the sentence of the period already undergone by him. She places reliance upon the judgments passed by the Supreme Court in the case of Panneer Selvam v. State of Tamil Nadu , reported in ( 2023) 10 SCC 265 and in the case of Deepak v. State of Uttar Pradesh (now Uttarakhand) , reported in (2018) 8 SCC 228 .

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On the other hand, Mr. Amit Buxy, learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal

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deserves to be dismissed.

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We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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The first question for consideration would be, whether death of deceased Masa Pudiyami was homicidal in nature ?

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The trial Court after appreciating oral and documentary evidence available on record, particularly, relying upon the statement of Dr. N.V.N. Nagarjun (PW-09), who conducted MLC and postmortem of the deceased, has come to the conclusion that cause of death was due to septic shock resulting from the injury in his small intestine by an arrow and the nature of death was homicidal. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Masa Pudiyami was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

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Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr. N.V.N. Nagarjun (PW-09), who conducted MLC and postmortem, has come to the conclusion that the cause of death due to septic shock resulting from the injury in his small intestine by an arrow and the nature of death was homicidal. Thus,

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on the basis of testimony of Dr. N.V.N. Nagarjun (PW-09), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to the deceased, due to which he died. As such, the learned trial Court has rightly held that it is the appellant/accused who has caused injuries over the body of the deceased and caused her death. Accordingly, we hereby affirm the said finding.

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The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the 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 the IPC, as contended by learned counsel for the appellant ?

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The Supreme Court in the matter of Sukhbir Singh v. State of Haryana¹ has 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 Sukhbir 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

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1 (2002) 3 SCC 327

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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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The Supreme Court in the matter of Gurmukh Singh v. State of Haryana² has laid down certain 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 of the IPC, which state as under :-

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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 fro 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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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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2 (2009) 15 SCC 635

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(d) Whether the death ensued instantaneously or

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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 without 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 to cause 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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(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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24. 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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Likewise, in the matter of State v. Sanjeev Nanda³ , 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 extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the 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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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh⁴ has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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 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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21. 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

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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

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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 the 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 of the IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁵ 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

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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; (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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In Deepak (supra), the Supreme Court held as follows:

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5 (2019) 6 SCC 122

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“7. On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation on the spur of time. The fact that the appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the appellant, coupled witht eh duration of the entire episode for 1 ½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib-case area, knowledge that death was likely to ensure will have to be attributed to the appellant.”

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In the present case, Joga Podiyami (PW-07), who is the brother the deceased has lodged an FIR (Ex.P/06) and has stated in his evidence that he knew the accused Sodaku Podiyami. He stated

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that he knew the deceased as he was his brother. He further stated that the incident took place two years ago. He stated that on the date of incident, he had gone to Kikirpal Murga Market. When he was returning to the home in the evening at about 05:00 P.M., deceased Masa Podiyami’s son was Hamda told him that Somadu Podiyami killed his father by bow, then he went to the Masa’s house, he saw that there was a wound in the stomach of the Masa. He further stated that he had no idea for what reason Somadu Podiyami had assaulted the deceased Masa. Masa died because of shoot of arrow made by the Somadu Podiyami. He also stated that he had lodged an FIR in the Puspal Police Station. He also stated that as per his instruction, the Police has prepared the Crime Details Report (Ex.P-07).

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Special Prosecutor Smt. Mamta Sharma sought permission to declare the witness a hostile witness and ask leading questions. Permission was given after observing the matter.

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Further, Joga Podiyami (PW-07) stated in his evidence that at the date of incident, when he came back from the chicken market, the son of the Masa, namely, Hadma Podiyami, (PW-04) was sit in the Toofan vehicle and when he asked him that where he is going, he said he is in hurry, Hungi would tell the incident as she know everything, then, Hungi, who is the daughter-in-law of the Joga Podiyami - Complainant stated to him that in the evening uncle Masa and Somadu Podiyami in intoxicated condition were fighting and Somadu Podiyami due to old rivalry brought arrow from his house and hurt Masa Podiyami.

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In the present case, Hungi Podiyami (PW-05), who is daughter-inlaw of the deceased in her evidence stated that she knew the accused – Somadu Podiyami and also knew the deceased – Masa Podiyami as he is her father-in-law. She stated that the incident took place two years ago, her father-in-law was killed by accused Somadu Podiyami. She further stated that on the fateful day, she was sitting with her daughter, at that time her father-in-law was sitting on the side of the road in front of the house, then accused Somadu came and started abusing to her father-in-law and shoot an arrow from the bow, which passed by side of her father-in-law, thereafter, accused - Somdu Podiyami hold the arrow on his hand and stabbed it in the stomach of her father-in-law.

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In the present case, Hadma Podiyami, (PW-04), who is the son of the deceased has stated in his evidence that he knew the accused Somadu Podiyami. Deceased Masa Podiyami was his father, the incident took place about three years ago, his father Masa Podiyami was murdered by accused Somadu Podiyami. On the date of incident, he had gone to market, when he came back to home his wife Hungi told him that the accused Somadu Podiyami had stabbed an arrow in the stomach of Masa Podiyami. He took his father into hospital for treatment. Accused Somadu Podiyami, after killing his father had gone to the Police Station. His father died in the hospital in Malkangiri, Orrisa, after the next day of incident. The Police had taken his statement regarding the incident.

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In the present case, N.V.N. Nagarjun (PW-09), who conducted the clinical examination and the postmortem of the deceased, stated in

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his evidence that on 28.12.2019, injured / deceased Madavi Masa was taken into hospital by Constable Mohanlal Mandavi for clinical examination. I examined him, he had a laceration in the left side of his stomach, its length was 2 x 1 cm and his condition was normal at that time. But considering his wound, he was referred to a higher centre. On 04.01.2020, Shankar Maurya, Constable of Police Station Puspal had brought the body of the deceased Masa Modiyami to the Community Health Centre, Chhindgarh for examination. The body was identified by Hadma Podiyami, Mahesh Poyam, Mithlu Mandavi and Sakin Jangampal. On examination of the body he found that stiffness was present in the body of the deceased, there was a laceration injury mark on the left side of the lower abdomen which size was 3x1x5 cm and the said injury was stitched with a needle. There was blood cloth in the skull and cranium of the deceased and there was inflammation was present in the stomach of the deceased and other organ of the body was in the normal condition. As per his opinion, the cause of the death was septic shock caused due to an arrow hitting his small intestine and his death was homicidal in nature.

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Reverting to the facts of the present case, in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of witnesses, specially the daughter-in-law of the deceased Hungi Podiyami (PW-05), who is the eye-witness of the incident and saw the accused Somadu Podiyami to cause injury to her father-in-law deceased Masa Podiyami by stabbing a single

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blow of an arrow into the stomach of the deceased. There was no premeditation on the part of the appellant to cause death of deceased Masa Podiyami. The appellant did not had any intention to cause death of deceased Masa Podiyami, but by causing such injuries, he must had the knowledge that such injuries inflicted by him would likely to cause death of Masa Podiyami, as such, his case would fall within the purview of Exception 4 of 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.

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Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that at present appellant / Somadu Podiyami is aged about 50 years and he is in jail since 30.12.2019, 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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Accordingly, conviction under Section 302 of the IPC and sentence of life imprisonment are hereby set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 1,000/-, in default of payment of fine, he shall further undergo 15 days rigorous imprisonment.

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