Arjun Rajput Vs State of Chhattisgarh

Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, this Court is disposing of the same by a common judgment.

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These criminal appeals filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) are directed against the impugned judgment of conviction and order of

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sentence dated 23.01.2024 passed by the Court of Second Additional Sessions Judge, Raigarh District : Raigarh (C.G.) in Sessions Trial No. 11 of 2022, whereby the appellants have been convicted for the offence punishable under Section 302 and Section 323/34 of the Indian Penal Code (IPC) and sentenced to undergo life imprisonment and fine of Rs.5,000/-, in default of payment of fine amount, additional R.I. for 06 months and R.I. for one year and fine of Rs.1,000/-, in default of payment of fine amount, additional R.I. for 03 months.

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Case of the prosecution, in brief, is that deceased Malti Sidar lives by begging and resides in Atal Awas Kharsia, District Raigarh. On 18.10.2021, Malti Sidar had gone to Atal Awas, the house of her mother Panbudi Sidar. While complainant Panbudi Sidar and deceased Malti Sidar were sitting outside their house in CC Road at around 5.00 pm, accused Karan Rajput and Arjun Rajput, who were real brothers and residing in the same locality, came in drunken condition and abusing near them. On refusing, they both started threatening them and with intention to kill, kicked and hit the deceased Malti Sidar many times by kicks and fists in her chest and stomach. She was thrown into the drain and then taken out of the drain, thrown on the road and kicked and hit in the chest and stomach. Malti Sidar had become unconscious. The complainant dragged Malti from the road and took her inside the house, after some time Malti Sidar died. People of the locality have seen the incident. As both brothers Karan Rajput and Arjun Rajput were having criminal tendencies, due to fear no one went to rescue

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them. Karan Rajput and Arjun Rajput, both brothers, together murdered Malti Sidar. On the report of the complainant, a crime was registered under section 294, 506, 323, 302, 34 of the Indian Penal Code under Crime No. 639/2021 at Police station Kharsia, District Raigarh (Chhattisgarh), and investigation was started. After investigation, when evidence was found that the accused had committed crimes under sections 294, 506, 323, 302, 34 of the Indian Penal Code, the accused were arrested in front of the witnesses and their statements were recorded. After completing all the other formalities of investigation, the charge sheet was presented in the concerned Court, from where through the procurement order dated 03.02.2022, the case was submitted to the Sessions Court for trial, from where the Second Additional Sessions Judge, Raigarh received the case on transfer for hearing and disposal in accordance with law.

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So as to prove the complicity of the accused/appellants in the crime in question, prosecution has examined as many as 12 witnesses. Statement of the accused/appellants under Section 313 Cr.PC were also recorded in which they pleaded their innocence and false implication in the case. The accused/appellants examined none in their defence.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 23.01.2024, convicted the appellants for offence under Section 302, 323/34 of the IPC sentenced them as aforementioned, against which, these criminal appeals have been filed by the accused/appellants.

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Learned counsel for the accused/appellants submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. They further submit that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to deceased in spur of moment, by kicks and fits. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants fall within the purview of Exception 4 to Section 300 of the IPC and the act of the appellants is culpable homicide not amounting to murder, and therefore, they are fit cases where the conviction of the appellants for the offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. They also submit that as the appellants are in jail since 19.10.2021 and thereby have served the jail sentence of more than two years and nine months, the sentence imposed on them may be reduced to the period already undergone.

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On the other hand, learned State counsel, appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellants’ 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 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 question for consideration would be whether the death of the deceased was homicidal in nature or not ?

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Dr. Sajan Kumar Agrawal (PW-9), who conducted the postmortem examination on the body of the deceased and gave his report vide Ex.P-10, has stated that while conducting the postmortem, he noticed following injuries :-

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(i) Contusion of 3x2 cm on the right side of the waist;

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(ii) Contusion of 3x2 cm over right side of the stomach;

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(iii) Several scratches on the back of the chest and stomach;

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(iv) Contusion of 4x2 cm on the outside of the right leg;

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(v) Contusion of 3x2 cm on the front side of the left thigh;

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(vi) Contusion of 4x1 cm on the outside of the knee;

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(vii) Contusion of 3x2 cm on the inside of the right leg;

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(viii) Bruise of 2 x 0.5 cm on the left side and outside of the neck;

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(ix) Contusion of 3x1 cm on the back of the left wrist;

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(x) Two contusions of 3x2 cm on the outside of the left waist;

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(xi) Contusion of 5x2 cm on the outside of the left upper arm;

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(xii) Two scratches of 2x1 cm on the outside of the right eye;

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(xiii) Contusion with a scratch of 2x1 cm on the front and right side of the head;

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(xiv) Hematoma of 3x4 cm on the right side of the head and a lineshaped fracture of 3 cm on the right side of the front of the head.

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There was a fracture in the fifth, sixth and seventh left rib.

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The left lung was contused, both chambers of the heart were

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empty. The stomach was empty, the small intestine contained

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digested food and the large intestine contained stool. The bladder was empty. The rest of the body parts were pale, all the above mentioned injuries were before death which were caused by hard and blunt objects. According to his opinion, the cause of death was coma and asphyxiation, which occurred due to head and chest injuries, the time of death is around 18 hours. The nature of death of the deceased appears to be homicidal in nature.

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Now, next question comes for consideration is that whether the accused/appellants are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of eyewitness complainant / Panbudi Sidar (PW-2) and Sarita Chouhan (PW-3), who were present at the time of incident.

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In the present case, the important eye witness in injured Panbudi Sidar, who has revealed the whole incident. In her statement, she has stated that about 5 to 6 months ago at around 5-6 pm, while she along with her daughter deceased Malti were sitting outside the house, at the same time accused Karan and Arjun came, they were drunk and they kicked and punched her daughter, deceased Malti Sidar a lot in her chest and stomach. The accused also beat her with their hands due to which she suffered injuries on her chest, stomach and back. Her daughter Malti died due to assault by the accused. In her cross-examination, though she admitted that she and her daughter, deceased Malti, had no argument or fight with the accused before the incident, but has denied the suggestion that her daughter, deceased Malti, did not die due to assault by the

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accused. She also denied the suggestion that she was not even assaulted by the accused and no injury was caused to her and her daughter by them.

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Sarita Chouhan (PW-3), who was also present at the time of incident, has stated that the incident happened 6-7 months ago around 4-5 pm. When Panbudi and Malti Sidar were sitting outside the house, accused Karan and Arjun were abusing them in drunken condition, then Malti Sidar refused Karan and Arjun by saying don’t abuse, they kicked and punched Mali on her chest and stomach and thrown her in drain, they also assaulted her by stick. The accused also kicked and punched to Malti Sidar’s mother Panbudi. Malti Sidar died after being beaten by the accused.

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In her cross-examination, she has stated that Panbudi’s house is below and their house is just above it. She saw the incident when she had gone down to the street to fetch water, at that time Revati Sidar was also with her, apart from them, there was no one else. She denied the suggestion of the defence, that she did not see Malti and her mother Panbudi Sidar being beaten by the accused. She also denied the suggestion that as Panbudi Sidar is her neighbor, therefore, she is making false statements in her favour and against the accused.

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From the aforesaid factual discussion made in the light of the evidence of the witnesses, it is thus apparent that the death of the deceased was caused by the accused/appellants.

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The aforesaid finding brings us to the next question for

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consideration, whether the case of the accused/appellants 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 Haryana 1 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 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 Haryana 2 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 :-

1 (2002) 3 SCC 327

2 (2009) 15 SCC 635

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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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(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 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

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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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Likewise, in the matter of State v. Sanjeev 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 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 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 :

3 (2012) 8 SCC 450

4 (2017) 3 SCC 247

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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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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

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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 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 IPC shows that the following four ingredients are required:

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(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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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 abovestated judgments (supra), it is quite vivid that as per evidence of eyewitness Panbudi Sidar (PW-2) and Sarita Chouhan (PW-3), who were present on the spot where the incident took place at the relevant point of time, at about 4-5 pm, while complainant Panbudi

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5 (2019) 6 SCC 122

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Sidar and deceased Malti Sidar were sitting outside their house in CC Road at around 5.00 pm, accused Karan Rajput and Arjun Rajput, who were real brothers and residing in the same locality, came near them in drunken condition and abusing. On refusing, out of anger and on sudden provocation, they assaulted the deceased Malti Sidar and complainant by kicks and fists. There was no premeditation on the part of the appellants to cause death of deceased Malti Sidar and only because they were refused not to abuse, out of anger and in heat of passion, appellants assaulted the deceased Malti Sidar by kicks and fists on her chest and stomach, by which she died. They do not have any intention to cause death of deceased Malti Sidar, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of Malti Sidar, as such, their case would fall within the purview of Exception 4 of 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.

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Considering the above-stated facts, also considering the evidence of eyewitness Panbudi Sidar (PW-2) and Sarita Chouhan (PW-3), though the appellants were not having premeditation but on sudden quarrel erupted between them and out of sudden anger and in heat of passion, the appellants assaulted the deceased by kicks and

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fists on her chest and stomach, by which she died. They do not have any intention to cause death of deceased Malti Sidar, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of death, though they have not taken undue advantage and not acted in unusual manner, but considering the nature of injury, it is a fit case where the conviction under Section 302 of IPC can be altered to Section 304 Part-II of I.P.C.

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In that view of the matter, we are of the considered opinion that the case of the appellants is covered within Exception 4 to Section 300 of IPC and the conviction of the appellants - Karan Rajput and Arjun Rajput for the offence under Section 302 of IPC is altered to Section 304 Part-II of I.P.C. and they are sentenced to undergo rigorous imprisonment for 7 years. However, the fine sentence and default sentence imposed upon them by the learned trial Court shall remain intact.

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It is stated that the appellants are in jail, they shall serve out the remaining sentence as modified by this Court.

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The criminal appeals are partly allowed to the extent indicated herein-above.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Chandra

Arjun Rajput v. State of Chhattisgarh

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Arjun Rajput v. State of Chhattisgarh

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