Manharan Das Deshlahre Vs State of Chhattisgarh

This criminal appeal preferred by appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 27.03.2018 passed by the First Additional Sessions Judge, Balod in Sessions Trial No.58/17, by which, he has been convicted for offence punishable under Sections 302 &

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326 of the IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for six months under Section 302 of the IPC and he has also been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for three months under Section 326 of the IPC. Both the sentences were ordered to run concurrently.

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The case of the prosecution, in brief, is that on 25.01.2017 at about 11.30 AM at Village Pasoud, there was an altercation which took place between the appellant herein and the deceased-Gour Bai regarding theft of brick and sand and thereafter, the appellant assaulted the deceased-Gour Bai with the help of a sharp-edged weapon i.e. axe (tangi), by which, she suffered grievous injuries and died. The appellant herein has also caused grievous injury to Likhan Das, (PW-6), who came in rescue of Gour Bai. Dehati Merg intimation was recorded vide Ex.P-1 and Dehati Nalishi was registered vide Ex.P-2 against the appellant herein at Police Station Devri, District Balod by Santram (PW-1), son of the deceased-Gour Bai. Santram

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(PW-1), son the deceased-Gour Bai, reported the matter to the Police Station-Devri, District Balod and FIR (Ex.P-22) was registered against the appellant herein under Sections 302 & 307 of the IPC, pursuant to which, offence under Sections 302 & 307 of the IPC was registered against him and the wheels of investigation started running. Thereafter, inquest was conducted vide Ex.P-7 and spot map was prepared vide vide Ex.P-4. Pursuant to the memorandum statement of Appellant-Manharan Das Deshlahre (Ex.P-12), axe and clothes of the appellant herein were seized vide Ex.P-8. Plain Soil, bloodstained soil and cap were seized from the place of incident vide Ex.P-10 and Ex,P-11 and from the injured witness-Likhan Das, his clothes and discharge ticket were seized vide Ex.P-5. The seized articles were subjected to forensic examination and vide FSL Report (Ex.P-20), it was opined that the aforesaid seized articles contained human blood. Dead body was subjected to postmortem and postmortem of the dead body of the deceased-Gour Bai was conducted by Dr. N. S. Bhandari (PW-8) and his report is Ex.P-13 and cause of death was stated to be syncope due to shock as a result of extensive injury and severe haemorrhage and it was stated to be

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homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellant under Sections 302 and 307 of the IPC. The appellant abjured the guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 27 documents (Ex.P-1 to Ex.P-27). Statement of the appellantaccused was recorded under Section 313 of the Cr.P.C., wherein he denied guilt, however, he examined none in his defence.

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellant under Sections 302 & 326 of the IPC in the manner mentioned in the opening paragraph of this judgment, against which, the instant appeal has been preferred.

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Mr. Basant Kaiwartya appearing along with Mr. S. P. Sannat, learned counsel for the appellant, would submit that evidence of so-called injured witness Likhan Das

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(PW-6) is liable to be disbelieved, because he has not lodged the FIR and there were two other persons, who were present at the spot and who have not been examined by the prosecution. He would also submit that the so-called eyewitness Likhan Das (PW-6) has stated that at the time of quarrel, the appellant was engaged in washing mouth and no weapon was seen in his hand. The witnesses of memorandum and seizure as also FSL report have not supported the case of the prosecution. It is lastly submitted that even according to the injured eye-witness, the deceased-Gour Bai had started blaming and accusing the appellant, therefore, it was only of such provocation, which was grave in nature, the incident might have happened and therefore, in any case, the culpability could not travel beyond the ambit and scope of Section 304 Part-II IPC and appellant be sentenced for the period already undergone, as he is in jail since 25.01.2017 and the appeal be allowed in part.

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Mr. Sharad Mishra, learned State counsel, would submit that the learned trial Court has rightly convicted the appellant herein for the aforesaid offence and it is not a case where the sentence of the appellant can be converted

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to Section 304 Part-II of I.P.C. and, as such, 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 went through the records with utmost circumspection.

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The first question for consideration as to whether the death of deceased-Gour Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-13 proved by Dr. N. S. Bhandari (PW-8), according to which, cause of death was syncope due to shock as a result of extensive injury and severe haemorrhage and it was stated to be homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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Now, the next question is, whether the appellant has assaulted Gour Bai by tangi (axe) and he has caused death of the deceased-Gour Bai ?

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Conviction of the appellant is based on the statement of injured eye-witness Likhan Das (PW-6) as well as the

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statement of Santram (PW-1), son of the deceased-Gour Bai, who has clearly stated that on the date of incident, an altercation took place between his deceased mother and the appellant with regard to theft of brick and sand, on account of which, the appellant has assaulted his mother-Gour Bai. However, Likhan Das, (PW-6), who is an eye-witness, has clearly stated that after brief altercation, the appellant has assaulted the deceased-Gour Bai with the help of axe (tangi) as a result of which, she suffered grievous injuries and died thereafter. Likhan Das (PW-6) has also stated in his crossexamination that on the date of incident, while the deceased-Gour Bai abusing the appellant regarding theft of articles i.e. bricks and sand, the appellant replied that he has not stolen the articles and at that time, the appellant was not armed with any weapon. As such, the trial Court has rightly recorded a finding that it is the appellant, who has caused death of deceased, which is a correct finding of fact based on evidence available on record and accordingly, we hereby affirm the said finding.

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Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, their conviction can be altered either to

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Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 wherein it has been observed as under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. In default of payment

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1 (2002) 3 SCC 327

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of fine, he shall undergo further rigorous imprisonment for one year.”

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13. The Supreme Court in the matter of Gurmukh Singh

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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, 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 for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(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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2 (2009) 15 SCC 635

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded

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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 is 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

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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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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of

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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

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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 when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(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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5 (2019) 6 SCC 122

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Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court and further considering the charge levelled upon the appellant, it is quite vivid as per the statement of injured eye-witness Likhan Das (PW-6) that on the date of incident, an altercation took place between the deceased-Gour Bai and the appellant, in which, the deceased-Gour Bai was the aggressor and abusing the appellant regarding stealing of brick and sand, on account of which, due to sudden provocation and in a fit of anger, the appellant has assaulted the deceased-Gour Bai with the help of axe (tangi), due to which, she suffered grievous injuries and died thereafter, but, there was no premeditation or motive to cause death and he must have had knowledge that those injuries would likely to cause death and the appellant had not taken any undue advantage and has not acted in unusual manner; thus, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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In view of the above, the impugned judgment of conviction and order of sentence dated 27.03.2018 passed by the First Additional Sessions Judge, Balod in Sessions Trial No.58/17 is hereby set aside. The conviction of

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appellant for commission of offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and he is sentenced to the period already undergone by him. Conviction and sentence awarded to the appellant under Section 326 of the IPC shall remain intact. Appellant has already completed more than seven years in jail as he is in jail since 25.01.2017, therefore, he shall be released forthwith from jail, unless he is required in any other offence.

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In view of the above, this criminal appeal is partly allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Manharan Das Deshlahre v. State of Chhattisgarh

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Manharan Das Deshlahre v. State of Chhattisgarh

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