Ramdas Joshi Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.627 of 2018

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Ramdas Joshi S/o Late Tulsi Joshi Aged About 20 Years R/o Village Murmunda, Tahsil Dongargarh, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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Sona Bai W/o Late Tulsi Joshi Aged About 57 Years R/o Village Murmunda, Tahsil Dongargarh, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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---- Appellants (In Jail)

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police Station Dongargarh, District Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh

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---- Respondent

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For Appellants : Shri B. P. Singh, Advocate For Respondent/State: Shri Sharad Mishra, Panel Lawyer

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

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Judgment on Board (19/06/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by appellants herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence

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dated 23.01.2018 passed by the Additional Judge, Dongargarh to the Court of First Additional Sessions Judge, Rajnandgaon in Sessions Trial No.15/2016, by which, they have been convicted for offence punishable under Section 302 read with Section 34 and Section 450 of the IPC and each of the appellants have been sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- and in default of payment of fine, they have to undergo additional rigorous imprisonment for one year under Section 302 read with Section 34 of the IPC and they have also been sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/- and in default of payment of fine, they have to undergo additional rigorous imprisonment for six months under Section 450 of the IPC.

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The case of the prosecution, in brief, is that on 16.01.2016 at about 8 PM, in furtherance of common intention, the appellants trespassed into the house of the deceased-Hemlal Joshi and assaulted him with the help of cricket bat and bamboo stick, by which, he suffered grievous injuries and died. Merg intimation was recorded vide Ex.P-18 by Sakhuram Dhruv (PW-7) and on the basis of the same, FIR (Ex.P-16) was registered against the

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appellants herein at the Police Station Dongargarh, District Rajnandgaon by Shri K. K. Rai, A.S.I. (PW-6), pursuant to which, offence under Sections 302, 34 & 450 of the IPC was registered and the wheels of investigation started running. Thereafter, inquest was conducted vide Ex.P-6 and spot map was prepared vide vide Ex.P-1. Pursuant to the memorandum statement of Appellant No.1-Ramdas Joshi and Appellant No.2-Sona Bai (Ex.P-8 & Ex.P-10), bamboo stick and cricket bat were seized vide Ex.P-12 & Ex.P-13, but, the seized articles were not subjected to forensic examination. Dead body was subjected to postmortem and postmortem of the dead body of the deceased-Hemlal Joshi was conducted by Dr. M. Nirala (PW-10) and his report is Ex.P-23 and cause of death was due to cardio-respiratory failure as a result of head injury and cervical injury and it was stated to be homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellants under Sections 450, 302 and 34 of the IPC. The appellants abjured the guilt and entered into defence. Their defence was that they have not committed the offence and they have been falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution

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has examined as many as 13 witnesses and exhibited 27 documents (Ex.P-1 to Ex.P-27). Statement of the appellantsaccused were recorded under Section 313 of the Cr.P.C., wherein they denied guilt, however, they examined none in their defence.

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellants under Sections 302, 34 & 450 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. B. P. Singh, learned counsel for the appellants, would submit that conviction of the appellants is based on the testimony of eye-witnesses Hembai (PW-2) and Damini Joshi (PW-3), according to which, the appellants herein have assaulted the deceased-Hemlal Joshi with the help of cricket bat and bamboo stick and caused grievous injuries, as a result of which, he died. It is further submitted that taking the prosecution case as it is and considering the nature of injury and that death has occurred, to which, the appellants had knowledge, but there was no intention to

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cause death, at the most, the case of appellants would fall under Exception 4 to Section 300 of I.P.C. and the alleged offence is liable to be converted to Part-II of Section 304 of I.P.C. and appellants be sentenced for the period already undergone, as appellant No.1-Ramdas Joshi is in jail since 14.02.2016 and appellant No.2-Sona Bai is already on bail, and as such, 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 appellants herein for the aforesaid offence and it is not a case where the sentence of the appellants can be converted 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-Hemlal Joshi was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-23 proved by Dr. M. Nirala (PW-10), according to which, cause of death was due

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to cardio-respiratory failure as a result of head injury and cervical injury 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 appellants have assaulted Hemlal Joshi by cricket bat and bamboo stick and have caused the death ?

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Conviction of the appellants is based on the statements of eye-witnesses Hembai (PW-2), wife of the deceased and Damini Joshi (PW-3), daughter of the deceased. Hembai (PW-2), wife of the deceased-Hemlal Joshi, who has clearly seen the incident, has stated that on the date of incident, while she was in the house, the appellants herein trespassed into the house and have assaulted her husband-Hemlal Joshi by cricket bat and bamboo stick, as a result of which, he suffered grievous injuries and died thereafter. Hembai Joshi (PW-2) was subjected to lengthy cross-examination, but nothing has been extracted to show that the appellants have assaulted her

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husband and false explanation has been given before the Court.

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Damini Joshi (PW-3), daughter of the deceased-Hemlal Joshi, who is a child witness, has supported the case of the prosecution and clearly stated that appellant No.1-Ramdas with the help of bat and appellant No.2-Sona Bai with the help of bamboo stick have assaulted her father, due to which, he sustained grievous injuries and thereafter died three days after the incident i.e. on 19.01.2016. As such, the trial Court has rightly recorded a finding that it is the appellants, who have 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 appellants would fall under Exception 4 to Section 300 of IPC and, as such, their conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellants ?

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In order to consider whether the case of the appellants is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the

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

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14. 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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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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(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 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

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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 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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3 (2012) 8 SCC 450

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4 (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 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

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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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Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court and further

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5 (2019) 6 SCC 122

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considering the charge levelled upon the appellants, it is quite vivid that, as per the statement of eye-witnesses Hembai (PW-2), wife of the deceased and Damini Joshi (PW3), daughter of the deceased, when the deceased-Hemlal Joshi scolded their son and daughter regarding studies, the appellants herein trespassed into the house and considered that they were being abused and the appellants herein in a fit of anger have assaulted the deceased-Hemlal Joshi with the help of cricket bat and bamboo stick, due to which, he suffered grievous injuries and died, but, there was no premeditation or motive to cause death and they must have had knowledge that those injuries would likely to cause death and the appellants had not taken any undue advantage and have not acted in unusual manner; thus, the case of the appellants 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 23.01.2018 passed by the Additional Judge, Dongargarh to the Court of First Additional Sessions Judge, Rajnandgaon in Sessions Trial No.15/2016 is hereby set aside. The conviction of appellants for offence punishable under Section 302 of

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I.P.C. is altered to Section 304 Part-II of I.P.C. and they are sentenced to rigorous imprisonment for six years. Appellant No.1-Ramdas Joshi has already completed six years in jail as he is in jail since 14.02.2016, he shall be released forthwith from jail, unless he is required in any other offence. Appellant No.2-Sona Bai, who is already on bail, need not surrender. Her bail bond/surety bond shall remain in operation for a period of six months in the light of provision under Section 437-A of the Cr.P.C.

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In view of the above, 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 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 No.1Ramdas Joshi is suffering the jail sentence.

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

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Tumane

Ramdas Joshi v. State of Chhattisgarh

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Ramdas Joshi v. State of Chhattisgarh

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