Sushil Minj Vs State of Chhattisgarh

This is an appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973, against the impugned judgment of conviction and sentence dated 14.02.2024, passed by learned First Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, in Sessions Case No. 20/2020, whereby the appellant has been convicted for the offence under Section 302 of IPC and sentenced him for R.I. for life with fine of Rs. 500/- in default of payment of fine further R.I.

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for 30 days.

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The brief facts of the case are that, on 04.12.2019, PW-1 Prabhu Ram, who is the brother of the deceased Maheshwari, has given a written complaint, Exhibit P-2, to the police, alleging in it that his sister was married since 20-22 years back with the appellant. Out of their wedlock four children have born. There was frequent quarrel between the appellant and the deceased. Today morning at about 6.30 a.m., his cousin brother Shyam Sundar (PW-12), informed him by telephone that his sister Maheshwari Minj has been murdered by her husband. When he came to her house, he saw that she was lying dead in her room, having injuries on all over her body. When he asked from the appellant, he informed that in the previous night, he was drunk, and when the deceased gave him the dinner, in which he found some hair, by which he become enraged and assaulted her by half-burned firewood, hand and fist, by which she died. Based on the written complaint, the Merg Intimation Exhibit P-1 was registered by the police. The Inquest Exhibit P-4 of the dead body of the deceased was prepared in presence of the witnesses. The FIR Exhibit P-5 was registered for the offence under Section 302 of IPC against the appellant. The dead body of the deceased was sent for its postmortem to the Community Health Centre, Kusmi, where PW-14 Dr. T. Sai has conducted the postmortem of the body of the deceased and gave his report Exhibit P-18. According to the postmortem report, the number of injuries have been found on the body of the

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deceased and the doctor has opined that the cause of the death was ‘syncope and elusive internal hemorrhage due to rupture of the spleen and injury on left lateral side of the thorax’. The mode of death is ‘homicidal’.

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The broken piece of bangle, broken buckle, broken tops and small pieces of wood have been seized from the place of incident vide seizure memo, Exhibit P-6. The spot map, Exhibit P-9, was prepared by the police, and Exhibit P-16 was prepared by the Patwari. The appellant has been arrested on 04.12.2019, and his memorandum statement, Exhibit P-10, was recorded. Based on his memorandum statement, a half-burned firewood has been seized from him vide seizure memo, Exhibit P-12. A query was made from the doctor as to whether the injuries found on the body of the deceased can be caused by the said seized firewood and whether the injuries found on the body of the deceased can be caused by the said firewood, as well as the fists and kicks assault. In reply to the query, Exhibit P-19, the doctor has opined that the injuries may be possible due to the above object and injuries No. 1 to 6 are possible, due to the above object and also from the fight. The statement of the witnesses under Section 161 of Cr.P.C. has been recorded. After completion of usual investigation, charge sheet was filed before the learned Judicial Magistrate First Class, Rajpur District, Balrampur-Ramanujganj for the offence under Section 302 of IPC.

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The case was committed to the Court of learned Sessions

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Judge, Balrampur, from where it has been transferred for its trial to the learned trial Court. The learned trial Court has framed the charge against the appellant for the offence under Section 302 of IPC. The appellant denied the charge and claimed the trial.

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In order to establish the charge against the appellant, the prosecution has examined 15 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded, in which he denied the circumstances appeared against him, pleaded innocence, and has submitted that on the date of incident he had gone to his work and he was not there in his house and therefore he may be acquitted.

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After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted and sentenced the appellant for the offence under Section 302 of Indian Penal Code, which is under challenge in the present appeal.

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Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. There are material omissions and contradictions in the evidence of prosecution witnesses and the prosecution has failed to prove its case beyond reasonable doubt. She would further submit that there is no witness to the incident that the appellant has caused injuries to the deceased. The daughter of the deceased PW-2 has also not supported the case of the prosecution and has turned hostile. The marriage between him and the deceased was solemnized 20-22 years back and they

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have settled in their life. There was no reason to commit her murder. In alternative, she would further submit that there is no intention to commit murder of the deceased, as the incident occurred in heat of passion and the appellant has not acted in cruel or unusual manner, since the hair remains was found in the dinner given by the deceased to him, he lost his temperament and has assaulted, which is in sudden quarrel and heat of passion, therefore the offence, if any, committed by him does not travel beyond the scope of Section 304 of IPC. The appellant is in jail since 04.12.2019 and by altering his conviction from Section 302 to Section 304 Part-II, his undergone period may be considered to be sufficient sentence and his appeal may be allowed accordingly.

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Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the presence of the appellant was proved by PW-2, who is the daughter of the deceased, as also by PW-3, who is nephew of the appellant and his neighbor. He heard the noise of quarrel between the appellant and the deceased on the alleged time of incident. The appellant has not explained as to how his wife has died in unnatural circumstances, that to having numeral injuries on her body, which he has to explain as he was having knowledge of that special facts. He would further submit that looking to the number of injuries, it was a murder and not the culpable homicide, not amounting to murder. Therefore, no leniency can be extended to the appellant and his appeal is

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liable to be dismissed.

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We have heard the learned counsel for the parties and perused the record.

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The first and foremost question arises in the case is that whether the death of the deceased was homicidal or not ?

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PW-2, who is the brother of the deceased has given a written complaint to the police that his sister being murdered by the appellant and her dead body is lying on her house. Injuries have been seen by the witnesses on her body. The Inquest Exhibit P-4 of the dead body of the deceased was prepared in presence of the witnesses, in which also the injuries have been noticed. The dead body of the deceased was sent for its postmortem to Community Heal Centre, Kusmi, where PW-14 Dr. T. Sai has conducted the postmortem of the dead body and found the following injuries on her:-

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(i) Bruise on right cheek size 4 x 3 cm

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irregular blue-brown in color.

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(ii) Abrasion on right anterior side of neck size 2 x 1 cm irregular bluebrown in color.

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(iii) Scraping abrasion on right forearm size 3 x 2 cm irregular blue-brown in color.

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(iv) Bruise on left forearm size 4 x 3 cm irregular blue-brown in color.

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(v) Bruise on left lateral side thorax size 6 x 4 cm irregular blue-brown in color.

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(vi) Bruise on left buttock size 7 x 4 cm irregular blue-brown in color.

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All injuries No. 1 to 6 Anti-mortem in nature.

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On her internal examination, the Doctor has noticed fracture of left 5th 6th and 7th ribs and has opined that the cause of death is ‘syncope and elusive internal hemorrhage due to rupture of spleen and injury on left lateral side of the thorax’ and the mode of death is ‘homicidal’.

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From the evidence of the witnesses of merg intimation, inquest and post-mortem, it can safely be held that the death of the deceased was due to the injuries, which is anti-mortem in nature and the mode of death is homicidal as opined by the doctor, who conducted the post-mortem of the dead body. Nothing could be elicited in his cross-examination by the defense that the death of the deceased is due to some other reason and not by the injuries. Therefore, the finding recorded by the learned trial Court that the death of the deceased is homicidal is neither perverse nor contrary to the record.

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The next question for consideration would be the involvement of the appellant in the offence in question. PW-1 Prabhu Ram, who is the brother of the deceased, has stated in his deposition that after the incident when he met with the appellant, he informed him that in the night when she gave him dinner, the hair remains was found in the dinner by which he committed marpeet with her. When he reached in her house, the appellant was found present there and the dead body was also lying on a carpet in her house, who has already died.

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PW-2 Sunita, who is the daughter of the deceased as well as the appellant, who initially not supported the case of the prosecution and denied the incident. When she was declared hostile, she stated that in the night when her mother was giving dinner to her father, she and her brother were there in the house. Though she denied the assault made by her father to her mother, but she admitted that she and her brother both have tried to pacify her father and ask him not to quarrel with each other. She further admitted that when the quarrel was going on, she and her brother had gone to her grandmother's house. She further stated that her father has informed her that he committed marpeet with deceased by a wooden log.

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PW-3 Virendra Ram, who is the relative of the appellant as well as the deceased and neighbor of the deceased, has heard the noise of the quarrel which was coming from the house of appellant in the same night, when the deceased died. From the evidence of these witnesses, it has been proved by the prosecution that on the date of incident and relevant point of time, the appellant was present in his house where the dead body of the deceased was found in injured condition. The appellant has not given any explanation as to how the deceased received injuries on her body, which pointed towards guilt of the appellant that he has caused the injuries on the body of the deceased, which he failed to deny.

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When the presence of the appellant at the relevant time and the relevant place has been proved and he has failed to explain the

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injuries on the body of the deceased, presumption under Section 106 of the Evidence Act came into play that he has to explain the circumstances, under which the deceased has received injuries on her body. In absence of any cogent explanation, presumption goes against the appellant that he caused injuries on the body of the deceased.

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In the matter of Balvir Singh v. State of Uttrakhand, reported in (2023) SCC OnLine SC 1261 , the Hon’ble Supreme Court has considered the scope of Section 106 of the Evidence Act and held that:

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“33. Section 106 of the Evidence Act, states as under:

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“106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

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Illustration

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

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34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently

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or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”.

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35. In Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404, this Court while considering the word “especially” employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under:

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“11. … The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

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It is evident that that cannot be the intention & the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an

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accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p. 49 (B).”

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36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar reported in (2021) 10 SCC 725, wherein this Court observed as under:

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“22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

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23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” (Emphasis supplied)

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37. In Tulshiram Sahadu Suryawanshi and Another v. State of Maharashtra reported in

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(2012) 10 SCC 373, this Court observed as under:

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“23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516]: (SCC p. 393, para 38)

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“38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are

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particularly within the knowledge of the accused. In Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus: (AIR p. 406, para 11)

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‘11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.’”” (Emphasis supplied)

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38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:

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“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no

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innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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“(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”

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15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house

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cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

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xxx xxx xxx

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22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. …” (Emphasis supplied)

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39. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar and Others reported in (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased

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after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act, and laid down the following principles in paras 31 to 34 of the report:

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“31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

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32. In this case, when the prosecution succeeded in establishing the aforenarrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

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33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful

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may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

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34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.” (Emphasis supplied)”

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Applying the aforesaid principles, this Court is of the view that the appellant caused the injuries to the victim which resulted into her death.

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The next question for consideration is ‘whether the case of the appellant is covered within exception (4) of Section 300 of Indian Penal Code vis a vis culpable homicidal not amounting to murder, hence conviction can be converted to Section 304 PartI or Part-II of the Indian Penal Code, as submitted by learned

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counsel for the appellant.

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The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana , reported in 2002 (3) SCC 327 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 Hon’ble Supreme Court in the matter of Gurmukh Singh v.

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State of Haryana, 2009 (15) SCC 635 , 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 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 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

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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 Vs. Sanjeev Nanda, 2012 (8) SCC 450 , the Hon’ble Supreme Court has 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

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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 Vs. State of Chhattisgarh, 2017 (3) SCC 247 , 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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“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 Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under :

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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; (counsel) 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 expression “undue advantage” as used in the

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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 Vs. State (NCT of Delhi), 2019 (6) SCC 122 , has laid down four ingredients 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;

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(ii) There was no premeditation;

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(iii) he 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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Reverting to the facts of the present case from the evidence of the witnesses, it is quite vivid that on the date of incident, when the deceased had given dinner to the appellant, some hair remains were found in the dinner, by which appellant enraged and lost his temperament and picked up the half-burned firewood, which was lying there and assaulted the deceased, by

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which she received injuries and died.

¶149

The case of the prosecution itself is that in the night when the deceased had given dinner to the appellant, the hair remains were found in the dinner, by which the appellant has lost his temperament and gave blows to the deceased by which she received injuries. There was no premeditation on the part of the appellant to cause the death of the deceased Maheshwari, and only because of the hair remains found on the dinner, he became enraged and gave blows on her body. As the appellant was not acted in a cruel or unusual manner, the appellant did not have an intention to cause death of the deceased, but by causing such injuries, he must have had the knowledge that such injury inflicted by him would likely to cause death of the deceased, and 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 four necessary ingredients of exception 4 to Section 300 of 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 for acting in a cruel or unusual manner.

¶150

Considering the law laid down by the Hon’ble Supreme Court in the aforesaid cases, considering the evidence of witnesses, and also taking into consideration the fact that appellant is in jail since 05.12.2019, the ends of justice would meet if the conviction of the appellant under Section 302 of IPC is

¶151

25

¶152

altered/converted to one under Section 304 Part-I of IPC.

¶153

Accordingly, the appeal is partly allowed to the extent that the conviction of the appellant under Section 302 of IPC is set aside, however, he is convicted under Section 304 Part-I of IPC and sentenced to undergo R.I. for 10 years with fine of Rs. 500/-, in default payment of fine, further R.I. for 30 days.

¶154

The appellant is reported to be in jail, he shall serve the remaining sentence as modified by this Court.

¶155

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

¶156

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

¶157

ved

Sushil Minj v. State of Chhattisgarh

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Sushil Minj v. State of Chhattisgarh

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