Arjun Rathiya Vs State of Chhattisgarh

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2024:CGHC:35232-DB

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NAFR

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Digitally signed by VAISHALI LUCKY NAGARIA Date: 2024.09.13 15:09:02 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 641 of 2019

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(Arising out of judgment dated 29.03.2019 passed in Sessions Trial No. 47 of 2018 by the learned Additional Sessions Judge, Gharghoda, District – Raigarh, Chhattisgarh)

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Arjun Rathiya S/o Kailash Rathiya Aged About 32 Years R/o Village - Baihamuda, Police Station - Gharghoda, District Raigarh Chhattisgarh.

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Basant Rathiya S/o Kailash Rathiya Aged About 23 Years R/o Village - Baihamuda, Police Station Gharghoda, District Raigarh Chhattisgarh.

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Deenanath Rathiya S/o Kailash Rathiya Aged About 27 Years R/o Village - Baihamuda, Police Station - Gharghoda, District Raigarh Chhattisgarh.

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... Appellants

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versus

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State of Chhattisgarh Through The Station House Officer, Police Station, Gharghoda, District Raigarh Chhattisgarh.,

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... Respondent

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For Appellants : Mr. Amit Singh Chouhan, Advocate For Respondent : Mr. Ashutosh Shukla, P.L.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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(10.09.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellants namely Arjun Rathiya (A-1), Basant Rathiya (A-2) and Deenanath Rathiya (A-3) calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 29.03.2019 passed by the learned Additional Sessions Judge, Gharghoda, District – Raigarh Chhattisgarh in Sessions Trial No. 47/2018 whereby the appellants have been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and payment of fine of Rs. 10,000/-, in default of payment of fine 6 months additional R.I. (to all three appellants).

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The case of the prosecution, in a nutshell, is that on 30.01.2018 at about 4:30 pm at village Baihamuda, Police Station Gharghoda, District Raigarh, Chhattisgarh, three appellants in furtherance of their common intention assaulted Fulsingh Rathiya (now deceased) by wooden stick by which he suffered grievous injuries and died. The said incident was witnessed by grandsons of the deceased namely Lav Kumar (PW-4) and his brother Heera Lal (PW-

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5). Lav Kumar (PW-4) reported the matter to the police pursuant to which merg intimation and FIR were registered vide Exs.P/9 & P/10, respectively. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/02) proved by Dr. S.R. Paikra (PW-01) cause of death was shock (Hemorrhagic) due to injury of hemorrhage of brain and internal organs. Pursuant to memorandum statement of A-1 (Ex.P/5) weapon of offence i.e. Bamboo wood stick having sharp edged from both sides was seized vide Ex.P/8.

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After due investigation, appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 07 witnesses and exhibited 17 documents, whereas, the appellants have examined only 1 defence witness. Statements of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances

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appearing against them in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Amit Singh Chouhan, learned counsel for the appellants, submits that the trial Court is absolutely unjustified in convicting the appellants for the offence in question. He also submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence 304 Part II of the IPC and the appellants are in jail since 01.02.2018, more than 6 years have been completed and, as such, it is a fit case where conviction of the appellants for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Shukla, learned State counsel, supports the impugned judgment and submits that

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prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence. He also submits that Lav Kumar (PW-4) and Heera Lal (PW-5), eye witnesses, have clearly implicated the appellants in crime in question and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the appellants have rightly been convicted for the offence in question. Thus, 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 perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report (Ex.P/02) proved by Dr. S.R. Paikra (PW-01), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the appellants have assaulted the deceased?

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Considering the statement of eye witnesses Lav Kumar (PW- 04) and Heera Lal (PW-05) grandson of the deceased, in which they have clearly implicated the appellants in crime in question by stating that they have seen the appellants assaulting deceased by wooden stick by which he suffered grievous injuries and died and further considering the fact that pursuant to memorandum statement of (A-1) (Ex.P/5) weapon of offence i.e. wooden stick sharp aged from both sides was seized vide Ex.P/8, the trial Court has rightly held that it is the appellants who assaulted the deceased by stick by which he suffered grievous injuries and died and, as such, we hereby affirm the said finding recorded by the trial Court.

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Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC?

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 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 :

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1 (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 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

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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 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 vs. State (NCT of Delhi)2 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: (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 (iv)The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated decisions, it is quite vivid that according to the statement of the eye witness Lav Kumar (PW-4) that there was a dispute between the deceased and the appellants regarding fencing of their

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2 (2019) 6 SCC 122

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farm/agriculture field, and on the date of offence on the said dispute quarrel took place between the appellants and the deceased and out of anger, they are said to have assaulted the deceased by wooden stick by which he suffered grievous injuries and died. Further considering the medical evidence available on the record, it is quite vivid that appellants must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to 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 appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC.

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In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 of the IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering the fact that there was no premeditation on the

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part of the appellants to cause death of the deceased and the injuries caused by them were not sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part II of the IPC and sentenced to undergo rigorous imprisonment for 10 years, however, the fine amount imposed by the learned trial Court shall remain intact.

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Accordingly, this criminal appeal is partly allowed .

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Let a certified copy of this judgment along with the original

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record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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vaishali

Arjun Rathiya v. State of Chhattisgarh

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Arjun Rathiya v. State of Chhattisgarh

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