Babulal Markam Vs State of Chhattisgarh

1. Assail in this criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CrPC’) is to the judgment & order dated 24.3.2018 passed by learned Additional Sessions Judge, Gariyaband (Trial Court) in Sessions Case No.18/2017 in which the two accused appellants herein, i.e., Babulal Markam (A-1) and Garib Markam (A-2), were tried for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’) for committing murder of Bisru Mandavi, father-in-law of A-1 Babulal Markam, and ultimately each of them were convicted and sentenced by the Trial Court under Section 302/34 of IPC to suffer Imprisonment for Life and to pay fine of Rs.500/- in default whereof, to suffer additional Simple Imprisonment for Two months.

¶23

2. In a nutshell, case of the prosecution is that on 12.1.2017, at about 11:00 pm in the house of Bisru Mandavi (deceased) situated at Village Boraidih under the jurisdiction of Police Station Shobha, Gariyaband, A-1 Babulal Markam along with his uncle A-2 Garib

¶24

-3-

¶25

(Cr. A. No. 659 of 2018)

¶26

Markam, in furtherance of their common intention, assaulted Bisru Mandavi with wooden stick as well as hands & fists by which he sustained grievous injuries and died, thereby committed the offence of murder punishable under Section 302 read with Section 34 of IPC. The incident was witnessed by PW-1 Sonai Bai, PW-2 Subai Bai and PW-3 Bhagwati Markam, who are sister, wife and daughter of deceased Bisru Mandavi respectively.

¶27

3. The matter was first reported to the police by PW-4 Jagdish, Village Kotwar. Subsequently, on the report of PW-3 Bhagwati Markam, wife of A-1 Babulal Markam, Dehati Merg (Exhibit P-1) and Dehati Nalishi (Exhibit P-2) were registered at the police station and wheels of investigation started running. Statements of the witnesses conversant with the facts of the case were recorded. Subsequently, Merg Intimation (Exhibit P-21) and FIR (Exhibit P-22) were registered against the two appellants herein. During the investigation, in presence of the witnesses, sketch map of the incident was prepared vide Exhibit P-3, Inquest was conducted vide Exhibit P-9 and the dead-body of deceased Bisru

¶28

-4-

¶29

(Cr. A. No. 659 of 2018)

¶30

Mandavi was subjected to post-mortem which was conducted by PW-13 Dr. Sudhanshu Patel vide Exhibit P-17 in which cause of his death was opined to be hemorrhagic shock due to excessive bleeding from his head injuries. After the post-mortem of deceased, his clothes were seized from the hospital vide Exhibit P-24. Vide Exhibit P-12, blood mixed earth and plain earth were seized from the place of incident. Vide Exhibit P-18, the seized wooden stick was examined by PW-13 Dr. Sudhanshu Patel who opined that death could be caused by the said wooden stick and the cause of death of deceased was opined to be head injuries and he further advised for chemical examination of the blood like stains found on the seized wooden stick.

¶31

4. Memorandum Statement of A-1 Babulal Markam was recorded vide Exhibit P-10, pursuant to which a wooden stick was seized vide Exhibit P-11 and the arrest of both the appellants was made Vide Exhibit P-13 & 14. Vide FSL report (Exhibit P-28), after chemical examination of the seized articles, human blood was found on the wooden stick (A) seized from

¶32

-5-

¶33

(Cr. A. No. 659 of 2018)

¶34

A-1 Babulal Markam, shirt (B1) of deceased Bisru and blood mixed earth (C) seized from the spot, except lungi (B2) of deceased Bisru Mandavi and the control earth (D) seized from the spot on which no human blood was found.

¶35

5. After completion of the investigation, the two appellants herein were charge-sheeted before the concerned Magistrate Court from where the matter was committed to the Court of Sessions and thereafter it was put to trial before the Trial Court where charge was framed under Section 302 read with Section 34 of IPC and read out/explained to the appellants who abjured their guilt, took a plea of false implication and prayed for trial.

¶36

6. During the course of trial, in order to bring home the offence, the prosecution examined as many as 15 witnesses as PW-1 to PW-15 and exhibited 28 documents vide Exhibits P-1 to P-28. Copy of Rojnamcha Sanha and the relevant page of the register have been brought on record as Articles 1C & 2C respectively. Statement of the appellants was recorded under Section 313 of CrPC, in which they

¶37

-6-

¶38

(Cr. A. No. 659 of 2018)

¶39

denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, though no witness has been examined but the statement of Sonai Bai, Subai Bai, Bhagwati Markam and Mahesh Markam has been relied on vide Exhibits D-1, D-2, D-3 & D-4 respectively.

¶40

7. After conclusion of the trial, the Trial Court, by impugned judgment & order dated 24.3.2018, on appreciation of the oral and documentary evidence available on record, found both the appellants guilty of the offence punishable under Section 302/34 of IPC and accordingly convicted and sentenced each of them for Life Imprisonment and fine of Rs.500/- with default stipulation, which led to filing of the present appeal by the two appellants herein questioning the legality, validity and correctness of the impugned judgment & order.

¶41

8. Mr. Mirza Kaisar Baeg, learned counsel appearing for the appellants, would submit that so far as A-1 Babulal Markam is concerned, taking into consideration the prosecution case as it is, at best,

¶42

-7-

¶43

(Cr. A. No. 659 of 2018)

¶44

offence under Section 304 (Part II) of IPC would be made out. In that view of the matter and also keeping in view the fact that A-1 Babulal Markam is in jail since 15.1.2017 thereby he has already undergone more than 7 years of incarceration, it is a fit case where his conviction recorded under Section 302 of IPC can be converted/altered to one under Section 304 (Part-II) of IPC and he may be sentenced to the period already undergone. So far as A-2 Garib Markam is concerned, learned counsel for the appellants would submit that since there is no evidence at all against A-2 Garib Markam and he has already been released on bail by this Court, his conviction for the offence in question does not deserve to be maintained and he is entitled to be acquitted of the said charge on the basis of benefit of doubt.

¶45

9. Mr. Vivek Mishra, learned Panel Lawyer appearing for the State, per contra, would support the impugned judgment & order and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the two appellants herein for causing

¶46

-8-

¶47

(Cr. A. No. 659 of 2018)

¶48

murder of deceased Bisru Mandavi. Therefore, it is not a case of alteration of offence under Section 302 of IPC to one under Section 304 (Part-II) of IPC where the conviction of A-1 Babulal Markam can be modified to a lesser offence. Similarly, A-2 Garib Markam also does not deserve to be acquitted on the ground of benefit of doubt as he has been rightly convicted by the Trial Court on the basis of evidence come on record. The appeal of both the appellants as such deserves for dismissal.

¶49

10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

¶50

11. The first and foremost question, as to whether the death of deceased Bisru Mandavi was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Sudhanshu Patel (PW-13) and other prosecution witnesses including the medical evidence available on record, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record.

¶51

-9-

¶52

(Cr. A. No. 659 of 2018)

¶53

We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Bisru Mandavi was homicidal in nature.

¶54

12. Now, the next question for consideration is, as to who has caused death of deceased Bisru Mandavi?

¶55

13. Considering the facts and circumstances of the case

¶56

and the nature of evidence come on record, we will first consider the appeal of A-1 Babulal Markam.

¶57

:Appeal of A-1 Babulal Markam

¶58

14. So far as the appeal of A-1 Babulal Markam is concerned, the statement of PW-3 Bhagwati Markam, wife of A-1 Babulal Markam, would be relevant to consider herein first of all. In her statement, she has clearly stated that on the date of offence, her husband A-1 Babulal Markam, who was in the state of intoxication, misbehaved with her aunt PW-1 Sonai Bai and also assaulted her with his legs and thereafter he also assaulted her (PW-3) when she tried to intervene, on account of which they came to the house of her father Bisru Mandavi (deceased) in the night at about 10-10:30 pm. Subsequently, when she along with her father, Bisru Mandavi (deceased), aunt PW-1

¶59

-10-

¶60

(Cr. A. No. 659 of 2018)

¶61

Sonai Bai and mother PW-2 Subai Bai were warming themselves by fire build by her father in their veranda, suddenly A-1 Babulal Markam came there and started assaulting her father by a burning wood and also with hands & fists, which was also witnessed by her aunt PW-1 Sonai Bai and mother PW-2 Subai Bai.

¶62

15. Though PW-1 Sonai Bai and PW-2 Subai Bai have partially supported the case of the prosecution, PW-3 Bhagwati Markam has fully supported the case of the prosecution stating that her husband A-1 Babulal Markam came in the night and started assaulting her father Bisru Mandavi by a burning wood and also with hands and fists and when her father tried to escape from the spot, A-1 Babulal Markam pushed him down the ground and then also he assaulted her father with a wooden stick and thereafter the two accused persons ran away from the spot. The testimony of PW-3 Bhagwati Markam as such is fully reliable and she has clearly supported the case of the prosecution. Though there appears to be some minor contradictions in her testimony but that cannot be a ground to discard her testimony outrightly.

¶63

-11-

¶64

(Cr. A. No. 659 of 2018)

¶65

16. In addition to above, pursuant to the memorandum statement of A-1 Babulal Markam recorded vide Exhibit P-10, a wooden stick was seized vide Exhibit P-11 on which human blood was found in the FSL report (Exhibit P-28). Furthermore, PW-13 Dr. Sudhanshu Patel, vide query report (Exhibit P-18), has also opined that death could be caused by the said wooden stick and the cause of death of deceased Bisru Mandavi was opined to be the head injuries.

¶66

17. In that view of the matter, it can safely be concluded that it is in fact A-1 Babulal Markam who has caused injuries to deceased Bisru Mandavi by wooden stick and hands & fists on account of which, Bisru Mandavi suffered grievous injuries on his head and died.

¶67

18. Now, the question would be whether the case of A-1 Babulal Markam would fall under Exception 4 to Section 300 of IPC and his conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellants?

¶68

-12-

¶69

(Cr. A. No. 659 of 2018)

¶70

19. In this regard, the Supreme Court in the matter of v. Arjun State of Chhattisgarh 1 has elaborately dealt

¶71

with the issue and observed in paragraphs 20 and 21 which read as under:-

¶72

“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)

¶73

“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

¶74

1 (2017) 3 SCC 247

¶75

-13-

¶76

(Cr. A. No. 659 of 2018)

¶77

entitled to the benefit of this exception provided he has not acted cruelly.”

¶78

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 : (SCC p. 596, para 9)

¶79

“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

¶80

-14-

¶81

(Cr. A. No. 659 of 2018)

¶82

application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

¶83

17. 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.

¶84

20. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of A-1 Babulal Markam to cause death of deceased Bisru Mandavi, but as is apparent from the testimony of PW-3 Bhagwati Markam that she had come to her father’s house apprehending search on the part of her husband, A-1 Babulal Markam, who was in the state of intoxication and had earlier also assaulted her aunt PW-1 Sonai Bai and subsequently he also came to her

¶85

-15-

¶86

(Cr. A. No. 659 of 2018)

¶87

father’s house where he assaulted her father Bisru Mandavi by wooden stick as well as hands & fists on account of which, her father succumbed to the injuries sustained on his head. Thus, it is quite established that though A-1 Babulal Markam had no intention but he must have had knowledge that the assault made by him to deceased Bisru Mandavi is likely to cause his death. As such, the case of A-1 Babulal Markam would fall under Exception 4 to Section 300 of IPC and his conviction under Section 302 of IPC can be altered to one under Section 304 (Part II) of IPC and it is held so.

¶88

:Appeal of A-2 Garib Markam

¶89

21. So far as the appeal of A-2 Garib Markam is concerned, in view of the statement of PW-1 Sonai Bai, PW-2 Subai Bai as well as PW-3 Bhagwati Markam, A-2 Garib Markam was only present at the place of incident and neither he participated in the incident nor he made any attempt to ensure that the incident cannot occur. There is no evidence at all against A-2 Garib Markam and there appears to be no motive also on his part to cause death of deceased Bisru Mandavi.

¶90

-16-

¶91

(Cr. A. No. 659 of 2018)

¶92

A-2 Garib Markam as such is entitled to be acquitted of the offence in question on the basis of benefit of doubt and it is accordingly held so.

¶93

20. Thus, in view of the aforesaid discussion of evidence available on record, we conclude that:-

¶94

(1) So far as A-1 Babulal Markam is concerned, we set aside his conviction for the offence punishable under Section 302 of IPC and the sentence of Life Imprisonment awarded thereunder as well. Instead, we convict him for the offence punishable under Section 304 (Part-II) and sentence him to undergo Rigorous Imprisonment for 08 (eight) years, maintaining the fine amount with its default sentence as awarded by the Trial Court.

¶95

(2) So far as A-2 Garib Markam is concerned, we set aside his conviction for the offence punishable under Section 302/34 of IPC and acquit him of the said charge on the basis of benefit of doubt. He was granted bail by this Court on 23.8.2018. In case he is on bail, he need not surrender. However, his bailbonds, if any, shall remain in operation for a period of six months from today in view of provisions contained

¶96

-17-

¶97

(Cr. A. No. 659 of 2018)

¶98

in Section 437-A of CrPC. In case he is still suffering in jail, he shall be set at liberty forthwith, if not required in any other case.

¶99

21. In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

¶100

22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment, for information and compliance, if any.

¶101

Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge

¶102

sharad

Babulal Markam v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Babulal Markam v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Shashanka Shekhar Shaw Vs State of Chhattisgarh

Ajay Kumar Sarthi Vs State Of Chhattisgarh

Tulsiram Dhruv Vs State of Chhattisgarh

Lachchhan Yadav Vs State of Chhattisgarh

Nagul Munna Vs State of Chhattisgarh

Devkumar Markam Vs State of Chhattisgarh