Shankar Sagar @ Ajay Vs State Of Chhattisgarh

--------------------------------------------------------------------------------------- For Appellant : Mr. Ajay Mishra, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committe. For Respondent-State : Mr. Tarkeshwar Nande, Panel Lawyer.

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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (05.03.2024)

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Sanjay K. Agrawal, J.

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(1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 27.02.2017, passed by 8^th Additional Sessions Judge, Raipur, DistrictRaipur, (C.G.) in Sessions Trial No. 201/2016, whereby the appellant has been convicted for offence punishable under

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Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 200/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for one month.

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(2) The case of the prosecution, in brief, is that on 15.05.2016 at about 02:00 PM, near Railway Station at Jindal Garden, Raipur, the appellant along with absconding co-accused Gopal Das assaulted Shankar @ Gopal Bangali (now deceased) by means of floor tiles, by which he suffered grievous injuries and died, thereby, committed the offence under Section 302 of IPC.

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(3) The further case of the prosecution, in a nutshell, is that on the date of offence i.e. 15.05.2016 at about 02:00 PM, Shankar @ Gopal Bangali was assaulted, near Railway Station, Jindal Garden by unknown person, by which he suffered grievous injuries and during the treatment in the Mekahara Hospital he died. Merg intimation was registered vide Exs.P/32 and P/33 and on the basis of secret information, during the course of investigation accused Shankar Sagar @ Ajay was arrested and interrogated in which he stated that two days prior to the date of offence i.e. 15.05.2016 Shankar @ Gopal Bangali (deceased) abused his (appellant) wife, due to which, out of anger and in the heat of passion he along with his friend Gopal Das assaulted Shankar @ Gopal Bangali, by means of floor tiles.

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Thereafter FIR was registered vide Ex.P/18 against the appellant-accused. Inquest proceedings were conducted vide Ex.P/15. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/35), Dr. Ulhas Gonnade (PW-14) opined that the cause of death is due to cardiorespiratory failure as a result of head injury and the nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/28 and his memorandum statement was recorded (Ex.P/22) pursuant to which, seizure of blood stained tile stone was made vide Ex.P/23 and sent for chemical examination to FSL. In FSL report (Ex.P/26) blood was not found on tile stone (Article-A1).

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(4) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 36 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence neither examined any witness nor exhibited any document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict

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the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned herein-above against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Learned counsel for the appellant submits that the learned trial Court is not justified in convicting the appellant for the offence under Section 302 of IPC. He further submits that if the entire prosecution case is taken as it is, at best the offence under Section 304 Part-II of IPC is made out against the appellant. Thus, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant can be converted/altered to an offence under Section 304 Part-II of IPC and, further, since the appellant is in jail since 22.07.2016 i.e. more than 07 years, taking into consideration the period he has already undergone, the appellant-accused be released from jail forthwith. Hence, the present appeal deserves to be partly allowed.

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(7) Per-contra , learned State counsel, supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial

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Court has rightly convicted the appellant for offence under Section 302 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-II of IPC, thus, the present appeal deserves to be dismissed.

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(8) 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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(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.P/35) which is duly proved by the evidence of Dr. Ulhas Gonnade (PW-14). Accordingly, taking into consideration the postmortem report (Ex.P/35) and the statement of Dr. Ulhas Gonnade (PW-14), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding.

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(10) Now the next question would be whether the accused-

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appellant is the author of the crime in question?

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(11) In the instant case, Om Prakash Choubey (PW-10), eye witness has clearly seen the incident by which the appellant along with co-accused Gopal Das has assaulted the deceased, by means of floor tile stone, by which deceased suffered grievous injuries and died during treatment. He has been subjected to cross-examination but nothing has been abstracted to hold that he has not clearly seen the incident. Further, pursuant to the memorandum statement (Ex.P/22) of the accused, the tiles in question has been seized (Ex.P/23) and sent for chemical examination to FSL, however in FSL report (Ex.P/26) blood was not found on the said tiles (Article-A1). Considering the facts and circumstances of the case and considering the version of eye witness Omprakash Choubey (PW-10) that the appellant is said to have assaulted the deceased, the finding recorded by the trial Court that the appellant has caused injuries upon the deceased is based on evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

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(12) The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section

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convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellant ?

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(13) It is apparent from the FIR (Ex.P/18) and merg inquiry that at the time when the incident took place, the appellantaccused along with co-accused Gopal Das, out of anger had assaulted Shankar @ Gopal Bangali (deceased) by means of floor tiles, due to which deceased suffered grievous injuries and died during treatment.

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(14) The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 has 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

1 (2002) 3 SCC 327

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further rigorous imprisonment for one year.”

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(15) The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of 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 fro 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;

2 (2009) 15 SCC 635

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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 convicting and sentencing the accused.”

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(16) 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 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 was caused by

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3 (2012) 8 SCC 450

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the act of the accused and that he knew that such act of his is likely to cause death.

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(17) 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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“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

4 (2017) 3 SCC 247

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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 expression “undue advantage” as used in the provisions means “unfair advantage”.

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(18) 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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(19) Further, the Supreme Court in the matter of Rambir vs. 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 (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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(20) Reverting to the facts of the present case in light of the above 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 the appellant to cause the death of the deceased, but it appears that on account of sudden dispute arose between the appellant and the deceased, the appellant is said to have assaulted by means of floor-tiles, due to which the deceased suffered grievous injuries and died during treatment. However, looking to the injuries sustained by deceased, as recorded by Dr. Ulhas Gonnade (PW-14), the appellant must have had the knowledge that such injuries inflicted by him 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 of Section

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5 (2019) 6 SCC 122

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300 of IPC, as the act of the appellant 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 IPC can be altered/converted to Section 304 Part-II of IPC.

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(21) In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC. The appellant is reported to be in jail since 22.07.2016 i.e. more than 07 years, taking into consideration the period he has already undergone, we award him sentence already undergone by him, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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(22) This criminal appeal is partly allowed to the extent indicated herein-above.

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(23) Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, for information and necessary action, if any.

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

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Raghu Jat

Shankar Sagar @ Ajay v. State Of Chhattisgarh

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Shankar Sagar @ Ajay v. State Of Chhattisgarh

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