Chaitram Agariya Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 697 of 2017

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{Arising out of judgment dated 24-08-2016 passed in Sessions Trial No.80/2015 by the learned Sessions Judge Surajpur}

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Chaitram Agariya, S/o. Late Gulal Agariya, Aged About 34 Years, R/o. Village Basnara, Out Post Mohersop, Police Station Chandni, District Surajpur, Chhattisgarh.

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Versus

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State Of Chhattisgarh, Through Police Station Chandni, District Surajpur, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Mirza Keshar Beg, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Advocate

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board (09.02.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 24.08.2016, passed by the Sessions Judge, Surajpur, in Sessions Trial No.80/2015, by which, the appellant herein has been convicted for the offence

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under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.2000/-, in default of payment of fine, 6 months additional rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 07.10.2014, at 10:00 p.m., at village Basnara, Budwa Aamapara, in the house of complainant Smt. Sita Kunwar, the appellant herein has assaulted his brother Chandarsay Agariya (now deceased) by sharp edged weapon axe (tabbal), by which, he suffered grievous injuries and died. The matter was reported by sister of deceased Smt. Sita Kunwar (PW-1) to the police, pursuant to which, merg intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-7, inquest was conducted vide Ex.P-4 and dead body of deceased Chandarsay was subjected to post-mortem, which was conducted by Dr. B.C.Painkra (PW-5), who proved the post-mortem report Ex.P-5, in which, cause of death was stated to be syncope due to excessive brain hemorrhage and death was homicidal in nature. The weapon of offence i.e. axe (tabbal) was recovered from the spot vide Ex.P-10, which was sent for chemical examination to FSL and as per the FSL report (Ex.P-14), blood was found on the seized axe. After due investigation, appellant was charge-sheeted for the

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aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 18 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

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5. Mr. Mirza Keshar Beg, learned counsel for the appellant, would submit that on account of dispute with regard to government land in between two brothers, as per the statement of Balroop (PW-3), the appellant is said to have caused only one single injury to the deceased by axe (tabbal), by which, he died. He, therefore, submits that taking into the prosecution case as it is, at the most, the

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case of appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, the conviction of appellant under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he is in jail since 04.05.2015 i.e. more than 8 years.

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6. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed.

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7. 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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8. The first question for consideration as to whether the death of deceased Chandarsay was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-5 proved by Dr. B.C. Painkra (PW-5), according to which, cause of death was stated to be syncope due to excessive brain hemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor

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contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question is, whether the appellant has caused the death of deceased Chandarsay ?

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10. Considering the statement of Jaglal (PW-2) and Budhlal (PW-7), who have clearly stated that the appellant has assaulted the deceased by axe (tabbal), by which, he suffered grievous injuries and died and further considering the fact that the incident occurred in the house of sister of appellant & deceased Smt. Sita Kunwar (PW-1), we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who had caused the death of deceased Chandarsay is a correct finding of fact based on evidence available on record and accordingly, we affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered to Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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

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Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 wherein it has been observed as under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

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13. The Supreme Court in the matter of Gurmukh Singh v.

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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, 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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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to be seen for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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14. Likewise, in the matter of State v. Sanjeev Nanda 3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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15. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 has elaborately dealt with the

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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 is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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16. 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

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murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)⁵ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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18. Bearing in mind the aforesaid principles of law laid down

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by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death, but on account of dispute between two brothers with regard to government land, the appellant is said to have assaulted the deceased and caused only one single injury by axe (tabbal), by which, he died. As such, there was no intention on the part of the appellant to cause death, but the appellant must have

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5(2019) 6 SCC 122

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had knowledge that the injury caused by him is likely to cause death and, as such, the case of appellant would fall under Exception 4 to Section 300 of I.P.C.

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19. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he is in jail since 04.05.2015 i.e. more than 8 years, however, the fine amount imposed by the trial Court shall remain intact. Accordingly, we direct that the appellant be released forthwith from jail, unless he is required in any other offence.

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

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21. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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

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Ashok

Chaitram Agariya v. State Of Chhattisgarh

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Chaitram Agariya v. State Of Chhattisgarh

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