Partly allowed

Mukundram @ Mukunda v. State Of Chhattisgarh

Chhattisgarh HC2 Sept 2024CRA/722/2017

Case brief

AI extract

What is this about?

Family members convicted for lynching Mannalal during a quarrel over money dispute sought conversion of murder conviction. The Court confirmed the death was homicidal, found no premeditation, invoked Exception 4 to Section 300 IPC, altered convictions from 302/149 to 304 Part-I with 10 years' rigorous imprisonment, and released elderly appellant Jhukam Bai.

What did the court decide?

Conviction altered from 302/149 IPC to 304 Part-I/149 IPC; RI 10 years for most appellants; Jhukam Bai sentenced to period already undergone and bail bonds discharged.

Mukundram @ Mukunda Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:33861-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 689 of 2017

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Kunjram Jangde S/o Late Sundarwa Jangde, Aged About 60 Years R/o Village Bodsara, At Present Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, Chhattisgarh.

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Bundaram Jangde S/o Late Sundarwa Jangde, Aged About 56 Years R/o Village Bodsara, At Present Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, Chhattisgarh.

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Chandraprakash Jangde @ Chandu S/o Bundram Hangde, Aged About 25 Years R/o Village Bodsara, At Present Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, Chhattisgarh.

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Hariram Janjgde S/o Kunjram Janjgde Aged About 25 Years R/o Village Bodsara, At Present Village- Kaneri, Police StationChakarbhatha, District- Bilaspur, Chhattisgarh.

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Bholu Dhritlahre S/o Sarju Dhritlahre. Aged About 28 Years R/o Village Bodsara, At Present Village- Kaneri, Police StationChakarbhatha, District- Bilaspur, Chhattisgarh.

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Ishwar Jangde S/o Kunjram Jangde, Aged About 19 Years R/o Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, Chhattisgarh.

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Nayandas Jangde @ Chainudas S/o Bundram Jangde, Aged About 23 Years R/o Village- Kaneri, Police StationChakarbhatha, District- Bilaspur, Chhattisgarh.

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Heeradas Jangde S/o Kunjram Jangde, Aged About 38 Years R/o Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, Chhattisgarh.

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Digitally signed by ROHIT ROHIT KUMAR KUMAR CHANDRA CHANDRA Date: 2024.09.18 10:37:12 +0530

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Jhukam Bai W/o Late Sundarwa @ Sunderlal Jangde Aged About 78 Years R/o Village- Kaneri, Police Station- Chakarbhatha, District- Bilaspur, 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 Chakarbhatha, District- Bilaspur, Chhattisgarh.

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---- Respondent

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CRA No. 722 of 2017

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Mukundram @ Mukunda S/o Sundarwa Jangde Aged About 50 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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Kashiram Jangde S/o Mukundram Jangde, Aged About 21 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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---- Respondent

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CRA No. 725 of 2017

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Gendram Jangade S/o Late Sundarwa Jangade, Aged About 40 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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Santosh Kumar Jangade, S/o Late Lala Ram Jangade, Aged About 40 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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Shashi Kapoor S/o Santosh Kumar Jangade, Aged About 23 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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Chitra Kumar Jangade, S/o Gendram Jangade, Aged About 20 Years R/o Village Kaneri, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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---- Appellants

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Versus

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State of Chhattisgarh Through Police Station Chakarbhatha, District Bilaspur, Chhattisgarh.

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellants in CRA 689/2017 and CRA 725/2017	: Ms. Sharmila Singhai, Sr. Advocate assisted by Mr. Kanwaljeet Singh Saini, Advocate
For Appellants in CRA 722/2017	: Mr. Rajesh Kumar Jain and Smt. Kiran Jain, Advocates
For Respondent/State	: Mr. Ranbir Singh Marhas, Additional Advocate General

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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03.09 .2024

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Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, this Court is disposing of the same by a common judgment.

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These criminal appeals filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) are directed against the impugned judgment of conviction and order of sentence dated 09.03.2017 passed by the Court of Sixth Additional Sessions Judge, Bilaspur (C.G.) in Sessions Trial No. 31 of 2016, whereby the appellants have been convicted and sentenced in the following manner with a direction to run all the sentences concurrently :

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CONVICTION	SENTENCE
U/s 148 of IPC	RI for 1 year and fine of Rs. 100/-, in default of payment of fine, additional RI for 1 month
U/s 452 of IPC	RI for 1 year and fine of Rs. 100/-, in default of payment of fine, additional RI for 1 month
U/s 427 of IPC	RI for 6 months
U/s 302 read with Section	For life imprisonment and fine of
149 IPC	Rs. 100/-, in default of payment of fine,additional RI for 1 month
U/s 323 read with Section	RI for 6 months
149 of IPC(three times)

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Case of the prosecution, in brief, is that on 13.11.2015, the then SHO/Investigating Officer R.S. Mishra (PW-19) received a telephonic information regarding scuffle between two parties due to loan and documents relating to land. After receiving the information, the police authorities came to the spot and found that the deceased Mannalal was lying in the house and thereafter complainant Agamdas (PW-5) has lodged the report before the Police Station, in which, it is stated that before one week from the date of incident, Kunjram Jangde (appellant No.1) after consuming liquor, committed Marpit with Faguram. Due to that incident, on 13.11.2015 at about 10.30 A.M., when both the parties assembled in the house of one Punit Ram on Chhatthi programme, the appellants entered into the house of complainant and assaulted with deadly weapons to Mannalal, as a result of which, he received grievous injuries on his body. It is further alleged that, during this scuffle, Smt.Payal, Ku. Mamta, Ku. Manju and Smt.Chana Bai have also received injuries. On the way to Bilaspur District Hospital for treatment in 108 ambulance, Mannalal had expired. Doctor at the District Hospital checked and declared him dead. On which, Dehati Nalisi (Ex.P-15) and Dehati merg intimation (Ex. P-16) were recorded and information of sudden death has recorded vide Ex.P-74.

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After giving notice (Ex.P-72) to the witnesses, inquest over the dead body of the deceased Mannalal was prepared vide Ex.P-65 and thereafter, application for conducting postmortem was given.

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Dr. A. K. Kaushik (PW-3) conducted postmortem on the dead body of the deceased vide Ex.P-4.

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The dead body of the deceased was handed over to complainant Agamdas vide Ex.P-67 and duty certificate (Ex.P-66) in this regard was issued to constable Raghunath Sahu. A sealed packet containing the clothes of the deceased, a white shando, a brown colored pant and an underwear stained with blood were seized as per Ex.P-68. Injured Ku. Manju, Smt.Chana Bai, Ku.Mamta and Smt.Payal were medically examined vide Ex.P-11 to 14 respectively. On return to the Police Station, First Information Report (Ex.P/75) under Crime No. 365/2015 and Crime Description Form (Ex.P-18) were recorded against the accused under Sections 147, 148, 149, 302, 323, 427 of IPC and the statements of the witnesses were recorded as per their statements. Accused/appellants were arrested vide Exs.P-77 to P-91 and information of their arrest was given vide Exs.P-92 and P-93.

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During the course of investigation, a memo (Ex.P-76) was issued from Tehsildar, Bilha to prepare a map of the incident site, in compliance of which Patwari Manju Sonwar (PW-1) prepared Panchnama and visual map of the incident site vide Ex.P-1. Bloodstained concrete and plain concrete from the place of incident were recovered vide Ex.P-21. Exs. P-38 to P-46 and from Exs. P-48 to P-50 are the memorandums of the accused/ appellants as well as other co-accused, whereas Exs.P-34 to P-

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37, Exs. P-47, P-51, P-53, P-58 are the seizure memo, by which, different weapons like Tangi, Lathi and Danda have been seized from the appellants and other co-accused. Seized articles were sent for chemical analysis to State Forensic Science Laboratory, Raipur vide Ex.P-94 and receipt of same was obtained vide Ex. P-95, wherefore, the FSL report was received vide Ex.P-96.

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After completing all the other formalities of investigation, the charge sheet was presented in the concerned Court vide Ex. P- 97, from where the case was committed to the Sessions Court, Bilaspur from where the Sixth Additional Sessions Judge, Bilaspur received the case on transfer for hearing and disposal in accordance with law.

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The accused denied the allegations and during the examination under Section 313 of the CrPC, stated that they were innocent. They claimed that Kunjaram's son, Hira Das, was seriously injured by Mannalal and his family members, and they had gone to the police station to file a report after hearing his cries for help. They denied knowledge of how Mannalal got injured and alleged that they were falsely implicated by the complainant's side due to a long-standing enmity. The accused gave evidence in defence, namely, Paragdas (DW-1), Hiradas (DW-2), Dr. Ashok Kumar Yende (DW-3), Amritlal Dhritalhare (DW-4), and Dr. Prakash Ghodeshwar (DW-5) who have been examined as defense witnesses. So as to prove the complicity of the accused/ appellants in the crime in question, prosecution has examined as

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many as 20 witnesses.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 09.03.2017, convicted and sentenced the appellants as aforementioned, against which, these criminal appeals have been filed by the accused/appellants.

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Ms. Sharmila Singhai, learned Senior Advocate for the accused/appellants submits that learned trial Court has gravely erred in convicting the appellants for committing murder of the deceased under Section 302 of IPC, whereas according to the Doctor (P.W.-3), who has specifically stated that the cause of death is due to single injury on the head, therefore the offence under Section 302 of IPC is not made out. The learned trial Court has completely failed to appreciate that after the incident, the complainant party has not lodged the report immediately before the Police Station. According to the prosecution, the incident was taken place at about 10.30 A.M., whereas they have lodged the report before the Police Station at 3.25 P.Μ. It is the case of free fight and the complainant party is the aggressive party and because of their instigation, the incident was taken place. She further submitted that the learned trial Court has further failed to appreciate that on the first point of time, the appellants have lodged the report before the Police Station, in which, they have specifically stated that on the date of incident, the deceased and Agamdas both were started quarrel with Hiradas Jangde

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regarding money dispute and also committed Marpit with him as a result of which, he received severe injuries on his head. The prosecution has completely failed to adduce any evidence that before committing the offence, the appellants formed unlawful assembly and they have shared common object to commit the murder of Mannalal. It has been argued that while convicting the appellants, the learned trial Court has completely overlooked the evidence of Dr. A.K. Kaushik (P.W.- 3), who has specifically stated that the injury no. 1 can be received by the deceased due to fall and further he specifically stated that the deceased has not received any injury by sharp edged weapon, therefore the conviction with the aid of 149 of IPC is completely ruled out. The learned trial Court has completely failed to appreciate that in the same incident, the appellants have also received the injuries and the prosecution has failed to explain the same.

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Learned Senior Advocate, appearing for the appellants contended that the learned trial Court further failed to appreciate that Maniram Sonwani (P.W.-6), Ramayan Markam (P.W.-7), Komal Das Sonwani (P.W.-8), Motilal Jangde (P.W.-9) and Smt. Chana Bai (P.W.-10) were declared hostile and despite this, the learned trial Court has convicted the appellants under aforementioned offences, which is perverse, erroneous and baseless, therefore impugned conviction of the appellants being unsustainable in low, deserves to be quashed. The evidence of Agamdas Sonwani (P.W.-5) cannot be relied upon, because he was not present on

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the spot. In para-15 of cross examination, he specifically admitted that after consultation with each other, they have lodged the report before the Police Station even he has not disclosed the name of all the appellants and co-accused in the Dehati Nalisi. Similarly, the evidence of Ku. Mamta (P.W.-13) cannot be relied upon because in cross examination, she has specifically stated that after consultation with each other, they have lodged the report against whole family members of the accused party. She has further admitted that after lodging the report by the accused party, police came to the Village at about 12.00P.M., but they have not disclosed the incident to the Police. There is major contradiction between the case diary statement and court statement of this witness. Learned Senior Advocate further stated that from perusal of the entire evidence available on record, it is clear that there were no previous enmity between the complainant party and the deceased party and despite this all the family members have falsely been implicated in the present case by the complainant party. The learned trial Court has completely overlooked the evidence of defence witnesses Paragdas (D.W.-1), who has specifically stated that at the time of incident, the appellant Bholu was not present on the spot. The similar evidence has been given by Hiradas (D.W.-2). The learned trial Court further failed to appreciate the evidence of Dr. Ashok Kumar Yende (D.W.-3), who has specifically stated that Hiradas has received grievous injuries in the incident and if he would have

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not provided the treatment immediately, then he would have died. The learned trial Court has failed to appreciate that the criminal case has also been registered against the complainant party under Section 147, 148, 149, 323, 506-B, 324 of IPC and the same was pending before the Sessions Court. The learned trial Court failed to appreciate that the prosecution has completely failed to prove the offences against the appellants beyond all reasonable doubts and the benefit of doubts should be given to the appellants

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Ms. Singhai further submitted that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to deceased in spur of moment. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants fall within the purview of Exception 4 to Section 300 of the IPC and the act of the appellants is culpable homicide not amounting to murder, and therefore, they are fit cases where the conviction of the appellants for the offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC.

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She also submitted that as the appellants Chandraprakash Jangde @ Chandu, Bholu Dhritlahre, Ishwar Jangde, Nayandas Jangde @ Chainudas, Mukundram @ Mukunda, Kashiram

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Jangde, Shashi Kapoor and Chitra Kumar Jangde were in jail since 16.11.2015 till they were granted bail by this Court on 10.08.2021 and appellants Hariram Jangde, Heeradas Jangde, Gendram Jangde and Santosh Kumar Jangde were in jail since 16.11.2015 till they were granted bail by this Court on 20.12.2021 as such, they have served the jail sentence of more than six years. So far as appellant Bundram Jangde is concerned, he was in jail since 16.11.2015 and was released on parole for 23 days from 12.06.2020 during the Covid-19 pandemic under the orders of the Supreme Court, but thereafter, as he has not surrendered, non-bailable warrant has been issued against him by this Court on 01.08.2024. In compliance of which, appellant Bundram Jangde was arrested on 12.08.2024 and was put in jail and in compliance of the order passed by this Court, today, appellant Bundram Jangde is produced before this Court on police custody, wherefrom, he is again sent jail, as such, he has already remained in jail for more than 05 years. So far as appellant Kunjram Jangde is concerned, he was in jail since 16.11.2015 and was released on temporary bail for a period of two months vide order dated 30.09.2022 and was directed to surrender before the concerned trial Court positively on 01.11.2022, but since, he has not surrendered on the said date, non-bailable warrant was issued against him for his appearance before this Court on 14.12.2022, in compliance of which the appellant Kunjram Jangde was arrested and sent to jail and at

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present he is jail, as such, he has also served out jail sentence of more than 07 years. So far as appellant Jhukam Bai is concerned, at present she is aged about 83 years old and was suffering from old age diseases, she remained in jail since 16.11.2015 till 07.04.2016 and thereafter since 09.03.2017 till 28.06.2019, on which date she was granted bail by this Court. There are no material evidence to attribute appellant Jhukam Bai in commission of alleged offences and only on the basis of conjecture and surmises, she has been convicted and sentenced by the trial Court. Therefore, it is prayed that the sentence imposed on all the appellants may be reduced to the period already undergone by them.

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On the other hand, learned State counsel, appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellants’ conviction under Section 302 of the IPC can be altered/converted under Section 304 (Part-I or Part-II) of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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The question for consideration would be whether the death of the deceased was homicidal in nature or not ?

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Dr. A. K. Kaushik (PW-3), who conducted postmortem examination on the dead body of deceased Mannalal and had

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given his report vide Ex.P-4, has stated that while conducting the postmortem, he noticed following injuries :-

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(i) Lacerated wound of 5 x 2 cm over occipital area on (back of head);

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(ii) Bleeding from both nostrils;

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(iii) Fracture Patella left leg;

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(iv) Lacerated wound 2 x 2 cm over left leg anterior aspect;

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(vi) Abrasion 2 x 2 cm over left knee;

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(vii) Lacerated wound 2 x 1 cm on right tibia upper 1/3;

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(viii) Lacerated wound 2 x 2 cm over right left lower 1/3.

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The said doctor opined that cause of death was coma due to head injury (Intra cranial hemorrhage and hamatoma). On a query being made to Dr. A. K. Kaushik (PW-3) regarding nature of death, he further opined vide Ex.P-5 that nature of death can be homicidal according to injuries mentioned by him as per PM report (Ex.P-4). In cross-examination, the statement of this witness regarding the death being due to the injuries inflicted on the deceased remained uncontested.

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The trial Court after appreciating oral and documentary evidence available on record, particularly, relying upon the statement of Dr.A.K.Kaushik (PW-3), who conducted postmortem, has come to the conclusion that cause of death was coma due to head injury (Intra cranial hemorrhage and hamatoma) and death was homicidal in nature.

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After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding

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recorded by the trial Court that death of deceased Mannalal was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

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Now, next question comes for consideration is that whether the accused/appellants are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimonies of eyewitnesses, Agamdas Sonwani (PW-5), who is also the complainant, Smt. Chana Bai (PW-10), wife of the deceased, Kumari Mamta (PW-13), daughter of the deceased, Manju Kumari Sonwani (PW-16), daughter of the deceased and independent witness Motilal (PW-9), who were present at the time and place of incident.

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The complainant Agamdas Sonwani (PW-5), Smt. Chana Bai (PW-10), wife of the deceased, Kumari Mamta (PW-13), daughter of the deceased, Manju Kumari Sonwani (PW-16), daughter of the deceased and independent witness Motilal (PW-9), who were present at the time and place of incident, all have stated that the accused had beaten the deceased Mannalal with sticks, rods, tangiyas, and kudris, causing his death. However, according to the post-mortem report of the deceased (Ex.P-4) certified by Dr.A.K. Kaushik (PW-3) the number of injuries on the deceased's body was seven. As per evidence of above prosecution witnesses, if all the accused had beaten the deceased Mannalal with the aforementioned weapons, then the number of injuries on

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the deceased's body would have been more than what is stated in Ex.P-4. It is not necessary for all the accused to have beaten the deceased or caused the alleged incident merely because they were members of an unlawful assembly.

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In Lalji Vs. State of U.P. (1989) 1 SCC 437 , the Hon’ble Supreme Court has observed:

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“Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. [pic]It is not necessary that all the persons forming an unlawful assembly must do some overt

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act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

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Further, in State of Rajasthan Vs Shiv Charan, (2013) 12 SCC 76 it was opined by the Hon’ble Supreme Court:

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“The pivotal question of applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (I) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on the spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence

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committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under the second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed”.

¶105

In the instant case, the eyewitnesses, who are relatives of the deceased, have given unequivocal evidence about all the accused committing the murder of the deceased Mannalal. The common object of the accused has been clearly established by all the witnesses. In such a situation, there is no need to prove specific individual direct actions. All the necessary ingredients for invoking Section 149 have been proved by the prosecution.

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From the aforesaid factual discussion made in the light of the evidence of the witnesses, it is thus apparent that the death of the deceased was caused by the accused/appellants.

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The aforesaid finding brings us to the next question for consideration, whether the case of the accused/appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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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

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1 (2002) 3 SCC 327

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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 Supreme Court in the matter of Gurmukh Singh v. State of

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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 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 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;

2 (2009) 15 SCC 635

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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 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

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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 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 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 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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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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¶142

“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.”

¶143

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)

¶144

“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

¶145

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¶146

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”.

¶147

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.

¶148

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

¶149

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

¶150

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

¶151

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that the

¶152

5 (2019) 6 SCC 122

¶153

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¶154

appellants have lodged the report before the Police Station, in which, they have specifically stated that on the date of incident, the deceased and the complainant Agamdas (PW-5) both were started quarrel with Hiradas Jangde regarding money dispute and also committed Marpit with him as a result of which, he received severe injuries on his head and if he would have not provided the treatment immediately, then he would have died. The said fact has been duly proved by the evidence of Dr. Ashok Kumar Yende (DW-3) and Prakash Ghodeshwar (DW-5), who had given treatment to injured Haridas Jangde. The criminal case has also been registered against the complainant party under Section 147, 148, 149, 323, 506-B, 324 of IPC. There was no premeditation on the part of the appellants to cause death of deceased Mannalal and only because the deceased and the complainant Agamdas (PW-5) both were started quarrel with Hiradas Jangde regarding money dispute and also committed Marpit with him, out of anger and in heat of passion, appellants assembled and assaulted the deceased Mannalal on his vital part i.e. head, by which he died. They do not have any intention to cause death of deceased Mannalal, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of Mannalal, as such, their case would fall within the purview of Exception 4 of 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

¶155

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¶156

be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellants had not taken any undue advantage or acted in a cruel or unusual manner.

¶157

Considering the above-stated facts, also considering the testimonies of eyewitnesses, Agamdas Sonwani (PW-5), who is also the complainant, Smt. Chana Bai (PW-10), wife of the deceased, Kumari Mamta (PW-13), daughter of the deceased, Manju Kumari Sonwani (PW-16), daughter of the deceased and independent witness Motilal (PW-9), who were present at the time and place of incident, though the appellants were not having premeditation but on sudden quarrel erupted between them and out of sudden anger and in heat of passion, the appellants assaulted the deceased on his vital part i.e. head, by which he died. They do not have any intention to cause death of deceased Mannalal, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of death, though they have not taken undue advantage and not acted in unusual manner, but considering the nature of injury, it is a fit case where the conviction under Section 302 read with Section 149 of IPC can be altered to Section 304 Part-I read with Section 149 of IPC.

¶158

In that view of the matter, we are of the considered opinion that the case of the appellants is covered within Exception 4 to Section 300 of IPC and the conviction of the accused / appellants

¶159

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¶160

Kunjram Jangde, Bundram Jangde, Chandraprakash Jangde @ Chandu, Hariram Jangde, Bholu Dhritlahre, Ishwar Jangde, Nayandas Jangde @ Chainudas, Heeradas Jangde, Mukundram @ Mukunda, Kashiram Jangde, Gendram Jangde, Santosh Kumar Jangde, Shashi Kapoor and Chitra Kumar Jangde for the offence under Section 302 read with Section 149 of IPC is altered to Section 304 Part-I read with Section 149 of IPC and they are sentenced to undergo rigorous imprisonment for 10 years . However, the fine sentence and default sentence imposed upon them by the learned trial Court shall remain intact.

¶161

It is stated that the appellants Kunjram Jangde and Bundram Jangde are in jail, they shall serve out the remaining sentence as modified by this Court.

¶162

It is further stated that the appellants Chandraprakash Jangde @ Chandu, Hariram Jangde, Bholu Dhritlahre, Ishwar Jangde, Nayandas Jangde @ Chainudas, Heeradas Jangde, Mukundram @ Mukunda, Kashiram Jangde, Gendram Jangde, Santosh Kumar Jangde, Shashi Kapoor and Chitra Kumar Jangde are on bail. They are directed to surrender before the concerned trial Court for serving the remaining part of sentence as modified by this Court within a period of two months from today, failing which, the trial Court shall take appropriate steps against the aforesaid accused for serving the abovementioned sentence.

¶163

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¶164

So far as appellant Jhukam Bai is concerned, at present she is aged about 83 years old and was suffering from old age diseases, she remained in jail since 16.11.2015 till 07.04.2016 and thereafter since 09.03.2017 till 28.06.2019, on which date she was granted bail by this Court. There are no material evidence to attribute appellant Jhukam Bai in commission of alleged offences and only on the basis of conjecture and surmises, as she was the member of the unlawful assembly, she has been convicted and sentenced by the trial Court, as such, her conviction under Section 302 read with Section 149 of IPC is altered to Section 304 Part-I read with Section 149 of IPC and sentenced to the period already undergone by her. She is on bail, her bail bonds and sureties stand discharged.

¶165

The criminal appeals are partly allowed to the extent indicated herein-above.

¶166

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

¶167

Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

¶168

Chandra

Mukundram @ Mukunda v. State Of Chhattisgarh

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Mukundram @ Mukunda v. State Of Chhattisgarh

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