Jaybabu Shikari @ Kunu 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. 793 of 2018

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(Arising out of judgment dated 03.02.2018 passed in Sessions Trial No.10/2017 by learned Additional Judge to the Court of Additional Sessions Judge, Kunkuri, District Jashpur , CG)

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Jaybabu Shikari @ Kunu S/o Shri Ludhu Shikari, Aged About 29 Years, R/o Village Tejpur, ThanaDharamjaygarh, Civil And Revenue District- Raigarh, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through The District Magistrate Jashpur, District Jashpur, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Sumit Shrivastava, Advocate For Respondent : Mr. Afroz Khan , Panel Lawyer

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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

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(22.07.202 4)

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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

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impugned judgment dated 03.02.2018, passed by Additional Judge to the Court of Additional Sessions Judge, Kunkuri, District Jashpur, Chhattisgarh, in Sessions Trial No.10/2017, by which, the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life with fine of 500/-, in default of₹ payment of fine, to undergo six months additional rigorous imprisonment.

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2. The case of prosecution, in nutshell, is that on 04.09.2016 at about 3:00 p.m., in village Joradol Sugapara, Police Station Pathalgaon, District Jashpur, the appellant herein assaulted Bhunsarin (now deceased) by wooden stick on her head, as a result of which, she suffered grievous injuries and died, thereby committed the aforesaid offence. The matter was reported to the Police by Sontariha (PW-1), pursuant to which Dehati Merg Intimation (Ex. P-15) & Dehati Nalsi (Ex.P-16) was recorded and FIR (Ex. P-18) were registered. Inquest proceedings were conducted vide Ex.P-2 and the dead body of deceased was subjected to postmortem. As per postmortem report (Ex.P/8), proved by Dr. P. K. Chouhan (PW-9), cause of death was head injury and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/3), weapon of offence i.e. wooden stick was recovered vide Ex.P-/4 which was sent along with

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other articles for chemical examination to FSL. In FSL report (Ex.P/24), blood was found on C1 i.e. the stick.

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3. After completion of investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence stating that he has not committed any offence and he has falsely been implicated in crime in question.

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4. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 26 documents and the appellant-accused in support of his defence has not examined any witness but exhibited 2 documents as D1 & D2.

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

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6. Mr. Sumit Shrivastava , learned counsel for the appellant, submits that the appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that if the case of the

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prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the IPC and the appellant is in jail since 05.09.2016 i.e. more than 7 ½ years, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part.

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7. On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, the instant 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 & foremost question for consideration is whether the death of deceased Bhunsarin Bai was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem

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report (Ex. P-8) proved by Dr. P. K. Chauhan (PW-9), which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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10. Now, the question for consideration would be whether the appellant has assaulted the deceased?

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11. Considering the statement of eye witnesses Sahdev (PW2) & Mukesh (PW-8) who are the son and grandson of the deceased respectively and further considering that pursuant to the memorandum statement of the appellant (Ex.P/3), wooden stick was seized vide Ex.P/4 and as per FSL report Ex.P-24, blood was found on the said stick, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who assaulted Bhunsarin Bai (deceased) by wooden stick by which she suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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

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13. 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 Supreme Court in the matter of Sukhbir Singh

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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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14. The Supreme Court in the matter of Gurmukh Singh

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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, which state as under :-

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“23. These are some factors which are required to be taken into consideration before

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(2002) 3 SCC 327

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(2009) 15 SCC 635

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awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has 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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15. 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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(2012) 8 SCC 450

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16. 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 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

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(2017) 3 SCC 247

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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

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

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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.

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18. 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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19. 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 the appellant to cause the death of deceased. It is also

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5.(2019) 6 SCC 122

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evident from the evidence available on record that on the date of offence, on being asked by the deceased to the appellant as to why he had beaten Sontariha (PW1), the appellant got angry and assaulted Bhunsarin Bai (deceased) by wooden stick, as a result of which she suffered grievous injuries and died. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on record, it is quite vivid that there was no intention on the part of the appellant to cause death, but he must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her death. As such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the 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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20. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC is altered/converted to Section 304 Part-II of the IPC and the appellant is sentenced to the period already undergone, as he is in jail since 05.09.2016

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i.e. more than 7 ½ years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellant be released from jail forthwith, if not required in any other offence.

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21. This criminal appeal is partly allowed .

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22. 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 is 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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Khatai

Jaybabu Shikari @ Kunu v. State of Chhattisgarh

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Jaybabu Shikari @ Kunu v. State of Chhattisgarh

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