Sumant Painkra Vs State of Chhattisgarh

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CRA No. 807 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 807 of 2018

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(Arising out of judgment dated 26.04.2018 passed in Sessions Trial No.111/2017 by the 1^st Additional Sessions Judge, Raigarh, Chhattisgarh)

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Sumant Painkra S/o Shri Mohanlal, aged about 47 years, R/o Village-Indira Nagar Lailunga, P.S. Lailunga, District Raigarh, Civil and Revenue District – Raigarh, Chhattisgarh.

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Ratanwati Painkra W/o Shri Sumant Ram, aged about 40 years, R/o Village – Indira Nagar Lailunga, P.S. Lailunga, District – Raigarh, Chhattisgarh.

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Buti Bai W/o Shri Premsai, aged about 50 years, R/o VillageIndira Nagar Lailunga, P.S. Lailunga, District Raigarh, Chhattisgarh.

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Premsai Painkra S/o Shri Mohan Lal Painkrak, aged about 52 years, R/o Indira Nagar, Lailunga, Tahsil and P.S. Lailunga, District Raigarh, Chhattisgarh.

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Bhole Painkra S/o Shri Prem Sai, aged about 21 years, R/o Indira Nagar, Lailunga, Tahsil and P.S. Lailunga, DistrictRaigarh, Chhattisgarh.

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---- Appellants

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Versus

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State of Chhattisgarh through Police Station - Lailunga, District - Raigarh, Chhattisgarh.

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---- Respondent

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For Appellants :- Mr. Manoj Kumar Sinha, Advocate. For Respondent-State :- 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 Agrawal

Judgment On Board

(14.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellants herein namely Sumant Painkra (A-1), Ratanwati Painkra (A-2), Buti Bai (A-3), Premsai Painkra (A-4) and Bhole Painkra (A-5) calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 26.04.2018 passed by the 1^st Additional Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No.111/2017 whereby the appellants have been convicted for offence punishable under Section 302 read with Section 149 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 200/- each; in default of payment of fine to undergo additional rigorous imprisonment 1 year and also convicted for offences punishable under Sections 147, 148 and 323 read with Section 149 of the IPC and sentenced to undergo rigorous imprisonment for 6 months and pay fine of 100/-₹ each, in default of payment of fine to undergo additional rigorous imprisonment for 1 month. All the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that on 10.07.2017 at about 10:00 pm appellants (A-1 to A-5) constituted unlawful assembly and in furtherance of their

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CRA No. 807 of 2018

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common intention assaulted Banau Painkra (now deceased) by bamboo stick by which he suffered grievous injuries and died. The said incident was witnessed by Dhumet Painkra (PW-1), wife of the deceased, who reported the matter to police pursuant to which merg intimation and FIR were registered vide Exs. P/21 & P/21, respectively. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16) proved by Dr. Manoj Patel (PW-5) cause of death was due to haemorrhagic shock as a result of skull fracture and nature of death was homicidal in nature. Pursuant to memorandum statement of A-1 (Ex.P/4), pick-axe has been recovered vide Ex.P/14 and pursuant to memorandum statements of A-2 to A-5 (Exs.P/5, P/6, P/7 & P/8) bamboo sticks were seized vide Exs.P/12, P/13, P/10 & P/11, respectively. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/20) human blood was found on bamboo stick (article A), pick-axe (article I) and on the clothes of A-1 (articles J1), on the clothes of A-5 (articles D1 & D2) & on the clothes of the deceased (article K1 & K2) and only blood was found on the clothes of A-4 (B1 & B2).

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After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of

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Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 32 documents and Article-A/1 whereas, the appellants in defence have neither examined any witness nor exhibited any document. S tatement of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Manoj Kumar Sinha, learned counsel for the appellant, submits that since the deceased was scolding his wife Dhumet Painkra (PW-1), A-5 trying to intervene due to which some altercation took place between them and A-1 to A-4 were also present there and they are said to have assaulted the deceased by bamboo stick due to which Banau Painkra (deceased)

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CRA No. 807 of 2018

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suffered grievous injuries. He also submits that if the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence 304 Part II of the IPC and the appellants are in jail since 11.07.2017, more than 6 years have been completed and, as such, it is a fit case where conviction of the appellants for offence under Section 302 read with Section 149 of the IPC can be converted / altered to an offence under Section 304 Part-II read with Section 149 of the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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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 appellants can be modified for lesser offence, therefore, the appellants have rightly been convicted for the offences in question. Thus, the instant appeal deserves to be dismissed.

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

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CRA No. 807 of 2018

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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The said question has been answered by the trial Court in affirmative that the death of Banau Painkra (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/16) proved by Dr. Manoj Patel (PW-5) 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 of the trial Court.

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Now, the question for consideration would be whether the appellants have assaulted the deceased?

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Considering the statements of injured eye witness Dhumet Painkra (PW-1), wife of the deceased, and Priya Painkra (PW-2), daughter of the deceased, who have clearly implicated the appellants in crime in question and further considering the fact that pursuant to memorandum statements of the appellants on the weapons of offence i.e. pick-axe and bamboo sticks and on the clothes of the appellants human blood was found in the FSL report (Ex.P/20), the trial Court has rightly held that the appellants herein assaulted the deceased by bamboo sticks and pick-axe by which he suffered grievous

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

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 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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1 (2017) 3 SCC 247

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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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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

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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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Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)² 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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Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid from the statement of injured eye witness Dhumet Painkra (PW-1) that on the date of offence deceased purchased bulls which was disputed by his wife (PW-1) due to which deceased was scolding his wife (PW-1) and being a close relative Bhole Painkra (A-5) intervened and asked the deceased to stop scolding PW-1, on that petty dispute alteration took place between A-5 and the deceased and A-5 is said to have assaulted the deceased in the presence of A-1 to A-4 and A-1

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2 (2019) 6 SCC 122

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to A-4 also assaulted the deceased by bamboo and pick-axe by which he suffered grievous injuries and died. Considering the nature of injury which has occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellants must have had knowledge that such injury inflicted by them 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 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 appellants under Section 302 read with Section 149 of the IPC can be altered/converted to Section 304 Part-II read with Section 149 of the IPC.

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In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302 read with Section 149 of the IPC is altered to Section 304 Part-II read with Section 149 of the IPC and the appellants are sentenced to the period already undergone, however, the fine amount imposed by the learned trial Court shall remain intact.

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So far as the conviction of the appellants for the offences under Sections 147, 148, 323 read with Section 149 of the IPC is well merited, therefore, conviction and sentence along with default stipulations imposed by the learned trial Court for the aforesaid offences are not interfered with.

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This criminal appeal is partly allowed .

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

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Sd/- (Sanjay K. Agrawal) Judge

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Sd/- (Sanjay Agrawal) Judge

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Ankit

Sumant Painkra v. State of Chhattisgarh

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Sumant Painkra v. State of Chhattisgarh

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