Lakkhu Podiyami Vs State Of Chhattisgarh

__________________________________________________________ For Appellant :- Mr. Ashok Swarnakar, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. :- For Respondent/State Mr. Ankur Kashyap, Dy. Govt. Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (15.02.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against the judgment and order dated 25.3.2017 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Case No.86/2016, by which the appellant has been convicted for the offence

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(Cr. A. No. 831 of 2017)

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punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life.

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Case of the prosecution, in brief, is that in the intervening night of 25/26.9.2016, the appellant on account of an agriculture land dispute assaulted his cousin brother, Sannu Podiyami, with wooden stick by which he sustained grievous injuries and died. On 26.9.2016, a report regarding the death of Sannu Podiyami was lodged by his wife, PW-9 Boddo Podiyami, at Police Station Lohandiguda, stating that her husband, Sannu Podiyami, had not come to their house from the evening of 25.9.2016 and on the next day i.e., on 26.9.2016, in morning at about 9:00 a.m., the Village Kotwar, PW-1 Sonaru Mandavi informed her that the appellant has killed her husband by assaulting him with wooden stick. Immediately thereafter, she reached the spot where she found her husband lying dead in the agriculture field of Mongdu Benjami and Laxman Benjami. She suspected that the appellant has killed his husband because of the agriculture land dispute that he had with her husband and that the appellant often used to quarrel with her husband for the said land dispute.

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(Cr. A. No. 831 of 2017)

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On the basis of the aforesaid report, Dehati Merg Intimation was recorded vide Exhibit P-11 and Dehati Nalishi was registered vide Exhibit P-12. Spot Map was prepared vide Exhibit P-13. Inquest proceeding was conducted vide Exhibit P-2 and the dead-body of deceased Sannu Podiyami was subjected to postmortem which was conducted by Dr. N.S. Nag (PW-6) vide Exhibit P-8 in which the cause of death was opined to be on account of internal and external bleeding and shock due to head injuries which were homicidal in nature. Vide Seizure Memo (Exhibit P-4), a bloodstained shirt of the deceased was seized. Memorandum statement of the appellant was recorded vide Exhibit P-6 pursuant to which, a wooden stick was seized vide Exhibit P-3. Thereafter, F.I.R. was registered vide Exhibit P-16 against the appellant for the offence punishable under Section 302 of IPC and he was arrested vide Arrest Memo (Exhibit P-7). Statements of the witnesses were recorded under Section 161 of CrPC. The seized articles were sent for forensic examination. The F.S.L. report received is Exhibit P-20 in which human blood was found on the seized wooden stick ('A').

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(Cr. A. No. 831 of 2017)

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After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant abjured his guilt, pleaded for false implication and entreated for trial.

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During the course of trial, in order to bring home the offence, the prosecution examined as many as 9 witnesses and exhibited 20 documents. Statement of the accused/appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited.

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After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 25.3.2017, on appreciation of the oral and documentary evidence available on record, reached to the conclusion that

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(Cr. A. No. 831 of 2017)

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the appellant has caused death of Sannu Podiyami and accordingly convicted him for the offence punishable under Section 302 of IPC and sentenced him to undergo Life Imprisonment, against which the present appeal has been preferred by the appellant.

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Mr. Ashok Swarnakar, learned counsel appearing for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would further submit that even otherwise if the entire prosecution case is taken as it is, the case of the appellant would fall under Exception 4 to Section 300 of IPC and the alleged offence is liable to be converted to one under Section Section 304 (Part-II) of IPC and the appellant be sentenced for the period already undergone, as he is in jail since 27.9.2016 i.e., for a period of more than 7 years, and the appeal be allowed accordingly.

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Mr. Ankur Kashyap, learned Deputy Government Advocate, however, would 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 the offence punishable

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(Cr. A. No. 831 of 2017)

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under Section 302 of IPC. As such, it is not a case where the conviction of the appellant can be altered and the instant appeal is liable to be dismissed.

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

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The first question for consideration, as to whether the death of deceased Sannu Podiyami was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. N.S. Nag (PW-6) who has conducted the post-mortem of deceased Sannu Podiyami and proved the postmortem report (Exhibit P-8) in which the cause of death has been opined to be on account of internal and external bleeding and shock due to head injuries and the nature of death was homicidal, which, in our considered opinion, is 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 holding that the death of deceased Sannu Podiyami was homicidal in nature.

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(Cr. A. No. 831 of 2017)

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Now, the next question for consideration is, as to whether the appellant has caused death of deceased Sannu Podiyami?

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Considering the statements of PW-9 Boddo Podiyami, wife of deceased Sannu Podiyami, PW-1 Sonaru Mandavi, Village Kotwar and PW-2 Sannuram, the villager, before whom the appellant has made extrajudicial confession that he had caused death of Sannu Podiyami by means of wooden stick and also considering the fact that pursuant to the memorandum statement of the appellant, a wooden stick has been recovered on which human blood has been found in the F.S.L. report, the finding recorded by the Trial Court that the appellant has caused death of deceased Sannu Podiyami is also correct finding based on evidence available on record. We accordingly affirm the said finding of the Trial Court also, holding that the appellant has caused death of deceased Sannu Podiyami.

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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

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(Cr. A. No. 831 of 2017)

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Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

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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

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1 (2017) 3 SCC 247

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(Cr. A. No. 831 of 2017)

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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

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(Cr. A. No. 831 of 2017)

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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 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) of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 (Part-II) of IPC.

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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 death of deceased Sannu Podiyami, as on account of a dispute relating to partition of agriculture land, the appellant has assaulted the deceased with wooden stick by which he sustained four injuries on his head and succumbed. Thus, it is quite established that though the appellant had no intention but he must have had knowledge that the assault made by him on the deceased is likely to cause his death. As such, the case of the appellant would fall under Exception 4 to Section 300 of IPC

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(Cr. A. No. 831 of 2017)

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and his conviction under Section 302 of IPC can be altered to one under Section 304 (Part-II) of IPC and it is accordingly held so.

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Consequently, we set aside the conviction of the appellant for the offence punishable under Section 302 of IPC and the sentence of Life Imprisonment awarded thereunder as well. Instead, we convict him for the offence punishable under Section 304 (Part-II) of IPC and sentence him to the period already undergone, as he is in jail since 27.9.2016 i.e., for a period of more than 7 years. The appellant is directed to be released from jail forthwith, if his detention is not required in connection with any other offence.

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

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Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary, if any, at the earliest.

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Sd/Sd/(Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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sharad

Lakkhu Podiyami v. State Of Chhattisgarh

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Lakkhu Podiyami v. State Of Chhattisgarh

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