Sanjay Ekka Vs State Of Chhattisgarh

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CRA No. 868 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 868 of 2017

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(Arising out of judgment dated 28.04.2017 passed in Sessions Trial No.32/2016 by the Additional Judge of the Court of Additional Sessions Judge, Kunkuri, District Jashpur, C.G.)

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Sanjay Ekka S/o Oskar Ekka, aged about 30 years, Caste Uraon, R/o Sirimkela, Dipatoli, Police Station Duldula, District Jashpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through the Station House Officer, Police Station Duldula, District Jashpur, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Hanuman Prasad Agrawal, Adv. For Respondent-State :- Mr. Rahul Tamaskar, Govt. Advocate.

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Division Bench

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

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Judgment On Board

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(10.07.2024)

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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 appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 28.04.2017 passed by Additional Judge of the Court of Additional Sessions Judge, Kunkuri, District Jashpur,

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Chhattisgarh in Sessions Trial No.32/2016 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of 2,000/-; in default of₹ payment of fine to undergo additional rigorous imprisonment 6 months and also convicted for offence under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and pay fine of 1,000/-; in default of payment of fine to₹ undergo additional rigorous impression for 3 months. Both the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that on 22.06.2016 at about 9:45 am at village Sirimkela, Dipatoli, Police Station Duldula, District Jashpur, Chhattisgarh, the appellant assaulted Silbiriyus Bada (now deceased) by axe by which he suffered grievous injuries and died and also caused injuries, sufficient to cause death, to Aman Xalxo (PW-2) and thereby committed the aforesaid offence. Vikas Bada (PW-1) reported the matter to the police pursuant to which merg intimation and FIR were registered vide Exs.P/1 & P/2, respectively. Nazari naksha was prepared vide Ex.P/7. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report

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(Ex.P/14) proved by Dr. Vipin Kumar (PW-6), cause of death was haemorrhagic shock due to injury over brain and nature of death was homicidal. Amal Xalxo (PW-2) was also medically examined and as per his MLC report (Ex.P/11) proved by Dr. S. Toppo (PW-5), he suffered some grievous injuries, sufficient to cause death. Pursuant to memorandum statement of the appellant (Ex.P/9) weapon of offence i.e. axe and t-shirt were seized vide Ex.P/10. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/28) on the weapon of offence i.e. axe (Article C) and on the t-shirt of the appellant (Article D) blood was found.

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After due investigation, appellant 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.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 31 documents, whereas, the appellant in defence has examined 1 witness and exhibited 2 documents. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in

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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 appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Hanuman Prasad Agrawal, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that in view of the statement of appellant who himself examined as defence witness (DW-1), it would be a case, at the most, of commission of offence 304 Part II of the IPC and the appellant is in jail since 23.06.2016, more than 8 years have been completed and, 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 the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Rahul Tamaskar, 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. He also submits that Vikas Bada (PW-1), eye witness, and Amal Xalxo (PW-2), injured eye witness, have clearly implicated the appellant in crime in question 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 appellant has rightly been convicted for the offence 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 perused the records minutely.

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report (Ex.P/14) proved by Dr. Vipin Kumar (PW-6), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the

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record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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

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Considering the statement of eye witness Vikas Bada (PW-1) and injured eye witness Amal Xalxo (PW-2) in which they have clearly implicated the appellant in crime in question by stating that the appellant has assaulted the deceased by axe by which he suffered grievous injuries and died and also caused injuries sufficient to death to Amal Xalxo (PW-2); they have been subjected to some extent of cross-examination, but nothing has been extracted to hold that they have made incorrect statement or falsely implicated the appellant in crime in question and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/9) weapon of offence i.e. axe and t-shirt were seized on which in FSL report (Ex.P/28) blood was found, the trial Court has rightly held that it is the appellant who assaulted the deceased by axe by which he suffered grievous injuries and died and also caused injuries sufficient to death to Amal Xalxo (PW-2), which is the finding of

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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

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1 (2017) 3 SCC 247

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of this exception provided he has not acted cruelly.”

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

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

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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 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; (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.”

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Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the supreme Court in the above stated decisions, it is quite vivid that there was no premeditation on the part of the appellant and further considering the statement of the appellant who himself examined as defence witness (DW-1) has clearly stated that when he was returning from the field, the deceased, Vikas

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2 (2019) 6 SCC 122

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Bada (PW-1) and Amal Xalxo (PW-2) were watching his movement and when he reached to the spot, he saw the deceased armed with axe, Vikas Bada (PW-2) & Amal Xalxo (PW-3) armed with wooden stick and they assaulted him and in defence, appellant snatched axe from the deceased and attacked on them, as such, the appellant is said to have assaulted the deceased by axe by which he suffered grievous injuries and died and also caused injuries sufficient to death to Amal Xalxo (PW-2). Considering the nature of injury which has occurred on the body of the deceased and also injuries suffered by the injured eye witness (PW-2) and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him 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 appellant under

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Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC.

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In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering the fact that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part II of the IPC and sentenced to undergo rigorous imprisonment for 10 years, however, the fine amount imposed by the learned trial Court shall remain intact.

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So far as the conviction of the appellant for the offence punishable under Section 307 of the IPC is well merited and the trial Court has rightly convicted the appellant for the said offence on the basis of evidence available on record and, therefore, conviction and sentence along with default stipulations imposed by the learned trial Court for the aforesaid offence are not interfered with and we hereby affirm the same.

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This criminal appeal is partly allowed .

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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 he is lodged and suffering jail sentence, forthwith 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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Ankit

Sanjay Ekka v. State Of Chhattisgarh

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Sanjay Ekka v. State Of Chhattisgarh

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