Manjhanu Ram Manjhi Vs State of Chhattisgarh

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CRA No. 927 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 927 of 2018

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(Arising out of judgment dated 11.05.2018 passed in Sessions Trial No.41/2017 by the Additional Judge of the Court of Additional Sessions Judge, Kunkuri, District Jashpur, C.G.)

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Manjhanu Ram Manjhi S/o Bihanu Ram Manjhi, aged about 60 years, Caste Manjhi, R/o Pataratoli (Saraikona) Chowki Kotba, P. S. Bagbahar, District Jashpur Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through the Police Chowki Kotba, P. S. Bagbahar, District Jashpur Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Rishi Rahul Soni, Advocate / Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee. 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 Kumar Jaiswal Judgment On Board

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(12.07.2024)

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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 11.05.2018 passed by Additional Judge of the

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Court of Additional Sessions Judge, Kunkuri, District Jashpur, Chhattisgarh in Sessions Trial No.41/2017 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 ₹ 100/-; in default of payment of fine to undergo additional rigorous imprisonment 6 months.

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The case of the prosecution, in a nutshell, is that on 25.07.2017 at about 12:00 pm, at village Pataratoli (Saraikona) Chowki Kotba, P. S. Bagbahar, District Jashpur Chhattisgarh, the appellant assaulted his wife Dashmati Bai (now deceased) by axe by which she suffered grievous injuries and died. Inder Manjhi (PW-1), son-in-law of the appellant and the deceased, reported the matter to the police pursuant to which unnumbered merg intimation and numbered merg intimation were registered vide Exs. P/1 & P/22, respectively. FIR was registered vide Ex.P/2. Nazari naksha was prepared vide Ex.P/11. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was sent for chemical analysis to postmortem. As per postmortem report (Ex.P/13) proved by Dr. Shakuntala Nikunj (PW-7), cause of death was haemorrhagic shock due to excessive bleeding from incised wound deep to

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CRA No. 927 of 2018

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neck and nature was homicidal. From the spot weapon of offence i.e. axe was seized vide Ex.P/6 and from the possession of the appellant his clothes were seized vide Ex.P/7. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/18) on the weapon of offence i.e. axe (Article C) and on the shirt of the appellant (Article A) human 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 10 witnesses and exhibited 23 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him 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

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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. Rishi Rahul Soni, 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 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 appellant is in jail since 26.07.2017, almost 7 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. 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

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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 relying upon the postmortem report (Ex.P/13) proved by Dr. Shakuntala Nikunj (PW-7), 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 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 appellant has assaulted the deceased?

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It is the case of the prosecution that on the date of the offence the appellant and deceased were only two inmates in the house. On the date of offence, Inder Manjhi (PW-1), son-in-

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CRA No. 927 of 2018

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law of the appellant and the deceased, went to graze the cattle and Smt. Rudani (PW-3), daughter of the appellant, went to work on the field and when they came back after doing their work, they saw the appellant and the deceased quarrelling, and appellant also chased PW-1 & PW-3, but anyhow they managed to run away and after sometime when they came back to home they saw the dead body of the deceased in the pool of blood. In view of the said fact, the trial Court proceeded to convict the appellant by invoking Section 106 of the Indian Evidence Act, 1872, as well as on the basis of last seen together by Inder Manjhi (PW-1) & Smt. Rudani (PW-3) holding the appellant to be the author of crime in question and also on the basis of FSL report (Ex.P/18), in which, on the clothes of the appellant and on the weapon of offence i.e. axe human blood was found. Accordingly, we hereby affirm the said finding of the trial Court that the appellant has caused the death of the deceased.

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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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CRA No. 927 of 2018

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The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 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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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)

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1 (2017) 3 SCC 247

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CRA No. 927 of 2018

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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

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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 Inder Manjhi (PW-1), son-in-law of the appellant and the deceased, on giving the cattle to PW-1 by the deceased, dispute arose between the appellant and the deceased, due to which, out of anger, the appellant is said to have assaulted the deceased by which she (deceased) suffered 3 injuries, from which 2 injuries on the left jaw and one abrasion on left arm, but considering the nature of injury which has occurred on the body of the deceased and also considering the medical evidence available on the record and

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2 (2019) 6 SCC 122

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further considering the statement of the Dr. Shakuntala Nikunj (PW-7), she did not say that the said injuries were sufficient in ordinary course of nature to cause death, 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 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

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appellant under 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

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death, the appellant is convicted for offence punishable under Section 304 Part II of the IPC and sentenced to the period already undergone by him as he is in jail since 26.07.2017, however, the fine amount imposed by the learned trial Court shall remain intact.

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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 the appellant 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

Manjhanu Ram Manjhi v. State of Chhattisgarh

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Manjhanu Ram Manjhi v. State of Chhattisgarh

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