Partly allowed

Vijay Yadav @ Chhaklu v. State of Chhattisgarh

Chhattisgarh HC3 Dec 2024CRA/939/2019

Case brief

AI extract

What is this about?

Criminal appeal against murder conviction. Court held death was homicidal but no premeditation existed. Conviction for murder altered to culpable homicide (Section 304 Part-II IPC) under Exception 4 to Section 300 IPC. Sentence reduced to eight years. Conviction for attempt to murder maintained.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; sentence reduced to eight years rigorous imprisonment. Conviction under Section 307 IPC maintained.

Vijay Yadav @ Chhaklu Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 939 of 2019

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Vijay Yadav @ Chhaklu S/o Late Chaman Yadav, aged about 35 years R/o Bijli Toli, Jashpur, Police Station- Jashpur Nagar, District : Jashpur, Chhattisgarh

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... Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police StationJashpur, District : Jashpur, Chhattisgarh

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... Respondent

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For Appellant : Ms. Indira Tripathi, Advocate For State : Mr. Rahul Tamaskar, G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board 04.12.2024

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Sanjay K. Agrawal, J.

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1 . This criminal appeal under Section 374 (2) of Cr.P.C. is directed against the impugned judgment dated 29.04.2019 passed by the Sessions Judge, Jashpur, District: Jashpur (C.G.) in Sessions Trial No. 59 of 2018 by which the appellant herein has been convicted as mentioned below:

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CONVICTION	SENTENCE
U/s 307 of IPC	RI for five years and fine of Rs. 1,000/-, in default of payment of fine, additional RI for three months
U/s 302 of IPC	Life Imprisonment and fine of Rs. 1,000/- in default of payment of fine amount, additional RI for three months

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Both the sentences shall run concurrently.

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2 . Case of the prosecution, in short is that on 06.09.2018, at 09:30 am, at Village: Bijlitoli, District: Jashpur (C.G.), the appellant firstly assaulted Khiro Bai by Tangi and thereafter her granddaughter Noni (Anavya) by which Noni (Anavya) suffered grievous injuries and died. Thereafter, the matter was reported by Santosh Kumar Banjare (PW-1) vide Merg Intimation Exhibit-P/1. FIR was registered vide Ex.P/2 and the dead body of the deceased was sent for autopsy. Inquest was conducted vide Ex. P/16. Post Mortem was conducted by Dr. Anuranjan Toppo (PW-6) and his report is Exhibit-P/32 wherein, he opined the death of the deceased as homicidal. Pursuant to memorandum statement of appellant vide Exhibit-P/13, Tangi was recovered from the

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possession of appellant vide Exhibit-P/14 and seized articles were sent for FSL and in FSL Report (Ex.P/28), human blood was found on Tangi .

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3 . After due investigation, the appellant was charge-sheeted for the offence punishable under Sections 307 and 302 of IPC before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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4 . In order to bring home the offence, prosecution has examined as many as 13 witnesses and brought into record 32 documents. The defence has examined two witnesses and not exhibited any document.

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5 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Sections 307 and 302 of I.P.C. and sentenced as above against which the present appeal has been preferred.

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6 . Learned counsel for the appellant submits that if the case of prosecution is taken as it is, at the most, offence under Section 304 Part-II of the IPC is made out against the appellant and the offence committed by the appellant would fall within Exception 4 to Section 300 of I.P.C., therefore, his conviction under Section 302 of I.P.C. be altered either to Part-I or Part-II of Section 304 of

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I.P.C. and the appellant is in jail since 06.09.2018, therefore, the appeal be allowed in part.

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7 . Per contra, learned State counsel, would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to either Part-I or Part-II of Section 304 of IPC, 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 gone through the records with utmost circumspection.

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9 . The first question for consideration is, whether the death of deceased Noni (Anavya) was homicidal in nature ?

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10. Learned trial Court has recorded an affirmative finding in this regard relying upon the post mortem report (Ex.P-32) proved by Dr. Anuranjan Toppo (PW-6), which in our considered opinion, is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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11. Now, the question would be, whether the appellant is the author of the crime in question ?

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12. Considering the statement of injured eye witness Khiro Bai (PW8) and further testimony of eye-witness Rajesh Kumar Banjare (PW-2) son of Khiro Bai (PW-8) and further considering the statement of PW-7 Smt. Deepika Banjare and further on the weapon of offence i.e. Tangi , human blood was found. As such, it has rightly been held that the appellant is the perpetrator of the crime.

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13. Now, the question that requires consideration is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or their case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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14. At this stage, it would be appropriate to notice the judgment rendered by the Supreme Court in the matter of Arjun v. State of Chhattisgarh 1 in which their Lordships have elaborately dealt with the aforesaid 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

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1 (2017) 3 SCC 247

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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) 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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15. 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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16. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in above stated judgment, it is quite vivid that there was no premeditation on the part of the appellant to cause death and the first injury suffered by the deceased was abrasion and the second injury is only the bluish mark on the body of the deceased and the rupture of the lungs. As such, there was no premeditation on the part of the appellant to cause the death of deceased Noni (Anavya). However, the appellant must have had the knowledge that his act would likely to cause the death of the deceased.

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17. In that view of the matter, we are of the considered opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part II of IPC and he is sentenced to 8 years Rigorous

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Imprisonment in place of Life Imprisonment. However, the conviction of appellant under Section 307 of IPC and sentence thereunder imposed by the trial Court directing to run sentences concurrently are hereby maintained being well-merited.

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18. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.

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19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.

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Sd/Sd/( Sanjay K. Agrawal ) ( Radhakishan Agrawal ) JUDGE JUDGE

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Saurabh

Vijay Yadav @ Chhaklu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vijay Yadav @ Chhaklu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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