Partly allowed

Prakash Toppo v. State of Chhattisgarh

Chhattisgarh HC8 Sept 2024CRA/95/2019

Case brief

AI extract

What is this about?

The Division Bench allowed the criminal appeal partly, altering the conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part-II IPC). The court held the incident was a sudden fight without premeditation or cruelty, invoking Exception 4 to Section 300 IPC.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC read with Section 34 IPC. Appellants reported to courts be released from jail forthwith if not detained for other offenses.

Prakash Toppo Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:35050-DB

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Digitally signed by VISHAKHA VISHAKHA BEOHAR BEOHAR Date: 2024.09.10 15:48:08 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 95 of 2019

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1 - Prakash Toppo S/o Shri Etwa Toppo Aged About 35 Years 2 - Smt. Dilbaso @ Gidduu Bai W/o Shri Prakash Toppo Aged About 32 Years

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Both are R/o Village Nandamali, P. S. Darima District Surguja Chhattisgarh ... Appellants

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versus

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1 - State of Chhattisgarh Through The Police Station Darima District Surguja Chhattisgarh, ---- Respondent

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For Appellant : Mr. Ajay Mishra, Advocate. For State : Mr. Rahul Tamaskar, Govt. Advocate

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Division Bench : Hon'ble Shri Sanjay K. Agrawal and

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Hon'ble Shri Amitendra Kishore Prasad, JJ.

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Judgment on Board

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(09.09.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellants herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 16.11.2018 passed in Sessions Trial No.18/2018 by the learned 1^st Additional Sessions

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Judge, Ambikapur, District Surguja, C.G., by which the appellants stand convicted for the offence under Section 302 of Indian Penal Code read with Section 34 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.100/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month.

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Case of the prosecution, in brief, is that, on 21.10.2017, at about 05.45 pm, in the area of Police Station -Darima, Distt. Surguja (C.G.), appellants, who are the brother-in-law and sister of Shivnath Tirki, in furtherance of the common intention, assaulted Shivnath Tirki (hereinafter called as ‘deceased’) with hands, fists & kicks, as a result of which, deceased suffered grievous injuries over his body and died. Further case of the prosecution is that on 21.10.2017 at about 04.00 pm, complainant- Sumitra Khes (PW-9) saw the appellants, living in her neighbourhood, coming towards her house on the road, quarreling with deceased Shivnath Tirki and assaulting the deceased with hands, fists and kicks with an intention to kill him, dragged and threw him in front of the gate of a primary school, by which deceased suffered grievous injuries over his body and died. The matter was reported to the Police by PW-9 Sumitra Khes, pursuant to which, merg intimation Ex.P-24 was recorded, FIR Ex.P-25 was registered against the appellants and spot map Ex.P-15 was prepared. Inquest proceeding was conducted vide Ex.P-02 and dead body was sent for postmortem examination which was conducted by PW-08 Dr. Janeshwar

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Singh, who has proved the postmortem report Ex.P-17. According to postmortem report, cause of death of the deceased was haemorragic shock due to rupture of lung and kidney, caused by hard and blunt object and the death was homicidal in nature. From the spot, soil and knife were seized vide Exs.P-8 & P-9. Vide Ex.P-10, shirt and gamchha of the appellant No.1 Prakash Toppo was seized. Clothes of the deceased were seized vide Ex.P-27. Seized articles were sent to FSL for chemical examination vide Ex.P-22 and in FSL report, human blood has been found in the soil, the clothes of the appellant No.1 Prakash Toppo and also on the clothes of the deceased.

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After due investigation, appellants were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused persons abjured their guilt and entered into defence by stating that they have not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 16 witnesses and brought on record 35 documents. The defence has examined none and not exhibited any document.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the offence under Section 302/34 of IPC and sentenced as above against which the present appeal has been preferred.

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Learned counsel for the appellants would submit that if the case of

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the prosecution is taken as it is, no offence under Section 302/34 of IPC can be made out against the present appellants and it is not the case of murder. The appellants are in jail since 22.10.2017. As such, their conviction is liable to be set aside. In alternative, he would submit that the case of the appellants would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C. Thus, the present appeal deserves to be allowed in full or in part.

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Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted the appellants for offence punishable under Section 302/34 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 appellants cannot be converted to Part-II of Section 304 of IPC, therefore, 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 went through the records with utmost circumspection.

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The first question for consideration would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-17) proved by Dr. Janeshwar Singh (PW-2), which is a finding of fact based on evidence available on record, it is neither

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perverse nor contrary to the record and we hereby affirm the said finding.

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10.Now, the question would be, whether the appellants are the author of the crime in question ?

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Considering the statements of PW-4 Karmu Yadav and PW-9 Sumitra Khes, who are the eye-witness to the incident and have clearly supported the case of the prosecution and stated that it was the appellants who have caused grievous injuries to the deceased by which he died. The trial Court after considering oral and documentary evidence available on record, clearly recorded a finding that it was appellants who have committed the offence. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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

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13.In order to consider whether the case of the appellants is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of

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Sukhbir Singh v. State of Haryana 1 wherein it has been observed

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as under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

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14.The Supreme Court in the matter of Gurmukh Singh v. State of

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Haryana 2, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused

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with reference to Section 302 or Section 304 Part II, which state as

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under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c)The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was

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inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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15.Likewise, in the matter of State v. Sanjeev Nanda 3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part

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II of the IPC, the prosecution has to prove the death of the person

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3 (2012) 8 SCC 450

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in question and such death was caused by the act of the accused

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and that he knew that such act of his is likely to cause death.

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16.Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 has elaborately dealt with the issue and observed in

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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) 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

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4 (2017) 3 SCC 247

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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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17.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 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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18.Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)⁵ 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: (i) There must be a sudden fight; (ii) There was no premeditation; (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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19.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, it is quite vivid from the statements of Karmu Yadav (PW-4) & Sumitra Khes (PW-9) that it was the appellants who, on the date of

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5 (2019) 6 SCC 122

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incident, quarreled with the deceased and out of anger, assaulted the deceased with kicks, hands and fists and threw him in front of the gate of a primary school, by which deceased suffered grievous injuries over his body and died. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injury found on the person of the deceased, it is clear that there was no premeditation on the part of the appellants to cause death of the deceased- Shivnath Tirkey, on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellants assaulted the deceased with hands, fists and kicks, as a result of which, he suffered grievous injuries over his body leading to his death. As such, the appellants must have had the knowledge that their act would likely to cause the death of the deceased but no intention of causing his death can be attributed to them.

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20.In that view of the matter, we are of the opinion that the case of the appellants is covered within Exception 4 to Section 300 of IPC and since the appellants had no intention and premeditation to cause the death of the deceased, however, they must have had the knowledge that their act of assault would likely to cause the death of the deceased, their conviction for offence punishable under Section 302 read with 34 of IPC is altered to Section 304 Part-II read with 34 of IPC and they are sentenced to the period already undergo by them, i.e., approx. 7 years, however, the fine amount imposed by the learned trial Court shall remain intact. Appellants are reported to be in jail since 22.10.2017, therefore, they be

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released from jail forthwith, if not required to be detained in

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connection with any other offence.

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21.In the result, the criminal appeal is partly allowed.

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22.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Vishakha

Prakash Toppo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Prakash Toppo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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