Partly allowed

Sukhra Kindo v. State of Chhattisgarh

Chhattisgarh HC12 Sept 2024CRA/970/2019

Case brief

AI extract

What is this about?

In an appeal against conviction for murder under Section 302 IPC, the Division Bench examined whether the incident amounted to sudden quarrel without premeditation. The Court accepted the cumulative evidence of sudden heat of passion, finding the appellant had not taken undue advantage. It reduced the conviction to culpable homicide not amounting to murder under Section 304 Part II IPC and sentenc

What did the court decide?

Conviction for Section 302 IPC set aside; appellant convicted under Section 304 Part II IPC and sentenced to the period already undergone; fine upheld.

Sukhra Kindo Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:35999-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 970 of 2019

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(Arising out of judgment dated 31.12.2018 passed in Sessions Trial No.51/2018 by the learned Additional Sessions Judge, Ambikapur,

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District-Surguja (C.G.)

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1 - Sukhra Kindo S/o Mutru Kindo Aged About 60 Years R/o Village Ulkiya Barpara, Police Station Sitrapur, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Police Station Sitapur, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Mr. F.S. Khare, Advocate For Respondent/State : Mr. Soumya Rai, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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(13.09.2024)

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Sanjay K. Agrawal, J

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Digitally signed by RAVI SHANKAR MANDAVI

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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

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judgment of conviction and order of sentence dated 31.12.2018 passed by the learned Additional Sessions Judge/Special Judge (Atrocities), Ambikapur, District-Surguja, Chhattisgarh in Sessions Trial No. 51/2018 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life with fine of Rs. 5,000/- and in default of payment of fine additional R.I. for 1 year.

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The case of the prosecution, in a nutshell, is that during the intervening night of 24.02.2018 and morning of 25.02.2018 around 05:00 a.m. at village Ulkiya, Barpara Police Station Sitapur, Ambikapur District Surguja, Chhattisgarh, the appellant assaulted his son Vijay Kindo (now deceased) by hard weapon i.e. hammer which he was keeping without any authority of law, due to which he suffered grievous injuries and died. The incident was reported by complainant Subran (PW-1) to the police stating that on 25.02.2018, he was sleeping with his wife and children in his house. Around 05:00 a.m. his brother-in-law/accused knocked the door of his house, then he woke up and opened the door, the appellant has informed that he has killed his son Vijay Kindo, his son is dead. Thereafter, the complainant told the incident to the neighbour Mahesh, then he went to house of the Sarpanch, on the way he met Deepak son of Sarpanch, he informed the incident to Deepak, whereupon Deepak said to see whether he is alive or not. Whereupon the complainant alongwith Mahesh, Riman, Jayu and other villagers went to the house of accused/appellant, they found that the deceased was lying on the right side in the shade of his house over a cloth spread on the ground, near his left ear blood was clotted, he was dead

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and there was also lying weapon of assault i.e. an iron hammer which was also covered with blood. After that he went to tell the incident to wife of the deceased who was sleeping in another house. After narrating the incident, the wife of the deceased shocked and came to affirm the same, in the meantime the appellant ran away. As there was dispute between appellant and the deceased regarding land and property, the appellant killed his own son Vijay Kindo (deceased) by assaulting with iron hammer on his head. Subran (PW-1) reported the matter to the police, pursuant to which, merg intimation and FIR were registered vide Exs.P/1 & P/2, respectively. Spot map was prepared vide Ex.P/6. Inquest proceedings (Ex.P/10) were conducted and the dead body of the deceased was sent for postmortem. Seized articles were sent for chemical examination to FSL and in the FSL report articles A, C & D were reported to found human blood, but FSL report was not exhibited. As per postmortem report (Ex.P/20) proved by Dr. G.R. Kurre (PW-8) cause of death is coma due to head injury on peripheral region left and death was homicidal in nature. During investigation the weapon of assault i.e. iron hammer was seized from the place of incident.

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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 08 witnesses and exhibited 21

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documents and the appellant in defence has stated to examined one witness (PW-2) Kamal Say whose statement is recorded vide Ex.D/1. 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 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. Khare, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no eye witness of the crime scene and the accused himself came to the house of Subran (PW-1)/complainant and informed him about the criminal offence, even if the entire prosecution case is accepted as it is, then also the appellant is said to have assaulted the deceased in anger and there was no motive or premeditation on the part of the appellant to cause death of the deceased and only under anger and in heat of passion the appellant assaulted the deceased, due to which he suffered grievous injuries and died. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the

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conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC and as the appellant is in jail since 25.02.2018 i.e. more than 06 years, he be sentence for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Soumya Rai, 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. It is not the case where the conviction of the appellant can be modified to a 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 by relying upon the postmortem report (Ex.P/20) proved by Dr. G.R. Kurre (PW-8), wherein it has been opined that cause of death of the deceased was coma due to head injury on temporal region left and nature of death was homicidal, 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 next question would be whether the accused-appellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statement of Subran (PW-01) brother-in-law of appellant, Kamal Say (PW-2) and Smt. Karishma Kindo (PW-4) wife of the deceased, who have clearly stated before the Court that previously, there was dispute regarding partition of land between the appellant and the deceased, the appellant assaulted the deceased by iron hammer, due to which he suffered grievous injuries and died. The appellant himself informed to his relatives that he has killed his son who is lying under the shed in his house for which he has taken defence witness of Kamal Say (PW-02) who was subjected to some length of cross-examination, but nothing could be extracted from him to hold that other witnesses are telling lie before the Court in order to falsely implicate the appellant. As such, his testimony is trustworthy, inspire confidence and can be relied upon and, therefore, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which he died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to

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murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant?

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

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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) 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

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1 (2017) 3 SCC 247

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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: (i)There must be a sudden fight;

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2 (2019) 6 SCC 122

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(ii)There was no premeditation;

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(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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Reverting to the facts of the case in light of above principles of law, it is quite vivid that on the date and time of the offence, the appellant was not ready for division of property and there is quarrel between appellant and deceased due to which during the intervening night, the appellant assaulted the deceased by iron hammer, due to which, he suffered injuries and died. The weapon of assault i.e. iron hammer is also lying there covered with blood. As such, it is quite clear that there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellant assaulted the deceased, due to which he suffered grievous injuries and died. However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries 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 Section 302 of IPC can be altered/converted to Section 304 (Part-II) of 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 since the appellant is in jail from 26.02.2018 i.e. more than 06 years, he is sentenced to the period already undergone by him. 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 he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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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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Ravi Mandavi

Sukhra Kindo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sukhra Kindo v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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