Partly allowed¶¶92

Nandpyala Ram v. State of Chhattisgarh

Chhattisgarh HC24 Jun 2024CRA/990/2018

Case brief

AI extract

What is this about?

Chhattisgarh HC alters murder conviction to culpable homicide: Exception 4 to Section 300 IPC; sudden fight/heat of passion; single torch blow to head; no premeditation, knowledge-only intent; extra-judicial confession (PW5 Roman Ram, PW6 Rupan Ram, PW8 Byatri Bai); FSL blood on seized articles; sentencing factors per Gurmukh Singh; 302 to 304 Part-II conversion; time-served sentence; release after 6+ years (jailed 06.12.2017); appeal partly allowed; CRA No.990 of 2018; Sessions Trial No.22/2018, Jashpur; decided 25.06.2024.

What did the court decide?

Conviction altered from Section 302 IPC to Section 304 Part-II IPC; sentenced to period already undergone; directed to be released forthwith unless required in any other offence; certified copies to trial Court and Jail Superintendent. ¶¶92

Nandpyala Ram Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the death of deceased-Deepti Bai was homicidal in nature. +2 more

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Court's answer

Finding that the death of Deepti Bai was homicidal in nature (cerebral injury due to formation of hematoma, per postmortem report Ex.P-10 of Dr. Jayant Ram Bhagat PW-10) is a correct finding of fact and is affirmed.

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Ratio / Principle

It is the appellant who caused the death of Deepti Bai: the trial Court's finding on human blood on the seized articles and the appellant's extra-judicial confession before Roman Ram (PW5), Rupan Ram (PW-6) and Byatri Bai (PW-8) is affirmed as a correct finding of fact.

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Key takeaways

Per Arjun (supra): where there is intent and knowledge the case is one under Section 304 Part-I IPC; where there is only knowledge and no intention to cause murder/bodily injury, it is Section 304 Part-II IPC.ratio¶¶77
Applying the Exception 4 tests, the appellant had no premeditation or motive to cause death, acted in a fit of anger after the deceased refused to accompany him, had only knowledge that the injuries were likely to cause death, took no undue advantage and did not act cruelly or unusually; hence his case falls under Exception 4 to Section 300 IPC.ratio¶¶90
The impugned judgment of conviction and sentence dated 28.06.2018 is set aside; conviction under Section 302 IPC is altered to Section 304 Part-II IPC and the appellant is sentenced to the period already undergone (more than six years, in jail since 06.12.2017); he shall be released forthwith unless required in any other offence.

Detailed headnote1 paragraphs

Criminal Appeal (CRA No.990 of 2018), High Court of Chhattisgarh, Bilaspur (Sanjay K. Agrawal & Sanjay S. Agrawal, JJ.; judgment by Sanjay K. Agrawal, J.), decided 25/06/2024. Appellant, convicted by the Sessions Judge, Jashpur (ST No.22/2018, 28.06.2018) under S.302 IPC and sentenced to life imprisonment plus Rs.1,000/- fine for assaulting his wife Deepti Bai with a torch after she refused to accompany him, had his homicide finding and authorship-of-death finding affirmed (homicidal cerebral injury; extra-judicial confession before PW5, PW6, PW8; blood on seized articles). Relying on Sukhbir Singh, Gurmukh Singh, Sanjeev Nanda, Arjun and Rambir (all SC), the Court found no premeditation or motive, only knowledge that death was likely, no undue advantage or cruelty: the case falls under Exception 4 to S.300 IPC. Conviction altered to S.304 Part-II IPC; sentence reduced to period already undergone (over six years, in jail since 06.12.2017); release ordered forthwith unless needed in another case. Appeal partly allowed.

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No.990 of 2018

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Nandpyala Ram S/o Ratiya Ram Korwa, Aged About 23 Years R/o Sihardand, Police Station Bagicha, District Jashpur Chhattisgarh

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---- Appellant (In Jail)

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police Station Bagicha, District Jashpur Chhattisgarh

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---- Respondent

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For Appellant : Shri Sanjeev Kumar Sahu, Advocate For Respondent/State: Shri Vivek Mishra, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (25/06/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 28.06.2018 passed by the learned Sessions Judge, Jashpur in Sessions Trial No.22/2018, by which, he has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and

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to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for three months.

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The case of the prosecution, in brief, is that on 04.12.2017 at about 11.30 PM at Village Sihardand Kaliya Bagicha, Thana Bagicha, District Jashpur, there was an altercation which took place between the appellant herein and the deceased-Deepti Bai as she refused to accompany him and thereafter, the appellant in a fit of anger, assaulted the deceased-Deepti Bai with the help of torch, by which, she suffered grievous injuries and died. Merg intimation was recorded by Rupan Ram vide Ex.P-1. Rupan Ram (PW6) reported the matter to the Police Station-Bagicha, District Jashpur and FIR (Ex.P-2) was lodged against the appellant herein, pursuant to which, offence under Section 302 of the IPC was registered against him and the wheels of investigation started running. Thereafter, inquest was conducted vide Ex.P-4 and spot map was prepared vide Ex.P-13. Pursuant to the memorandum statement of Appellant herein (Ex.P-7), torch and clothes of the appellant herein were seized vide Ex.P-8. The seized articles were subjected to forensic examination and vide FSL Report

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(Ex.P-17), it was opined that the aforesaid seized articles contained human blood. Dead body was subjected to postmortem and postmortem of the dead body of the deceased-Deepti Bai was conducted by Dr. Jayant Ram Bhagat (PW-10) and his report is Ex.P-10 and cause of death was stated to be cerebral injury due to formation of hematoma and it was stated to be homicidal in nature. The jurisdictional police carried out the investigation and charge-sheeted the appellant under Section 302 of the IPC. The appellant abjured the guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated in the offence in question.

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In order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 24 documents (Ex.P-1 to Ex.P-24). Statement of the appellantaccused was recorded under Section 313 of the Cr.P.C., wherein he denied guilt, however, he examined none in his defence.

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The learned trial Court, after appreciating oral and documentary evidence on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner

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mentioned in the opening paragraph of this judgment, against which, the instant appeal has been preferred.

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Mr. Sanjeev Kumar Sahu, learned counsel for the appellant, would submit that considering the finding recorded by the learned trial Court at para-18 of the impugned judgment, offence under Section 302 of the IPC is not made out against the appellant, but, at the most, offence under Section 304 Part-II of the IPC only is made out and appellant be sentenced for the period already undergone by him, as he is in jail since 06.12.2017 i.e. more than 6 years and the appeal be allowed in part.

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Mr. Vivek Mishra, learned State counsel, would submit that the learned trial Court has rightly convicted the appellant herein for the aforesaid offence and it is not a case where the sentence of the appellant can be converted to Section 304 Part-II of I.P.C. and, as such, 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 as to whether the

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death of deceased-Deepti Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-10 proved by Dr. Jayant Ram Bhagat (PW-10), according to which, cause of death was stated to be cerebral injury due to formation of hematoma and it was stated to be homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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Now, the next question is, whether the appellant has assaulted Deepti Bai by torch and he has caused death of the deceased-Deepti Bai ?

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The finding recorded by the learned trial Court at para-18 of the impugned judgment regarding presence of human blood on the seized articles and the extra-judicial confession made by the appellant before Roman Ram (PW5), Rupan Ram (PW-6) and Byatri Bai (PW-8), is a correct finding of fact based on the evidence available on record that it is the appellant, who has caused death of deceasedDeepti Bai, and accordingly, we hereby affirm the said

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finding.

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Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of IPC and, as such, their conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant ?

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In order to consider whether the case of the appellant is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 wherein it has been observed 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

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1 (2002) 3 SCC 327

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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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The Supreme Court in the matter of Gurmukh Singh

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v. State of Haryana 2, has laid down certain factors which

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are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, which state as 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;

2 (2009) 15 SCC 635

(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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(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 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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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 II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the

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3 (2012) 8 SCC 450

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

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 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

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4 (2017) 3 SCC 247

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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

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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 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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Further, the Supreme Court in the matter of Rambir

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v. State (NCT of Delhi)⁵ has laid down four ingredients

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5 (2019) 6 SCC 122

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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;

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(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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Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court and further considering the charge levelled upon the appellant, it is quite vivid that the appellant herein and the deceasedDeepti Bai consumed liquor in the house of Gokul Uraon and the appellant stayed there, while his wife came back to house for preparing food, but, after return of the appellant, his wife-Deepti Bai was not in the house and she was found at the house of Elvin (PW-1), who has turned hostile and it is not proved by the testimony of Roman Ram (PW-5), Rupan Ram (PW-6) and Byatri Bai (PW-8), before whom, the appellant has made extra-judicial confession and thereafter, when the appellant herein requested her to come back, she refused to accompany him, as such, in a fit of anger, the

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appellant has assaulted the deceased-Deepti Bai with the help of torch on her head, due to which, she suffered grievous injuries and died, but, there was no premeditation or motive to cause death and he must have had knowledge that those injuries would likely to cause death and the appellant had not taken any undue advantage and has not acted in unusual manner; thus, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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In view of the above, the impugned judgment of conviction and order of sentence dated 28.06.2018 passed by the learned Sessions Judge, Jashpur in Sessions Trial No.22/2018 is hereby set aside. The conviction of appellant for commission of offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and he is sentenced to the period already undergone by him. Appellant has already completed more than six years in jail as he is in jail since 06.12.2017, therefore, he shall be released forthwith from jail, unless he is required in any other offence.

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In view of the above, this criminal appeal is partly allowed.

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Let a certified copy of this judgment along with the

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original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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SD/SD/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Nandpyala Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Nandpyala Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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What the court decided

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