Sukhlal Vs State of Chhattisgarh

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 29.06.2016, passed by the learned Sessions Judge, Ambikapur, Distt. Surguja, in Sessions Trial No.120/2015, by which the sole appellant herein has been convicted for offence under Section 302 & 201 of Indian Penal Code and sentenced as under :

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CONVICTION		SENTENCE
U/s. 302 of I.P.C.	:	Life imprisonment and fine of Rs. 500/- in default of payment of fine, 6 months' additional rigorous imprisonment.
U/s.201 of I.P.C.	:	Rigorous imprisonment for 3 years and fine of
		Rs.300/-, in default of payment of fine, 3 months' additional rigorous imprisonment.
Both the sent	enc	e to run concurrently.

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2 . Case of the prosecution, in brief, is that on 03.08.2015 at 12:00 A.M. to 9:00 P.M. at village Laxmangarh, Police Station- Udaypur, District Surguja, the appellant herein assaulted his wife Jugo Bai (now deceased) by wooden bat and strangulated her, by which she died and in order to screen himself from the office, he has given false

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information to the police. Thereby, the aforesaid offence has been committed. The Merg Intimation was registered vide Ex.P-9, FIR was registered vide Ex.P-14, Inquest was conducted vide Ex.P-2 and dead body of deceased Jugo Bai was subjected to post-mortem, which was conducted by Dr. G.L.Miri (PW-7), who proved the post-mortem report vide Ex.P-10, according to which, cause of death was stated to be throttling due to asphyxia and death was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P-3), wooden bat was recovered vide Ex.P-4, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-18), blood was found on the seized wooden bat. After due investigation, appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3 . In order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 18 documents and the appellant-accused in support of his

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defence has neither examined any witness nor exhibited any document.

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4 . The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 & 201 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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5 . Mr. Ashok Kumar Swarnkar, learned counsel for the appellant, would submit that as per the Inquest Report (Ex.P-2) and also as per the prosecution case, admittedly, the appellant and deceased both were consumed liquor and on an altercation took place between them, the appellant is said to have assaulted his wife. Therefore, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant and, as such, the conviction of appellant for the offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he is in jail since 06.08.2015. He relied upon the decision rendered by the Supreme Court in the matter of Basdev s. State of Pepsu 1 and submits that the appeal be allowed in part.

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1 AIR 1956 SC 488

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6 . Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C.; therefore, the appeal deserves to be dismissed.

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7 . 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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8 . The first question for consideration as to whether the death of deceased Jugo Bai was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-10) proved by Dr. G.L. Miri (PW-7), according to which, cause of death was stated to be throttling due to asphyxia and death was 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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9 . Now, the next question is, whether the appellant has caused the death of his wife Jugo Bai ?

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10. Considering the finding of the trial Court and in view of the statement of appellant's minor daughter Nirmala @ Kariya (PW-5), earlier there was some dispute between the husband & wife i.e. appellant & deceased and on the date and time of offence, the deceased and appellant both were in the state of intoxication, as they consumed liquor, as proved by Dr. G.L.Miri (PW-7) in the postmortem report (Ex.P-10), on account of which, because of some earlier dispute, quarrel erupted between them and the appellant is said to have assaulted the deceased by wooden bat and strangulated her. Therefore, the finding of the trial Court that it is the appellant who has caused the death of the deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ?

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12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh 2 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 is it 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 hit 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

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2 (2017) 3 SCC 247

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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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13. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death, but as per the inquest report (Ex.P-2), on the date and time of offence, the appellant was in a state of intoxication and since the deceased had also came in the house under the influence of intoxication, the appellant became angry and assaulted her by wooden bat and strangulated her, by which she died. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death. As such, it is the fit case where the conviction of appellant for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C.

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14. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is now sentenced to undergo 10 years rigorous imprisonment.

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15. In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

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16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Sukhlal v. State of Chhattisgarh

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Sukhlal v. State of Chhattisgarh

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