Nakul Kaivartya Vs State of Chhattisgarh

This criminal appeal filed by the appellant-accused under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 21.10.2024 passed by learned Second Additional Sessions Judge, Balodabazar in Sessions Case No.20/2023, whereby the appellant-accused has

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been convicted for offence under Sections 323 and 302 of the IPC and sentenced to undergo SI for three months and fine of Rs.500/-, in default of payment of fine to further undergo additional imprisonment for two months and imprisonment for life and fine of Rs.2000/-, in default of payment of fine, to further undergo additional imprisonment for two months.

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Case of the prosecution, in brief, is that on 17.08.2015 at about 9 P.M. at village Chherchhed, Police Station Kasdol, Meghsingh Kaivartya has come to the house of the appellant to see his daughter Shitla Bai and his new born grand son and was sleeping on the cot at night and when the appellant came back, he demanded for cot to sleep and on the said issue, the dispute arose between Shitla Bai and the appellant and after which the appellant assaulted Meghsingh Kaivartya with stick on his head and while intervening the appellant has also beaten Shitla Bai and abused her and due to the said assault injured Meghsingh Kaivartya died on 23.08.2015. FIR in Crime No.354/15 was registered against the appellant for offence under Sections 294, 323 and 506 of the IPC vide Ex.P-4. The injured was taken for MLC and bamboo stick stains with blood and pieces of broken bangles have been seized from verandah of Shadev Kaivartya vide Ex.P-6. During treatment, injured Meghsingh Kaivartya died on 23.08.2015. Merg No.100/2015 was lodged by Gayatri Kaivartya at Police Station Kasdol vide Ex.P-3. Inquest over the body of the deceased was prepared vide Ex.P-2. Spot map was prepared by the investigating officer vide Ex.P-5. Patwari also prepared the spot map vide Ex.P-7. Dead body of the deceased was

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sent for postmortem to the Community Health Center, Kasdol vide Ex.P-8 where Dr.Amit Ram Jangde (PW-10) conducted postmortem and found stitched wound over head at 12 cm & 8 stitches on head near mid saggital planat about mid saggital plane with fracture of skull of frontal and parietal region. The doctor has opined that cause of death was due to cardio respiratory arrest may be due to consequences of head injury. The appellant was arrested on 21.8.2015 vide arrest memo Ex.P-10. MLC of injured Shital Kaivartya was conducted by Dr.A.S.Chouhan (PW-11) and found incised wound over parietal region (6x1x1 cm) and muscular pain on left shoulder. The doctor has opined that the head injury occurs by a hard and blunt object. MLC of injured Meghsingh Kaivartya was also conducted by Dr.A.A.Chouhan (PW-11) vide Ex.P-13 and found incised wound on parietal region (5x1x1 cm), muscular pain on right elbow joint and there was swelling near the right eye.

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Statements of the witnesses were recorded. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Kasdol, who in turn, committed the case to the Court of Sessions, Balodabazar, from where the Second Additional Sessions Judge, Balodabazar received the case on transfer for trial. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has falsely been implicated in crime in question.

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In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 13 documents. The appellant-

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accused examined none in his defence nor exhibited any document in his support.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 21.10.2024, convicted the appellant for offence under Sections 323 and 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.

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Ms.Reena Singh, learned counsel appearing for the appellant submits that learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 323 and 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to deceased Meghsingh Kaivartya in spur of moment. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death after seven days of the incident. 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 conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr.Nitansh Jaiswal, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed.

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We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Amit Ram Jangde (PW-10), has come to the conclusion that cause of death was cause of death was due to cardio respiratory arrest may be due to consequences of head injury. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that cause of death was due to cardio respiratory arrest may be due to consequences of head injury of deceased Meghsingh Kaivartya is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

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Now, the question for consideration would be whether the accusedappellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr.Amit Ram Jangde (PW-10). The trial Court in para-

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29 of its judgment has recorded the finding that initial examining doctor did not get the x-ray examination of the deceased’s head done, whereas the medical officer who conducted postmortem of the deceased Dr.Amit Ram Jangde (PW-10) found blood clotting in the internal part of the deceased’s head and a fractured skull. Stone was found in spleen and right kidney. Thus the doctor found serious head injury in the detailed examination of the deceased. Therefore, it is clear that the appellant had attacked the deceased’s head with some hard object (stick or rod). Considering all the above facts, it is proved that death of deceased Meghsingh Kaivartya was homicidal in nature.

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Shitlabai (PW-3) is injured witness. She has stated in para 2 of her evidence that seven years ago, her father Meghsingh Kaivartya came to her house in Chharched to see her new born child and stayed at her house. On the same day, appellant Nakul came back to her house at around 9 P.M. after attending the cremation ceremony of her grand mother-in-law. She and appellant Nakul lived in the same house. Due to her father’s ill health, her father was sleeping in her house, then the appellant asked for cot on which her father was sleeping to sleep, then she told the appellant that her father is unwell, let him sleep on cot. Then the appellant got angry and started abusing and caught hold of her child to bit him. Then she freed her child and went to put him inside the cot to sleep, then the appellant assaulted her father’s head with a rod due to which his head was broken. After that, the appellant assaulted her on the head and back with the same rod due to which she also got injured. That

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very night, the appellant went away from home. She fainted after the incident.

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Dr.A.S.Chauhan (PW-11), who conducted MLC of injured Shitla Bai, has stated in para 3 of his evidence that on examining the injured he found that the injured’s heart rate, blood pressure and pulse rate were normal. The injured had a deep injury of approximately 5x1x1 cm on the back of her head and the injured was complaining of pain on her left shoulder. Both the above injuries sustained by the injured could have been caused by hard and blunt object. The above injures were of simple in nature. He has also conducted MLC of deceased Meghsingh Kaivartya and found that the injured’s heart rate, blood pressure and heart rate were normal. There was a deep injury mark of about 5x1x1cm on the back of the head. The injured was complaining of pain in the right elbow. There was swelling near the right eye of the injured. All the above injuries of the injured could have been caused by hard and blunt object. As per his opinion, the above injuries were of simple in nature.

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The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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The Supreme Court in the matter of Sukhbir Singh v. State of

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Haryana 1 has 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 Sukhbir 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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The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, 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 fro 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

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1 (2002) 3 SCC 327

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2 (2009) 15 SCC 635

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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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(g) Whether the injury was caused without 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 to cause 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

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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 has 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 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

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3 (2012) 8 SCC 450

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4 (2017) 3 SCC 247

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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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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 the IPC and if it is only a case of knowledge and not

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the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to 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 (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 present case in light of principles of law laid down by their Lordships of the Supreme Court in the abovestated judgments (supra), it is quite vivid that as per evidence of Shitlabai (PW-3), when the appellant asked for cot on which her father was sleeping to sleep, then she told the appellant that her father is unwell, let him sleep on cot, at that time, the appellant got angry and started abusing and caught hold of her child to bit him, then she freed her child and went to put him inside the cot to sleep, then the appellant assaulted her father’s head with a rod due to which his head was broken. After that, the appellant assaulted Shitlabai (PW-3) on the head and back with the same rod due to which she also got injured. There was no premeditation on the part of the appellant to cause death of deceased Meghsingh Kaivartya

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5 (2019) 6 SCC 122

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and quarrel took place between the appellant & the deceased in heat of passion and the appellant assaulted Meghsingh Kaivartya by rod by which he died after seven days of the incident. The appellant did not have any intention to cause death of deceased Meghsingh Kaivartya, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Meghsingh Kaivartya, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfied 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.

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Considering the above-stated facts, also considering the evidence of Shitlabai (PW-3), evidence of Dr.Amit Ram Jangde (PW-10) who conducted postmortem over the body of deceased Meghsingh Kaivartya, evidence of Dr.A.S.Chauhan (PW-11) who conducted MLC of the deceased and the injured and also considering the fact that the appellant is in jails since 31.12.2022, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. However, his conviction and sentence under Section 323 of the IPC deserve to be maintained.

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Accordingly, conviction and sentence of the appellant under Section 323 of the IPC are hereby maintained. However, conviction of the

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appellant under Section 302 of the IPC is set aside and now he is convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 5 years and fine of Rs.2000/-, in default of payment of fine to further undergo additional imprisonment for two months.

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The appellant is stated to be in jail since 31.12.2022, he shall serve out the sentence as modified by this Court.

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The criminal appeal is partly allowed to the extent indicated hereinabove.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Bablu

Nakul Kaivartya v. State of Chhattisgarh

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Nakul Kaivartya v. State of Chhattisgarh

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