Rikhiram Sori Vs State of Chhattisgarh

This criminal appeal has been preferred by appellants against the judgment of conviction and order of sentence dated 29.11.2021 passed by learned Session Judge, Gariyaband, C.G in ST No.8/2018, whereby appellants stand convicted and sentenced as under:

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Conviction	Sentence
Under Section 302/34 of the Indian Penal Code.	Rigorous imprisonment for life & fine of Rs.1,000/-, in default of payment of fine, 01 year additional RI to each appellants.

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The prosecution case, in brief, is this that deceased Govind Ram used to raise finger upon character of wife of appellant/Rikhiram Sori, due to which, there was dispute between the deceased and appellant/Rikhiram. On 15.11.2017, quarrel took place between deceased Govind Ram and appellants, during which, appellants have assaulted the deceased by means of axe and stick. Due to assault, deceased suffered grievous injuries, he was taken to Community Health Centre, Mainpur and, thereafter, referred to Ambedkar Hospital, Raipur for better treatment where during treatment, he died on 16.11.2017. Based on merg Intimation, crime/offence under Section 302 of IPC was registered against appellants and they were taken into custody.

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On completion of investigation, challan/charge sheet was filed against the appellants and based upon which trial Court framed the charges against them.

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Prosecution in order to prove its case examined total 27 witnesses. Statement of appellants (accused) were also recorded under Section 313 of CrPC in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. However, appellants have not examined any witnesses in their defence.

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Learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. There is no any eye-witness of alleged incident. The evidence of the witnesses, who have claimed to be eye-witnesses of the incident, are quite contradictory to each other and does not inspire confidence and in such situation, their evidence ought not to have been considered/believed by trial Court. As per evidence of Jairam (PW-3), appellant No.1 has assaulted the deceased by means of club/stick and appellant No.2 was holding the axe at that time, whereas according to Devsingh Sori (PW-10), appellant No.1 has assaulted the deceased by means of Axe and appellant No.2 was holding the stick/club. Other circumstance on which basis the accused/appellants have been convicted is seizure of axe, but it is a very common

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instrument/article and normally found in every house of village. Most importantly, seizure witnesses have not supported case of prosecution and turned hostile.

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Learned Counsel further submits that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to the deceased in spur of moment. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants are culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants 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, learned State Counsel supports the impugned judgment and submits that it is not a case where the appellants’ conviction under Section 302/34 of the IPC can be altered/converted into 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

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records with utmost circumspection.

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Now, the question for consideration would be whether the accusedappellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the evidence of the prosecution witnesses, Panchanama (Ex.P-1 & 16), Inquest Report (Ex.P-4), memorandum (Ex.P-5), property seizure memo (Ex.P-6, 9 & 28), MLC report (Ex.P-14), post-mortem report (Ex.P-43), FSL report (Ex.P-37) and other material available on record.

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Dr. S. K. Bagh (PW-27) in his evidence has stated that after examination of dead body of deceased, he come to the conclusion that cause of death of deceased was due to obstruction of heart respiratory rhythm as a result of injuries on his head and neck.

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Considering all the above facts, it is proved that death of deceased was homicidal in nature and the finding recorded by the trial Court regarding cause of death of deceased is the finding of fact based on evidence/material available on record, which is neither perverse nor contrary to record. We hereby affirm the said finding.

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PW-3/Jairam (brother in-law of deceased) in his evidence has stated that at the time of alleged incident, he was in his house and came out from the house on hearing the voice of appellant No.1/Rikhiram, who was shouting that he will kill the deceased/Govind Ram today. Thereafter, some hot talk was started between the appellants and

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deceased, during which, appellant No.1 has assaulted the deceased by means of stick, however, appellant No.2 holding a small axe (tangia) in her hand fell on the ground while appellant No.1 was hitting the deceased by stick. Due to assault by the stick, deceased fell down on the ground and appellants fled away from the spot. PW3 further admitted that after drinking alcohol, deceased was roaming around the streets and used to fight with some one. There was no previous dispute/enmity between the appellants/accused and deceased before the alleged incident.

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PW-6/Smt. Ramla Marai (neighbour of accused/Rukhmani) in her evidence stated that on the date of alleged incident, she saw that appellants/accused and Govindram (deceased) were fighting. Appellant No.2/Rukmani was holding an Axe (tangia) and assaulted the deceased from front side, however, appellant No.1/Rikhiram hit the deceased by stick from back side.

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PW-9/Fulkuwar (villager) in her evidence has stated that at the time of alleged incident, she saw that appellants/accused and deceased were fighting near the anganwadi and appellant No.1/Rikhiram was holding an Axe (tangia) and appellant No.2/Rukmani holding a stick.

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PW-10/Dev Singh Sori (villager) in his evidence has stated that at the time of alleged incident, he heard the voice of deceased who was shouting for help. When he reached the place of incident, he saw that appellant No.1/Rikhiram was hitting the deceased by means of Axe and appellant No.2-Rukmani assaulting him with the stick.

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Dr. S. K. Bagh (PW-27) has opined that cause of death of deceased was due to obstruction of heart respiratory rhythm as a result of injuries on his head and neck, which may be caused by hard and blunt object. Injuries are likely to occur within 24 hours of death of deceased.

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Perusal of records would show that on the instance of memorandum statement of accused, the Axe alleged to have been used in commission of crime, has been seized from the house of appellant No.2 and same was sent for query report regarding the opinion as to whether the injuries caused to the deceased could have come from the seized Axe mentioned in the postmortem report. In his query report Ex.P-25, PW-12/Dr. KD Jogi has opined that the above injuries could have been caused by the Axe seized from the house of appellant No.2.

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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 Haryana 1 has observed as under:-

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“21. Keeping in view the facts and circumstances of the

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1 (2002) 3 SCC 327

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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 of the moment;

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(c) The intention/knowledge of the accused while

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2 (2009) 15 SCC 635

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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

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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

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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 what is

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4 (2017) 3 SCC 247

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3 (2012) 8 SCC 450

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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

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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 the

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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:

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(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 as per evidence of PW-3/Jairam, PW-6/Smt. Ramla Marai, PW-9/Fulkuwar (villager), PW-10/Dev Singh Sori (villager) that on the date of alleged incident there was hot talk/argument between the appellants/accused and deceased and, thereafter, quarrel took place between them and during fight accused have assaulted the deceased by means of stick and Axe, due to which, he died. There was no premeditation on the part of the appellants to cause death of deceased, quarrel took place between them as deceased Govind Ram used to raise finger upon character of wife of appellant/Rikhiram Sori and out of that anger and in heat of passion, the appellants assaulted the deceased by means

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5 (2019) 6 SCC 122

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of Axe. The appellants did not have any intention to cause death of deceased, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of deceased, as such, present case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants 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 facts and circumstances of the case, submissions of counsel for the parties, evidence of PW-3/Jairam, PW-6/Smt. Ramla Marai, PW-9/Fulkuwar (villager), PW-10/Dev Singh Sori (villager), particularly the evidence of PW-12/Dr. KD Jogi & PW-27/Dr. SK Bagh and other material/evidence available on record, further considering the nature of injuries caused by the appellants to the deceased, postmortem report (Ex.P-43), query report Ex.P-25 and the fact that the appellants are in jail since the year 2017, it would meet the end of justice that if the conviction of the appellants under Section 302/34 of the IPC is altered/converted to Section 304/34 Part-I of the IPC.

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Accordingly, conviction of the appellants under Section 302/34 of the IPC is set aside, however, they are convicted under Section 304/34 Part-I of the IPC and sentenced to undergo RI for 10 -10 years.

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However, fine amount imposed upon the appellants shall remain intact.

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