Balak Ram Manjhi vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred against the impugned judgment dated 24.11.2015 (Annexure A/1) passed by learned Sessions Judge, Raigarh in Sessions Trial No.87/2015 whereby the appellant has been convicted for the offence under Section 302 of I.P.C. and Section 25 & 27 of the Arms Act.

Case of the prosecution, in brief, is that on 16.04.2015, at about 7:00 A.M. at village Pahadludeg, P.S. Lailunga, District Raigarh, the appellant assaulted his wife Guruwari Manjhi by farsa and caused her death alleging that she is not taking care of his house and not cleaning it properly and thereby, he committed aforesaid offences.

Further case of the prosecution is that on 16.04.2015, at about 8:15 P.M., Jiyat Ram Manjhi (PW-4) lodged a report in the Police Station Lailunga against the appellant for offence under Section 307 of I.P.C. vide Ex.P-14 and thereafter, the wheels of investigation started running. Counter nalasi was registered vide P-17 and information was received from the Community Health Centre Lailunga on 16.04.2015 itself that Guruwari died pursuant to which merg intimation was registered vide P-18 and thereafter, the inquest was conducted vide Ex.P-7 and dead body was sent for post mortem which was conducted by Dr. Manoj Patel (PW-3). As per the post mortem report (Ex.P-10) the cause of death is neurogenic shock due to injury over parietal region of skull bone and the nature of death was homicidal. Pursuant to memorandum statement of the appellant vide Ex.P-2, blood stained farsa was recovered from the Kitchen of the appellant and seizure was made vide Ex.P-3. It was sent for FSL vide Ex.24 & 25 but FSL report was not brought on record. Thereafter, the statement of the prosecution witnesses were recorded and after due investigation the appellant was charge sheeted for the aforesaid offences which was committed to the Court of Session for hearing and disposal in accordance with law.

In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 25 documents. The appellant abjured his guilt and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of I.P.C. and under Section 25 & 27 of the Arms Act and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of I.P.C. and under Section 25 & 27 of the Arms Act as both the eye-witnesses namely Ku. Lalita (PW-5) and Ku. Babita (PW-6) are daughters of the appellant. Moreover, though blood stained farsa has been seized vide Ex.P-3 pursuant to memorandum statement of the appellant vide Ex.P-2 but no FSL report has been brought on record to establish the origin of the blood found on it to convict him for the aforesaid offences. As such, his conviction is liable to be set aside. In alternative, he would submit that the case of the appellant would fall within exception 4 to section 300 of I.P.C. and therefore his conviction under Section 302 of I.P.C. be altered either to Part-I or Part-II of section 304 of I.P.C.

Per contra, Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that learned trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of IPC and Section 25 & 27 of Arms Act and it is not a case which is covered with Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to either Part I or Part II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.

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

The first question for consideration is whether the death of deceased Guruwari was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard on the basis of medical opinion of Dr. Manoj Patel (P.W.-3) as well as postmortem report (Ex.P-10) wherein it has categorically been held that cause of death is neurogenic shock due to injury over parietal region of skull bone and the nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased on his head and relying upon the medical opinion of Dr. Manoj Patel (P.W.-3) as well as postmortem report (Ex.P-10), we are of the considered opinion that learned trial Court has rightly held the death of deceased Guruwari to be homicidal in nature. Moreover, the fact that death of the deceased was homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Guruwari was homicidal in nature.

The next question for consideration is whether the appellant is the perpetrator of the crime in question ?

Learned trial Court has also recorded an affirmative finding in this regard and held that appellant is the perpetrator of the crime in question relying upon the statements of the eye-witnesses Ku. Lalita (PW-5) and Ku. Babli (PW-6).

Ku. Lalita (PW-5), who has been cited as an eye-witness, has clearly stated in her statement before the Court that her father has caused the death of her mother by assaulting on her head with farsa, however, she has further stated that when her father assaulted her mother, they were inside the house but she was outside the house. Upon being subjected to cross-examination, she has further stated that she has not seen her father assault her mother as at that time she was outside the house, as such, she is not an eye-witness and has not witnessed the incident.

Ku. Babli (P.W.- 6), who has also been cited as an eye-witness by the prosecution, has stated before the Court that her father has assaulted her mother on head with farsa and thereby caused her death on the pretext that she did not do her work properly, however, she has further stated that when her father caused the death of her mother, they were inside the house while she was sitting in the courtyard (parcchi) along with her brother Mahesh and her sister Ku. Lalita (P.W.-5). In cross-examination also, she has admitted that she has not seen the incident.

Pursuant to the memorandum statement of the appellant vide Ex. P/2, seizure of blood stained farsa has been made vide Ex. P/3 which has been proved by memorandum and seizure witness namely Heera Painkra (P.W.-1). The said farsa seized from the possession of the appellant was though sent for FSL vide Ex. P/24 and P/25 but no FSL report has been brought on record to establish that the blood found on the said farsa was that of the deceased, much less it was human blood. As such, after going through the entire evidence available on record, we are of the considered opinion that it can safely be held that appellant is indeed the perpetrator of the crime in question.

Now, the question that requires consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part I or Part II of Section 304 of IPC, as contended by learned counsel for the appellant ?

In order to consider whether the case of the appellant is covered with 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 Haryana (2002) 3 SCC 327 wherein it has been observed as under :-

“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 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.”

The Supreme Court in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, 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, which state as under :-

“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 :

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused with premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident.

Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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.”

Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, 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 accused and that he knew that such act of his is likely to cause death.

Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

“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)

“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.”

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)

“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”.

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.

Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) 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:

“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.”

Reverting to the facts of the present case in light of the aforesaid principle 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 the death of the deceased and only because deceased Guruwari was not cleaning the house properly, sudden quarrel erupted between them and out of sudden anger and in heat of passion, the appellant assaulted the deceased on her head with a farsa which has been established by the statement of Jiyatram Manjhi (P.W.-4) which goes to show that he had no intention to cause the death of the deceased which is also established from the fact that the appellant only inflicted single blow on the head of the deceased. However, looking to the injury suffered by the deceased on her head, which is a vital part of the body, appellant must have had the knowledge that his act would likely cause the death of the deceased. In that view of the matter, we are of the opinion that the case of the appellant is covered with Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part II of IPC. Since the appellant is in jail since 16/04/2015, i.e. for more than 7 years, we hereby sentence him to the period already undergone, however, the sentence of fine amount as imposed by the trial Court is hereby maintained and the conviction of the appellant for offence punishable under Section 25 and 27 of the Arms Act is also maintained. The appellant be released forthwith, if not required in any other case.

Accordingly, this criminal appeal is allowed to the extent indicated herein-above.