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Judgment
Sanjay K. Agrawal, J
This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 17/06/2021 passed in Sessions Trial No. 62/2019 whereby learned Session Judge Kabirdham has convicted the appellant for offence punishable under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs. 500/, in default of payment of fine additional R.I. for one month.
The case of the prosecution, in brief, is that on 05/11/2019 in between 08:00 PM to 09:00 PM at Village Bhursipakri, the appellant herein assaulted Heeralal with his elbow and caused injury on his chest which was sufficient to cause the death of Heeralal and the appellant thereby, committed the offence.
It is admitted position on record that appellant is the husband of Ranmatiya Bai (P.W.2) and deceased is the younger brother of Ranmatiya Bai (P.W.2).
Further case of the prosecution, in brief, is that on 05/11/2019 at about 09:00 PM, Doctor Singh (P.W.3) informed Madan Lal (P.W.1) that since Heeralal refused to send Ranmatiya Bai (P.W.2) (wife of the appellant) to her home, the appellant attacked Heeralal on his chest with elbow on account of which Heeralal fell on the ground. Thereafter, Madan Lal (P.W.1) reached the spot and found Heeralal lying on the ground. Upon asking, Ranmatiya Bai (P.W.2) told him that the appellant had committed mar peet with her and had treated her with cruelty due to which she had come to her younger brother Heeralal's house five days ago. On 05/11/2019 at 7:00 AM, the appellant had come to Heeralal's house to take Ranmatiya Bai (P.W.2) back to their house but after engaging in quarrel, he went back in the afternoon. In the evening again the appellant came back to Heeralal's house and told Ranmatiya Bai (P.W.2) to come back to their house with him and started dragging her from her hand. Heeralal tried to intervene and refused/declined to send Ranmatiya Bai (P.W.2) back with the appellant and told the appellant that he would send Ramnatiya Bai (P.W.2) on the next morning. On this account, the appellant assaulted Heeralal on his chest with elbow and caused his death and absconded from the spot.
On matter being reported by Madanlal (P.W.1), merg intimation was registered vide Ex. P/1 and FIR was lodged against the appellant vide Ex. P/2. Inquest was conducted vide Ex. P/4 and najri naksha was prepared vide Ex. P/6 and the dead body of Heeralal was sent for postmortem vide Ex. P/10 which was conducted by Dr. Yogesh Kumar Sahu (P.W.6) and the postmortem report has been filed as Ex. P/8 according to which cause of death is cardio pulmonary arrest as a result of traumatic chest injury. The appellant was arrested vide Ex. P/7 and the statement of the witnesses were recorded. After due investigation, the appellant/accused was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.
In order to bring home the offence, prosecution examined 8 witnesses and brought into record 12 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.
Learned trial Court, after appreciating the oral and documentary evidence on record, finding the death of deceased Heeralal to be homicidal in nature and further finding the appellant to be the author of the crime, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced him as aforesaid which has been called in question by way of this appeal.
Mr. A.S. Kacchawaha, learned counsel for the appellant, would submit there is no evidence available on record against the appellant and he has perversely been convicted for offence punishable under Section 302 of IPC by the trial Court, as such, the impugned judgment of conviction is liable to be set aside. In alternative, he would submit that the relationship between the appellant and the deceased were cordial and since appellant was forcefully taking his wife Ranmatiya Bai (P.W.2) whereas she was not ready and willing to go back to her house, deceased Heeralal intervened due to which the appellant caused one blow on his chest by his elbow due to which Heeralal suffered injury and died, as such, this is a case which is covered with Exception 4 of Section 300 of IPC and thus, the conviction of the appellant under Section 302 of IPC be converted to Section 304 Part II of IPC.
Per Contra, Mr. Arjit Tiwari, learned State counsel, would submit that prosecution has brought sufficient evidence in shape of oral and documentary evidence to convict the appellant for offence punishable under Section 302 of IPC, as such, he has rightly been convicted by the trial Court for offence punishable under Section 302 of IPC and it is not a case where his conviction can be converted to Section 304 Part II 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 would be whether the death of deceased Heeralal was homicidal in nature ?
Learned trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/8) wherein Dr. Yogesh Kumar Sahu (P.W.6), who has conducted postmortem, has clearly stated that the cause of death is due to cardio pulmonary arrest as a result of traumatic chest injury. Dr. Yogesh Kumar Sahu (P.W.6) has further stated in his statement before the Court that the death of deceased was homicidal in nature. Moreover, the fact that the death of deceased Heeralal was homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, after hearing learned counsel for the parties and after going through the postmortem report (Ex. P/8) as well as going through the evidence of Dr. Yogesh Kumar Sahu (P.W.6), we are satisfied that learned trial Court has rightly held the death of deceased Heeralal to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
The next question for consideration is whether the appellant is the author of the crime ?
Ranmatiya Bai (P.W.2) has clearly stated that five days prior to the day of incident, she had come from her inlaws' home at Bodai to the house of her brother Heeralal at village Bhursipakri. In the morning of 05/11/2019, she and her friends Puniya (P.W.5), Birajo and Ramwati were going to Village Daldali when at about 08:00 AM, at the kirana shop at village Sukjhar, she met the appellant and he tried to drag her by her hand but Puniya (P.W.5), Birajo and Ramwati forbade him. Thereafter, Ranmatiya Bai (P.W.2) ran away and reached his brother's home at village Bhursipakri and the appellant also came behind her and asked her to come to his house forcefully and also started quarelling with her but since Ranmatiya Bai (P.W.2) refused to go, the appellant went back to his house. Then again at about 07:00 PM, the appellant returned to Heeralal's house in a drunken condition and forced Ranmatiya Bai to return with her and started dragging her. Deceased Heeralal intervened and said that he would not send Ranmatiya Bai with the appellant at night rather he would send her back to her house next morning. On this account, the appellant attacked the deceased with his elbow on his chest and absconded from the spot. Similarly, Doctor Singh (P.W.3) has also stated that he was present in the house when the incident took place and Ranmatiya Bai (P.W.2) had sent her to inform Madanlal (P.W.1), who then reported the incident at Police Station. As such, from a careful perusal of the statements of the witnesses, it is evident that the appellant was indeed the author of the crime and learned trial Court has rightly recorded the finding in this regard.
The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC and thus, his conviction can be converted to Section 304 Part II of IPC ?
At this stage, it would be appropriate to notice Exception 4 of Section 300 of IPC, which states as under :
“Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”
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 PartI 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 PartII IPC.
Reverting to the facts of the present case in light of the principle of law laid down by the Supreme Court in the matter of Arjun (supra), it is quite vivid that the dispute was between the husband and wife i.e. appellant and Ranmatiya Bai (P.W.2) for the reason that she was refusing to go back with her husband to their house and the deceased i.e. brother of Ranmatiya Bai (P.W.2) tried to intervene and during the course of that intervention, elbow injury was caused by the appellant to the deceased on his chest which according to Madanlal (P.W.1) is said to have been caused accidentally as the appellant was in a drunken condition and even Dr. Yogesh Kumar Sahu (P.W.6) has stated in the postmortem report that the cause of the death of deceased Heeralal is cardio pulmonary arrest due to chest injury. Further, there was no such weapon used by the appellant for the comission of the offence in question, therefore, it can safely be held that there was no premeditation on the part of the appellant to commit the offence in question and he had no intention to cause the death of the deceased which is apparent from the fact that he did not use any weapon to assault the deceased and only caused a single blow on his chest by his elbow which goes to show that appellant assaulted the deceased in heat of passion because he tried to intervene in the ongoing quarrel between the appellant and his wife Ranmatiya Bai (P.W.2) moreover, he did not take any undue advantage or did not act in a cruel way. However, the appellant must have had the knowledge that such an injury inflicted by him on the chest of the deceased which is a vital part of the body is likely to cause death of the deceased, as such, this is a case which would fall under Exception 4 of Section 300 of IPC.
In view of the aforesaid discussion, conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased nor was the injury sufficient in the ordinary course of nature to cause death, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 as well as in Joseph v. State of Kerala 1995 SCC (Cri.) 165, the appellant is convicted for offence punishable under Section 304 Part II of IPC and he is sentenced to undergo rigorous imprisonment for five years and the fine amount as well as the punishment for default of payment of fine is maintained.
Accordingly, this criminal appeal is allowed to the extent indicated hereinabove.