Narottam Thakur vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order dated 29-10-2015 passed by the Sessions Judge, Durg, in Sessions Trial No.183/2014 by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 100/-, in default, to further undergo additional simple imprisonment for one month.

Case of the prosecution, in brief, is that on 16-8-2014, between 8 a.m. and 4 p.m., the appellant assaulted Ashwani Yadav by hands & fists and strangulated him and thereby committed the offence. Further case of the prosecution is that deceased Ashwani Yadav, aged about 13 years, had already left his studies and was moving here and there without any work. On that day, he took his breakfast and left the house and at 11.30 a.m., he and the accused, both took biscuit, mixture, water pouch and disposable glass from the kirana shop of Seema Nayak (PW-9) and thereafter, both were noticed by Manoj Sahu (PW-13) at 1.30 p.m. in a hotel where they took some food and thereafter, they went towards Surdung Khar. Thereafter, at 4 p.m., dead body of Ashwani Yadav was recovered pursuant to which morgue intimation was registered by P.R. Sahu (PW-12) vide Ex.P-1 and inquest was prepared vide Ex.P-3. Dead body was sent for postmortem which was conducted by Dr. Akhilesh Yadav (PW-10) vide Ex.P-19 and cause of death was stated to be asphyxia & shock due to antemortem injuries to lung / neck and death was homicidal in nature. FIR was registered vide Ex.P-20. Pursuant to the memorandum statement of the appellant vide Ex.P-7, cycle of the deceased was recovered vide Ex.P-8. FSL report was also brought on record as Ex.P-23.

Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Judicial Magistrate First Class, Bhilai, and the case was committed to the Court of Sessions, Durg where trial was conducted.

The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 23 documents. The defence has examined none and exhibited no document in support of its case.

The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

Mr. Vikas Bajpai, learned counsel appearing for the appellant, would make solitary submission that even if the case of the prosecution is believed to be true, the case of the appellant would fall under Exception 4 to Section 300 of the IPC. Therefore, it is a fit case where conviction of the appellant can be converted/altered to an offence under Section 304 Part-II / Part-I of the IPC, as such, the appeal be allowed in part.

Mr. Soumya Rai, learned State counsel, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has been able to bring home the offence against the appellant especially in view of the statement of Manoj Sahu (PW-13) – witness of last seen together, and cycle of the deceased was recovered at the instance of the appellant. He would further submit that in view of the FSL report, conviction of the appellant is well merited and the appeal deserves to be dismissed.

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

The trial Court after considering oral and documentary evidence available on record, clearly recorded a finding that the death of the deceased was homicidal in nature and the appellant and the deceased, both, were last seen together which has been proved by Manoj Sahu (PW-13) and pursuant to the memorandum statement of the appellant, cycle of the deceased was recovered and in the FSL report, soil found on footwear, clothes of the deceased and the deceased are similar and therefore, it is the appellant who has committed the offence. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding, even the same has not been questioned seriously and it has only been contended that case of the appellant would fall under Exception 4 to Section 300 of the IPC and therefore conviction be altered to Section 304 Part-II / Part-I of the IPC.

Now, at this stage, it would be appropriate to consider the argument advanced on behalf of the appellant that case of the appellant would fall under Exception 4 to Section 300 of the IPC.

The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 has 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 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.”

The Supreme Court further, 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 of the IPC, 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 from 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 without 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 to cause 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 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.

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

Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) (2019) 6 SCC 122 has laid down four ingredients which should be tested for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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.

xxx xxx xxx”

Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid decisions, it is quite vivid from the statement of investigating officer B.R. Sahu (PW-11) that on the date of offence, the appellant and the deceased have purchased liquor and consumed it together and they also prepared fish as their dish for eating and they ate it also and thereafter, the deceased, in state of intoxication, started abusing the appellant in that course, the appellant assaulted the deceased by which he suffered injuries and died. As such, it is quite vivid that the appellant had intention as well as knowledge that the injuries caused by him to the deceased would likely to cause his death. Considering the nature of injuries as proved by Dr. Akhilesh Yadav (PW-10), we are of the opinion that the case of the appellant will definitely come within the purview of Exception 4 to Section 300 of the IPC and it will be improper to deny the benefit of Exception 4 to Section 300 of the IPC to the appellant, but the appellant must have had knowledge and intention that his act would likely to cause the death of the deceased in the ordinary course of nature. Thus, the case of the appellant falls within Exception 4 to Section 300 of the IPC.

In that view of the matter, conviction of the appellant under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside, and instead thereof, the appellant is convicted for offence punishable under Section 304 Part I of the IPC and he is sentenced to undergo RI for ten years, however, fine sentence and default sentence imposed upon him by the trial Court shall remain intact.

The criminal appeal is partly allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.