Ujiyar Singh vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the Cr.P.C. in short) against the judgment dated 12.04.2012 passed by the Additional Sessions Judge, Katghora, Korba (C.G.), in Sessions Trial No.

92/2011 whereby the appellant/accused has been convicted for having committed an offence punishable under Sections 323, 450 and 302 of the Indian

Penal Code (for brevity, the IPC) and sentenced respectively to RI for one year, RI for five years and life imprisonment with fine amount of Rs.200,

Rs.300 and Rs.500/- and, in default of payment of fine amount, he has to undergo additional simple imprisonment for one month, three months and six

months on each count.

Briefly stated, case of the prosecution is that on 16.06.2011 at 21.00 hours (09.00 PM), the appellant/accused Ujiyar Singh came to the house of his

deceased brother Sunaram with a lathi (wooden stick) when the deceased and his wife were sleeping and started beating his brother on his head

several times and assaulted his wife Khorbahrin @ Bifaiya Bai when she intervened the matter. On account of the alleged assault deceased Sunaram

fell down and died.

Based upon the aforesaid incident, merg intimation (Ex.P.1) was lodged by the deceased's brother Safed Singh on 17.6.2011 at 8.15 AM and

immediately thereafter F.I.R. (Ex.P.2) was lodged by him before the Station House Officer, Bango, District Korba against his accused brother Ujiyar

Singh under Sections 302 and 323 IPC. Inquest on dead body was conducted on 17.06.2011 vide Ex.P.4. After inquest, the dead body was sent for

autopsy to Community Health Center, Podi Uproda where Dr. G.S. Jatra (P.W.9) conducted post-mortem examination on the dead body and

submitted its report vide Ex.P.17 opining that the cause of death was neurogenic and haemmorhagic shock due to injury on the head and excessive

bleeding. Durinjg investigation, the used weapon “lathi (wooden stick)†and cloth with blood stains were recovered from the appellant/accused on

17.06.2011 vide seizure memo Ex.P.5 while bloodstained soil was recovered from the spot vide seizure memo Ex.P.6. The accused was arrested on

17.06.2011.

After usual investigation of the matter as such, the offence punishable under Section 450, 323 & 302 IPC has been registered against the

appellant/accused by the concerned Station House Officer and submitted its final report before the Judicial Magistrate, Katghora, Dist. Korba on

25.07.2011. The matter was thereafter committed to the Additional Sessions Judge, Katghora, Dist. Korba for its trial.

After considering the prima facie materials available on record, the trial Court has framed charges under Section 450, 323 & 302 IPC against the

appellant/accused on 09.12.2011, who pleaded not guilty in connection with the aforesaid crime and claimed to be tried.

In order to bring home the guilt of the appellant, the prosecution examined as many as 11 witnesses while none was examined by the appellant in his

defence.

After considering the evidence led by the prosecution, the trial Court, vide its impugned judgment, has convicted the appellant and sentenced him as

aforesaid.

Being aggrieved, the appellant has preferred this appeal. Shri Akhilesh Kumar, learned counsel for the appellant submits that the judgment under

appeal as passed by the trial Court is apparently contrary to law as the same has been passed without considering the evidence in its proper

perspective. He submits further that even if the entire prosecution case is accepted as it is, the appellant, at the most, could be convicted either under

Part-II or Part-I of Section 304 IPC as his act would come within the purview of Exception - 4 to Section 300 IPC, therefore, the judgment impugned

be modified accordingly by sentencing the appellant to the period already undergone by him.

On the other hand, Shri Vinod Tekam, learned counsel for the State supported the impugned judgment by submitting, inter alia, that it has been

passed upon due and proper appreciation of the evidence, and therefore, does not require to be interfered. He submits further that the manner in

which the alleged offence has been committed, Exception â€" 4 to Section 300 IPC would not be attracted so as to modify the judgment, as contended

by counsel for the appellant.

We have heard learned counsel for the parties and perused the entire record carefully.

Bifaiya Bai @ Khorbahrin (P.W.5) is the widow of deceased Sunaram, who stated in her evidence that appellant/accused Ujiyar Singh, after

having meals, had gone from her house and thereafter they also went for sleeping, but, after sometime he came with a lathi (wooden stick) and pushed

the door forcefully and upon hearing so, she got up. According to her, the appellant/accused had given a blow of stick on her forehead whereupon she

immediately woke up her husband and informed that his brother, Ujiyar Singh assaulted her with a lathi and as soon as he (her deceased husband) got

up from his bed, the appellant/accused started assaulting him continuously with the same stick on several parts of his body. She immediately called her

son Jai Mangal, who was sleeping with his uncle Safed Singh in a separate room and by the time they reached the house, the appellant was assaulting

her husband and on account of alleged assault, Sunaram expired on the spot. She was firm in her cross-examination.

Safed Singh (P.W.1) is the brother of the appellant/accused and is stated to have lodged the merg intimation (Ex.P.1) and F.I.R. (Ex.P.2). He has

stated in his evidence that he got up upon hearing the noise of his sister-in-law (Bhabhi Bifaiya Bai) and seen his brother, i.e., the appellant, assaulting

his deceased brother Sunaram with the aid of lathi (wooden stick), as a result of which, Sunaram died on the spot. He tried to capture his brother

(appellant/accused), but he ran away with the said wooden stick towards Kotwar's house where he was caught hold by the Kotwar and villagers. He

has stated further that the merg intimation (Ex.P.1) and F.I.R. (Ex.P.2) have been written as per his statement and the inquest on the dead body was

conducted in his presence and the witnesses and the spot map was prepared in his presence by the Police Authorities. This witness, however, in

cross-examination has stated that the deceased Sunaram was lying on the floor when he reached the place of incident and at that point of time, his

sister-in-law (Bhabhi Bifaiya Bai) had shouted and called him and has stated further that he could not tell whether the appellant had assaulted the

deceased Sunaram or not. This minor discrepancy would not be sufficient to demolish his entire evidence, particularly, when he had seen his brother

Ujiyar Singh, the appellant, at the place of incident.

Devnath (P.W.2) is the village Kotwar, before whom, the appellant has confessed immediately after the occurrence of the alleged incident that he

killed his brother Sunaram. This witness was firm in his cross-examination. Similar is the statement of Sarpanch Shivcharan Singh (P.W.3), before

whom also the appellant confessed regarding commission of alleged crime. According to his further statement, the alleged bloodstained used weapon

(wooden stick) was seized from the appellant vide seizure memo Ex.P.5 on 17.06.2011 while bloodstained soil from the spot vide seizure memo

Ex.P.6. Ramnarayan Choubey (P.W.8) is also the witness of seizure memo Ex.P.5, who has also stated that the alleged used weapon, i.e., wooden

stick was seized in his presence from the appellant Ujiyar Singh. These witnesses have, thus, supported the prosecution case.

Jai Mangal (P.W.4) is the son of deceased Sunaram, who has not seen the appellant assaulting his father with the aid of wooden stick and was

even unable to state as to who has assaulted his mother. This witness has, thus, not supported the prosecution case.

Bandhan Ram Dewangan (P.W.6) is the witness of inquest (Ex.P.4). Labduram (P.W.7) is the formal and hearsay witness. Dilip Kumar

(P.W.10) is a formal witness as he prepared spot map (Ex.P.8), as per the instruction of Tahsildar Podi Uproda while Ashok Kumar Sharma

(P.W.11) is the Investigating Officer and has assisted the prosecution case.

Dr. G.S.Jatra, who has conducted post-mortem examination has noticed the following injuries:-

 “4& eSus e`R;w iwoZ fuEu pksVs ikbZ Fkh%&

1-yksj dk fu'kku ftldk vkdkj 5 bap xq.kk 2 bap Fkk tks nkfgus xky ij Fkk] tks ukd dks uksd ls ysdj nkfgus dku rd Fkh] ftlds foPNsnu ij ukd ds vanj dh

gMMh dbZ VqdMks es VqVh gqbZ ikbZ xbZ Fkh] ftlls jDr L=ko gks jgk FkkA

2-QVk gqvk ?kko ftldk vkdkj 2-5 bap xq.kk 1-5 bap Fkk tks nkjDr L=ko gks jgk FkkA

3- ,d dVk gqvk ?kko Fkk ftldk vkdkj 3 bap xq.kk 1-5 bap Fkk tks flj ds vxz Hkkx ,oa nk;s Hkkx es Fkk ftlds foPNsnu djus ij Ldy flj dh gìMh 2 bap

xq.kk 1-5 bap lkbZt dh VqVh gqbZ ik;h xb]Z ftlls [kqu cg jgk Fkk vkSj czsu Hkh nck gqvk Fkk vkSj mles [kqu Hkh tek gqvk FkkA

4- daV;qtu ftldk vkdkj 4 bap xq.kk 2-5 bap Fkk tks Nkrh ds cka;s rjQ ik;k x;kA

5- daV;qtu ftldk vkdkj 2 bap xq.kk 1-5 bap dk vkdkj dk Fkk tks cka;as da/ks ij FkkA

6- daV;qtu ftldk vkdkj 3 bap xq.kk 1-5 bap Fkk tks cka;s gkFk ds e/; ,oa ckgjh Hkkx ij FkkA

7- daV;qtu ftldk vkdkj 3 bap xq.kk 1-5 bap Fkk tks cka;s da/kk esa FkkA

8- daV;qtu ftldk vkdkj 3 bap xq.kk 1 bap Fkk tks cak;s gkFk ds ihNs Hkkx ij fLFkr FkkA

9- daV;qtu ftldk vkdkj 6 bap xq.kk 2 bap Fkk tks nkfgus gkFk ds vanj rjQ FkkA

10- daV;qtu ftldk vkdkj 2 bap xq.kk 1 bap Fkk tks ihB ds nkW;s rjQ mijh Hkkx es FkkA

5------ [kksiMh] diky] d'ks:dk & Ldkycksu VqVh gqbZ ik;h xbZ Fkh] tks vkxs n'kkZ;k x;k gSA efLrd ,oa es:jTtw& cszu jQpj ,oa Msest Fkk] ftldk

fooj.k ij fn;k tk pqdk gSAâ€​

After noticing the aforesaid injuries, he submitted his report vide Ex.P.17 opining the cause of death, which reads as under:-

 “9. esjs erkuqlkj e`rd dh e`R;q U;qjkstsfud ,oa g;qrjgsftd lkWd ls gqvk Fkk tks flj es vk;h gqbZ pksV ,oa PkksV ls vf/kd jDrL=ko ds dkj.k gqvk

FkkA e`rd dh e`R;w iksLVekVZe ds le; ls iwoZ 24 ?kaVs ds vanj gksuk izrhr gks jgk FkkA esjs }kjk nh fjiksVZ izih & 17 gS] ftlesa v ls v Hkkx ij

esjk gLrk{kj gSAâ€​

Appellant/accused Ujiyar Singh was also examined by said Dr. G.S.Jatra on 17.06.2011 and a report was submitted by him vide Ex.P.18 opining at

para 10 of his statement that the injuries so sustained by him on his head, left shoulder and on his right chest are simple in nature, which appear to be

caused by hard and blunt object.

Upon close scrutiny of the entire evidence led by the prosecution, it is evident that on the fateful day, the appellant came to his deceased brother's

house in the night at 09.00 PM, dashed the door of his house forcefully and assaulted not only to his sister-in-law but has given a blow of wooden stick

on his brother's head on several times, as a result of which, skull was fractured, which led to instantaneous death, as evidenced by the post-mortem

report (Ex.P.17) coupled with the opinion of Dr. G.S.Jatra (P.W.9). It emerged further that immediately after committing the alleged crime, the

appellant/accused ran away from the spot and confessed the same before Kotwar Devnath (P.W.2) of the village and Sarpanch Shivcharan Singh

(P.W.3). The prosecution has thus proved its case beyond reasonable doubt that he was the author of the alleged crime.

Now, the question which arises for determination is as to whether the act of the appellant comes within the ambit of Exception â€" 4 of Section

300 IPC, as contended by the counsel for the appellant, so as to hold that the appellant is liable to be convicted either under Part-II or Part-I of Section

304 IPC.

In order to ascertain the answer of the aforesaid question, it is necessary to examine Exception â€" 4 of Section 300 IPC, which is relevant for our

purpose, is reproduced as under :-

“300. Murder.---- Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the

intention of causing death, or xxxx xxxx xxxx xxxx

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's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--- It is immaterial in such cases which party offers the provocation or commits the first assault.â€​

To invoke the aforesaid Exception to Section 300 IPC, it is necessary that four requirements are to be satisfied, namely, i) it was 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 of act in a cruel

manner.

However, a bare perusal of the evidence would show that the alleged incident took place when the deceased was at home and was sleeping and

the appellant himself had come to his house. In such circumstances, it cannot be said that the alleged offence has been committed without

premeditation on a sudden fight in the heat of passion. As a consequence of it and in absence of evidence in this regard, Exception â€" 4 to Section

300 IPC would have no application in the matter. Pertinently to be observed here that the appellant was also examined by Dr. G.S.Jatra (P.W.9) as he

sustained some injuries, however, in absence of any evidence on record, it is difficult to hold that the appellant was provoked by his deceased brother

Sunaram and as a result of which sudden fight took place between them in the heat of passion upon sudden quarrel. Instead, in the instant case, as

reflected from the post-mortem report (Ex.P.17) coupled with the opinion of Dr. G.S.Jatra (P.W.9), vis-a-vis, the statement of widow of the deceased

Sunaram, namely, Bifaiya Bai @ Khorbahrin, the injured eye-witness, it is clear that the appellant himself started beating continuously to his brother on

his head, which was given with such a force that his skull was fractured and owing to which, he died instantaneously. In consequence, by stretch of

any imagination, it cannot be held that the act of the appellant would come within the ambit of Exception â€" 4 to Section 300 IPC.

In view of the aforesaid discussions, we do not find any substance in this appeal. The appeal is accordingly dismissed.