Nafr High Court
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.03.28 10:34:54 +0530 2025:CGHC:14704-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 710 of 2015 {Arising out of judgment dated 10.04.2007 passed in Sessions Trial No.65/2006 by the learned Sessions Judge, Dhamtari} Kalyan Kamar, S/o. Sonsai, Aged About 40 Years, R/o. Dhaudpadripani, Police Station Sihawa, District Dhamtari, Chhattisgarh. ... Appellant versus The State Of Chhattisgarh, Through Station House Officer, Police Station Sihawa, District Dhamtari, Chhattisgarh. (Cause Title taken from Case Information System) ... Respondent For Appellant For Respondent : :
Legal Reasoning
“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) To invoke this exception four “7. 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 is it 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 hit 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.” 21. 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 8 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”. 13. 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 of I.P.C. and if it is only a case of knowledge and not the intention to cause murder and 9 bodily injury, then same would be a case of Section 304 Part-II of I.P.C. 14. Bearing in mind the aforesaid principles 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 death, but considering the statements of Maan Bai (PW- 2), Diwan Singh Dhruv (PW-3) and Pusai Bai (PW-4), on the date of offence, the appellant and his son both were taking dinner and appellant asked for chilly, which the deceased denied stating that it is not in the kitchen then quarrel took place between the appellant and deceased and the appellant is said to have assaulted the deceased by hand & fist, by which the appellant has suffered grievous injuries and died. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death. It is a fit case where the conviction of appellant for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C. 15.
Arguments
Mr. C.R.Sahu, Advocate Mr. Pankaj Singh, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (27.03.2025) 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 10.04.2007, passed by the learned Sessions Judge, Dhamtari, in Sessions Trial No.65/2006, by which, the sole appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment. 2. Case of the prosecution, in brief, is that on 22.07.2006, at night about 8:00 P.M., at village Daud Pandripani, Police Station- Sihawa, District Dhamtari, the appellant herein assaulted his son Jaglal (now deceased), aged about 20 years, by hand & fist, by which he suffered grievous injuries and he succumbed to the injuries on 24.07.2006 at morning 4:00 A.M.; thereby, the offence has been committed. The matter was reported to the police, pursuant to which, FIR was registered vide Ex.P-2, Dehati Nalsi/Death Information was registered vide Ex.P-3, Inquest was conducted vide Ex.P-5 and dead body of deceased Jaglal was subjected to post-mortem, which was conducted by Dr. D.R.Thakur (PW-14), who proved the post-mortem report vide Ex.P-14, according to which, 3 cause of death was stated to be asphyxia due to cardio respiratory arrest caused by forceful pressure on throat and both side of neck. Pursuant to memorandum statement of the appellant (Ex.P-6), an umbrella was seized vide Ex.P-7. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 17 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life imprisonment against which the present appeal has been preferred. 4 5. Mr. C.R.Sahu, learned counsel for the appellant, would submit that as per the statements of Maan Bai (PW-2), wife of deceased, Diwan Singh Dhruw (PW-3) and Pusai Bai (PW-4), it is quite vivid that, on account of sudden quarrel, the appellant is said to have assaulted his son, by which he suffered grievous injuries and died. As such, taking into the prosecution case as it is, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant and he is in jail since 26.07.2006 till 01.09.2015 i.e. more than 9 years; therefore, the conviction of appellant for offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone and the appeal be allowed in part. 6. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He would further submit that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C.; therefore, the appeal deserves to be dismissed. 5 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Jaglal was homicidal in nature has been answered by the trial Court in affirmative in para 9 of its judgment relying upon the post-mortem report (Ex.P-14) proved by Dr. D.R.Thakur (PW-14), according to which, cause of death was stated to be asphyxia due to cardio respiratory arrest caused by forceful pressure on throat and both side of neck, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. Now, the next question is, whether the appellant has caused the death of his son Jaglal ? 10. Maan Bai (PW-2), wife of deceased, in her statement before the Court, has clearly stated that the deceased and his father both were started quarreling and immediately she went outside to the house to call the villagers and when she came back to the house, she saw that her husband was in trouble 6 with pain and thereafter, she (PW-2) her husband (deceased) both went to the house of Diwan Singh Dhruv (PW-3) and informed about the incident that the appellant has assaulted him and they remained there in the house of Diwan Singh Dhruv (PW-3) and died after two day. As such, considering the statements of Maan Bai (PW-2), Diwan Singh Dhruv (PW- 3) & Pusai Bai (PW-4), we are of the considered opinion that the finding recorded by the trial Court is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding that it is the appellant who had caused the death of his son. 11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ? 12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 1 (2017) 3 SCC 247 7
Decision
In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 10 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he remained in jail since 26.07.2006 till 01.09.2015 i.e. more than 9 years. 16. The appellant is on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok