Nafr High Court
Case Details
1 2025:CGHC:4418-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 533 of 2021 Bhuneshwar Tande @ Gudali S/o Damru Tande Aged About 28 Years R/o Bija, Police Station Takhatpur, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh versus ... Appellant State Of Chhattisgarh Through Police Station Takhatpur District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh (Cause-title taken from Case Information System) ---- Respondent For Appellant For Respondent/State : : Mr. Rajesh Jain, Advocate Mr. Malay Kumar Jain, Panel Lawyer Hon'ble Shri Shri R Ramesh Sinha, Chief Justice avindra Kumar Agrawal , Judge Hon'ble Judgement on Board Per Ramesh Sinha, C.J. 24/01/2025 1. The present appeal has been listed for consideration on I.A. No. 1 of 2025 and considering the fact that the appellant is in jail since 17.07.2018, with the consent of the parties, the matter has been heard Digitally signed by VEDPRAKASH DEWANGAN finally. 2 2. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been filed by the appellant against the impugned judgment of conviction and sentence dated 18.02.2021, passed by learned Sessions Judge, Bilaspur, in Sessions Case No. 140 of 2018, whereby the appellant has been convicted for the offence under Section 302 of IPC and sentenced for R.I. for life with fine of Rs. 500/-, in default of payment of fine, further R.I. for 3 months. 3.
Facts
The brief facts of the case are that on 17.07.2018, the PW-1 Chaitlal Dinkar alias Gudda has given a merg intimation to the police (exhibit P-1) with the effect that the Gogalibai (PW-2) was married with the appellant since 8-10 years back and since last 6 months, she was residing at her parents' house at village Belgahna due to the harassment and assault made by the appellant to her. On 16.07.2018, at about 3:00 p.m., the appellant along with his brother and maternal uncle came to her house to bring her back, but the parents of the deceased refused to send her back with the appellant and therefore they returned back to their house. At about 5:00 a.m., PW-3 Shakun Bai alias Kalara has informed him that the father of the PW-2 Gogalibai namely, Mandal Dinkar (deceased) is lying in his cot having injuries on his body. When he asked from Gogalibai, she informed that in the last night at about 12:00 hrs, the appellant came to her house and knocked the door in aggressive manner, but she could not open the door looking to his aggressiveness. In the morning at about 4:00 a.m. she woke up and saw that her father was having injuries on his head. The inquest of the dead body of the deceased was prepared in presence of the witnesses, which is exhibit P-15 and the dead body 3 was sent for its post-mortem to Community Health Center, Takhatpur, where PW-6 Dr. Upasana Dewangan has conducted the post-mortem of the dead body of the deceased and found bleeding from ear and nose. Wound found in right parietal region 2 x ½ x 1 ½ inch length width and depth, fracture of parietal bone, margin of wound is regular and clean cut. Abrasion over chin 1 inch, abrasion in front at right ear pinna 1 ½ inch length. Abrasion in forehead ½ inch and abrasion below right eye 1 inch present. *******The doctor has opined the cause of death due to hypovolumic and neurogenic shock as a result of head injury, antemortem in nature and nature may be homicidal. After conducting the postmortem she gave postmortem report (exhibit P-3). Spot map (exhibit P-4) was prepared by the police and exhibit P-7 was prepared by patwari. From the spot one bed sheet has been seized vide seizure memo (exhibit P-8). FIR (exhibit P-9) was registered for the offence under Section 302 of IPC on 17.07.2018 against the appellant. The appellant was arrested on 17.07.2018 and his memorandum statement (exhibit P-5) was recorded. Based on his memorandum statement, one crowbar has been seized from him vide seizure memo (exhibit P-6). The said weapon of offence was sent for its query report to the doctor, from where query report (exhibit P-14) was sent and opined that the injuries found on the body of the deceased could have been caused by the said weapon and for confirmation of presence of blood, it was sent for FSL examination. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under 4 Section 302 of IPC before the learned Judicial Magistrate First Class, Takhatpur. The case was committed to the Court of learned Sessions Judge, Bilaspur for its trial. 4. Learned trial Court has framed charge against the appellant for the offence under Section 302 of IPC. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant the prosecution has examined as many as 15 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that his wife was having illicit relation with Dharam Patre resident of village Chamaria. His father-in-law was annoyed with his daughter and therefore to eliminate him from the way of his daughter and Dharam Patre, he conspired and implicate him in the false case. 5. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 6.
Legal Reasoning
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 light 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.” 18. 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 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 fro 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; 11 (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. 24. 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 12 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.” 19. 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. 20. 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 13 decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a it 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 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 14 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”. 21. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and not 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. 22. 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 to 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.” 23. According to the post-mortem report (exhibit P-3), there was only one grievous injury on the right parietal region of the skull, which was caused by the said crowbar. Though other minor abrasions were also found, but it was very minor and simple in nature. Fracture was present on the right parietal bone, which was caused by the crowbar 15 inflicted by the appellant. Even the PW-2 has stated that when she heard the noise of assault and shouted, the appellant fled away from the place and on the previous day, he came to her house for bring her back with him, but the deceased refused to send her back with the appellant. Being annoyed by the said reason, the appellant inflicted the injuries on the body of the deceased. The conduct of the appellant would show that he did not have the intention to cause murder of the deceased, though in a anger state of mind, he would have assaulted the deceased. 24. Due to the dispute of previous day, the assault was made by the appellant as such this case would fall within the purview of Exception 4 of Section 300 of IPC as the act of the appellant herein completely satisfied the 04 necessary ingredients of Exception 4 to Section 300 of IPC i.e. (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 appellant had not taken any undue advantage or acted in a cruel or unusual manner. Had the appellant intended to cause murder of the deceased Mandal Dinkar, he would have given more blows with the said weapon, as such it could be safely said that the appellant did not have the intention to kill the deceased. 25.
Arguments
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. There is no eyewitness to the incident and even there is no witness, who have lastly seen the appellant in the house of the deceased, which connects him from the offence in question. The prosecution's case is based on only the memorandum statement and 5 alleged recovery of the weapon of offence, but there is no evidence that the said weapon was used for commission of the offence, as there is no blood group shown that any blood found on the weapon of offence is connected with the blood group of the deceased. He would further submit that only one injury has been found on the body of the deceased on his head and considering the manner, in which the offence is said to have been committed and the motive projected behind it, the offence of the appellant, if any, does not travel beyond the scope of Section 304 of IPC, therefore he alternatively submitted that by altering the conviction of the appellant for the offence under Section 304 part-I of IPC, his sentence may be reduced for the period already undergone by him. 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions the evidence of prosecution witnesses are reliable and the learned trial Court has convicted the appellant after due appreciation of evidence available on record. The memorandum and seizure witnesses have duly proved the seizure of weapon of offence from the appellant and the motive has also been proved that when the appellant came to the house of the deceased, he refused to send his daughter back with the appellant. He would further submit that from the evidence of PW-2 Gogalibai, the involvement of the appellant in the offence in question is proved and therefore there is sufficient evidence in the record that the appellant committed the murder of the deceased and the appeal is liable to be dismissed. 6 8. We have heard learned counsel for the parties and perused the record. 9. With respect to homicidal death of the deceased, the witnesses to the inquest PW-7 Tulsi Dinkar, PW-8 Kailash Kumar and PW-9 Ramesh, who saw the injuries on the dead body of the deceased, which has been corroborated by the evidence of the doctor, who conducted the post-mortem of the dead body of the deceased PW-6 Dr. Upasana Dewangan. The witnesses to the inquest (exhibit P-15) have duly supported the prosecution's case that they saw the injuries on the dead body of the deceased. The doctor/PW-6 has also supported the prosecution's case that she conducted the post-mortem of the dead body of the deceased and injuries have been found on the head and found right parietal bone fractured and opined that the cause of death is hypovolemic and neurogenic shock as a result of head injury, antemortem in nature and may be homicidal. From the cross- examination of the doctor, who conducted the post-mortem, nothing could be extracted by the defence, so that the evidence of the doctor could be disbelieved or it can be hold that the death of the deceased was not by the injuries, but by some other reason. From the merg intimation as well as other documents collected during the investigation, which has proved in the trial, the death of the deceased being homicidal in nature has been found proved by the prosecution and we are also in agreement with the said finding recorded by the learned trial Court. 10. So far as the involvement of the appellant in the offence in question is concerned, PW-2, Gogali Tande who is the daughter of the deceased 7 has stated in her evidence that she has got married with the appellant since 08 years back, she is having a daughter from him. The appellant used to raise quarrel with her after consuming liquor and beaten her, for which she returned back to her parents house. At her parents house also the appellant used to come and raised quarrel regularly on the date of incident, the appellant came to her house to bring her back, but her father refused him to send her back along with him. At about 4:00 p.m. they returned back to their village. At about 12:00 hrs in the night the appellant came to her house along with a crowbar and started assaulting her father. After hearing the noise of the assault, she came to her veranda and saw that the appellant is assaulting her father on his head. She shouted for help, but no one came to help her. At about 5:00 a.m. her neighbour came and then she disclosed the incident to her. Thereafter the other persons were called. In her cross-examination, she disclosed in her police statement (exhibit D-2) that the harassment given by her husband to her has been disclosed in her police statement and if it is not there, she could not tell the reason. She further stated that he also disclosed in her police statement that in the night at about 12:00 hrs, the appellant came to her house along with crowbar and started assaulting her father and she saw the incident from veranda and if it is not there in her police statement/exhibit D-2, she could not tell the reason. From perusal of her 161 CRPC statement/exhibit D-2, it appears that all the ingredients of her harassment and presence of the appellant in the house of PW-2 at the relevant point of time and PW-2 has seen him, when she heard a noise of assault and identified that her husband was 8 standing there along with crowbar in his hand. When she started shouting, he fled away and due to fear she could not came out from her room and in the morning she informed the incident to her neighbor Shakun. All the ingredients are there in her 161 CRPC statement, though it was not in same fashion, but the ingredients are there that she saw the appellant in her house at the relevant point of time, when her father had received injuries on his body and died. 11. PW-1 Chaitlal Dinkar alias Gudda has also proved that on the date of incident the appellant came to the house of his wife and deceased for bringing her back. In the next morning at about 5:00 a.m. he was being informed by Shakun alias Kalara (PW-3) that the deceased has died in his house and injuries have been seen on his body. Thereafter he went on the spot, saw the injuries on the body of the deceased and a report has been lodged. He is not the witness of the incident, but when he came to know about the incident, he saw the dead body and then merg intimation was lodged by him and he remained firm in that part of his evidence. PW-3 Shakun bai is the witness to whom the PW-2 Gogali Tande informed the incident. She also stated in her evidence that in the morning at about 5:00 a.m. when she woke up, Gogali was shouted and informed that her father has been killed by the appellant. Thereafter she called Chaitlal to her house. Although this witness has also not disclosed the incident in detail and for that reason she was declared hostile, but she remained firm in saying that at about 5:00 a.m. Gogali Tande had informed about the incident to her. 12. PW-4 Amit Tirki is the patwari, who prepared the spot map/exhibit P- 9 11. 13. PW-7 Tulsi Dinkar is the witness of inquest/exhibit P-15, memorandum statement of the appellant (exhibit P-5) and seizure of crowbar (exhibit P-6). The evidence of this witness is found credible on the point of memorandum and seizure from the appellant that in his presence the appellant gave his memorandum statement and crowbar has been seized from his possession. There is no reason for this witness that he is falsely implicated the appellant in the alleged offence. From all these evidences PW-11 Hemsagar Patel, PW-12 Rakesh Kumar Sahu and PW-13 Kiran Singh Rajput are the police authorities, who have conducted the part of the investigation and proved the same. 14. PW-14 Sameer Tande alias Siti and PW-15 Shiv Prasad are the witnesses who came along with the appellant on the previous day of the incident for bringing the daughter of the deceased back with the appellant and they stated that the deceased has refused to send his daughter back along with the appellant. 15. From all these evidences the involvement of the appellant in the offence in question has been found proved that he caused injuries on the body of the deceased on the alleged date and time of the incident. 16. The next question for consideration is, whether the case of the appellant is covered within Exception 4 to Section 300 IPC, vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 part-I or part-II of the IPC as submitted by learned counsel for the appellant ? 10 17. 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
Decision
In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. 26. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the 16 IPC and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 500/-, in default of payment of fine further R.I. for one month. 27. As the appellant is stated to be in jail, he shall serve out the remaining sentence as modified by this Court. 28. The criminal appeal is partly allowed to the extent indicated herein- above. 29. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 30. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved