Nafr High Court
Case Details
1 2025:CGHC:1113-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 865 of 2024 1 - Smt. Chiti Bai S/o Pehatu Ghasi Aged About 54 Years R/o Village - Karasi, Ratpatpara, P.S. - Shankargarh, Dist - Balrampur-Ramanujganj, Chhattisgarh. versus ... Appellant 1 - State of Chhattisgarh Through - The District Magistrate, Dist - Balrampur- Ramanujganj, Chhattisgarh. ... Respondent For Appellant : Mr. M.P.S. Bhatia, Advocate. For State/respondent : Mr. Shashank Thakur, Deputy Advocate General. Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ravindra Kumar Agrawal, J. 08-01-2025 1. The appellant has preferred this criminal appeal under section 374 (2) of the Criminal Procedure Code against the judgment of conviction and sentence dated 02-04-2024 passed by learned Second Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, in Sessions Trial No. 59/2019, whereby the appellant has been convicted Under Section 302 of IPC and sentenced with life imprisonment and fine of Rs.500/-, in default of payment of fine, additional R.I for 3 months. 2. Brief facts of the case are that on 31-03-2019, one Sitaram has gave a merg intimation Ex.-P/1 to the police that at about 2:00 a.m. in the night of 30-03-2019 one villager Ragunath informed him that his elder brother Pehatu @ Puran Ghasi is lying in his courtyard pooled with blood. When he went on the spot he found his Digitally signed by MOHAMMAD AADIL KHAN 2 brother died and injuries were seen on various parts of his body which appears to be inflicted by an axe. He suspected his sister-in-law/wife of the deceased/appellant that she committed his murder. The inquest of the dead body Ex.-P/3 was prepared in presence of the witnesses and the dead body of the deceased was sent fo its postmortem to community health center, Shankargarh, where PW-10 Doctor Dinesh Kumar Painkara has conducted the postmortem of the dead body of the deceased and gave report Ex.-P/15A. During the postmortem the doctor has found following injuries on his body and opined that cause of death is hypovolemic shock due to external hemorrhage and mode of death is syncope and nature of death is homicidal. The injuries found on the body of the ceased is as follows:- (1) incised wound present on left side of neck below thyroid cartilage 9 cm x 3.5 cm x 3 cm (horizontally) (2) incised wound present on left ear horizontally , 4.5 cm x 1 cm x 3 cm. (3) Incised wound present on right shoulder back region (horizontally), 5.5 cm x 2 cm x 1.5 cm. (4) (5) incised wound present on deltoid region right side horizontally incise wound present on upper part of right arm back region, 2.5 cm. x 1 cm x 1 cm horizontally (6) incised wound present on occipital area horizontally, 5 cm x 2 cm x (7) (8) 1.5 cm Abrasion present on left knee 2 cm x 1.5 cm incised wound present on both scapula lower part 2 cm x 1 cm x 0.5 cm., 2 cm x 1 cm x 0.5 cm.
Facts
The FIR Ex.-P/13 was registered against unknown persons for the offence under Section 302 of the IPC. Spot map Ex.-P/4 was prepared by the police and Ex.-P/5 was prepared by the Patwari. The blood stained and plain soil was seized from the spot vide seizure memo Ex.-P/6. The appellant was taken into custody on 01-04-2019 and her memorandum statement Ex.-P/10 was recorded. Based on her 3 memorandum statement one axe, broken pice of handle of axe have been seized from her vide seizure memo Ex.-P/11. Her sari having blood like stains has also been seized from her vide seizure memo Ex.-P/12. The axe seized from the appellant was sent for query report to the doctor and PW-10 Doctor Dinesh Kumar Painkara gave query report Ex.-P/18A, whereby he opined that injuries found on the body of the deceased could have been caused by the said axe and the deceased could have been died by the said assault made by the said axe. The blood stained and plain soil, sari and axe were seized from the appellant, the clothes of the deceased were sent for its chemical examination to regional FSL Ambikpur from where report Ex.-P/19 was received and according to the FSL report human blood was found on the blood stained soil, sari and axe seized from the appellant and clothes of the deceased whereas in the blood stained soil and sari and axe seized from the appellant B group of blood was found. The statement of the witnesses under Section 161 of the Cr.P.C. have been recorded and after completion of usual investigation charge sheet was filed against the appellant for the offence under Section 302 of the IPC for commission of murder of her husband/deceased Pehatu @ Puran Ghasi before the learned Judicial Magistrate First Class, Rajpur. The case was committed to the Court of learned Sessions Judge from where the same has been transferred to the learned trial Court for its trial. 3. The learned trial Court has framed charge against the appellant for the offence under Section 302 of the IPC. The appellant abjured her guilt and claimed trial. 4. In order to prove charge against the appellant the prosecution examined as many as 10 witnesses. The statement of the appellant under Section 313 of the Cr.P.C. has also been recorded in which she denied the material appears against her, pleaded innocence and has submitted that she has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the 4 prosecution, the learned trial Court has convicted the appellant and sentenced her as mentioned in the earlier part of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions in the evidence of the prosecution witnesses which cannot be made basis for her conviction in the alleged offence. There is no evidence produced by the prosecution that on the alleged date of incident the appellant was there with the deceased. The deceased was in habit of consuming liquor regularly and having dispute and raising quarrel in intoxicated condition with various persons and the possibility of committing his murder by any other person cannot be ruled out. The learned trial Court has convicted the appellant on presumption that the appellant being the wife of the deceased was residing with him and she failed to explain the injuries found on the body of the deceased, therefore, has held her guilty for the alleged offence and has convicted her. The finding recorded by the learned trial Court is against the settled principles of law that no person can be convicted in absence of any cogent and cinching evidence that too beyond reasonable doubt. He would further submit that the only to grab the property of the appellant the brother of the deceased has lodged false report against the appellant and the brother of the deceased Sitaram (PW-1) has admitted that he is earning crop of the field of the appellant and no sharing is being done. In alternative, he would submit that the appellant was being harassed by the deceased and tried to throw her out from his house after consuming liquor for the reason that he was having affair with another lady and on the date of incident also when he abused and started altercation with her to leave his house, on that heat of passion she assaulted the deceased, therefore, if it is found that the appellant has inflicted the injuries upon the deceased then the offence, if any, does not travel beyond the scope of Section 304 of the IPC and therefore, the conviction of the appellant may be altered from Section 302 of the IPC to Section 304 of the IPC and her sentence may be reduced for the period already undergone by her as she is in jail since 01-04-2019. 5 7.
Legal Reasoning
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.” 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 : “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 11 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”. 24. In the matter of Arjun (supra), the Hon’ble 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. 25. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients 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) he 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.” 26. Reverting to the facts of the present case, it is quite vivid that there was no premeditation on the part of the appellant to cause injuries to the deceased and only because of the conduct of the deceased that he tried to expel her out from his house as he was having affair with another lady, which gives cause to the present 12 incident and the said fact has been reflected from her memorandum statement also and said memorandum statement has been witnessed by PW-2, Raghunath and PW-3 Shrilal. Further aspect of the case is that PW-1, Sitaram has admitted that he is earning the agricultural filed of the deceased and are not giving any share to his adopted daughter. They have not spent any penny on her marriage which is also supported by PW-2, Raghunath who is uncle of the deceased and the same is defence taken by the appellant in her statement under Section 313 of the Cr.P.C. that to grab the property of the appellant she has been falsely implicated in the offence. In the facts and circumstances of the case and on the basis of the evidence produced by the prosecution, it can safely be presumed that the appellant did not have any intention to cause death of the deceased, but by causing such injury she must have knowledge that such injury inflicted by the her would likely to cause death of the deceased and as such her case would fall within the purview of Exception 4 of Section 300 of the IPC. 27. Considering the law laid down by the Hon’ble Supreme Court in the aforesaid cases and considering over all evidence available on record and further considering the fact that appellant is in jail since the date of her arrest, i.e., 01-04-2019 and she is presently appears to be aged about 60 years, ends of justice would meet if conviction of the appellant under Section 302 of the IPC is altered/converted into 304 Part I of the IPC. 28.
Arguments
On the other hand, learned counsel for the State opposes the submission made by the learned counsel for the appellant and has submitted that the appellant is wife of the deceased. The time of the incident is of the night time and normally the husband and wife were residing together in same house, as per presumption since the dead body of the deceased was found in her courtyard in severely injured condition, but the appellant was not found there, the conduct of the appellant is suspicious and she has failed to explain as to under what circumstances her husband was found injured in his house. There is no explanation in her 313 Cr.P.C. statement with respect to the same. She only explained in her 313 Cr.P.C. statement that to grab property by the brother of the deceased, she has been made accused in the case. He would further submit that on the memorandum statement of the appellant, the axe and her sari has been seized in which B group of human blood was found and the B group of human blood was also found on the blood stained soil seized from the place of incident which directly connects the appellant in the offence in question. Since it is a murder inside the house, the appellant is under obligation to explain the injury found on the body of the deceased as provided under Section 106 of the Indian Evidence Act, 1872, but she failed to give any plausible explanation, therefore, considering the evidence available on record, nature of injuries found on the body of the deceased and also the law laid down by the Hon’ble Supreme Court the learned trial Court has convicted the appellant and sentenced him which strictly in accordance with law and needs no interference. 8. We have heard learned counsel for the parties and perused the record of the case. 9. With respect to homicidal death of the deceased, the witness of inquest P.W. 1, Sitaram, has stated that he saw a number of injuries on the body of the deceased and he was pooled with blood. The dead body of the deceased was sent for its postmortem to community health center, Shankargarh, where PW-10, Doctor Dinesh Kumar Painkara has conducted postmortem of the dead body. PW-10 Doctor Dinesh Kumar Painkara stated in his deposition that on 31-03-2019 he 6 conducted postmortem of the dead body of the deceased Pehatu and found number of injuries on his body including numbers of incised wound on his body and opined that the cause of death is hypovolemic shock due to external hemorrhage and mode of death is syncope which is homicidal in nature. In cross-examination the defence could not bring any material which led this court to draw adverse inference that the death of the deceased was not by the injuries found on his body but by other reasons. Thus, death of the deceased being homicidal in nature has been proved by the prosecution which the learned trial Court has rightly appreciated in its judgment. 10. So far as the involvement of the appellant in the offence in question is concerned, there is no eye-witness to the incident. PW-1 Sitaram who is brother of the deceased has stated in his evidence that the appellant is wife of the deceased. He and the deceased were working together in a brick kiln, but on the date of incident she returned back to his house earlier to him. At abouut 3:00 a.m. the villager Raghunath informed him about the incident and then he saw the injuries on the dead body. When he asked from his sister-in-law she informed that someone had come in her house. By the reply given by the appellant he raised suspicion and informed the police. In cross-examination he admitted that the deceased and the appellant have adopted a girl child since 17-18 years back. He admitted that after death of his brother his land was cultivated by him. He further admitted that the adopted daughter of the deceased has got married, but they have not participated in the marriage and have not spent single penny in her marriage. He also admitted that they have not given any share of the crop to the adopted daughter of the deceased. He also admitted that he was not having good relation with his sister-in- law/appellant. 11. PW-2, Raghunath has stated in his evidence that he is the uncle of the deceased. He stated in his evidence that on the date of incident at about 1-1:30 a.m. when he came out from his house for answering the call of nature of his son, the appellant took him to her house and when he went there, he saw he deceased was lying in his courtyard in injured condition and struggling for life. He asked from 7 the appellant about the incident, she shown her ignorance and thereafter he informed the persons of the vicinity and the police was also informed. He is the witness of the memorandum statement of the appellant and seizure of axe. In cross- examination the defence could not elicited anything which makes his evidence doubtful that he was not called by the appellant on the date of incident. In cross- examination he too has admitted that the brother of the deceased is earning the crop over the agricultural land of the deceased. He also admitted that to grab the property of the deceased, his brother Sitaram has made a plan and lodged the report against the appellant. From the evidence of this witness it is quite vivid that on the date of incident the wife of the deceased was there in her house where the dead body was found in injured condition. 12. PW-3, Shrilal is also another brother of the deceased. Although he is not the witness of the incident, but he stated that the villagers have raised suspicion upon the appellant because of the reason that only two persons were residing in their house. He is also a witness of memorandum and seizure made from the appellant. In cross-examination he admitted that in the marriage of the adopted daughter of the deceased they have not spent any money. He was informed by his brother Sitaram. 13. PW-4, Arjun, PW-5, Shribandhu and PW-6, Neelam have not stated anything against the appellant. 14. PW-7, Smt. Jayanti Ekka is Patwari who prepared the spot map Ex.-P/5. 15. PW-8 Shrilachand is a witness of seizure of blood stained and plain soil from the place of incident. 16. PW-9, Prakash Rathore is the Investigating Officer who proved the process of investigation and proved whatever he has done during the investigation and remained firm in material point of investigation. 17. From the FSL report Ex.-P/19, human blood was found on the sari of the appellant as well as axe seized from her and also B group of human blood was found on the blood stained soil, for which there is no explanation of the appellant in 8 her statement under Section 313 of the Cr.P.C. which fortified her involvement in the offence in question. 18. The learned trial Court after considering the entire evidence available on record and also the law laid down by the Hon’ble Supreme Court in the mater of Balvir Singh Vs. State of Uttarkhand, (2023) Live Law (SC) 861 and Nagendra Sah Vs. the State of Bihar, (2021) 10 SCC 725 came into conclusion that the prosecution has proved the involvement of the appellant in causing injuries to the deceased by which he died. 19. 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 the learned counsel for the appellant ? 20. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, reported in 2002 (3) SCC 327 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.” 21. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009 (15) SCC 635, 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 :- 9 “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 for 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. 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 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.” 22. Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the Hon’ble Supreme Court has 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 10 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. 23. Further, the Hon’ble Supreme Court in the matter of Arjun Vs. 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
Decision
Accordingly, the appeal is allowed to extent that conviction of the appellant under Section 302 IPC is set aside, however, she is convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 7 years with fine of Rs. 500/-, in default of payment of fine, further R.I. for one month. 29. As the appellant is reported to be in jail since 01-04-2019, she is entitled to set off her undergone period. 30. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial Court concerned forthwith for necessary information and compliance. 13 31. Registry is also 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 she 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. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice Aadil