Balodabazar-Bhathapara, Chhattisgarh v. State Of District :Balodabazar-Bhathapara, Chhattisgarh
Case Details
2025:CGHC:10754-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 983 of 2022 Shrawan Kumar Nigam S/o Late Ramnarayan Nigam, Aged About 29 Years R/o Village Gadaria Para, Hathband, P.S. Simga, District : Balodabazar-Bhathapara, Chhattisgarh ---Appellant versus State Of District :Balodabazar-Bhathapara, Chhattisgarh --- Respondent Chhattisgarh Through Station House Officer, P.S. Simga, (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Shikhar Shukla, and Shri For Respondent/State --------------------------------------------------------------------------------------------------------- : Shri Sakib Ahmed, PL Ramsajivan, Advocates Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Ravindra Kumar Agrawal, J. Per 05.03.2025 1. Present appeal has been filed by the appellant under Section 374(2) of the CrPC against the impugned judgment of conviction and order of sentence dated 18.05.2022 passed by the learned Additional Sessions Judge, Bhatapara, District-Balodabazar-Bhatapara, in Sessions Case No.H-11/2020, whereby the appellant has been convicted and sentenced in the following manner: Cra 983 of 2022 2 Conviction Under Section 302 of IPC Under Section 201 of IPC Sentence RI for life and fine of Rs.500/- in default of payment of fine amount, 3 months additional RI RI for 3 years, and fine of Rs.200/- in default of payment of fine amount additional RI for 3 months 2. Brief facts of the case are that on 13.07.2020 at about 1.00 am, complainant Sanjay Verma, PW1 has lodged Dehati Merg Intimation Ex.P1 with the effect that one Prakash Pal has informed him that wife of the appellant, namely, Maheshwari Nigam fell down from the terrace, and received injuries on her head. The husband of the deceased-Maheshwari Nigam was in drunken condition and consuming liquor at that time also, and he had not taken her to the hospital for treatment. Based on the Dehati Merg intimation Ex.P1, the inquest of the dead-body of the deceased Ex.P3 was prepared in presence of the witnesses, and the dead-body of the deceased was sent for its postmortem to the Community Health Center, Simga, where PW9, Dr Manohar Lal Dhruv conducted the postmortem and gave report vide Ex.P27. While conducting the postmortem of dead-body of the deceased, he noticed one lacerated wound on mid of occipital region of 3 x 2 cm size, and fracture of occipital bone. At the time of conducting postmortem, the doctor has also noticed alcoholic smell coming out from the stomach which was found full of alcohol, and opined that cause of death is 3 Cra 983 of 2022 hypovolemic shock due to head injury, and the death is homicidal in nature. The numbered merg intimation Ex.P15 was recorded at Police
Facts
Station Simga, and FIR Ex.P19 was registered against the appellant for the offence under Section 302 and 201 of the IPC. Spot Map Ex.P4 was prepared by the Police, and Ex.P13 was prepared by the Patwari. Two empty liquor bottles, and two steel glasses were seized from the spot vide seizure memo Ex.P6. Blood stained soil and plain soil, and door mat were also seized from the spot vide seizure memo Ex.P7. Blood was also collected through piece of cotton from the spot, one gents underwear and one ladies underwear were seized from the spot vide seizure memo Ex.P8. The appellant was arrested on 14.07.2020, and his memorandum statement Ex.P9 was recorded. Based on his memorandum statement, one sickle having blood like stain, one half banian, one full shirt, and one full pant, having blood like stain, were seized vide seizure memo Ex.P10. The sickle, seized from the appellant was sent for its query report to the doctor, who gave his query report Ex.P23, and opined that death could have been caused by the said sickle, and for confirmation of blood on it, it was sent for chemical examination. Likewise, clothes of the appellant have also been sent for their query report, which has also been sent for its chemical examination. The blood stained soil, and plain soil , sari, underwear of the deceased, sickle seized from the appellant, and clothes of the appellant were sent for their chemical examination to the State Forensic Science Laboratory, Raipur, from where, its report Ex.P27 was received, and according to it, 4 Cra 983 of 2022 except the plain soil, blood has been found on the other articles, and in the blood stain soil, Article-A, sari of the deceased Article C, and the sickle seized from the appellant Article F, ‘B’ group of blood was found and on the Banian, ArticleG, human blood was found. 3. Statement of the witnesses under Section 161 of the CrPC have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of the IPC before the learned Judicial Magistrate First Class, Simga. The case was committed to the Court of learned Sessions Judge, Balodabazar, from where the same has been transferred to the learned trial Court for its trial. The learned trial Court has framed charge against the appellant under Section 302 and 201 of the IPC. He denied the charge and claimed trial. 4. In order to prove the charge against the appellant, prosecution has examined as many as 9 witnesses, statement of the appellant under Section 313 of the CrPC has also been recorded in which he denied the circumstances appearing against him, pleaded innocence, and have submitted that he was not in his house at the time of incident, and he has been falsely implicated for the offence. 5. After appreciation of 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 by the appellant. 5 Cra 983 of 2022 6.
Legal Reasoning
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.” 18. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 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 :- 2 (2009) 15 SCC 635 11 Cra 983 of 2022 “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; (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. 12 Cra 983 of 2022 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.” 19. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of the Hon’ble 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 3 (2012) 8 SCC 450 13 Cra 983 of 2022 act of his is likely to cause death. 20. The Hon’ble Supreme Court in the matter of Arjun v. State of Chhattisgarh4 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 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 4 (2017) 3 SCC 247 14 Cra 983 of 2022 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 15 Cra 983 of 2022 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”. 21. In the matter of Arjun (supra), the Supreme Court has held that if there is intention, 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)5 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.” 5 (2019) 6 SCC 122 16 Cra 983 of 2022 23. According to the postmortem report Ex.P27, there was only one injury on the occipital region of the skull, which was caused by a sickle. Fracture was present on the occipital region of the skull, which the result of the blow inflicted by the appellant. There is no other injury found on the body of the deceased. Alcohol contents were found in the stomach of the deceased, and it is stated by the witnesses that the appellant was also in drunken condition at the time of incident. Such conduct of the appellant, as well as alcoholic contents found in the stomach of the deceased, show that the appellant did not had any intention to cause murder of the deceased, though in a heat of passion, he would have assaulted the deceased. It is also not the case of the prosecution that the appellant came armed with any deadly weapon to cause injuries to the deceased. 24. Reverting to the facts of the present case, the intoxicated condition under the influence of liquor of the appellant and the deceased, and the instances, in which the incident is said to have been occurred describes about the dispute arose between them, without there being any pre-meditation on the part of the appellant to cause death of the deceased an assault was made. As such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 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 his 17 Cra 983 of 2022 wife, he would have given more blows with the sickle. As such, it could be safely said that the appellant did not had the intention to kill the deceased. 25. Since the appellant had tried to mislead the actual cause of incident, and projected that the deceased died due to fall from the terrace by which she received injury but her dead body was found inside the room, and the evidence shows that the appellant tried to cause dis- appearance of the evidence of the offence, and gave false information which does constitute the offence under Section 201 of the IPC, for which he has rightly been convicted by the learned trial Court, and his conviction and sentence for the offence under Section 201 of the IPC is hereby maintained. 26.
Arguments
Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions, and contradictions in the evidence of prosecution witnesses. There is no evidence that the appellant was in the house at the time of incident. The dead-body of the deceased was not found in the room, and therefore, liability cannot be imposed upon the appellant to explain the injuries on her body. The FSL report alone is not sufficient to held the appellant guilty in the offence in question. There are inconsistencies in the evidence of prosecution witnesses, and therefore, in absence of any cogent evidence, he is entitled for acquittal. In alternative, learned counsel for the appellant would submit that in drunken state of the appellant as well as the deceased, quarrel took place between them, and in that nature of mind, he picked up the sickle which was lying there, and gave a blow on her head. Only single injury has been caused on her body and he has not assaulted her brutally. The deceased was also in drunken condition, and the incident occurred in her intoxicated condition. Therefore, the offence of the appellant, if any, does not travel beyond the scope of Section 304 of the IPC, and by altering his conviction, his undergone period may be considered to be sufficient sentence. 7. On the other hand, learned counsel for the State opposes, and would submit that the prosecution has proved its case beyond reasonable doubt. But for minor omissions, or contradictions the evidence of prosecution witnesses are sufficient to held guilty of the appellant for commission of murder of his wife. Though a single blow 6 Cra 983 of 2022 with the sickle, which was weapon of offence, was given by the appellant, but the force of that blow was such that fracture of her occipital bone was found by the doctor, by which she died on the spot. Although both were in drunken state, and liquor substance has also been found in her stomach but that itself is not sufficient to deal with the gravity of offence of the appellant. Appellant’s presence on the spot is duly proved by the witnesses, and therefore, learned trial Court has rightly appreciated the evidence available on record, and comes to the correct conclusion of conviction of the appellant. Therefore, the appeal filed by the appellant does not have any merits, and it is liable to be dismissed. 8. We have heard learned counsel for the parties, and perused the record of the case. 9. So far as the homicidal death of deceased is concerned, the doctor, PW9 has proved the postmortem report Ex.P27. He stated in his evidence that on 13.07.2020, the dead body of the deceased- Maheshwari Nigam was brought before him for postmortem. During postmortem, he noticed one lacerated wound on the occipital region, and her occipital bone was fractured and as per postmortem report, cause of death of the deceased is hypovolemic shock due to head injury, and the nature of death is homicidal. Sickle was also sent for its query report and while giving its Query report Ex.P23, the doctor opined that the injuries found on the body of the deceased could have been caused by the said sickle, and death may have occurred. Nothing could be elicited 7 Cra 983 of 2022 in his cross-examination to dis-believe his evidence, though he admitted in his cross-examination that similar injuries have been found on the body of the deceased, which could have been caused if a person fell from the terrace in drunken state of liquor. He also admitted that hypovolemic shock could also cause due to excessive hemorrhage. The homicidal death of the deceased was also corroborated from the evidence of PW1 Sanjay Verma, and PW3 Budhram Devdas, who are the witnesses to the inquest. PW1 has stated in his evidence that when he went to the spot, he saw the dead-body of the deceased lying inside the room, who has already died. 10. PW3 has stated in his evidence that when he had gone to the house of the appellant, the room was locked. When the Police persons opened the room, he found the dead-body of the deceased in injured condition, and injury was there on her head. It is not there in their cross- examination that the deceased fell down from the terrace outside of the house, and appellant took her inside the room. When dead-body of the deceased was found inside the room, falling from terrace itself is falsified, that too except the one lacerated wound on her head, no other injuries have been found on her body, and therefore, homicidal death of the deceased was found proved by the learned trial court from the aforesaid witness and we are also in agreement with the finding recorded by the learned trial Court that the deceased died homicidal death and not died from falling from the terrace. 8 Cra 983 of 2022 11. So far as involvement of the appellants in crime in question is concerned, we have carefully examined the evidence available on recorded. From the evidence of witnesses, it is established that the appellant was also present there in his house. The incident is of the night time, and the deceased was wife of the appellant. Being her husband, his presence can also been safely presumed that he was with the deceased on the night. 12. PW1 Sanjay Verma has stated in his evidence that Prakash Pal has informed him that he asked the appellant to take his wife to the hospital for treatment but he has not taken her to the hospital, and the appellant was continuously consuming liquor, and roaming here and there. 13. PW2 Dilip Yadav is the witness to memorandum and seizure of Ex.P9, and Ex.P10. He is a journalist by professtion but has not completely supported the prosecution case, and his evidence is shaky. 14. PW3 Budhram Devdas, who is Kotwar of the village has stated in his evidence that when he went to the house of the appellant in the night, his house was locked which was opened by the Police. The appellant was also there with them, and when they entered the room, they found the dead-body of the deceased in injured condition. 15. A sickle has been seized from the appellant vide seizure memo Ex.P10. In the query report sent by the doctor, the injuries could have 9 Cra 983 of 2022 been caused by the said sickle, and in the FSL report Ex.P27, ‘B’ group of human blood was found on the blood stained soil, and Sari of the deceased, seized from the spot, as well as sickle seized from the appellant, which directly connects the appellant with the offence in question that the same blood group was found on the sickle seized from him, which is also been found on the blood stained soil, and sari of the deceased. When the appellant is happened to be the husband of the deceased, his presence is found proved on the spot at the relevant point of time, and on the sickle seized from him, the same blood group has been found as has been found on the articles seized on the spot, the dead-body of the deceased was found inside the room in injured condition, all these evidences directly connect the appellant to the offence in question, and thus, the prosecution has also successfully proved that the appellant has caused injuries to his wife, the deceased. 16. The aforesaid findings bring us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the 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 contended by learned counsel for the appellant. 17. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- 1 (2002) 3 SCC 327 10 Cra 983 of 2022 “21. Keeping in view the facts and circumstances of the
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. 27. 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 IPC and sentenced to undergo rigorous imprisonment for 7 years, and conviction and sentence under Section 201 of the IPC is maintained. Both the sentences are directed to run concurrently. 28. As the appellant is stated to be in jail, he shall serve out the remaining sentence as modified by this Court. 18 Cra 983 of 2022 29. The criminal appeal is partly allowed to the extent indicated herein-above. 30. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 31. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are 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/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma