State of Chhattigarh v. Shiv Prasad) by the
Case Details
Page No.1 of 10 IN CRA-1616-2016 SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.04.30 11:15:47 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR Criminal Appeal No. 1616 of 2016 [Arising out of judgment dated 30.05.2009, passed in Sessions Case No.50 of 2009 (State of Chhattigarh v. Shiv Prasad) by the 8th Additional Sessions Judge (FTC), Bilaspur (CG)] Shiv Prasad S/o Motiya Svipar, Aged About 43 Years R/o Budhwari Bajar, Bapunagar, Police Station Torwa, District Bilaspur, Chhattisgarh., Chhattisgarh Versus State Of Chhattisgarh Through Police Station Torwa, District Bilaspur, Chhattisgarh., Chhattisgarh ... Respondent ... Appellant (On Bail) [Cause-title taken from Case Information System (CIS)] -------------------------------------------------------------------------------------------- For Appellant For Respondent --------------------------------------------------------------------------------------------- Division Bench : Mr. A.L. Singroul, Advocate : Mr. Ashutosh Shukla, Panel Lawyer Hon'ble Shri Justice Sanjay K. Agrawal and Sanjay Kumar Jaiswal Hon'ble Shri Justice Sanjay K. Agrawal, J Judgment on Board (29.04.2025) (1) This criminal appeal filed by the appellant-accused herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 30.05.2009, passed in Sessions Case No.50 of 2009 (State of Chhattigarh v. Shiv Prasad) by the 8th Additional Sessions Judge (FTC), Bilaspur, whereby he has been convicted for offence under Section 302 of Page No.2 of 10 IN CRA-1616-2016 IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, sentenced to undergo additional simple imprisonment for 06 months. (2) The case of the prosecution, in short, is that in the intervening night of 13-14/10/2008, at Babuup Nagar, which comes within the ambit of Police Station Torva, Bilaspur (CG) the accused-appellant herein committed ‘marpeet’ with his wife,
Legal Reasoning
namely, Smt. Pummi Bai (hereinafter referred to as the “deceased”) by means of hand and fist and also strangulated her neck, due to which she suffered grievance injury and died and, thereby, said to have committed offence under Section 302 of IPC. (3) It is further case of the prosecution that when father of the deceased, namely, Banwari (PW-01) reported the matter to the police, marg intimations (Ex.P/09 & Ex.P/10) and FIR (Ex.P/08) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were issued vide Ex.P/11 & Ex.P/01 and inquest proceedings were conducted vide Ex.P/02. Spot map was also prepared vide Ex.P/05. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/07), conducted by Dr. Zubaid Khan (PW- 09), it was opined that the cause of death of deceased is coma due to head injury. Thereafter, the appellant was arrested vide Ex.P/13. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in Page No.3 of 10 IN CRA-1616-2016 the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 13 documents, whereas the appellant in support of his defence, neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. A.L. Singroul, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at the best offence under Section 304 (Part- II) would be made out against the appellant herein because the appellant is said to have assaulted the deceased in spur of the moment and he has no intention or premeditation to cause death Page No.4 of 10 IN CRA-1616-2016 of the deceased for the reason that the appellant was habitual drinker and used to consume liquor every day and, on the date and time of the offence also, the appellant under the influence of liquor demanded money from his wife (deceased), to which, she refused and, thereafter, under anger and in heat of passion the appellant assaulted the deceased by means of hand and fist and also strangulated her neck, due to which, she suffered grievous injuries and died. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC and, since the appellant remained in jail from for than 08 years, therefore, he be sentenced to the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and Page No.5 of 10 IN CRA-1616-2016 it is not the case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 (Part-II) of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/07), wherein it has been opined that cause of death of deceased is coma due to head injury, which is duly proved by the statement of Dr. Zubaid Khan (PW-09). Accordingly, taking into consideration the postmortem report (Ex.P/07) and the statement of Dr. Zubaid Khan (PW-09), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statements Banwari (PW-01) [father of the deceased], Sukhiya Bai (PW-02) [mother of the deceased] and Mohit Page No.6 of 10 IN CRA-1616-2016 (PW-05) [son of the appellant and the deceased]. All the aforesaid witnesses have clearly stated before the Court that the appellant used to consume liquor frequently and commit ‘marpeet’ with the deceased. Even, Mohit (PW-05), who was also present on the spot alongwith the appellant and the deceased, has clearly stated that the appellant firstly quarreled with the deceased after consuming liquor for demand of money and, further, assaulted her by hand and fit, due to which she suffered grievous injuries and died. All the aforesaid witnesses were subjected to some extent of cross- examination, but they remained consistent in their version. As such, the testimonies of both the said witnesses inspire confidence and can be relied upon to hold the appellant guilty for the offence in question. As such, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. (11) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable Page No.7 of 10 IN CRA-1616-2016 homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC, 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 :- “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 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 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 : (SCC p. 596, para 9) 1 (2017) 3 SCC 247 Page No.8 of 10 IN CRA-1616-2016 “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 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 if there is intent and knowledge, the same would be case of Section 304 Part-I of 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 IPC. (14) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the present case the appellant is Page No.9 of 10 IN CRA-1616-2016 said to have assaulted the deceased (his wife) in spur of the moment and he has no intention or premeditation to cause death of the deceased for the reason that on the date and time of the offence, the appellant under the influence of liquor demanded money from his wife (deceased), to which, she refused and, thereafter, under anger, in heat of passion and also under the influence of liquor, the appellant assaulted the deceased by means of hand and fist and also strangulated her neck, due to which, she suffered grievous injuries and died. As such, it can safely be concluded on the basis of aforesaid evidence that the appellant has no premeditation or intention to cause death of the deceased. However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 to 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 and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC. (15) In view of the aforesaid discussion, the conviction of the Page No.10 of 10 IN CRA-1616-2016 appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and, for which, since the appellant remained in jail for more than 08 years, he is sentenced to the period already undergo by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. (16) This criminal appeal is partly allowed to the extent indicated herein-above. (17) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge (Sanjay Kumar Jaiswal) Judge s@if