Beohar High Court
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 1854 of 2019 • Sukman Badde, S/o Sarju, aged about 35 Years, Caste Gond, R/o Village Aamagaon Thana Farshgaon, District Kondagaon, Chhattisgarh. versus ...Appellant • State of Chhattisgarh, Through Aarakchi Kendra Farashgaon, District Kondagaon, Chhattisgarh. ... Respondent For Appellant For Respondent : : Mr. Krishna Kumar Khatri, Advocate Mr. Afroz Khan, P.L. Division Bench:- Hon'ble Smt. Rajani Dubey & Hon'ble Shri Amitendra Kishore Prasad, JJ. Judgment on Board (10.09.2025) Amitendra Kishore Prasad, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 04.08.2014 passed in Sessions Trial No.49/2012 by the Additional Sessions Judge, Kondagaon, District Kondagaon, C.G., by which the appellant stands convicted and sentenced as under:- 2 Conviction Sentence Under Section 302 of Indian Penal Code (for short, 'IPC' Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for three months Under Section 201 of IPC Rigorous Imprisonment for seven years and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for three months (Both sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that, on 03.12.2010, one Suraj Badde, who is said to be the father of the appellant, called a meeting in the village and told that appellant- Sukman Badde has
Legal Reasoning
Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 12. Now, the question that requires consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant? 13. In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 wherein it has been observed as under :- “21. Keeping in view the facts and circumstances of the case, we are of the 7 opinion that in the absence of the existence of common object Sukhir 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.” 14. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in (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, 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 8 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 with 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 death but the death was because of shock; (k) Number of other criminal cases pending against the accused; 9 (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.” 15. Likewise, in the matter of State v. Sanjeev Nanda, reported in (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 is further been held that to make out an offence punishable under 10 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. 16. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh reported in (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 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. 11 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 12 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”.” 17. In the matter of Arjun (supra) , the Hon’ble Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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. 18. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) reported in (2019) 6 SCC 122 has laid down four ingredients which should be tested for 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; 13 (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.” 19. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Hon’ble Supreme Court, it is evident that on the date of incident, a dispute arose between the appellant and the deceased over the issue of cooking food and out of anger, the appellant assaulted the deceased with stick, by which, deceased suffered grievous injuries over her body leading to her death. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injury found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased- Dashribai, on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, the appellant assaulted the deceased with stick, as a result of which, she suffered grievous injury over her body and died. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased, but no intention of causing her death can be attributed to him. 20. In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC 14 and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. The appellant is in jail since 07.03.2013 till now, taking into consideration the period he has already undergone, we award him the sentence for seven years rigorous imprisonment which he has already undergone and the fine sentence imposed by the learned trial Court shall remain intact. However, the conviction of appellant under Section 201 of IPC and sentence thereunder imposed by the trial Court directing to run sentences concurrently are hereby maintained being well-merited. 21. The appellant is reported to be in jail, though he was granted bail by this Court vide order dated 30.06.2021 but as he could not furnish bail bonds, as such, even after suspension of his sentence, he could not be released. Therefore, he is directed to be released forthwith, if not required to be detained in connection with any other offence.
Arguments
committed murder of his wife- Dashribai (hereinafter called as 'deceased) and in order to conceal the evidence, threw the dead body of deceased in a pit, from which a foul smell is emerging. Thereafter, the villagers called the appellant and questioned him. On being asked, the appellant disclosed that on 22.11.2010, when he returned home in the evening, the deceased was not present at the house. He then went to the house of PW-3 Vinod Kumar Gavde to inquire about her whereabouts and brought her back home. Upon asking her to prepare food, a dispute arose between them, and out of anger, the appellant assaulted her with a stick, as a result of which, she sustained grievous injuries and succumbed to them. On the following day, the appellant informed his father about the incident, and thereafter, both of them dug a pit in their house and concealed the dead body therein. Subsequently, the 3 panchayat members went to the spot and recovered the decomposed body of the deceased from the said pit. After that, written report (Ex.P-1) was lodged by the village people, pursuant to which, FIR (Ex.P-1A) was registered against the appellant. Merg intimation (Ex.P-2) was recorded against the appellant. The spot map vide Ex.P-10 was prepared. Inquest proceeding was conducted vide Ex.P-16 and dead body was sent for postmortem examination which was conducted by PW-6 Dr. Sakun Markam, who has proved the postmortem report Ex.P-11. According to postmortem report, cause of death of the deceased was cardio- respiratory arrest due to shock and excessive bleeding and death of deceased was homicidal in nature. Memorandum statement of appellant was recorded vide Ex.P-3, pursuant to which, one blood- like stained wooden stick was seized vide Ex.P-4. From the spot, plain and blood stained soil were seized vide Ex.P-5. Vide Ex.P-6 blood-like stained clothes of appellant were seized vide Ex.P-6. Seized articles were sent to FSL for chemical examination vide Ex.P-21, but no FSL report has been brought on record. 3. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence. 4. In order to bring home the offence, prosecution has examined as many as 07 witnesses and brought on record 25 documents. The 4 defence has examined none, but exhibited one document i.e. Ex.D-1. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Sections 302 & 201 of IPC and sentenced as above against which the present appeal has been preferred. 6. Learned counsel for the appellant submits that the learned trial Court has erred in convicting and sentencing the appellant for the aforesaid offences, as the prosecution has failed to prove the charge beyond reasonable doubt. He further submits that, at the most, the appellant’s act would fall under Section 304 Part II of the IPC, as there was no premeditation or intention on his part to commit the murder of the deceased. He also submits that though this Court had granted bail to the appellant vide order dated 30.06.2021, but he could not be released as he was unable to furnish local sureties in the requisite amount to the satisfaction of the trial Court. The appellant has already remained in custody from 06.12.2010 to 26.03.2012 and thereafter from 07.03.2013 till date. In these circumstances, it is prayed that the conviction of the appellant under Section 302 IPC may kindly be altered to Section 304 Part II IPC, and he may be sentenced to the period of imprisonment already undergone by him. 7. Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted 5 the appellant for offence punishable under Section 302 of IPC and it is not the case which is covered under Exception 4 to Section 300 of IPC, as such, the conviction of the appellant cannot be converted to Part-II of Section 304 of IPC, therefore, the instant 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 question for consideration would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-11) proved by Dr. Sakun Markam (PW-6), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the question would be, whether the appellant is the author of the crime in question ? 11. Considering the fact that the appellant has secretly buried his wife with the help of his father and has not revealed about disappearance of his wife to anyone and further considering that no report has been lodged to the police regarding her disappearance, as such, he is required to explain this fact under Section 106 of the Evidence Act which he failed to do. Further looking to the fact that after coming foul smell from the burying 6 place, the villagers have filed an application before the concerned Police vide exhibit-P1 in which extrajudicial confession has been made before the villagers that on the date of the incident, a dispute arose between him and the deceased over the issue of cooking food, and in that quarrel, he assaulted the deceased with stick, resulting in her death. The trial Court, after considering oral and documentary evidence available on record, clearly recorded a finding that it is the appellant who has committed the offence.
Decision
22. In the result, the criminal appeal is partly allowed. 23. Let a certified copy of this judgment along with the original record be transmitted immediately to the trial Court concerned and concerned Jail Superintendent for necessary information and action, so that the appellant be released promptly. Sd/- Sd/- (Rajani Dubey) Judge (Amitendra Kishore Prasad) Judge Vishakha