Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life.
2. Case of the prosecution, in short, is that on 28-3-2015 at 10.30 p.m., at Village Bade Jeerakhal, School Para, within the jurisdiction of Police Station Karpawand, District Bastar, the appellant assaulted his younger brother Kamlu Ram Bhatra by a sharp-edged weapon-spear by which he suffered grievous injuries and died on the next day in Maharani Hospital, Jagdalpur. Further case of the prosecution is that the appellant and the deceased both were brothers and they own a common badi (garden) in which there existed a tamarind tree. On 28-3-2015, at night, dispute took place between the two brothers i.e. the appellant herein and the deceased on the issue of tamarind tree, as the appellant has asked his brother (deceased) not to pluck tamarind from the tree and sell the same in the market, and the appellant assaulted his brother Kamlu Ram Bhatra by spear on his stomach & chest by which he suffered grievous injuries. The incident was witnessed by Smt. Padmani (PW-1)-daughter-in-law of the deceased and Smt. Mehatarin (PW-2)-wife of the deceased. Balchand Kashyap (PW-3) reported the matter to the police and Kamlu Ram Bhatra was admitted to the hospital. On the next day i.e. 29-3-2015 at 9.00 a.m., Kamlu Ram Bhatra succumbed to the injuries sustained by him in Maharani Hospital, Jagdalpur. On the report of Balchand Kashyap (PW-3), morgue intimation vide Exs.P-14 & P-15 were registered and dehati nalishi Ex.P-6 was also prepared. Inquest was conducted vide Ex.P-11 and on the recommendation of panchas, the dead body was sent for postmortem which was conducted by Dr. Kiran Patil (PW-12) vide postmortem report Ex.P-18 in which cause of death was stated to be shock and haemorrhage due to stab injury to the abdomen causing injuries to the vital organs and death was homicidal in nature. Thereafter, pursuant to the disclosure statement of the appellant Ex.P-5, spear was recovered from him vide Ex.P-1 and bloodstained lungi & gamcha were recovered from him vide Ex.P-3 and the same were sent for forensic examination to the Regional Forensic Science Laboratory, Jagdalpur from where the FSL report Ex.P-26 was received in which blood was found on lungi & gamcha, but no blood was found on the spear.
3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting the trial and hearing and disposal in accordance with law.
4. The accused/appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 26 documents. The defence has examined none and exhibited no document.
5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.
6. Mrs. Usha Chandrakar, learned counsel appearing for the appellant, would submit that there was sudden quarrel between the appellant & the deceased and it is the deceased who first assaulted the appellant and then the appellant appears to have given a blow to the deceased. She would further submit that even if the entire case of the prosecution is taken as it is, at best, the appellant would be convicted under Semitone 304 Part-I or Part-II of the IPC. The appellant is already in jail since more than eight years, therefore, it is a fit case where conviction of the appellant can be converted/ altered to an offence under Section 304 Part-I or Part-II of the IPC. Therefore, taking into consideration the period already undergone by the appellant, the appellant be released from jail forthwith by partly allowing the appeal.
7. Mr. Afroz Khan, learned Panel Lawyer appearing for the State/ respondent, would support the impugned judgment and oppose the appeal and submit that the appellant gave three blows of spear to the deceased and the incident has been witnessed by two eyewitnesses namely Smt. Padmani (PW-1) & Smt. Mehatarin (PW-2). He would further submit that the trial Court has rightly convicted the appellant and it is not the case which should be converted to Section 304 Part-I or Part-II of the IPC.
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
9. The first question whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report Ex.P-18 proved by Dr. Kiran Patil (PW-12) which 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.
10. The next question is whether the appellant is the author of the crime in question, which has also been answered by the trial Court in affirmative. Considering the statements of Smt. Padmani (PW-1)-daughter-in-law of the deceased and Smt. Mehatarin (PW-2)-wife of the deceased, we are of the considered opinion that the trial Court has rightly held that it is the appellant who has caused injuries to the deceased by sharp-edged weapon-spear, which has also been seized and sent for chemical analysis. We do not find any perversity in the said finding of the trial Court and we also affirm the finding that the appellant is the author of the crime.
11. The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part-II of the IPC, as contended by learned counsel for the appellant
12. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 [LQ/SC/2002/255 ;] has 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."
13. The Supreme Court further, in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 [LQ/SC/2009/1736] 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 from 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."
14. Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, [LQ/SC/2012/634] 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.
15. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 [LQ/SC/2017/234] has elaborately dealt with the issue and observed in paragraphs 20 and 21 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 [LQ/SC/1989/142] : 1989 SCC (Cri) 348] [LQ/SC/1989/142] , 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 [LQ/SC/2008/2051] : (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 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".
16. In 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 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.
17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) (2019) 6 SCC 122 [LQ/SC/2019/835] has laid down four ingredients which should be tested for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read 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.
xxx xxx xxx"
18. Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellant has no premeditation to cause the death of his brother Kamlu Ram Bhatra, but on account of plucking of tamarind from the tamarind tree, which was standing in the common garden owned by the appellant & the deceased, quarrel took place between them and on that count, the appellant, on the spur of moment, assaulted his brother Kamlu Ram Bhatra (deceased). The appellant must have had the knowledge that the injuries inflicted by him on the body of the deceased would likely to cause his death and further considering the dispute between the appellant and the deceased, in our considered opinion, this case would fall within the purview of Exception 4 to Section 300 of the IPC.
19. In view of the aforesaid discussion, conviction of the appellant under Section 302 of the 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 but the injury caused by him was sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of the IPC. Since the appellant is in jail from 31-3-2015 i.e. more than 8 years, taking into consideration the period he had already undergone, we award him the sentence already undergone by him. Accordingly, the appellant be released from jail forthwith, if his detention is not required in any other offence.
20. The criminal appeal is party allowed to the extent indicated herein-above.
21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.
