Sanjay K. Agrawal, J
1. This criminal appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 26.12.2017, passed by the Court of learned Additional Judge to the Court of learned Additional Sessions Judge, Kunkuri, District Jashpur (C.G.), whereby the appellant/accused has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and, in default of fine, additional rigorous imprisonment of 06 months.
2. The case of the prosecution, in brief, is that in the intervening night of 31.01.2017 and 01.02.2017, between 08:00 PM to 10:00 AM at Village Buldega in the house of Laxman Chouhan (PW-01) within the ambit of Police Chowki- Kotba, Police Station-Bagbahar, District Jashpur (Chhattisgarh), the appellant-accused assaulted his wife, namely, Rajkumari Chouhan (deceased) by means of hand, fist (punch) and a wooden stick, due to which she suffered injuries and died and, thereby, committed the offence under Section 302 of IPC.
3. The further case of the prosecution, in nutshell, is that the firstinformant, namely, Laxman Chouhan (PW-01), who is father of the deceased- Rajkumari Chouhan has lodged the marg. intimation report at Police Chowki Kotba by stating that: 15-20 years ago he solemnized marriage of her daughter- Rajkumari (deceased) with Gulab Chouhan (appellant-accused) according to Hindu rites and tradition and deceasedRajkumari has four children; on 31.01.2017, the appellant-accused after consuming liquor came to his house and ensued a dispute with the deceased and, in furtherance thereof, assaulted her by means of hand, fist (punch) and a wooden stick and also dragged her, due to which she suffered injuries over her face, back, knees etc. and, thereafter, on 01.02.2017, in the morning, ambulance was called for her treatment, but upon her examination she was declared died. Thereafter, Investigating Officer, namely, Sanjay Goswami (PW-04) on the report so lodged by Laxman Chouhan (PW-01) registered FIR (Ex.P/03) against the appellant-accused for offence under Section 302 IPC and information was sent to the Judicial Magistrate First Class, Pathalgaon vide Ex.P/04. Thereafter, from the place of occurrence, seizure of blood stained soil, normal soil, a blood stained stone and blood of deceasedRajkumar was affected/recovered vide Ex.P/05. Inquest proceeding was conducted vide Ex.P/07 and spot map was prepared vide Ex.P/02. Further, the dead-body of deceased- Rajkumari was sent for postmortem examination and in the postmortem examination report (Ex.P/09A), Dr. Shakuntala Nikunj (PW-09) opined that the cause of death seems to be head injury due to fracture of left occipito parietal bone and nature of death is homicidal. Thereafter, appellant-accused was arrested vide Ex.P/12 and his memorandum statement was recorded vide Ex.P/10 and, pursuant to which, seizure of wooden stick was affected from the house of the appellantaccused vide Ex.P/11. Further, the seized items i.e., blood stained soil, normal soil, a blood stained stone and blood of deceased- Rajkumar seized from the place of occurrence/spot vide Ex.P/05 was sent for FSL examination vide Ex.P/16 and in the FSL report (Ex.P/17) it was opined that no blood was found on the stone recovered from the spot. However, the wooden stick which is said to have been recovered pursuant to the memorandum statement of the appellant-accused (Ex.P/10) was not subjected to FSL examination for the reasons best known to the prosecution. Thereafter, statement of witnesses were recorded and after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Pathalgaon, District Jashpur (CG) and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence.
4. The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 20 documents and, on the other hand, the appellantaccused in support of his defence examined only 01 witness and has not exhibited any document.
5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convicted the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence.
6. Ms. Sofia Khan, learned counsel for the appellant submits that though the death of deceased- Rajkumari is said to be homicidal in nature, but there was no motive or intention on the part of the appellant and only on account of refusal by the deceased-Rajkumari to accompany her husband (appellantaccused) to her matrimonial house, the appellant-accused is said to have assaulted her wife-deceased in a sudden fight and quarrel and thereby committed the offence, therefore it is an act of culpable homicide not amounting to murder and, as such, it is a fit case where the conviction of the appellant can be converted to an offence under Section 304 (Part-II) of IPC, as it falls within the purview of Exception 4 to Section 300 of IPC, hence, the present appeal deserves to be partly allowed.
7. Per-contra, Mr. Sudeep Verma, 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. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC and it is not a 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 oral and documentary evidence available on record and particularly considering the Injuries No.06 & 07 and the head injury caused due to fracture of left occipito parietal bone, as opined in the postmortem report (Ex.P/09A). Accordingly, taking into consideration the nature of injuries which deceased has suffered and the postmortem report (Ex.P/09A), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceasedRajkumari is homicidal in nature, as the same is correct finding of fact based on evidence. Accordingly, we hereby affirmed the said finding.
10. Now the next question would be whether the accused-appellant herein is the author of the crime in question .
11. In the instant case, the incident took place in the intervening night of 31.01.2017 and 01.02.2017, between 08:00 PM to 10:00 AM in the house of Laxman Chouhan (PW-01), who is father of the deceased- Rajkumari. On the date of offence, deceased-Rajkumari was staying with her parents as the appellant used to assault her on same pretext and the appellant is said to have gone in the house of Laxman Chouhan to take his wife-Rajkumari and accompany him to her matrimonial house, but in a drunken state and it is evidence brought on record that deceased-Rajkumari refused to accompany her husband (appellant-accused) to her matrimonial house and on that account and under the influence of liquor the appellant-accused is said to have assaulted deceased-Rajkumari by means of hand, fist (punch) and wooden stick, due to which she suffered injuries and, thereafter, on the next day i.e., on 01.02.2017 ambulance was called for her treatment, but before she could be taken for treatment, she was examined and declared dead. Thereafter, the matter was reported to the police by the father of the deceased, namely, Laxman Chouhan (PW-01) and investigation was carried out, in which memorandum statement of appellant-accused (Ex.P-10) was recorded and pursuant to which a wooden stick is said to have been recovered vide seizure memo (Ex.P-11), but it was not sent for FSL examination for the reasons best known to the prosecution or preferably on the ground that blood was not found on the said wooden stick. But still, fact remains that it is the appellant-accused who under the influence of liquor has assaulted his wife- Rajkumari (deceased) in a sudden quarrel and fight took between them, due to which she suffered grievous injury on his head and died. Accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.
12. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, as contended by learned counsel for the appellant
13. It is apparent from the FIR (Ex.P/03) and marg. inquiry that at the time when incident took place i.e. 31.01.2017 to 01.02.20217, deceasedRajkumari was staying with her parents and on 31.01.2017 in the night the appellant-accused came there under the influence of liquor and when he asked his wife to accompany him to her matrimonial house she refused and, on account of which, a dispute ensued between them and they both started quarreling with each other and suddenly thereafter the appellant-accused assaulted his wife (deceased) by means of hand, fist (punch) and a wooden stick, due to which she suffered grievous injuries and as it was night hours she could not be taken to the hospital for treatment, but immediately on the next day i.e. 01.02.2017 in the morning ambulance was called, but before she could be taken for treatment, she was examined and declared dead.
14. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 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.”
15. The 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 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 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. 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.”
16. Likewise, in the matter of State v. Sanjeev Nanda3 , 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.
17. Further, the 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 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 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”.
18. 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.
19. Reverting to the facts of the present case in the light of principles of law laid down by their Lordships of Supreme Court, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased, but only on account of refusal by the deceased to accompany the appellant-accused to her matrimonial house the appellant-accused suddenly started quarreling with her and a dispute ensued between them and, in furtherance thereof, the appellant-accused assaulted her by means of hand, fist (punch) and a wooden stick under the influence of liquor, due to which deceased suffered grievous injuries specially on her head due to fracture of left occipito parietal bone and, as such, there was no premeditation on the part of the appellant to cause death of the deceased and only because of a petty dispute, out of sudden anger, in heat of passion and under the influence of liquor, he assaulted the deceased and caused her death. However, looking to injuries No.6 and 7 as recorded by Dr. Shakuntala Nikunj (PW-09), which have been caused on the head of the deceased, the appellant must have had the 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 under Exception 4 of Section 300 of IPC and the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.
20. In view of the aforesaid discussion, conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, following the decision rendered by the Supreme Court in the matter of Willie (William) Slaney v. State of Madhya Pradesh5 as well as in Joseph v. State of Kerala6 , the appellant is convicted for offence punishable under Section 304 Part II of IPC and sentenced to undergo 07 years rigorous imprisonment and fine sentence imposed by trial Court shall remain intact.
21. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.
