(g) A-r^. HIGH COURT OF CHHATTISGARH AT BILASPUI Versus JUDGMENT FOR CONSIDERATION Sd/- V.K.Shrivastava Judge r?' 7 Q-t/^!^' Sd/- L.C.BHADOO Judge POST FOR 16'f-(l l-2005 Sd/- \Q\ \}\2605 Honlile Shri Lal Chand Bhadoo, J. aad Hon'ble Shri Vljay Kuiaar SIurivastava, J. Dhaaa @ Dhanaulal Nagwanshi, S/o Bhaiyalal Nagwanshi, aged about 49 years, R/o Joshihnati, P.S. Gendatola, District Rajnaadgaon (C'garh) State ofChhattisgart, Tbrough : P.S. Gendatola, District Rajnandgaon Mr. G.S.AhIuwaUa, counsel for the appeUaut. Mr. G.K.Beriwal, Depuly Advocate Generalwith Mr. M.P.S.BIiatia, Panel Lawyer for fhe respondent/State. JUDGMENT (DeUyered oa 16'll ' 2005) Per VUay KuBna»SJirivastava, J, This appeal has been directed against fhe judgraeat of couviction aud order of sentence passed by Sessions Judge, Rajnaadgaon on 5-3-2001 ia Sessions Tnal No,203/2000, whereby fhe appeUant has been held guilty for coiiuaittiug fhe offence of y^" . 2 inurder of Prabhulal and causiag voluntarily simple hurt to Biadu Bai aiid Keshoram. punishable under Sections 302 and 324 of the Indian Penal Code aad sentenced to undei^o iniprisonment for Ufe aad rigorous imprisonxaent for 1 (one) year respectively. ;(t.{; ^ ^M 2. The inaterial facts for disposal of fhis appeat are that Biudu Bai, the daughter of the appeUaat feU ia love wifh Keshoram., the soa of the deceased wifh whoin she got herself married against fhe wiU aad consent of her father, the appeUant. Later on, as a result of coinpToiaise, Keshorani and Biudu Bai left the Village .Joshihnati, and started Uviag in DaUi Rajahara. On 25-10-2000, to celebrate DiwaU. Festival, Keshorain. and Bindu Bai came to their Village JoshUmatt. In fhe night, Bindu Bai was iu her house, her fafher, fhe appeUaxit came tbere and started fhreatening that he wffl not allow fheni to live iu fhe viUage. The appeUaat assaulted' Keshoraru and Bindu Bai wifh knife. As a result, both of fheni received iajuries. Wheu they were quarreUiug, deceased Prabhulal came aud raised a voice, who is beating his son aud daughter-in- law, and iastaafly, hearuig it, fhe appeUaat stabbed PrabhiUal on his stoinach. PKibhulal received grievous iajuries. Seeing fhat soine of fhe vfllagers coTning there, the appeUant left aU the injured on fhe spot and ran away. Prabhulal succuiubed to the injiuies, caused to hun by fhe appeUant after few hours ia his house. 3. On next inomiag i.e. 26-10-2000, Keshoram lodged a report in Police Station Gendatola. First Inforniation Report was registered and Station House Of&cer, Shailendia Singh Jadaun Hivestigated the inatter. He prepared Paachnama of the dead body; forwarded Uie saine for autopsy. Dr. Praveen Gqswami conducted 3 autopsy aad opined that fhe cause of death was shock because of excessive severe heniorrhage due to injuries in Uver aad stoniach. Biadu Bai aad Keshoram were also referred for inedical exaimnation. Dr. S.K.Ahuja examiued Biadu Bai and Keshorara. aiid found various uijuries on their bodies. Blood staiaed clothes of Keshoram, Biadu Bai and appellaut's were alsoseized during fhe iavest^ation. Stateuients of wituesses under Section 161 of the Code of Criminal Procedure were recorded. After coinpleting fhe investigation, fhe chaUaa was led ta fhe Court of Judicial Magistrate First Class, Rajnandgaon, who conunitted the case for trial to fhe Court of Session. 4. Charges under Sections 324 and 302 of the Indian Penal Code were fi-am.ed against the appeUaat and were read over aad explaiued to him, who abjured his guilt aad claimed to be tried. His defence was fhat he is innocent aad has been falsely impUcated in. fhe case. 5. Dr. Praveen Goswami, P.W.-12 has deposed in his condueted stateinent fhat he ffl^autopsy over the dead body of Prabhlilal. On examination, he foiuid the foUowuig injuries : - An iacised wound present on epigastric region of abdoinen obUquely present fi-oin left hypodendriuiu to fhe right. A piece of in.testuie has come out of fhe iacised wound. The colour of fhe uitestiiie is dark, bluish with gaseous distension. Ou opening the abdomen and ineasurfng depth of wound, it was upto fhe stoinach. The depth was inore on r^lit hypochondrium damaging fhe Uver. The size of the wound was 7 cnis. x 4 cxns. x 11 cins. deep ia left hypochondnum aud 12 cms. deep in right hypochondrium. The incised wound was extended upto peritoneum and rectus muscles. Intemal uijur$r in t "f ii^s^s^a®ete tSiittat's^R^^^ stoinach was 4 cins. x 2 cias. with blood clots aad liquid blood. , ' He has further deposed fhat the cause of deafh was due to shock because of excessive severe heinorrhage due to injuries in liver and stoinach. His report is Ex.P-16. The evidence, so far as it relates to fhe injuries and cause of deattt is concemed, has not been chaUenged ia cross-examiaation. 6. Dr. S.K.Ahuja, P.W.-9 has deposed that on 26-10-2000, he exainined Biadu Bai, fhe wife of KeshorEUn and found foUowiag iajuries on her body : - (i) Incised iujuries 2.5 cins. x 0.5 cias. over left ring finger. (ii) Incised injuiy 1 cm. x 0.5 ciu. over left ring and iniddle. finger. (iii) Abrasion 0.5 cin. x 0.5 cin. betxveen right fhuiub and iudex finger. (iv) Abrasion 0.5 cjn. x 0.5 cin. ia r^ht fore ann posterior middle part. He has furfher deposed fhat injuries No. 1 aad 2 were caused by hard and sharp object aad ofhers were caused by hard and blunt object. AU fhe injuries are siuiple in nature. His reportis Ex.P-ll, 7. He has farther deposed fhat, he also examined Keshoram, son of PrabhTilal aad found foUowing iujuries on his body: - (i) Incised injury 1.5 cins. x 0.5 cin. x 0.5 cni. in right haad iniddle finger. (ii) Linear abrasion l cin. x 0.25 cm. over right ."S.S>- 5 (iii) Abrasion 1 cin. x 1 cia. over right dorsan. ofpahn. (iv) Abrasion 1 cm. x 1 cm.. over r^ht dorsaa ofpalui. (v) Abrasion 1 cin. x 1.5 cins. over rightwrist. (vi) Abrasion 1.5 cm.s. x 1 cm. over leftwrist. (vii) Abrasion 1 cm. x 1 cm. over rigtit aakle. (viii) Abrasion 1 cin. x 1 cin. over right knee. Injuries No. 1 and 2 were caused by hard aad sharp object and other uijuries were caused by hard and blunt object. His report is Ex.P-12. 8. Froiu fhe evidence of Dr. Praveen Goswami, P.W.-12 and Dr. S.K.Ahuja, P.W.-9, it was proved that death of Prabhlllal was hoDiicidal and it was caused by inflictmg iujuries on his stoinach aad it was also proved that Bindu Bai and Keshoram. were uijured by uiflictuig uijuries by soiue hard and sharp object. 9. Keshoram, P.W.-l, Biudu Bai, P.W.-2 and Gaukaran, P.W.-4 are the eye-witnesses. Bindu Bai, P.W.2 is fhe daughter of the appeUaat aad Keshoram, P.W.-l is his son-in-law. Keshorain, P.W.-l aad Biadu Bai, P.W.-2 are fhe injured witnesses. Froin their evidence, it is clear fhat the appellaat caine to the house of Keshoram and asked Keshoraia aad Buidu Bai to go back froin the viUage aad assaulted both of fheia by krufe. Keshoraui, P.W.-l, Bindu Bai, P.W.-2 aad Gaukaran, P.W.-4 have deposed that fhe appetlant Dhaana Prasad stabbed Prabhulal. Prabhulal received injuries on his stoinach. The evidence has been supported by ofher witaesses Rn1ir»m, P.W.-3 aud Naminuram., P.W.-5. Baliram, P.W.- 3 has deposed that Gaukaran came to his house and apprised fhat his fafher Prabhulal has been stabbed with knife by Dhaniia. Therefore, he went to the house of Prabhulal aad saw the iajured Prabhulal, who had injuries over his stoiuach, wherefi-oin blood was f 1 ••r " 6 oozing. Prabhiilal reinained alive for about 2 hours and died fhereafter. Nanunuram., P.W.-5 lias also deposed fhat Gaiikaran, runiung towards the vfflage, was raisiag a voice fhat Dharuia Prasad has killed his father. He was also raisiag voice that Dhanna has stabbed Pfabhulal witli knife. He went to the spot attd saw the injured Prabhulal. Keshoram was there, who also apprised that Dhaana has stabbed his father. The evidence of eye-witnesses have also been corroborated by fhe P.I.R., Ex.P-1 duly proved by Keshoraui, P.W.-l and Shaileudra Siagh Jadaun, P.W.-13. The evidence of eye-witaesses is also supported by the inedical evidence ofDr. S.K.Ahuja, P.W.-9 aad Dr. Praveen Goswami, P.W.-12 as also the niedical reports Exs. P-11, P-12 aad P-16. After miaute examination of aU the stateiaeuts, we find nothiiig substautial to discredit fhe aforesaid versioa. 10. Froin the aforesaid evidence, the prosecution has successfuUy estabUshed that fhe appeUant caused iujuries to Keshoiani and Bindu Bai by kaife, a sharp edged weapon, aad also caused fhe death of Prabbulal by causiag grievous injiiri.es ou Ilis vital part i.e. stoniach by stabbing the krufe. 11. Leamed counsel for the appeUant veheinently contended that in case it is found fhat fhe appeUant is guUty of causing hoiaicidal death of Prabhulal, fhen his case is covered under Section 304'of the Indiaa Peual Code and not under Section 302 of fhe Indiaa Penal Code. He further contended that the appeUaat bad no iateatiou to kffl Prabhulal, but during the struggle, in the whisper of inoinent, fhe appeUant could not coatrol his anger aad as a result thereof he stqbbed ffae deceased, therefore, itistead (""i"T .i-^ 7 of holdiag the appeUant guilty under Section 302 of the Indiaa Penal Code, he shouJd have been held gmlty under Sectiou 304 of the Indian Penal Code and punished accordingly. 12. Murder has been defiaed under Sectiou 300 of fhe Indian Penal Code aad Biade punishable under Section 302 of the Indian Penat Code. Culpable lioniicide, not aniountiug to inurder, has been inade purushable under Section 304 of the Indiaa Penal Code. In bofh the provisions, it is necessary that fhe deafh shoirid be culpable hoinicide. For iniirder, if fhe offence pertains to fhose which have not been excepted under Section 300 of the Indian Penal Code, fhe same wiU be puiiishable under Section 302 of the Indian Penal Code, but ifthe case covers under aay ofthe Exceptions, ftien fhe ofFence will be puiiishable iinder Section 304 of the Indian Penal Code. The further contention of learaed counsel for the appetlant is that the appellant, wifhout preineditation, in a sudden fight, ia a whisper of inoment, stabbed Prabhlllal, therefore, his act is covered under Exception 4 to Section 300 of the Indian Penal Code. Exception 4 to Section 300 of fhe Indiaa Penal Code reads as below : - "Culpable honucide is not niurder if it is coiiunitted wifhout prenieditation iu a sudden fight, in the heat of a passion upon a sudden quarrel aad without the offenders liaviag taken undue advantage or acted in a cruel or unusual inauner. SxifloMatS.pn. - It is immaterial ia such cases which party offers fhe provocation or conunits the first assault." 8 13. Hon'ble the Apex Court, rendering the judgment in fhe case of Gtiapoo Yadav and others vs. State of M.P., reported in (20031 3 SCC 528 observed in para 10 that - Para 10 : "The fourfh exception of Section 300 IPC covers acts done ui a sudden fight. The said exception deals wifh a case of prosecution not covered by fhe first exception, after which its place would have been naore appropriate. The exception is fotuided upou the saiae principle, for in bofh fhere is absence of prenieditation, But, while in the case of Exception 1 there is total deprivation of self-control, ia case of Exception 4, fhere is only that heat of passion which clouds inen's, sober reason aad urges thein to deeds wbich fhey would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the uijuiy done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding fhat a blow inay have been struck, or soine provocation given in the or^in of fhe dispute or ia whatever way fhe quarrel may have origiaated, yef the subsequent conduct of both pardes puts fheia ia respect of guilt upon equal footiag. A "sudden fighf" uapUes inutual provocation aad blows ou each side. The boiiucide coiiunitted is then clearly not traceable to uiulateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, tbe exception ruore appropriately appUcable would be Exception l. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which bofh parties are niore or less to be blained. It niay be fhat one of fheia starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious tum it did. There is fhea niutual provocation aad aggravation, and it is difficult to apportion fhe share of blame which attaches to each fighter. The help of Exception 4 can be iavoked if death is caused : (a) wifhout preiueditation; (b) in a sudden fight; (c) vvifhout fhe offender's haviag taken undue advaatage or -acted ia a cruel or unusual inanner; and (d) fhe fight inust have been with the persen killed. To bring a case within Exception 4 a31 the ingredients inentioned in it must be found, It is to be noted that the "fight" occurring in Exceptioa 4 to Section 300 IPC is not defined ia the Indian Penal Code. It takes two to inake a fight. Heat of passion reqiures fhat there niust be no time for ftie passions to cool down and ia fhis case, fhe parties have worked them.selves_ into a fuiy on account offhe verbal altercation ia the beginning. A fight is a combat between two aad inore persons whether with or without weapoas. It is not possible to enunciate aay general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact aiid whefher a quarrel is sudden or not inust necessarily depend upon the proved facts of each case. For the appUcation of Exception 4, it is not sufficient to show fhat there was a sudden quarrel and there was no preineditation. It tnust further be shown ttiat fhe offender has not taken zuidue advaatage or acted ia a cruel or uausual uianner. The expression "undue advantstge" as used ia fhe provision ineans "luifair advaatage".' 14. Por bringiag an offence under Exception 4 to Section 300 of the Indian Penal Code, fottowing conditions are required to be proved :- (i) The act raust be without prenieditation, (ii) The injuiy inust have caused ia a sudden. quarrel wifh victun, and (ni) The offender has not taken undue advaatage or acted ia a cruel or uiiusual manner. 15. Here in the instant case, overwhelming evidence has been adduced to show that the appeUaat came on scene of occurrence with a platuiing and to cany out his plaii he was canyiug a deadly weapon knife. He cauie on the spot and insisted Keshorain aad Biadu Bai to leave the vfllage forthwith and started assaulting Keshoram-and Biadu Bai. No quarrel took place wifh fhe victJTn Prabhulal. Prabhlllal even did not uitervene the quarrel which was taking place between the appeUant and his daughter and son-in-law. Prabhulal caine to his house where fhe appetlant, his sou Keshorain aud daughter-in-law Bindu Bai were quarreltag. 1"] 10 Prabhulal had ouly enquired as to who is beating his son. aad daughter-ia-law, aad instantly, the appeUant stabbed on fhe stomach of Prabhulal. Therefore, in the iastaat case, it was cstablished fhat the appeUaQt came to fhe place of occurrence with a plaaniag and fhough no quarrel or fight took place betweea Prabhiilal aad fhe appeUaat nor Prabhulal interyeaed the quarrel but the appellaut stabbed on his stoinach with deadly weapon knlfe. Injuiy was inflicted with a great force. As a result of that, intestine caine out fhrough the wound. In fhis way, it was proved that the appeUant cam.e with preineditation aad without haviag any quarrel with F'rabhulal in aa unusual cruel inaiuuer stabbed Prabhulal, as a result of that, Prabhulal died. Therefore, the act of the appeUant does not conie within the Exception 4 to Section 300 of the Indian Penal Code. Therefore, fhe contention raised by the appeUaat to convert fhe finding of lower Court and to punish fhe appeUant under Section 304 ofthe Indiaii Penal Code has ao force. 16. Learued trial Court coasidered all fhe evideuce on record as weU as the circuiastances aad legal question raised by the appeflant regarding fhe appUcabitity of Section 304 of the Indiaa Penal Code ia this case aad after due appreciation r^htiy held fhe appeUaat giully for coiQiiuttmg the offence under Sections 324 aad 302 of the Indiaa Penal Code and accordiagly sentenced the appellant in confoniuty with the law. Therefore, we are of the considered opiaion fhat, findiag and sentence recorded by the trial Court does not catl for aay interference by this Court in its appeUate junsdiction. 11 17. In the result, the conviction and sentence passed by the trial Court is maintained aad the appeal is dismissed. Sd/- L.C.BHADOO Judge Sd/- V.K.Shrivastava Judge Singh sat&vu.. ^::-^-?'-"?"'''''-- i :'l!kij ;'t::3ip':1i