<716 -A^-j^ ? W9 Hon'ble Stui V.K. Steivastava, J. Sd/- V.K.Shrivastava Judge i^f ^/- L/V^TIL' -S/12/2005 Sd/- L.C.BHADOO Judge Postforffi /12/2005 Sd/- OUDGE i ^'712/2005 /^- HIGH COURT OF CHHATTISGARH : BILASPUR (Divislon Beach) .-..-•.^ -'-;:5^< Hoa'ble Shri L.C. Bhadoo, J & Hon'ble Shri V.K. Sltriwistava, J. CRIMINAL APPEAL No. 1366/2000 Respoadent Vs Lala Pandey. S/o. Sarvaa Padey, (Kuiahar), age 42 years, R/o. Kumhari, P.S. Bila^arh, Dist. Raipur, CG. State of Chliattisgarh PRESENT "'•'^•h. ~"""f Mr. Abhay Tiwan, Counsel for flie appeBant. Mr. Ashish Shukla, Additional Pubhc Prosecutor for the respondent/ State. JUDGMBNT (DeUvered onlio /12/2005) Per ViiaT Kumar Shrivastava, J. This appeal is directed agaiast the judguient of conviction and order ofsentence passed on 28/02/2000 by fhe Ist Additioual Sessions Judge, Baloda Bazar, in Sessions Trial No. 145/99 whereby fhe learued Ist Additional Sessions Judge after holdiag the accused/appeUant guilty of fhe offence punishable under Section 302 ofthe I.P.C., convicted and sentenced him. to undergo unprisonnient for life and to pay fiiie of Rs. 1,000/ - and in default of payment of fine to further undergo rigorous impriso^iHiest for 6 (six) niontlis. •" 5<y 2) Facts material for disposal of fhis appeal, in brief, are that on 23/01/1999 at about 6.15 p.m. in the eveiung the deceased Chotu was sittiag idle near the hotel belonging to Jansingh. AppeUaiit caine there and started abusing deceased Chotu and oa his protest assaulted him wifh kaife over his neck aad on frontal area of head. Stab wound caused on the neck was penetrating into respiratoiy passage. The wouad was bleeding. Chotu fell down and fhereafter appeUant left the kaife on tlie spot aad Qed away. Siidarshan who was in the Pan (Betel) shop, saw fhe incident, caUed Kartik Ram who was sittiag near the oven driiiking tea. Kartik Raiii rushed to the spot and tried to stop the Qow of blood froin the wound and sent uitimation to parents of Chotu and Kotwar. After arrival of fafher and iincle of Chotu, he took thein to Police Station Bilaigarh and lodged report. PoUce registered a case and sent fhe victim - Chotu for inedical exi 3) Chotu was brought to Priniary Health Centre for inedical examiaation where his dying declaration was recorded by tbe Executive Magistrate ia the night at 9.50 p.in. Deceased Chotu steted in liis dyiag declaration fhat Lala Pandey assaulted him by knife. 4) Doctor Narayaa Siagh examined Chotu. On exainiaation he found the injuiy on the neck to be a grievous one, fherefore, referred fhe injured for treatment to Medical CoUege, Raipur. Chotu was taken to Medical College, Raipur for treattnent, w •s? sesA. however, Chotu who was adniitted in Medical CoUege, Raipur for treatiuent died ui fhe niid-night. A report was sent by Medical College, Raipui~, to Police Station, Modhapara, Raipur where incrg intimatiou was recorded. 5) During investigation blood stamed gamchha, one pair of slippers, knife lying on the floor of hotel, control eartb and blood stained earfh were collected and seized. Map was prepared. AppeUaat's shirt wom by faim was also seized after reinoviag the same froia his body. Statenients ofwitaesses WCIE recorded under Section 161 of the Cr.P.C. Assistaat Sub-Inspector of PoUce Y.N. Dubey prepared the Panchnama ofdead body of Chohi and sent the same for autopsy. Doctor Arviad Nerelwar conducted fhe post inortein on the toody of Chotu, described aU the uijuries foiuid on the body ia his report aad was of tlie opniion that the cause of deafh was asphy?da due to iujuiy over the neck and the death was houiicidal ia nature. Clothes recovered froia the dead body were coUected. These clofhes along with other articles seized were sent to F.S.L,, Raipur fcr exainination. Cheiaical examiaer after examining the articles reported that except control earth, aU fhe articles were stained with blood. 6) After coinpletion of ioyestigation charge-sheet was filed in the Court of Judicial Magistrate First Class, Baloda Bazar, who conunitted fhe case to fhe Court of Session for trial. Charge iiader Section 302 of the I.P.C was fi-amed agauist the accused/appeUaat, the same was read over and explained to him whoabjured his guiit and pleaded uuiocence. !'..^!,-;^A;:5S:y 7) Leamed trial Court after due appreciation of the evidence held that Chotu died as a result of uijury caused to him and his deatfa was hoinicidal ia nature. Alfhough leamed trial Court did not believe the dying declaration recorded by Executive Magistratc - Shri Awadh Singh Raaa (PW/15) yet relyiag on eye- witnesses duly supported by other evidence held that fhe appeflaat uitentionally kiUed Chotu and accordingly convicted and sentenced him for coninutting offcnce piuushable under Section 302oftheI.P.C. 8) Doctor Narayan Singh (PW/ 14) soon-aflier fhe incideut examiaed Chotu. His report is Ex.P/ 17. He deposed fhat ou examination he found one incised wound over frontal area on lefit side and second incised wound on neck. He referred the patient for examination and treatineat to Medical CoUege, Raipiir. On 24/1/1999 Doctor Arvind Neralwar (PW/11) conducted post Hiortein examiuation on the body of Chotu. He deposed that on examination he found the foUowing ante inortein injuries: 1) Stab wound in the size of 3.5 cm over frontal neck al the level of thyroid cartilage 1 cm. left to mid line, penetrating into respiratory passage. 2) Stabwound 3.5 anoverfrontal area on lefi side. 9) He further deposed that on intemal examinatioa he found that blood was present ia respiratory track and tracheal rings were fractured. Blood clots present beneath lefit fiiontal area. In his opiaion, the cause of death was asphyxia due to injury over the neck. The iajuries were caused by sharp weapon and were sufficient to cause death ia ordinaiy course ofnatiu-e. 10) The evidence of Dr. Narayan Singh (PW/14) and Doctor Arvind Neralwar (PW/ 1 1) has uot been challenged so far it relates to injilries, its nature aiid cause ofdeath. Therefoi^ relying on fhe evidence ofboth these witnesses and their reports Ex.P/ 17 and Ex.P/16, it has been proved fhat the deceased Chotu died as a result of stab iujuries caused to him on his neck and head by sharp weapon aiid the death was hoinicidal in nature. 11) Fafhal, PW/1 and Kartik Ram (PW/2), have partially supported the prosecution story. Witaess - Kartik Rain (PW/2) has been declared hostile by the proseciition. Both fhe witaesses have deposed that fhey were sitting in hotel, they heard the alann raised by Sudershan that Lala Paadey assaulted Chotu. They rushed to fhe spot aud found blood flowing froin the neck of Cbotu. Alfhough they did not say that fhey witnessed infttcting injuries to Chotu by the appeUaat, yet did not favour appellant by anyfhiag deposiag beneficial to him. 12) Sudharshan (PW/3) an eye-witness to the iacident was sitting along wifh Dev Naiayan in his Pan (Betel) shop wliich was adjacent to fhe hotel. He deposed fhat Chotu aad appellaat werc standiag. Chotu raised alann that Lala Pandey kflled him. He rushed to the spot, saw the uicident and also saw appellaat fleeing away from there. Chota feU down. He had received uyuries on his neck and head. Dev r7 Narayaa (PW/6J deposed that SP^ i^-'RS»•;"•-••» Chotu aud Lala Paadey who were preseut in fhe shop, were quarrelliug, at that tinie appeUant assaulted Chotu by knife on his neck and head. -Jhau Siiigh (PW/4) who fe the owner offhe hotel and fafher of witness Siidarehan, has deposed fhat arouad 6.00 - 6.15 PEU ia fhe eveniag he was in his hotel, heard alarai of his son - Sudarshan. who raised noise to fhe effect tfaat Lala Pandey killed Chotu. Hearing flie noise he canie out of ttie hotel aad saw Chotu lying on the giound and blood was flowing from. his neck. Rainrekha (PW/5) who is fhe son of Kartik Ram also deposed that his fafher raised alarm that Lala Pandey has assaulted Chotu, He reached fhe spot aad found Chotu lying on the ground in a pool ofblood. CIiatrani (PW/7) who is the fatlier of deceased Chotu has deposed that wheu he reached, at that time, his son was conscious and his son appraised him that Lala Ftoidey ofKuinliari assaulted 1iim wifh knife. 13) Vide Ex.P/6, oae shirt wora by the appeBant - Lala Paudey was seized after reiaoving the sanie froia his body which has been proved by witness FW/4 Jhaii Singh and PW/ 10 SHO S.L. Chouhan. PW/10- SHO S.L. Chouliaii has also proved fhe covenng letter (Ex.P/12) vide which seized ai-ticles were sent to P.S.L. Raipur for examuiation. Report received froin F.S.L. Raipur is Ex.P/ 15 which proves fhat the shirt seized fi-oic the appeUant has contained blood stains. AppeUaat did not give aay explaaation to it as to how his shirt conteiaed blood staias. This circum.stance also supports fhe oral evidence. K!' l^:w4fS"'SS^S 14) Leamed Court below iniautely appreciatcd the evideuce on record and also considered various points raised by fhe counsel for fhe appeUaat aad after due and Dieticulous evaluation held that the appetlant was the person who inflicted injuries on the body of Chotu. We have gone through fhe stateinents of witaesses Sudarshan (PW/3), Dev Narayan (PW/6) who witnessed fhe incident and also gone fhrough fhe stateinent of Chhatram. (PW/7) who has proved oral dying declaration given by his son. We have also gone through the stateraents of Jansingh (PW/4) and Rainrekha (PW/5). We fmd uofhing siibstaatial in their cross examination so as to disbelieve ftieir testimony. We are of the opuiion tibiat the evidence of Sudarshau (PW/3), Dev Narayan (PW/6) duty corroborated with the evidence of Fadal (PW/1), Kartik Ram (PW/2), Jaasingh (PW/4), Ramrekha (PW/5), Chhatram (PW/7) aad other circuinstances reUable which clearly proves fhat fhe appellaat was the author of injuri.es found on fhe neck and head ofthe deceased Chotu. 15) Leamed counsel for the appeUant contended that the appeUant while sudden quarrel in. a spur of inonient \vithout premeditation caused injuries to Chotu, therefore, his case is covered under Exception 4 to Section 300 ofthe I.P.C., fherefore, the conviction recorded under Section 302 of the I.P.C., is erroneous iastead he should have been convicted under Section 304 Part I or Part II offhe I.P.C. Leamed counsel for fhe appeUant ia support of his contentions, has placed reUauce on fhe judginent rendered by the Hon'ble Apex Court in fhe inatter of aKas Kula^edwely^Va. State of reported un 2003 CRI. L.J. 418. On facts fhe judgment reUed on by fhe appeUant is disttnguishable witii the present case. 16). HonTile the Apex Court, readering fhe judgment iu the case of Ghcpoo fiaiS.sw and others vs. Steite ofSf.P., reported in (2003} 3 SCC 528, observed m para 10 ttiat 10 : "The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals wifh a case of prosecution not covered by the first exception, after whicb. its place would have been inore appropriate. The exception is fouiided upou fhe same principle, for in both fhere is absence of prcmeditation. But, whfle in fhe case of Exception 1 there is total deprivation of self-control, iii case of Exceptioa 4, there is oiily that heat of passion which clouda nien s sober reasoni aad urges thein to deeds whi.ch they would not ofherwise do. TIiere is provocation in Exception 4 as ia Exception 1; but the uijury doiie is not fhe direct consequence of that provocation. In fact Exception 4 deals with cases in which aotwifh.stendtug fhat a blow ruay have been struck, or soine provocation given in the origia of the dispute or ui wliatever way the quarrel inay have originated, yet fhe subsequent conduct of bofh parties puts ftieiu in respect of guflt upon equal footing. A "sudden fight" iinplics niutual provocation aiid blows ou each side. The homicide cominitted is fhen clearly not traceable to unflateral provocation, nor could in such cases fhe whole bteme be placed on one side. For if it were so, tiie exception inore appropriately applicable v/ould be Exception 1. There is ao prcvious deliberation or deteniunation to faght. A fight suddenly takes place, for which bofh parties are inore or less to be blained. It inay be that one of fhein starts it, but if the other had not aggravated it by his own conduct it would not have taken fhe serioiis tura it did, There is fhen niutual provocation and aggravation, and it is difficult to apportion the share of blacae which attaches to each fighter. The help of Exception 4 can be iavoked ifdeafh is caused ; (aj without prenieditation; (b) in. a sudden fight; (c) without the offender's Iiaviiig taken undue advautage or acted iri a cruel or unusual maniier; aad (d) fhe figbt must "Bf have been with ftie person IdUed. To bring a case withia Exception 4 all the iagredieuts inentioued in it inust be found. It is to be noted fhat fhe "fight" occurruig ia Exception 4 to Section 300 IPC is aot defined in the Indian Penal Code. It takes two to inake a fight. Heat of passion requires that fb.ere m.ust be no tixae for the passions to cool down aad in this case, the parties have worked fheiaselves into a fuiy on account of the verbal altercation ia fhe beginning. A fight is a conibat between two and inore persons whetfaer with or without weapons. It is not possible to enunciate any general rule as to wliat shall be deeined to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not inust necessarily depend upoa tfae proved facts of each case. Por the appMcation ofException 4, it is not silfEcient to show that there was a sudden quarrel and fhere was no preiaeditation. It inust furiher be shown that fhe offender has not taken undue advantage or acted in a cruel or iniusual inanner. The expression "undue advantage" as used in fhe provision meaas "unfau- advantage"." ?!®N', 17) For briiiging the case within four coraers of Exception 4 to Section 300 of the I.P.C, Hon'ble Apex Court has very speci&catly led four conditions ia the case of Ghapoo Yadtw (supra). In the iustaat case, it is established that the appellant was carrying the kaife. Alfhough Dev NEirayan (PW/6) ui his statenient has slated that the appeUant aud Chotu were quarreling, but no one unveiled ftie natuic of the quarrel aad reason behind it. AppeUaat did not cause a single blow, but by the sharp weapon caused injiuy over the neck i.e., a vital part and again caused injitiy over frontal area of head which is also a vital part by knife. The injuries caused by the appeUant were proved by inedical evidence to be sufficient to cause death in ordinaiy course of natuie. AU the conditions required for a case to faU under Exception 4 to Section 300 of fhe^ I.P.C., are not available herem. in the instant case. 10 18) Culpable homicide is defined in Section 299 of fhe I.P.C. Section 300 of the I.P.C. defines ciilpable hoinicide amounting to inurder and also defines culpable hoinicide not ataounting to inurder. Froia the evidence discussed above aad niedical evidence available on record, appellant's act clearly faUs under Clause (3) of Section 300 of the I.P.C., and does not coine wifhiu fhe edifice of Exception 4 to Section 300 of tiie I.P.C. Therefore, fhe contentions raised by counsel for the appeUaat have no force aad caunot be accepted. We are of the considered opinion that the leanaed ta-ial Court has rightiy held ftie appeUaat guflty of inurder punishable under Sectioa 302 of the I.P.C and has rightly sentenced hiia. 19) In the result, the appeal fails and is dismissed. The convfction and sentence passed by fhe trial Court are laauitained. Consequentty, M.Cr.P.No.3263/2004 aud I.A.No.4506/2004 sland disposed of. Sd/- V.K.Shrivastava Judge Raju