D.B.: Hon’bte Shn‘ J on’ble hri Justice ustice Sum'l Radhe Kumar Shy ' Crimmal Aggeal No.1268 of 1996 Agram Satnami VSI’SUS State of Madhya Pradesh (now State of Chhattisgarh) _ sdl- ' 11.34 SHARMA £aa‘ge % Sdl- um. KUMAR Sm s ‘ Juge ‘ /62v8:261 1 E d HIGH COURT OF CHHATTISGARH AT BILASPUR @ D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Shvam Sharma ‘ Criminal Appeal No.1 268 of 1996 Appellant Agram Satnami, son of Nanduram Satnami, aged about 40 years, resident of Borid, P.S. Rajim, District Raipur (Chhattisgarh) versus (x3 Respondent State of Madhya Pradesh (now State of Chhattisgarh) Present: Smt. Kiran Jain, counsel for the appellant. Shri U.K.S. Chandel, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on ifi" August,2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 26-4-1996 passed by 4‘“ Additional Session Judge, Raipur in Session Trial No.13/1995. By the impugned judgment, appellant Agram Satnami has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: Deceased Dhanaiyabai was mother of Hathiyarinbai (PW-14). Hathiyarinbai (PW-14) is mother of Devantinbai (PW—4). Devantinbai (PW—4) is wife of the appellant. The appellant is son-in—law of Hathiyarinbai (PW«14). They were residing together in the'house of deceased Dhanaiyabai. On T8-10-1994, at about '3 P.M., some 2 altercation took place between Hathiyarinbai (PW-14) and the appellant. The appellant abused Hathiyarinbai (PW-14). The deceased came out of the house at the door' and asked the appellant to stop abusing. Thereafter, the appellant snatched the Lathi from the deceased, which was being used by the deceased for her walk and movement, and assaulted her with the Lathi. The deceased fell down. Hathiyarinbai (PW-14) lifted the deceased up. The deceased told the appellant that he was being maintained by her and even thereafter he was assaulting her. The appellant getting annoyed went inside the house and took out an Axe. He assaulted the deceased with the Axe on her head, neck and shoulder. Devantinbai (PW—4) snatched the Axe from the appellant and gave it to Dauva Ram (PW-5). Baliram (PW-13) was also . present there, but he fled due to fear. Devantinbai (PW-4) and Hathiyarinbai (PW-14) narrated the incident to Kotwar, Patel, Ex- Sarpanch lnderman, Nathuram (PW-1) and present Sarpanch of the Village. Devantinbai (PW-4) lodged First Information Report (Ex.P- 6) in Police Chowki Fingeshwar. Thereafter, regular First Information Report (Ex.P-12) was registered in Police Station Rajim. The Investigation Ofncer reached the place of occurrence, gave notice (Ex.P-1) to Panchas and prepared inquest (EXP—2) on dead body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre Fingeshwar. The post mortem examination was conducted by Dr. P. Kudeshiya (PW-11), who gave his report Ex.P-15, in which he found (i) one incised would of 15cmsx4cmsx6cms over left jaw extending from posterior mandibular region to .chin, (ii)'one incised wound» of \ s . 7cmsx2cmsx14cms placed obliquely in the left occipital region, (iii) one incised would of 5cmsx2cmsx1 cm behind the. pinna of left ear, (iv) one incised wound of 1cmx3cmsx13cms transversely placed over left scapular region, (v) one incised wound over tip ofleft shoulder admeasuring 6cmsx2cms, (vi) one incised wound of 3cmsx2cms in middle over the middle aspect of left fore arrn 7cms above left wrist'joint and palm, it was stained with blood. The doctor also founda compound fracture in left parieto—occipital region. The injuries were ante mortem. The doctor opined that the death was due to excessive haemorrhage and syncope. In further investigation, site-plan (EXP-7) was prepared by Patwari Shriram (PW-6). The Axe was seized vide Ex.P-3. The Axe was sent for examination to Dr. P. Kudeshiya (PW—11). After examination of the AXe, the doctor gave report Ex.P-1 1A. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Gariyaband; who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 4th Additional Session Judge, Raipur, who conducted the trial ’and convicted and sentenced the appellant as mentioned above. 3. Smt. Kiran Jain, learned counsel for the appellant argued that the evidence of the eye-witnesses Baliram (PW-13) and Hathiyarinbai (PW—14) are not reliable. Presence of Baliram (PW— .13) on the place of occurrence has not been established, and Hathiyarinbai (PW-14) is an interested witness. There are many contradictions in the evidence of prosecution witnesses. Their @ evidence are not reliable and cannot be based for conviction of the appellant. She alternatively argued that the appeliant was provoked by the deceased. There was severe exchange of abUSe between the appeilant and the deceased. The appellant would not‘be punishable under Section 302 of the Indian Penal Code and even after admitting the entire case, he would be liable for punishment under Section 304 of the Indian Penal Code. 4 4. On-the other hand, Shri U.K.S.Chandel, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge does not warrant any interference by this Court. 5.‘ We have heard learned counsel for the parties at length and have perused the impugned judgment as also record of the session case. The conviction of the accused/appellant under Section 302 of the Indian Penal Code is based on the testimonies of Baliram (PW— 13) and Hathiyarinbai (PW—14), who are eye-witnesses of the occurrence and whose evidence are corroborated by medical evidence. 6. It is not disputed that Hathiyarinbai (PW-14) is daughter of th deceased and she is maternal aunt of Baliram (PW-13). x Hathiyarinbai (PW-14) is mother of Devantinbai (PW-4) and mother— in-law of the appellant. Baliram (PW-13) is maternal brother of Devantinbai (PW-4). Relationship is not a factor to affect the credibility of witness and even the relative witness would not conceal e %]3 . 5 the actual culprit and make allegation against innocent person. Foundation has to be Iaid if plea of false implication is made. Therefore, we have to adopt a careful approach and anaiyze the evidence to find out whether it is cogent and credibie. In case‘in hand, both the eye-witnesses Baliram (PW-13) and Hathiyarinbai (PW-14) have equal relationship with the deceased and the appellant. We find that their evidence are credible, cogent, ,t trustworthy and duly corroborated by the medical evidence. Therefore; the testimonies, of Baliram (PW-13) and Hathiyarinbai (PW-14) cannot be discarded on the ground of their relationship with the deceased. 7. Hathiyarinbai (PW—14) has specifically stated that Baliram (PW-13) was present at the time of occurrence. The First Information Report (EXP-6) was lodged by Devantinbai (PW-4). She turned hostile and did not support the case of the prosecution. But, she admitted that she had lodged the First Information Report (EXP-6) and also admitted that she had narrated the incident to Village Patel, one SOnu and Nathuram (PW-1). Nathuram (PW-1) also turned hostile, but he deposed that on the next day of Dushehra festival, Devantinbai. (PW—4) told him that her husband (the appellant) had killed her mother’s mother (the deceased). He went to the house of Devantinbai (PW-4) and saw that deceased Dhanaiyabai was lying dead in the house. 8. Punit Ram (PW-12), who was Village Kotwar, deposed that on the next day of Dushehra festival, Devantinbai (PW-4) and \ 6 Hathiyarinbai (PW-14) came to him and told him that the appellant had assaulted deceased Dhanaiyabai with an Axe. He went to the house of deceased Dhanaiyabai and saw that deceased Dhanaiyabai was Iying dead in the house. Hathiyarinbai (PW-14) deposed that she had gone to the house of the Village Kotwar and narrated him the incident. Thereafter, the Village Kotwar came to her house. 9. . Baiiram (PW-13) deposed that on the fateful day, after taking lunch, he had gone to the house of Magauli, which was situated adjacent to the house of his aunt Hathiyarinbai (PW-14). Hearing the voice of>Hathiyarinbai (PW-14) and Devantinbai (PW-4) that the appellant killed the deceased, he went to the place of occurrence. He saw that the appellant gave three Axe blows to Dhanaiyabai (the deceased). He snatched the Axe from the appellant with the help of Dauva Ram (PW-5). The deceased was wriggling smeared with blood. 10. Hathiyarinbai (PW-14) deposed that on the fateful day the appellant came from the house of his daughter Chamelibai abusing ‘ his son-in-Iaw (Damad). Her mother (the deceased) asked the appellant that meals should be taken first thereafter disputes may be resolved. Nobody had taken meals till 2 P.M. The appellant assaulted the deceased with the Lathi and thereafter also assaulted \ - her with the Axe. This witness went to the Village Kotwar and r narrated him the incident. ,She further deposed that at about 3 P.M., the appellant abused and aSsaulted the deceased with the Axe. At that time, Baliram (PW-13), Dauva Ram (PW-5) and Devantinbai (PW-4) were present at the spot. Her mother (the deceased) had succumbed to the injuries caused by the appellant with the Axe. 11. Dr. P. Kudeshiya (PW—1 1), who conducted the post mortem on the body of the deceased, found above injuries, which were ante mortem. He opined that the deceased died on account of excessive haemorrhage and syncope due to above injuries. 12. From the evidence led by the prosecution, it is estabiished that deceased Dhanaiyabai died due to injuries caused by the appellant with the Axe and her death was homicidal in nature. 13. We have carefully perused the evidence of Baliram (PW-13) ' and 'Hathiyarinbai (PW-14). These witnesses have categoricaily deposed that on the fateful day the- appellant assaulted the deceased with the Axe, which he took out from the house. Their evidence are corroborated by the evidence of Nathuram (PW-1) and Punit Ram (PW-12) to some extent. 14. We have also perused the medical evidence. The doctor has opined that death of the deceased was due to excessive haemorrhage and syncope. Therefore, we do not find any infirmity in the tinding recorded by the Additional Session Judge that it was the appellant who caused injuries on the body of the deceased with \ . , the Axe and the deceased died on account of the injuries caused by \ the appellant. 15. Now, we shall examine the matter in light of the provisions of Section 302 vis-é-vis Section 304 of the Indian Penal Code. 8 16. Smt. Jain, Iearned counsel appearing for the appellant argued that the appellant was provoked by the deceased. There was a severe exchange of abuse between the appeilant and the deceased. Therefore, the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and he would be guilty of the offence punishable under Section 304 of the Indian Penal Code. 17. In Gurudev Singh vs. State of Madhya Pradesh, (2011) 5 SCC 721, the Hon’ble Supreme Court held as follows: “25. With regard to this plea of the accused it seems that Exceptions 1 and 4 to Section 300 IPC are sought to be taken advantage of by the accused in this case. For dealing with such plea raised on behalf of the accused person we may extract the said exceptions to Section 300 IPC, which are as under: “Exception 1. When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self— control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” * “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden tight in the heat of pasSion upon a sudden quarrel and withoutthe offender’s having taken undue advantage or acted in a cruel or unusual manner.” * * 26. With regard to law dealing with Exception 1 to Section 300 we may refer to’ K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 (AIR p. 626, para 77) in which this Court held that the following conaitions must be complied with for the application of Exception 1 to Section 300 IPC: (1) the deceased must have given provocation to the accused, . (2) \ the provocation must be grave, (3) the provocation must be sudden, (4) the offender, by reason of the said provocation, shall have been deprived of his power of self—control, (5) he should have killed the deceased during the continuance of the deprivation of the power of self- control, and (6) the offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.” 27. With regard to Exception 4 to Section 300 we may refer to Kulesh Mondal v. State of WB., (2007) 8 SCC 578, in which this Court held: (SCC p. 581, paras 12—13) “12. The residuary plea relates to the applicability of Exception 4 to Section 300 IPC, as it is contended that the incident took place in course of a sudden quarrel. 13. For bringing it in operation it has to be established that the act was committed without premeditation, in a sudden nght in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner." 10 28. In Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404, this Court detailed the Iaw relating to Exceptions 1 and 4 to Section 300 IPC in the following terms: (SCC pp. 410—11, paras 17- 19) 17. The Fourth Exception to Section 300 IPC covers acts done in a sudden tight. The said exception deals with a case of prosecution (sic provocation) not covered by the first Exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not othentvise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. ln fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘su'dden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. 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 11 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 IPC. 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 themseives into a fury on account of the verbal altercation in the beginning. A tight is a combat between two and more persons whether with or without weapons. lt is not possibie to enunciate any general rule as to what shall be deemed to be a sudden quarrei. It is'a question of fact and whether a quarrei 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 a cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. ln Kikar Singh v. State of Rajasthan, (1993) 4 SCC 238, it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage.” kw 18. ln Arun Raj vs. Union of India ,and others, (2010) 6 SCC 457, the Hon’ble Supreme Court has held thus: 12 @ “17. The scope of the “doctrine of provocation” was stated by Viscount Simon in Mancini v. Director of Public Prosecutions, 1942 AC 1: (AC p. 9) “It is not all provocation that will reduce the crime of murder to mansiaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self—control, as the result of which he commits the unlawful act which causes death. The test to be applied is that of the effect of the provocation on a reasonabie man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini, (1914) 3 KB 1116 (CCA), so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." 19. The determinative factor in Section 300 of the Indian Penal Code is the intentional injury, which must be sufficient to cause death in the ordinary course of nature. lt is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. ‘The offender’s subjective knowledge of the consequence is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to 6% cause such bodily injury, which in the ordinary course of nature was sufficient to cause death, the divorce factors need to be kept in mind such as the force with which the blow has been dealt with, the type. of weapon used, the vital organ or the particular spot of the bo‘dy targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attended upon the death. 20 . The defence of the appellant that this case is covered under one of the above Exceptions to Section 300 of the Indian Penal Code is not supported by the evidence on record. On going through the evidence on record, we find that the provocation did not come from the deceased. The appellant assaulted the deceased and gave Axe blows on her head, neck and shoulder. Nearabout 6 incised wounds were found on the body of the deceased. The injuries, which deceased Dhanaiyabai suffered, clearly shows that the sharp portion of the Axe was used by the appellant with considerable force and injuries were caused on the vital parts of the body. ‘ 21. The nature of weapon used by the appellant, the manner in which he assaulted the deceased, severity of the blow he dealt against the deceased and the part of body which he selected for giving such blows would show that he had an intention to commit murder of the deceased. 22. We are of the considered opinion that in the above facts and circumstances, the act of the appellant would not be falling under any Exception to Section 300 of the Indian Penal Code. We \3 acc'ordingly hold that the conviction of the appellant for'the offence m @ fully justified. The under Section 302 of the Indian Penal Code is appeal has no merit and, accordingly, it is dismissed. Sd/— *’* ‘i i Sd/- 4“” r’\ sUNIL KUMAR smHA i ex ' i‘L R.S.SHARMA j ‘ Judge S } Gopal J