HIGH COURT OF CHHATTISGARH BILASPUR" ORAM: Hon’ble Shri Raieev Gupta‘ C.J. & Hen’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 943 of 2003 ‘ Premlal Vs. State of Chhattisgarh JUDGMENT For considetion A: Sdl- Sunil Kumar Sinha Judge HONBLE SHRI JUSTICE RAJEEV GUPTA ’ Chief Justice Post or Judgment:OO8 Sdl- Sunil Kumar Sinha Judge C ra f /W wg// HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 943 of 2003 APPELLANT Premlal son of Udalram Verma, aged about 3O years, Cultivator, resident of village Ufara, P.S. Berla, Distt. Durg (C.G.) Versus V" RESPONDENT State of Chhattisgarh Through : P.S. Berla, Distt. Durg (G.G.) i (Appeal uuder Section 374 (2) of The Code of Crimihal Procedure) Appearance: Smt. Kiran Jain, Counsei for the appeiiant. Shri Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (26.09.2008) - Following judgment of the Court was deiivered by Sunil Kumar Sinha, J. §(1) Appellant— Premiai stands convicted under Sections 302 & 354 il.P.C. and sentenced to undergo imprisonment for Iife and to pay a ‘tine i of Rs.5,000/—, in default of payment of fine to further undergo RI for 2 years and R.l. for 3 months, respectively, by the Second iAdditional Sessions Judge (FTC), Bemetara in Sessions Trial No. ui f297/2001 on 27th of March, 2002. 3(2) The» facts, briefly stated, are that appellant— Premlal and Sitaram (since deceased) were close friends and were residents of same village. On 28.6.2001 at about 8.00 p.m., Sitaram had gone L u 2 Criminal Appeal No. 943 of 2003 towards the tank in village. When he returned back to his house, appellant Premlal also came with him. Both consumed liquor in the lhouse of Sitaram. When they were taking their meals, the appellant caught the hands of Neera Bai (PW-1), wife of the deceased- ISitaram with an intention to outrage her modesty, on which, Sitaram {became angry. Neera Bai also became angry and went to the house iof Dukhitram. Appellant also went to the house of Dukhitram and Icalled Neera Bai. Neera Bai returned to her house 'and again started serving the meals. The appellant again caught the hands of Neera iBai. lt is on this, a quarrel begun between the appellant and the d‘éo‘eased and they started abusing each other and went out in the Gali from the house. Since both were in drunken condition, Neera Bai intimated her father—in-laqv, Mahruram (PW-2) to look after, on which, Mahruram went to Gali, intervened in the quarrel and when he was taking back his son Sitaram, the appellant gave a knife blow to Sitaram, who received injuries on his palm and abdomen. He was brought to his house and he died in the night. The matter was reported to the concerned police station by Hinjharam (PW-8), on which, a First Information Report (Ex.-P/8) was registered on 29.6.2001 at 8.30 a.m. The Investigating Officer reached to the scene of occurrence on 29.6.2001, prepared inquest (Ex.—P/14) on the body of the , deceased and sent the dead body for its postmortem to Community 3 Health Center, Berla, where the postmortem examination was 1 conducted by Dr. Chatur Singh Manjhi (PW-9), who prepared his 1 report Ex.-P/10. He noticed two external injuries on the body of the deceased. There was one incised wound in size of 2 inch x 1/8 inch l l x 1/8 inch on the lower surface of right palm and there was a penetrating wound in size of 1 inch x 1/2 inch x % inch on the right side of abdomen. On internal examination, he found that there was an abrasion of 1 inch x 1 1/2 inch on the membrane of large intestine. Injury No. 1 was simple in nature, whereas, injury No.2 was sufficient to cause death. The Autopsy Surgeon opined that the cause of death was shock due to above injuries. (3) i l l l . l \ 3 Criminal Apgeal No. 943 of 2003 (4) ln further investigation, after taking the appeilant into custody his memorandum (Ex.-P/2) u/s 27 of the Evidence Act leading to discovery of the knife was recorded and a knife was seized at the Instance of the appellant under Ex P/3 Blood stained sorl and plain soil were seized from the place of occurrence under Ex Pl4 and sute plan was prepared under Ex Pl1 The seized articles were sent for their chemical examination to Foren5ic Seience Laboratory, Raipur under Ex P/15 from whereva report (Ex P/17) was received According to F.S.L. rep0it blood stains were found tn stained scil whereas, no blood stains were found on the plain soil and the knife seized at the instance of the appellant. (5) After completion of usual investigation the charge sheet was filed in the Court of JudICIaI Magistrate First Class Bemetara who in turn committed the matter to the concerned Sessmns Court, from where, it was received on‘ transfer by the Second Additional Sessions Judge (FTC), Bemetara, who conducted the trial and convicted and sentenced the appellant as aforementioned. (6) The conviction of the appellant is based upon the eye witness t account of PW—2, Mahruram, father of the deceased, supported by the other evidence including medical evidence of Dr.Chatur Singh Manjhi (PW-9). (7) Smt. Kiran Jain, learned counsel for the appellant, has neither disputed the homicidal death of the deceased nor the complicity of the appellant in crime in question. For Section 354 -I.P.C., she did not raise any point but she argued that in the facts and circumstances of the case, the act of the appellant will fall within the Exception 4 of Section 300 l.P.C. and his conviction u/s 302 l.P.C. cannot be sustained. She submitted that on account of trying to outrage the modesty of wife of the deceased, a sudden fight took place between the appellant and the deceased as both were in drunken condition and in a heat of passmn Without any premeditation the appellant dealt With knife blow on the abdomen of the deceased, which proved fatal. 4 Criminal Appeal No. 943 of2003 (8) On the other hand, Shri Praveen Das, learned Dy. Govt. Advocate for the State, opposed these arguments and supported the judgment passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perus’e’d the records of the session case. (1 0) According to the prosecution, the appellant and the deceased were close friends. On the fateful night at about 8.00 p.m. both came to the house of the deceasedf They consumed liquor there and when the wife of the deceased was serving meals, the appellant caught the hands of the wife of the deceased, on which, she became angry and went to house of some neighbour. Neera Bai (PW-1) deposed that “She was sitting in the house of Dukhitram, then, the appellant came there and said her that her husband is calling her. On this, she came out from the house of Dukhitram and when she was returning to her house along with appellant, the appellant tried to outrage the modesty by catching her hands. She told this facts to her husband, on which, her husband said that the appellant is his friend, how he can do like this. Thereafter, the appellant did like this in front of her husband also and the quarrel begun between the appellant and the deceased". Though the story is something different than what was setforth by the prosecution but the un- icontrovert fact remains that the quarrel begun between the appellant gand the deceased when the appellant caught the hands of wife of .the deceased before him in his house and the appellant and the ‘deceased started fighting and they came out in the Gali from the ‘house of the deceased and seeing all this, Neera Bai (PW-1) told iher father-in-law, Mahruram (PW-2) to go and see them. u f '(11) Mahruram, PW—2, deposed that “On the fateful night at about 0l9.00 p.m., when he was informed by Neera Bai (PW-1), he went to Gali and saw that the appellant and the deceased were fighting. He intervened and separated them and thereafter, when he was bringing the deceased to his house, the appellant gave a knife blow on the abdomen of the deceased. The blood started oozing out and 5 Criminal Appeal N0. 943 of 2003 the deceased was brought to his house. He called his other son Hinjharam (PW-8) but‘the deceased died by that time". It is after all this, the report was lodged in the next morning by Hinjharam in the Concerned police station. lf we appreciate the evidence of these Witnesses, it would appear that on the event of outraging the modesty of the wife of the deceased, a sudden tight took place between two friends, who were in drunken condition, in which, one of the friends (appellant) gave a knife blow to the deceased. (12) Exception 4 to S. 300 reads as under: wf"Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passiQn upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.” (13) ln matter of Surinder Kumar -Vs- Union Territory, Chandiqarh AIR 1989 SC 1094 the Apex Court held that ‘To 3invoke this exception four requrrements must be satisfied namely, (a) 1t was a sudden fight (b) there was no premeditation (c) the act iwas done in a heat of paSSion, and (d) assailant had not taken any iundue advantage or acted in a cruel manner. The cause of the iquarrel is not relevant nor is it relevant who offered the provocation gor 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.’ b 6 @ Criminal Appeal No. 943 of 2003 (14) In the matter of Karam Sinqh —Vs- Emgeror, AIR 1926 Lah 219, it Was held that ‘fhe exception is meant to apply to cases where, in whatever way, the quarrel may have originated, the stibsequent conduct of both the parties puts them on an equal footing’. u - Wag?” (1:5) If we apply the above principles, in the facts and circumstances of the present case, it would appear that all the requirements of Exception 4 are satisfied in this case. Admittedly, a sudden fight begun between the two friends on account of outraging the modesty of the wife of the deceased by the. appellant and the act of the‘appellantwas not premeditated because it is the case of the prosecution itself‘that both the friends consumed liquor in the house of the deceased and then they were taking their meals which was being served by the wife of the deceased. The act was done in a heat of passion. lf the appellant would have premeditated to cause the death of the deceased, he would have used the knife at the first opportunity or at any subsequent opportunity during the course of fight, as the knife was through out with him. But, he did not do so and after consuming a reasonable time in’the frght, he took out the knife and gave a knife blow to the deceased, which shows that the blow was given in a heat of passion without any premeditation or plan. The conduct of the appellant would also show that he had not taken any undue advantage or acted in a cruel manner. l r (16) l Learned Dy. Govt. Advocate for the State argued that since the root cause of quarrel was the act of the appellant who used criminal force to outrage the modesty of the wrfe of the deceased therefore the complexron of the consequent act of the appellant wrll “change. Thrs argument Is totally mrsconcerved. As held by the Apex Court in the above judgments, while invoking the provisions of Exception 4, cause of the quarrel is not relevant and it is also not t‘elevant as to who offered the provocation or started the assault. jlence, the actual act committed by the appellant pertaining to the (18) ln the result, the appeal is partly allowed. While maintaining the conviction and sentence u/s 354 l.P.C., we set aside the conviction and sentence passed‘u/s 302 l.P.C. and convict the appellant u/s 304 Part—I l.P.C. and sentence him to undergo rigorous imprisonment for 10 years with a further direction to run the sentences concurrently. r z sci/— Chief Justice Judge 7 i L Criminal Appeal No. 943 of 2003 assault of the deceased would not be aggravated by a farmer act of the appellant of using criminal force with intent to outrage the modesty of the wife of the deceased. Therefore, such former act Would not be a point for consideration to invoke the Exception 4 of Section 300 because after the quarrel begins, the subsequent cenduct of both the’parties puts them on an equal pedestal. This argument advanced by the learned counsel for the State cannot be accepted. (fl?) ln the facts and circumstances of the case, in our considered opinion, the act of the appellant was not punishable u/s 302 l.P.C. "« and‘the‘appellant was entitled to get benefit of Exception 4 of Section 300 l.P.C. and we think it proper to convict the appellant uls 304 Part-I l.P.G. t (19) it is stated that the appellant is in jail since 29.6.2001 till date. He shall be entitled to set—off the period already undergone by him. Sdl- Sunil Kumar Sinha