Sanjay K. Agrawal, J
1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by
the learned Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo
imprisonment for life and pay fine of ₹ 2,000/-, in default, to further undergo additional rigorous imprisonment for six months.
2. Case of the prosecution, in brief, is that in the intervening night of 24-2-2011 and 25-2-2011, the appellant assaulted his father Dilram Prajapati, aged
about 80 years, by axe, by which he suffered injuries and died, and thereby committed the offence. It is the further case of the prosecution that the
appellant and his father were residing together, as the appellant’s mother and wife of Dilram Prajapati (deceased) had already died and on the
fateful night, the appellant assaulted his father and thereafter absconded from the spot. Morgue was registered vide Ex.P-1 and thereafter, FIR
Exs.P-15 & P-16 were lodged. On the recommendation of panchas, postmortem on the dead body of the deceased was conducted in Community
Health Centre, Batauli vide Ex.P-9A by Dr. Vijay Singh Pradhan (PW-3) and cause of death was stated to be coma due to head injury (brain injury)
and death was homicidal in nature. Pursuant to the memorandum statement of the appellant Ex.P-11, bloodstained axe was seized vide Ex.P-12 and
the same was sent for forensic examination to the FSL, Raipur from where report Ex.P-20 was received and blood was found on the weapon of
offence axe, but blood group and origin could not be established. Blood was also found on the vest of the deceased.
3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was charge-sheeted for
offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of
Sessions for conducting the trial and hearing and disposal in accordance with law.
4. The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as seven
witnesses and exhibited 20 documents. The defence has examined none and exhibited no document.
5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of
the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has
been preferred.
6. Mr. Pushkar Sinha, learned counsel appearing for the appellant, would submit that the prosecution has failed to prove the offence against the
appellant beyond reasonable doubt, therefore, the appellant deserves to be acquitted. In alternative, he would further submit that father of the
appellant, aged about 80 years, having been assaulted by his son (appellant) and considering only one injury, the case of the appellant would fall under
Exception 4 to Section 300 of the IPC. The appellant is already in jail since 11 years 8 months, therefore, it is a fit case where conviction of the
appellant can be converted/altered to an offence under Section 304 Part-II of the IPC. Therefore, taking into consideration the period already
undergone by the appellant, the appellant be released from jail forthwith by partly allowing the appeal.
7. Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and oppose
the appeal.
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with
utmost circumspection.
9. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem report Ex.P-9A, which has
been proved by Dr. Vijay Singh Pradhan (PW-3) in which cause of death was stated to be coma due to head injury (brain injury) and death to be
homicidal in nature, rightly held that nature of death of the deceased was homicidal. The finding recorded by the trial Court that death of deceased
Dilram Prajapati was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the
record and we hereby affirm the said finding, even otherwise, same has not been seriously disputed by the appellant, as such, the death was homicidal
in nature.
10. The trial Court has found that pursuant to the memorandum statement of the appellant, bloodstained axe has been seized vide Ex.P-12 in which
blood has been found vide FSL report Ex.P-20 and recovery has also been found proved which is also a finding of fact based on the evidence
available on record. Evidence of last seen is also found to be established pursuant to the statement of Ganga Prasad (PW-5). As such, the appellant is
the author of the crime.
11. The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellant for offence
punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting
to murder and, thus, his conviction can be converted to Section 304 Part II of the IPC, as contended by learned counsel for the appellant?
12. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 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.â€
13. The Supreme Court further, in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 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 the 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 from 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.â€
14. Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, 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.
15. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in
paragraphs 20 and 21 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.â€
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 advantageâ€.
16. In 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 the 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 of the IPC.
17. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) (2019) 6 SCC 122 has laid down four ingredients which should be
tested for bringing a case within the purview of Exception 4 to Section 300 of the IPC, which read as under:
“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.
xxx xxx xxxâ€
18. Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of Supreme Court, it is quite vivid that
was no premeditation on the part of the appellant to cause death of the deceased, aged about 80 years and further considering that one injury has been
found in postmortem report Ex.P-9A proved by Dr. Vijay Singh Pradhan (PW-3) and also looking to the age 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 his death. Consideirng the age of the deceased
and further considering the dispute between the appellant and the deceased, in our considered opinion, this case would fall within the purview of
Exception 4 to Section 300 of the IPC.
19. In view of the aforesaid discussion, conviction of the appellant under Section 302 of the IPC as well as the sentence of life imprisonment awarded
to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the
deceased but the injury caused by him was sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable
under Section 304 Part II of the IPC. Since the appellant is in jail since more than 11 years, taking into consideration the period he had already
undergone, we award him the sentence already undergone by him and the fine sentence imposed by the learned trial Court shall remain intact.
Accordingly, the appellant be released from jail forthwith, if his detention is not required in any other offence.
20. The criminal appeal is party allowed to the extent indicated herein-above.
