G H KHOKAN @ KHOKHAN VISHWAS versus STATE OF CHHATTISGARH on 11 February 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 27.01.2014 passed by the High Court of Chhattisgarh atBilaspur in Criminal Appeal No. 38 of 2009, by which the High CourtGhas dismissed the said appeal preferred by the appellant – original accusedand has confirmed the judgment and order of conviction passed by thelearned trial Court convicting the accused for the offence punishableunder Section 302 of the IPC and by which the appellant – accused wassentenced to undergo life imprisonment, the appellant – original accusedHhas preferred the present appeal.

2. At the outset, it is required to be noted that by order dated08.01.2021, this Court issued a limited notice confined to whether theconviction should be altered to Section 304-I IPC. Therefore, the presentappeal is confined to the issue, whether in the facts and circumstancesof the case, the conviction of the appellant-accused should be altered toSection 304-I, IPC or not.

3. While deciding the aforesaid issue/question, the case of theprosecution and the manner in which the incident took place are requiredto be considered. According to the prosecution, on 08.08.2006 at about6:30 p.m., the deceased was in the house of his neighbour Devan. Atthat very time, the accused had conversation with him regarding moneyand then accused quarrelled with him. The accused pushed him downand stood up on his abdomen and crushed. On the next day, i.e., on09.08.2006 at about 6:30 p.m., son of one Channu Ram informed Manki,sister of Manku regarding the severe pain in the abdomen of Manku.Manki, sister of the deceased came to his house and after seeing himgot him admitted in N.M.D.C. Apollo Central Hospital, Bacheli fortreatment. On the night of 09.08.2006 itself, he was referred to MaharaniHospital, Jagdalpur for treatment. During treatment, Manku Ram diedon 11.08.2006. As per the post mortem report conducted by Dr.(Smt.) J.Gupta (PW-3) the cause of death of the deceased Manku Ram wasshock as a result of septicemia caused by injuries in small intestine.

4. In light of the above facts and circumstances, it is required tobe considered what offence the accused is said to have committed. Thelearned trial Court convicted the accused for the offence punishableunder Section 302 IPC after observing and finding that the case wouldfall under Section 300 IPC and that the murder of Manku Ram committedby the accused does not come under the fourth exception of Section 300IPC. Accordingly, after holding the accused guilty for the offencepunishable under Section 302, IPC, the learned trial Court has awardedthe life sentence to the accused. The same has been confirmed by theHigh Court, by the impugned judgment and order.

5. Learned counsel appearing on behalf of the accused hasvehemently submitted that in the present case the incident took place on08.08.2006. There was a sudden quarrel between the accused and thedeceased and the accused pushed the deceased and sat on the abdomen.It is submitted that there was no intention on the part of the accused tocause death of the deceased. It is submitted that though the incident had A

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Ataken place on 08.08.2006 at about 6:30 p.m., the deceased was takento the hospital on the next day, i.e., on 09.08.2006 at about 6:30 p.m. It issubmitted that thereafter after a period of two days, the deceased diedbecause of septicemia. It is submitted that therefore the case would fallunder the fourth exception of Section 300 IPC and therefore it cannotbe said that the appellant-accused has committed the offence punishableBunder Section 302 IPC. It is submitted that the accused at the best beconvicted for the offence punishable under Section 304-I, IPC. It issubmitted that the accused has already undergone 14.5 years of actualimprisonment.

5.1 Making the above submissions and relying upon the decisionCof this Court in the case of Sanjay v. State of U.P., reported in (2016)3 SCC 62, it is prayed to alter the conviction of the appellant-accusedfrom Section 302 IPC to Section 304-I IPC.

6. The present appeal is opposed by the learned counsel appearingon behalf of the respondent – State of Chhattisgarh.D

It is vehemently submitted that in the present case the deceaseddied while taking treatment in the hospital and within three days ofoccurring the incident. It is submitted that it may be true that as per themedical evidence the deceased died due to septicemia caused by injuriesin small intestine. It is submitted that however the deposition of the doctorEwho initially treated the deceased and thereafter the deposition of thedoctor who conducted the post mortem are required to be considered asa whole. It is submitted that in the present case the Dr. (Smt. ) J. Gupta(PW-3) opined that the deceased received the injuries in abdomen bycrushing. It is submitted that therefore the learned trial Court rightlyFobserved and held that the murder of the Manku Ram committed by theaccused does not come under the fourth exception of Section 300 IPC.It is submitted that the case would fall under clause 3/4 to Section 300IPC. It is submitted that therefore the learned trial Court as well as theHigh Court did not commit any error in convicting the accused for theoffence under Section 302 IPC.G

6.1 It is submitted that therefore in the facts and circumstancesof the case, the decision of this Court in the case of Sanjay (supra),relied upon by the learned counsel appearing on behalf of the accusedshall not be applicable and/or shall not be of much assistance to theaccused.H

6.2 Making the above submissions, it is prayed to dismiss thepresent appeal.

7. We have heard the learned counsel for the respective partiesat length.

As observed hereinabove, the sole question which is posed beforethis Court is, whether, in the facts and circumstances of the case, can itbe said that the accused committed the murder of the deceased as definedunder Section 300 IPC and therefore whether both the courts belowrightly convicted the accused for the offence under Section 302 IPC orwhether the conviction can be altered to Section 304-I, IPC.

7.1 While answering the aforesaid question, when the culpablehomicide can be said to be the murder and when the culpable homicideis not amounting to murder, Section 300 of the IPC is required to bereferred to, which reads as under:

“300. Murder.—Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which the death is causedis done with the intention of causing death, or—

Secondly.—If it is done with the intention of causing such bodilyinjury as the offender knows to be likely to cause the death of theperson to whom the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodily injury toany person and the bodily injury intended to be inflicted is sufficientin the ordinary course of nature to cause death, or—

Fourthly.—If the person committing the act knows that it is soimminently dangerous that it must, in all probability, cause deathor such bodily injury as is likely to cause death, and commits suchact without any excuse for incurring the risk of causing death orsuch injury as aforesaid.

Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprivedof the power of self-control by grave and sudden provocation,causes the death of the person who gave the provocation or causesthe death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

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First.—That the provocation is not sought or voluntarily provokedby the offender as an excuse for killing or doing harm to anyperson.

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Secondly.—That the provocation is not given by anything done inobedience to the law, or by a public servant in the lawful exerciseBof the powers of such public servant.

Thirdly.—That the provocation is not given by anything done inthe lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and suddenenough to prevent the offence from amounting to murder is aCquestion of fact.

Exception 2.—Culpable homicide is not murder if the offender,in the exercise in good faith of the right of private defence ofperson or property, exceeds the power given to him by law andcauses the death of the person against whom he is exercisingDsuch right of defence without premeditation, and without anyintention of doing more harm than is necessary for the purpose ofsuch defence.

Exception 3.—Culpable homicide is not murder if the offender,being a public servant or aiding a public servant acting for theEadvancement of public justice, exceeds the powers given to himby law, and causes death by doing an act which he, in good faith,believes to be lawful and necessary for the due discharge of hisduty as such public servant and without ill-will towards the personwhose death is caused.

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Exception 4.—Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upona sudden quarrel and without the offender having taken undueadvantage or acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which party offersGthe provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the personwhose death is caused, being above the age of eighteen years,suffers death or takes the risk of death with his own consent.”

Section 300 of the IPC is in two parts. The first part is whenHculpable homicide can be said to be the murder and the second part is

the exceptions when the culpable homicide is not murder. The relevantpart of Section 300 IPC for our purpose would be clause 4 to Section300 and exception 4 to Section 300 IPC. As per clause 4 to Section 300IPC, if the person committing the act knows that it is so imminentlydangerous that it must, in all probability, cause death or such bodily injuryas is likely to cause death, and commits such act without any excuse forincurring the risk of causing death or such injury, such culpable homicidecan be said to be the murder. However, as per exception 4 to Section300, culpable homicide is not murder if it is committed withoutpremeditation in a sudden fight in the heat of passion upon a suddenquarrel and without the offender having taken undue advantage or actedin a cruel or unusual manner. As per explanation to exception 4 to Section300 IPC, it is immaterial in such cases which party offers the provocationor commits the first assault.

8. Coming to the facts of the present case, even as per the caseof the prosecution on 08.08.2006 at about 6:30 p.m. when the deceasedwas in the house of his neighbour, at that very time, the accused hadconversation with the deceased regarding money and then the accusedquarrelled with him. As per the case of the prosecution, the accusedpushed him down and stood up on his abdomen which resulted into theinternal injuries.

At this stage, it is required to be noted that till the next day i.e.,09.08.2006 the deceased was not even taken to the hospital and only on09.08.2006 at about 6:30 p.m., i.e., after a period of one day of theincident, the deceased was taken to the hospital. Therefore, it can beseen that the action of the appellant-accused to push the deceased downand stood up on his abdomen was preceded by a quarrel between thedeceased and the accused. From the evidence on record, and even asper the case of the prosecution, it cannot be said that the appellant-accused had the intention of such action on his part to cause death orsuch bodily injury to the deceased which was sufficient in the ordinarycourse of nature to cause the death of the deceased. Even the casewould not fall under clause 3 of Section 300 IPC. In the facts andcircumstances of the case, it cannot be said that there was any intentionon the part of the accused of causing bodily injury to the deceased andthe bodily injury intended to be inflicted was sufficient in the ordinarycourse of nature to cause death.

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A9. There is no evidence that there was any premeditation on thepart of the accused. Considering the case of the prosecution as it is andas observed hereinabove, there was a sudden quarrel with respect tomoney and the accused pushed the deceased and stood on the abdomenin the heat of passion upon a sudden quarrel. Therefore, the case wouldfall under exception 4 to Section 300 IPC. As per explanation to exceptionB4 to Section 300 IPC, it is immaterial in such cases which party offersthe provocation or commits the first assault. Therefore, both the courtsbelow have materially erred in holding the appellant-accused guilty forthe offence punishable under Section 302 IPC. According to us, at themost, it can be said that the appellant-accused has committed the offenceCunder Section 304-I IPC.

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10. Now so far as the reliance placed upon the decision of thisCourt in the case of Sanjay (supra) by the learned counsel appearingon behalf of the appellant-accused is concerned, on considering the saiddecision, we are of the opinion that in the facts and circumstances of theDcase, the said decision shall not be applicable to the facts of the case onhand. In the said case, the death occurred 62 days after the occurrencedue to septicemia. In between, the deceased was discharged from thehospital in good condition and he survived for 62 days. Therefore, havingregard to the fact that the deceased survived for 62 days and that hiscondition was stable when he was discharged from the hospital, thisECourt was of the opinion that the Court cannot draw inference thatintended injury caused was sufficient in ordinary course of nature tocause death so as to attract Section 300 Thirdly IPC. Thereafter, onfacts, this Court modified the conviction from that of Section 302 IPC toSection 304-I IPC and sentenced the accused to undergo 10 years R.I.

FThere is no absolute proposition of law laid down by this Court in thesaid decision that in all cases where deceased died due to septicemia,case would fall under Section 304-I IPC. In the present case, though thedeceased died due to septicemia, however, it is required to be noted thathe died while taking treatment in the hospital and that too he died withinthree days from the date of occurrence of the incident. Therefore, onGfacts, the said decision shall not be applicable.

However, at the same time, it is also required to be noted that thedeceased was admitted to the hospital after 24 hours and thereafter hedied within three days due to septicemia. If he was given the treatmentimmediately, the result might have been different. In any case, as observedH

hereinabove, there was no premeditation on the part of the accused; theaccused did not carry any weapon; quarrel started all of a sudden andthat the accused pushed the deceased and stood on the abdomen andtherefore, as observed hereinabove, the case would fall under exception4 to Section 300 IPC and neither clause 3 of Section 300 nor clause 4 ofSection 300 shall be attracted. Therefore, as observed hereinabove, atthe most, the accused can be said to have committed the offence underSection 304-I, IPC.

11. In view of the above and for the reasons stated hereinabove,the present appeal succeeds in part. The impugned judgment and orderpassed by the High Court as well as the judgment and order passed bythe learned trial Court convicting the appellant-accused for the offenceunder Section 302, IPC are hereby modified to the extent convicting theappellant-accused for the offence under Section 304-I, IPC andsentencing him to the period already undergone by him i.e., 14.5 years.Rest of the judgment and order passed by the learned trial Court,confirmed by the High Court, is hereby confirmed.

12. The appellant-accused be set at liberty forthwith, if not requiredin any other case.

Devika Gujral

Appeal partly allowed.

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