Khokan @ Khokhan Vishwas vs The State Of Chhattisgarh on 11 February, 2021


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Supreme Court of India

Khokan @ Khokhan Vishwas vs The State Of Chhattisgarh on 11 February, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                                    REPORTABLE
                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION
                                       CRIMINAL APPEAL NO. 121 OF 2021



          Khokan @ Khokhan Vishwas                                        …Appellant

                                           Versus

          State of Chhattisgarh                                           …Respondent




                                                 JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order

dated 27.01.2014 passed by the High Court of Chhattisgarh at Bilaspur in

Criminal Appeal No. 38 of 2009, by which the High Court has dismissed the

said appeal preferred by the appellant – original accused and has confirmed the

judgment and order of conviction passed by the learned trial Court convicting

the accused for the offence punishable under Section 302 of the IPC and by

which the appellant – accused was sentenced to undergo life imprisonment, the
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.02.11
16:44:25 IST

appellant – original accused has preferred the present appeal.
Reason:

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2. At the outset, it is required to be noted that by order dated 08.01.2021,

this Court issued a limited notice confined to whether the conviction should be

altered to Section 304-I IPC. Therefore, the present appeal is confined to the

issue, whether in the facts and circumstances of the case, the conviction of the

appellant-accused should be altered to Section 304-I, IPC or not.

3. While deciding the aforesaid issue/question, the case of the prosecution

and the manner in which the incident took place are required to be considered.

According to the prosecution, on 08.08.2006 at about 6:30 p.m., the deceased

was in the house of his neighbour Devan. At that very time, the accused had

conversation with him regarding money and then accused quarrelled with him.

The accused pushed him down and stood up on his abdomen and crushed. On

the next day, i.e., on 09.08.2006 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 him

got him admitted in N.M.D.C. Apollo Central Hospital, Bacheli for treatment.

On the night of 09.08.2006 itself, he was referred to Maharani Hospital,

Jagdalpur for treatment. During treatment, Manku Ram died on 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 was shock as a result of septicemia

caused by injuries in small intestine.

4. In light of the above facts and circumstances, it is required to be

considered what offence the accused is said to have committed. The learned

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trial Court convicted the accused for the offence punishable under Section 302

IPC after observing and finding that the case would fall under Section 300 IPC

and that the murder of Manku Ram committed by the accused does not come

under the fourth exception of Section 300 IPC. Accordingly, after holding the

accused guilty for the offence punishable under Section 302, IPC, the learned

trial Court has awarded the life sentence to the accused. The same has been

confirmed by the High Court, by the impugned judgment and order.

5. Learned counsel appearing on behalf of the accused has vehemently

submitted that in the present case the incident took place on 08.08.2006. There

was a sudden quarrel between the accused and the deceased 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 to cause death of the deceased. It is

submitted that though the incident had taken place on 08.08.2006 at about 6:30

p.m., the deceased was taken to the hospital on the next day, i.e., on 09.08.2006

at about 6:30 p.m. It is submitted that thereafter after a period of two days, the

deceased died because of septicemia. It is submitted that therefore the case

would fall under the fourth exception of Section 300 IPC and therefore it cannot

be said that the appellant-accused has committed the offence punishable under

Section 302 IPC. It is submitted that the accused at the best be convicted for the

offence punishable under Section 304-I, IPC. It is submitted that the accused

has already undergone 14.5 years of actual imprisonment.

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5.1 Making the above submissions and relying upon the decision of 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-accused from Section 302 IPC to

Section 304-I IPC.

6. The present appeal is opposed by the learned counsel appearing on behalf

of the respondent – State of Chhattisgarh.

It is vehemently submitted that in the present case the deceased died

while taking treatment in the hospital and within three days of occurring the

incident. It is submitted that it may be true that as per the medical evidence the

deceased died due to septicemia caused by injuries in small intestine. It is

submitted that however the deposition of the doctor who initially treated the

deceased and thereafter the deposition of the doctor who conducted the post

mortem are required to be considered as a 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 by crushing. It is submitted that therefore the learned

trial Court rightly observed and held that the murder of the Manku Ram

committed by the accused 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 300

IPC. It is submitted that therefore the learned trial Court as well as the High

Court did not commit any error in convicting the accused for the offence under

Section 302 IPC.

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6.1 It is submitted that therefore in the facts and circumstances of the case,

the decision of this Court in the case of Sanjay (supra), relied upon by the

learned counsel appearing on behalf of the accused shall not be applicable

and/or shall not be of much assistance to the accused.

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

7. We have heard the learned counsel for the respective parties at length.

As observed hereinabove, the sole question which is posed before this

Court is, whether, in the facts and circumstances of the case, can it be said that

the accused committed the murder of the deceased as defined under Section 300

IPC and therefore whether both the courts below rightly convicted the accused

for the offence under Section 302 IPC or whether the conviction can be altered

to Section 304-I, IPC.

7.1 While answering the aforesaid question, when the culpable homicide can

be said to be the murder and when the culpable homicide is not amounting to

murder, Section 300 of the IPC is required to be referred 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 caused is done with the intention of causing
death, or—
Secondly.—If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused,
or—

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Thirdly.—If it is done with the intention of causing
bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature
to cause death, or—
Fourthly.—If the person committing the act knows that
it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to
cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.

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.

   The above     exception   is   subject   to   the   following
provisos:—

First.—That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.

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

Thirdly.—That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.

Exception 2.—Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to
him by law and causes the death of the person against
whom he is exercising such right of defence without

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premeditation, and without any intention of doing more
harm than is necessary for the purpose of such defence.
Exception 3.—Culpable homicide is not murder if the
offender, being a public servant or aiding a public servant
acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose
death is caused.

Exception 4.—Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion 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.
Exception 5.—Culpable homicide is not murder when
the person whose 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 when culpable homicide

can be said to be the murder and the second part is the exceptions when the

culpable homicide is not murder. The relevant part of Section 300 IPC for our

purpose would be clause 4 to Section 300 and exception 4 to Section 300 IPC.

As per clause 4 to Section 300 IPC, if the person committing the act knows that

it is so imminently dangerous that it must, in all probability, cause death or such

bodily injury as is likely to cause death, and commits such act without any

excuse for incurring the risk of causing death or such injury, such culpable

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homicide can be said to be the murder. However, as per exception 4 to Section

300, culpable homicide is not murder if it is committed without premeditation in

a sudden fight in the heat of passion upon a sudden quarrel and without the

offender having taken undue advantage or acted in a cruel or unusual manner.

As per explanation to exception 4 to Section 300 IPC, it is immaterial in such

cases which party offers the provocation or commits the first assault.

8. Coming to the facts of the present case, even as per the case of the

prosecution on 08.08.2006 at about 6:30 p.m. when the deceased was in the

house of his neighbour, at that very time, the accused had conversation with the

deceased regarding money and then the accused quarrelled with him. As per the

case of the prosecution, the accused pushed him down and stood up on his

abdomen which resulted into the internal 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 on

09.08.2006 at about 6:30 p.m., i.e., after a period of one day of the incident, the

deceased was taken to the hospital. Therefore, it can be seen that the action of

the appellant-accused to push the deceased down and stood up on his abdomen

was preceded by a quarrel between the deceased and the accused. From the

evidence on record, and even as per 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 or such bodily injury to the deceased which was sufficient in the

ordinary course of nature to cause the death of the deceased. Even the case

8
would not fall under clause 3 of Section 300 IPC. In the facts and circumstances

of the case, it cannot be said that there was any intention on the part of the

accused of causing bodily injury to the deceased and the bodily injury intended

to be inflicted was sufficient in the ordinary course of nature to cause death.

9. There is no evidence that there was any premeditation on the part of the

accused. Considering the case of the prosecution as it is and as observed

hereinabove, there was a sudden quarrel with respect to money and the accused

pushed the deceased and stood on the abdomen in the heat of passion upon a

sudden quarrel. Therefore, the case would fall under exception 4 to Section 300

IPC. As per explanation to exception 4 to Section 300 IPC, it is immaterial in

such cases which party offers the provocation or commits the first assault.

Therefore, both the courts below have materially erred in holding the appellant-

accused guilty for the offence punishable under Section 302 IPC. According to

us, at the most, it can be said that the appellant-accused has committed the

offence under Section 304-I IPC.

10. Now so far as the reliance placed upon the decision of this Court in the

case of Sanjay (supra) by the learned counsel appearing on behalf of the

appellant-accused is concerned, on considering the said decision, we are of the

opinion that in the facts and circumstances of the case, the said decision shall

not be applicable to the facts of the case on hand. In the said case, the death

occurred 62 days after the occurrence due to septicemia. In between, the

deceased was discharged from the hospital in good condition and he survived

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for 62 days. Therefore, having regard to the fact that the deceased survived for

62 days and that his condition was stable when he was discharged from the

hospital, this Court was of the opinion that the Court cannot draw inference that

intended injury caused was sufficient in ordinary course of nature to cause death

so as to attract Section 300 Thirdly IPC. Thereafter, on facts, this Court

modified the conviction from that of Section 302 IPC to Section 304-I IPC and

sentenced the accused to undergo 10 years R.I. There is no absolute proposition

of law laid down by this Court in the said decision that in all cases where

deceased died due to septicemia, case would fall under Section 304-I IPC. In the

present case, though the deceased died due to septicemia, however, it is required

to be noted that he died while taking treatment in the hospital and that too he

died within three days from the date of occurrence of the incident. Therefore,

on facts, the said decision shall not be applicable.

However, at the same time, it is also required to be noted that the

deceased was admitted to the hospital after 24 hours and thereafter he died

within three days due to septicemia. If he was given the treatment immediately,

the result might have been different. In any case, as observed hereinabove,

there was no premeditation on the part of the accused; the accused did not carry

any weapon; quarrel started all of a sudden and that the accused pushed the

deceased and stood on the abdomen and therefore, as observed hereinabove, the

case would fall under exception 4 to Section 300 IPC and neither clause 3 of

Section 300 nor clause 4 of Section 300 shall be attracted. Therefore, as

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observed hereinabove, at the most, the accused can be said to have committed

the offence under Section 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 order passed by the High

Court as well as the judgment and order passed by the learned trial Court

convicting the appellant-accused for the offence under Section 302, IPC are

hereby modified to the extent convicting the appellant-accused for the offence

under Section 304-I, IPC and sentencing 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 required in any

other case.

…………………………………..J.

                                            [Dr. Dhananjaya Y Chandrachud]



New Delhi;                                  ………………………………….J.
February 11, 2021.                          [M.R. Shah]




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