G H KHOKAN @ KHOKHAN VISHWASversusSTATE OF CHHATTISGARH

534                       [2021]
               SUPREME COURT     1 S.C.R. 534
                              REPORTS                      [2021] 1 S.C.R.


A                    KHOKAN @ KHOKHAN VISHWAS
                                        v.
                         STATE OF CHHATTISGARH
                       (Criminal Appeal No. 121 of 2021)
B                             FEBRUARY 11, 2021
               [DR. DHANANJAYA Y CHANDRACHUD AND
                               M.R. SHAH, JJ.]
             Penal Code, 1860: s.302 – Conviction of appellant u/s.302 –
      Prosecution case was that on the fateful evening when the victim-
C     deceased was in the house of his neighbour, appellant had
      conversation with him regarding money – Thereafter, appellant
      started quarreling with him and pushed him down and stood up on
      his abdomen and crushed – Next day, in the evening when deceased
      had severe pain in abdomen, he was admitted in hospital for treatment
D     and on the same night he was referred to another hospital – After
      two days, he died due to septicemia caused by injuries in
      small intestine – Courts below convicted appellant
      u/s.302 – Appeal confined to question whether conviction be altered
      to s.304-I – Held: From the evidence on record, and even as per the
      case of the prosecution, it cannot be said that the appellant-accused
E     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 – There was no
      evidence that there was any premeditation on the part of the appellant
      – There was a sudden quarrel with respect to money and the appellant
F     pushed the deceased and stood on his abdomen in the heat of
      passion – Therefore, case would fall under exception 4 to s.300 –
      As per explanation to exception 4 to s.300, it is immaterial in such
      cases which party offers the provocation or commits the first assault
      – Courts below materially erred in holding appellant guilty for
      offence punishable u/s.302 – Appellant held guilty for offence u/
G     s.304-I.
            Partly allowing the appeal, the Court
            HELD: 1. 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
H
                                       534
       KHOKAN @ KHOKHAN VISHWAS v. STATE OF                            535
                 CHHATTISGARH

not murder. The relevant part of Section 300 IPC for this case         A
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
                                                                       B
incurring the risk of causing death or such injury, such culpable
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 pre meditation 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.                 C
[Para 7][540-H; 541-A-C]
      2. 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      D
nature to cause death.There is no evidence that there was any
premeditation on the part of the accused. 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     E
300 IPC, it is immaterial in such cases which party offers the
provocation or commits the first assault. Therefore, both the
courts below materially erred in holding the appellant-accused
guilty for the offence punishable under Section 302 IPC. At the
most, it can be said that the appellant-accused has committed          F
the offence under Section 304-I IPC. [Paras 8, 9][541-F-H;
542-A-C]
      3. 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     G
days from the date of occurrence of the incident. 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,
there was no premeditation on the part of the accused; the accused     H
536            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     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, 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, at the most, the accused can
      be said to have committed the offence under Section 304-I,
B
      IPC.The impugned judgment and order passed by the High Court
      as well as the judgment and order passed by the 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
C     sentencing him to the period already undergone by him i.e., 14.5
      years. [Paras 10, 11][542-F-H; 543-A-D]
            Sanjay v. State of U.P., (2016) 3 SCC 62 – held
            inapplicable.
                               Case Law Reference
D
      (2016) 3 SCC 62                   held inapplicable         Para 10
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 121 of 2021.
            From the Judgment and Order dated 27.01.2014 passed by the
E     High Court of Chhattisgarh at Bilaspur in Crl. Appeal No. 38 of 2009.
            Rishi Malhotra, Adv., for the Appellant.
             Ms. Prachi Misra, AAG, Chaitanya and Ms. Aswathi M. K., Advs.
      for the Respondent.
F           The Judgment of the Court was delivered by
            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
G     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 appellant – original accused
H     has preferred the present appeal.
        KHOKAN @ KHOKHAN VISHWAS v. STATE OF                                 537
            CHHATTISGARH [M.R. SHAH, J.]

       2. At the outset, it is required to be noted that by order dated      A
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.
                                                                             B
       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            C
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            D
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.
                                                                             E
       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 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       F
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            G
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    H
538             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A     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
B
      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.
             5.1 Making the above submissions and relying upon the decision
C     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.
D
              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
E     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
F     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.
G
             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.
H
        KHOKAN @ KHOKHAN VISHWAS v. STATE OF                                    539
            CHHATTISGARH [M.R. SHAH, J.]

      6.2 Making the above submissions, it is prayed to dismiss the             A
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      B
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            C
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      D
      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—
                                                                                E
      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
                                                                                F
      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,             G
      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:—

                                                                                H
540            SUPREME COURT REPORTS                         [2021] 1 S.C.R.


A           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
B           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
C           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
D           such right of defence without 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
E           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.
F           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
G           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
H     culpable homicide can be said to be the murder and the second part is
        KHOKAN @ KHOKHAN VISHWAS v. STATE OF                                    541
            CHHATTISGARH [M.R. SHAH, J.]

the exceptions when the culpable homicide is not murder. The relevant           A
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
                                                                                B
incurring the risk of causing death or such injury, such culpable 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      C
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           D
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.,   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              F
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
would not fall under clause 3 of Section 300 IPC. In the facts and              G
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.

                                                                                H
542            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A            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
B
      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
C     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
D     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 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
E     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.
F     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
G     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
H
         KHOKAN @ KHOKHAN VISHWAS v. STATE OF                                     543
             CHHATTISGARH [M.R. SHAH, J.]

hereinabove, there was no premeditation on the part of the accused; the           A
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 observed hereinabove, at
                                                                                  B
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          C
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.                                 D
      12. The appellant-accused be set at liberty forthwith, if not required
in any other case.

Devika Gujral                                            Appeal partly allowed.
                                                                                  E




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                                                                                  G




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