Page No.1 of 11 IN CRA-15-2019 2025:CGHC:3608-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 15 of 20 19 [Arising out of judgment dated 27.07.2018, passed in Sessions Case No.04 of 2017 (State of Chhattisgarh v. Borra Tatti and another), by the Sessions Judge, South Baster, Dantewada (C.G.)] 1. Borra Tatti, Son of Sukka Tatti, aged about 55 years, Resident of Village Netapur, Schoolpara, Police Station City Kotwali, Dantewada, District South Baster, Dantewada (Chhattisgarh) 2. Dashru Tatti, Son of Borra Tatti, aged about 35 years, Resident of Village Netapur, Schoolpara, Police Station City Kotwali, Dantewada, District South Baster, Dantewada (Chhattisgarh) ---- Appellants (In jail) Versus State of Chhattisgarh, through the Station House Officer, Police Station Dantewada, District Dantewada (Chhattisgarh) ---- Respondent ---------------------------------------------------------------------------------------------- For Appellants : Mr. Malay Shrivastava, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer ------------------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (21.01.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the accused/appellants herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment dated 27.07.2018, passed in Sessions Case No.04 of 2017 (State of Chhattisgarh v. Borra Tatti and another), by the Sessions SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.22 15:08:30 +0530 Page No.2 of 11 IN CRA-15-2019 Judge, South Baster, Dantewada (C.G.), whereby they have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- each and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 03 months each. (2) The case of the prosecution, in short, is that on 10.11.2016, at about 04:00 PM in the evening, at Village Netapur, Near Bade Khuta Pond, Schoolpara, which comes within the ambit of Police Station Dantewada, District Dantewada (CG), the two accused-appellants herein firstly shared common intention with each other for killing one Hidiyo Tatti and, in furtherance of their common intention, assaulted Hidiyo Tatti (hereinafter referred to as the “deceased”) by hand, fist and wooden stick, due to which he suffered grievance injury and died and, thereby, said to have committed offence under Section 302/34 of IPC. (3) It is further case of the prosecution that when Indo Tatti (PW- 01) reported the matter to the police, marg intimation (Ex.P/01) and FIR (Ex.P/02) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were issued vide Ex.P/03 and inquest proceedings were conducted vide Ex.P/04. Spot map and punchnama were also prepared vide Ex.P/14 & Ex.P/15. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/17), conducted by Dr. Desh Dipak (PW-11), it was opined that the cause of death of Page No.3 of 11 IN CRA-15-2019 deceased is coma due to head injury and nature of death is homicidal. Thereafter, the appellants were arrested vide Ex.P/12 & Ex.P/13 respectively. Memorandum statement of appellant- Dashru Tatti (A-2) was taken vide Ex.P/09 and, pursuant to which, weapon of the offence i.e. wooden stick was seized vide Ex.P/10. From the possession of appellant- Borra Tatti (A-1), his clothes (i.e. t-shirt and baniyan) were seized vide Ex.P/11. Thereafter, the seized articles were sent for chemical examination and, as per FSL report (Ex.P/23), it has been opined that apart from other articles, stains of human blood were found on the wooden stick seized from appellant- Dashru Tatti (A-2), whereas stains of blood were found on the clothes (i.e. t- shirt and baniyan) seized from appellant- Borra Tatti (A-1). Further, the said wooden stick was also subject to query to an expert doctor, which was conducted by Dr. Desh Dipak (PW-10) and, as per Query Report (Ex.P/19), it has been opined that death can occur by the said wooden stick. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 23 documents, whereas the appellants in Page No.4 of 11 IN CRA-15-2019 support of their defence have neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the appellants herein for offence under Section 302/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence. (6) Mr. Malay Shrivastava, learned counsel appearing for the appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at best offence under Section 304 (Part-I or Part-II) read with Section 34 of IPC would be made out against the appellants herein because the appellants are said to have assaulted the deceased in spur of the moment, as the appellants and the deceased were close relative to each other and, further, according to the findings recorded by the learned trial Court in Para-24 of the impugned judgment, there was previous enmity and dispute between the appellants and the deceased with regard to Mahua Tree. Therefore, it can safely be concluded that the appellants have no intention or premeditation to cause death of the deceased and, thus, their the case fall within the purview of Exception 4 to Page No.5 of 11 IN CRA-15-2019 Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants for offence under Section 302/34 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II)/34 of IPC. Hence, the present appeal deserves to be allowed in full or in part. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence under Section 302/34 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellants under Section 302/34 of IPC requires to be altered to Section 304 (Part-I or Part- II)/34 of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/17), wherein it has been opined that cause Page No.6 of 11 IN CRA-15-2019 of death of deceased is coma due to head injury and nature of death is homicidal, which is duly proved by the statement of Dr. Desh Dipak (PW-11). Accordingly, taking into consideration the postmortem report (Ex.P/17) and the statement of Dr. Desh Dipak (PW-11), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellants herein have caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statement of eye-witness, namely, Ku. Anita (PW-10), who was daughter of the deceased. Ku. Anita (PW-10) in her statement before the Court has clearly stated that on the date and time of the offence, the two appellants herein owing to dispute relating to Mahua Tree have assaulted her father (deceased) by hands, fits and wooden stick, due to which her father (deceased) suffered injuries and died. Ku. Anita (PW-10) was also subjected to lengthy cross-examination, but she remained consistent in her version. As such, her testimony inspire confidence and can be relied upon to hold the appellants guilty for the offences in question. Furthermore, pursuant to the memorandum statement of the appellant- Dashru (A-2) recorded vide Ex.P/08, weapon of the offence Page No.7 of 11 IN CRA-15-2019 i.e. wooden stick was seized vide Ex.P/10 and from the possession of appellant- Borra Tatti (A-1), his clothes (i.e. t-shirt and baniyan) were seized vide Ex.P/11 and, as per FSL report (Ex.P/23), it has been opined that apart from other articles, stains of human blood were found on the wooden stick seized from appellant- Dashru Tatti (A-2), whereas stains of blood were found on the clothes (i.e. t-shirt and baniyan) seized from appellant- Borra Tatti (A-1). As such, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellants-accused who have caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellants-accused who have caused injuries over the body of the deceased, due to which he died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. (11) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellants is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellants ? (12) The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 has elaborately dealt with the issue and observed in 1 (2017) 3 SCC 247 Page No.8 of 11 IN CRA-15-2019 paragraphs 20 and 21, which reads 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 is it 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.” 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 Page No.9 of 11 IN CRA-15-2019 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 advantage”. (13) In the matter of 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 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 IPC. (14) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)2 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads 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.” 2 (2019) 6 SCC 122 Page No.10 of 11 IN CRA-15-2019 (15) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that there was no premeditation on the part of the appellants to cause death of the deceased for the reason that as per the statement of eye-witness, namely, Ku. Anita (PW-10) and the findings recorded by the learned trial Court in Para-24 of the impugned judgment, the appellants and the deceased were close relative to each other and, between them, previous enmity/dispute exists with regard to Mahua Tree and, owing to which, on the date and time of the offence, the appellants assaulted the deceased by hand and wooden stick, due to which, he suffered grievous injuries and died. As such, it can safely be said that the appellants have assaulted the deceased in spur of the moment, under anger and in hit of passion owing to previous enmity/dispute regarding Mahua Tree and, they have no intention or premeditation to cause his death. However, looking to the injuries sustained by the deceased, though the appellants had no intention, but they must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause his death, thus, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellants herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken Page No.11 of 11 IN CRA-15-2019 any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants under Section 302/34 of IPC can be altered/converted to Section 304 (Part-II)/34 of IPC. (16) In view of the aforesaid discussion, the conviction of both the appellants for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased and the injuries caused by them were not sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for 09-09 years each. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. (17) This criminal appeal is partly allowed to the extent indicated herein-above. (18) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if