1 2025:CGHC:620-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 628 of 2021 Bhagwat Verma S/o Thanwar Verma, Aged About 31 Years R/o Village Saddu, Police Station Sarsiva, Tahsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station Sarsiva, Tahsil And District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant : Mr. Basant Dewangan, Advocate For Respondent/State : Mr. Shashank Thakur, Deputy A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, C.J. 06/01/2025 1. The present criminal appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 25.03.2021, passed by learned Sessions Judge, Raipur, in Sessions Case No. 123 of 2018 whereby the appellant has been convicted for the offence under section 302 of IPC and sentenced for R.I. for life with fine of Rs. Digitally signed by VEDPRAKASH DEWANGAN 2 5000/-, in default of payment of fine further R.I. for 6 months. 2. The brief facts of the case are that the deceased Brij Kishore Tiwari was running a Patna-Muzaffarpur Dhaba at village Tarpongi, District Raipur, in which Uma Shankar Singh, Ram Kumar Sahu and Nanhu Nishad were their servants. In the intervening night of 25/26.12.2017, the appellant Bhagwat Verma had gone to the said Dhaba for dinner and placed his order of food. When some time was taken to deliver the food, he started abusing and threatened the servants and came out from the Dhaba and sat in his vehicle. Thereafter, the deceased- Brij Kishore Tiwari/owner of the Dhaba, went to the appellant and tried to convince him and hold the steering of the vehicle of the appellant. In between that altercation started, as a result of which the deceased- Brij Kishore Tiwari fell down on the ground and at that time, Uma Shankar Singh and Ram Kumar Sahu also came there to intervene in the altercation and on that very moment, the appellant ran his vehicle forward and then reversed and crushed the deceased- Brij Kishore Tiwari by his vehicle. Thereafter, he repeated the same action second time and fled away along with the vehicle from the place. The appellant had also pushed the servant Uma Shankar Singh, by which he also fell down on the ground and received injuries on his knee. By hearing hue and cry and the noise of the altercation, the son of the deceased and other family members came there. They immediately took the deceased by their car to Balaji Hospital, Raipur for his treatment. But on the same night at about 4:00 AM, the deceased died. The death of the deceased was intimated by Uma Shankar Singh 3 to the police and the Merg Intimation/Exhibit P-1 was recorded. The FIR/Exhibit P-2 was also recorded against the appellant for the offence under sections 302 and 323 of IPC. The inquest of the dead body/Exhibit P-9 was prepared in presence of the witnesses and the dead body was sent for its post-mortem to Medical College Hospital, Raipur where PW-9/Dr. Ulhas Gonade has conducted the post-mortem of the dead body of the deceased and number of injuries have been found including fracture of 2nd to 10th rib of right side and 2nd to 5th rib of left side, fracture of right femur upper part and opined that the death was due to hemorrhage and shock as a result of injuries to chest and organ. A query was also raised from him and he answered the query that the injuries found on the body of the deceased could have been caused by crushing him by Bolero Pickup vehicle. *******Spot map (exhibit P-3) was prepared by the police and Exhibit P-4 was prepared by Patwari. The appellant was taken into custody on 26.12.2017 and his memorandum statement (exhibit P-5) was recorded. Based on his memorandum statement, the Bolero Pickup vehicle bearing registration No. CG-04/HN-1382 has been seized vide seizure memo (exhibit P-7). Blood stain and plain soil was seized from the spot vide seizure memo (exhibit P-6). The clothes of the deceased was also seized from Balaji Hospital, Raipur vide seizure memo (exhibit P-11). The RTO papers have been seized vide seizure memo (exhibit P-12) from the father of the appellant Thanwar Verma. The vehicle seized from the appellant was mechanically examined by mechanic, who gave his report/Exhibit P-13. 4 *******The injured Uma Shankar Singh/PW-1 was also medically examined by Dr. Sanjeev Kumar Meshram/PW-8, who after his examination gave report (exhibit P-14). While his medical examination the doctor has noticed one abrasion on left side of knee joint, which was simple in nature. The doctor has also opined in the query (exhibit P-18) and advised for chemical examination of the clothes of the deceased. With respect to the treatment of the deceased, the relevant documents have been seized from Balaji Hospital, Raipur which is Exhibit P-24. The blood stain and plain soil, cloths of the deceased were sent for chemical examination to FSL, Raipur from where report/Exhibit P-31 was received. Statements of the witnesses under section 161 of CRPC have been recorded and after completion of usual investigation charge sheet was filed before the learned Judicial Magistrate First Class, Raipur for the offence under sections 302, 323 of IPC. The case was committed to the Court of learned Single Judge, Raipur for its trial. 3. The learned trial Court has framed charge for the offence under sections 302 and 323 of IPC against the appellant. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 22 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 5 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. The death of the deceased was due to the hemorrhage and shock as a result of injury to chest and organ, however the injuries found on the body of the deceased could have been caused by an accident also. There is no allegation that the appellant has used any weapon of offence or he after preparation had gone to the Dhaba to commit the offence. He would further submit that the witnesses or the employee of the Dhaba, who in order to extort money from the appellant, they made statement against him. There is no intention or knowledge of the appellant that when he running forward his vehicle, the the deceased may come under the vehicle. He would also submit that it was just a simple altercation, which normally happens in the Dhaba on various petty issues. He would further submit that in alternative if the Court comes into conclusion that the appellant is responsible for the injuries found on the body of the deceased, by which he died then the offence does not travel beyond the scope of section 304 of IPC, as there is no intention or knowledge of the appellant to commit the offence. Therefore, by altering the conviction of the appellant from 302 to 304 of IPC, his undergone period may be considered to be sufficient sentence for the offence under section 304 of IPC. 6 7. On the other hand, learned counsel for the State vehemently opposes the submissions made by learned counsel for the appellant and have submitted that the prosecution has proved its case beyond reasonable doubt. While repeatedly running the vehicle forward and reverse itself shows the intention of the appellant with knowledge that he determined to cause death of the deceased and ultimately he did the same. The eyewitnesses have duly supported the prosecution's case who were present in the Dhaba and tried to intervene in the altercation between the appellant and the deceased. Their presence in the place of incident is quite natural as they were the servant of the Dhaba and the place of incident is just outside of the Dhaba. Looking to the injuries found on the body of the deceased and the evidence of the eyewitnesses, the learned trial Court has rightly convicted the appellant for the alleged offence and sentenced him. His conviction and sentence is absolutely justified and the appellant is not entitled for any leniency. 8. We have heard learned counsel for the parties and perused the evidence available in the record. 9. With respect to the homicidal death of the deceased, the eyewitnesses PW-1/Uma Shankar Singh and PW-19/Nanhu Nishad have stated in their deposition that on the date of incident when they were serving food to the customers, the appellant started abusing and then he went outside and sat in his pickup vehicle. After hearing the noise, the owner of the Dhaba went to the appellant and tried to convince him, but the appellant abused him and pushed him, by which he fell down 7 on the ground and then the appellant crushed him by running his vehicle forward and reverse repeatedly and fled away. The deceased received severe injuries on his body and blood was coming out from it. They took him to Balaji Hospital, Raipur immediately. 10. PW-9/Dr. Ulhas Gonade, who conducted the postmortem of the dead body has stated in his deposition that on 26.12.2017, he conducted the postmortem of the dead body of the deceased- Brij Kishore and found multiple injuries on his body including various fractures of 2nd to 10th ribs of right side and 2nd to 5th ribs of left side. The right femur bone was also found fractured. While giving his post-mortem report (exhibit P-15) he opined that the death was due to hemorrhage and shock as a result of injury to chest and organ. In his query report (exhibit P-18), he further opined that the injuries found on the body of the deceased could have been caused by crushing by the Bolero Pickup vehicle. In his cross-examination, the defence could not brought any material, which led this Court to draw an adverse inference that the death of the deceased was not by the multiple injuries and not by the hemorrhage and shock as the result of injury to chest and organ. Thus, the death of the deceased being homicidal in nature has been proved by the prosecution and the learned trial Court has rightly comes into conclusion in its judgment that the deceased died due to homicidal death, which is neither perverse nor contrary to the record. 11. So far as the involvement of the appellant in the offence in question is concerned, the PW-1 and PW-19 are the eyewitnesses to the incident. They stated in their deposition that on the date of incident, some 8 altercation took place between the appellant and the deceased on the issue of late serving of food and the appellant came out from the Dhaba and sat in his pickup vehicle, when the deceased tried to convince him, he pushed the deceased by which he fell down on the ground and then he crushed him by running his vehicle forward and reverse repeatedly, when he and Rajkumar tried to rescue him, the appellant has also pushed him and fled away by running his vehicle. By the incident, the deceased received serious injuries on his body and he too was received injury on his left leg. They immediately taken the deceased to the Balaji Hospital, Raipur. After hearing the noise of the quarrel, the family members of the deceased have also came there. In the morning at about 4:00 AM, the deceased died due to the injuries. He lodged the report to the police station Dharsiwa and the merg intimation was recorded. In his cross-examination, the PW-1 has remained firm in saying the manner in which the incident occurred and the deceased was crushed by the appellant by his Bolero Pickup vehicle. The presence of this witness is quite natural as he was the servant of the Dhaba. 12. PW-19 who is another eyewitness to the incident has also given the same evidence as the PW-1 has given that the altercation took place on the issue of late service of dinner and when the deceased tried to convince him, the appellant pushed him, by which the deceased fell down on the ground and thereafter crushed him by his vehicle and fled away. They took the deceased to the hospital, but at about 4:00 AM he died. Nothing could be elicited in the cross-examination of this witness 9 also, which makes the evidence of this witness doubtful. Thus, these two eyewitnesses are fully reliable and proved the prosecution's case that the appellant has committed the offence by causing death of the deceased. 13. PW-2/Abhay Tiwari is the nephew of the deceased, PW-3/Ashish Tiwari is the son of the deceased. They were inside the house adjoining to the Dhaba and they came out from their house after hearing the noise of the quarrel. At the time when they came out from their house, they saw the deceased lying on the ground in injured condition just outside of the Dhaba and the appellant was running by his vehicle from there. Although these two witnesses have not seen the actual incident but they are the witness to the fact that immediately after the incident when the appellant running from the place of incident by his vehicle, these two witnesses have seen him running from the place of incident by his vehicle, which corroborates the evidence of PW-1 and PW-19. 14. PW-10/Nikhil Tiwari is another son of the deceased. He too was inside his house at the time of incident and when he came out from his house, he saw his father lying in injured condition on the ground and he was being informed by the persons gathered there that the appellant has caused injuries to his father by crushing him by his vehicle. 15. PW-20/Ram Kumar Saru is another servant of the Dhaba, who has also stated in his evidence that he was working in the Dhaba at the 10 relevant point of time. A person came there for taking his dinner. Some dispute arose between him and the owner of the Dhaba and when he rushed to the place of incident after hearing the noise, he saw that the deceased was struggling for his life, who was crushed by the vehicle owner and they took him to the hospital. Although this witnesses has not identified the appellant, but he duly supported the manner of the incident in which the deceased received injuries, which also corroborates the evidence of PW-1 and PW-19. 16. In the clothes of the deceased, the blood was found, which has been proved by FSL report/Exhibit P-31. From this piece of evidence, in absence of any sufficient rebuttal and proof of the incident by the eyewitnesses, it can safely be held that it is the appellant, who caused grievous injuries to the deceased by which he died. Therefore, the involvement of the appellant in the crime in question has been proved by the prosecution. 17. The next question for consideration is, whether the case of the appellant is covered within exception-4 to section 300 IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as submitted by the learned counsel for the appellant ? 18. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, reported in 2002 (3) SCC 327 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 11 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.” 19. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009 (15) SCC 635, 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 for 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; 12 (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 13 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.” 20. Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the Hon’ble Supreme Court has 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. 21. Further, the Hon’ble Supreme Court in the matter of Arjun Vs. State of Chhattisgarh, 2017 (3) SCC 247, has elaborately dealt with the issue and observed in 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 its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a 14 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 : “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 15 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”. 22. In the matter of Arjun (supra), the Hon’ble 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. 23. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients 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.” 24. Reverting to the facts of the present case, it is quite vivid that on the date of incident, the appellant had gone to Dhaba for taking his dinner and placed his order. When some time was elapsed, he became annoyed due to late service of the dinner and after usual altercation, he came out from Dhaba and sat in his vehicle. At that time, the 16 deceased came there and tried to convince him. But as a usual consequence of altercation, he pushed him, by which he fell down on the ground. Thereafter, he went away from there by running his vehicle. It is not the case where the appellant used any deadly weapon or any type of weapon to assault the deceased or even during the altercation, he used any weapon of assault for commission of any crime. It is also not the case that inside the Dhaba, he used any type of weapon or tried to assault the deceased. From the evidence, it appears that it is a usual altercation or quarrel between the appellant and the deceased, which was gathered on the moment itself. There was no premeditation on the part of the appellant to cause death of the deceased- Brij Kishore and only because of the altercation, he fell down and came under the vehicle. As the appellant did not have any intention to cause death of the deceased- Brij Kishore, but by causing such injury, he must have had the knowledge that such injury or such act would likely to cause death of the deceased and as such, his case would fall within the purview of exception 4 of section 300 of IPC. As such, the act of the appellant herein completely satisfies the four necessary ingredients of exception 4 to section 300 of 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 any undue advantage or acted in a cruel or unusual manner. 25. Considering the law laid down by the Hon’ble Supreme Court in the aforesaid cases, considering the evidence of eyewitnesses, PW-1/Uma Shankar Singh and PW-19/Nanhu Nishad and also other 17 witnesses PW-2/Abhay Tiwari and PW-3/Ashish Tiwari and PW-20/Ram Kumar Sahu. Further taking into consideration the fact that the appellant is in jail since 26.12.2017, ends of justice would meet if the conviction of the appellant under section 302 of IPC is altered/converted to one under section 304 of IPC. 26. Accordingly, the appeal is allowed to extent that conviction of the appellant under Section 302 IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 10 years with fine of Rs. 1000/-, In default of payment of fine, further R.I. for two months. 27. As the appellant is stated to be in jail, he shall serve the remaining sentence as modified by this Court. 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 29. Let a copy of this judgment and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved