1 2025:CGHC:12800-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 946 of 2019 Sohabbat Singh S/o Amar Singh, aged about 21 years, Caste-Cherwa, R/o Village-Injani, Panchgadai, Police Station Ramkola, District-Surajpur (C.G.) ... Appellant Versus State of Chhattisgarh, through the Station House Officer, Police Station- Ramkola, District Surajpur (C.G.) ... Respondent For Appellant : Mr. Rahul Mishra, Advocate. For State : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey,J. Hon’ble Shri Justice Sachin Singh Rajput, J. Judgment on Board Per Rajani Dubey, J. 18.03.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 29.04.2019 passed by the learned Additional Sessions Judge, Pratappur, (C.G.) in Sessions Trial No. 14/2018, wherein the said Court convicted the appellant and sentenced him as under:- Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 Conviction Sentence U/S 302/34 of IPC For life imprisonment and fine of Rs. 1500/-, in default of payment of fine to undergo additional R.I. for 06 months. U/S 201/34 of IPC R.I. for 03 years and fine of Rs. 500/-, in default of payment of fine to undergo additional R.I. for 03 months. 2. Brief facts of the case are that on 07.09.2018, the complainant Chandrika Singh lodged a report at Police Station Ramkola, alleging therein that the deceased Ramkumar Marco (father of complainant) was posted as Headmaster at Middle School, Injani Pachgadai Para and on 06.09.2018 he went to school. At about 5:00 p.m. one Mahendra Singh informed the complainant that Shrawan Cherwa and Sohabbat Cherwa were dragging the deceased Ramkumar Marco towards forest. On the basis of said intimation, the complainant along with Mahendra Singh went to jungle side and found his father Ramkumar Marco lying dead in Sardanand jungle and the motorcycle dumped over the dead body. On the basis of the above report, the offence under Sections 302, 201/34 of IPC were registered against the appellant and the juvenile co-accused. 3. During the course of investigation, inquest over the dead body was prepared vide Ex. P/05 and the dead body was sent for postmortem examination to Government Hospital, Pratatppur on 07.09.2018 where (PPW-17) Dr. Rajesh Shresht conducted postmortem on the body of the deceased and opined that the cause of death is cardio-respiratory 3 arrest due to head injury and the death was homicidal in nature vide Ex. P/25 and as per memorandum of the accused vide Ex. P/06, one wooden stick and one spade were seized, spot maps were prepared and statements of witnesses were recorded. 4. After completion of usual investigation, the charge-sheet under Section 302, 201, 34 of IPC was submitted before the concerned Jurisdictional Magistrate and then the case was committed for trial to learned Additional Sessions Judge, Pratappur District-Surajpur (C.G.). Learned trial Court framed charges under Sections 302, 201, 34 of IPC against the accused/appellant to which he abjured his guilt and prayed for trial. However, charge-sheet against the juvenile co-accused has been filed before the concerned Juvenile Justice Board. 5. In order to prove its case, the prosecution has examined as many as 18 witnesses and exhibited several documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 6. Learned trial Court after appreciating the oral and documentary on record, convicted the appellant under Sections 302, 201/34 of IPC and sentenced him as mentioned in the opening paragraph of this judgment. 7. Learned counsel for the appellant submits that the impugned judgment dated 29.04.2019 is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore, it is liable to be set aside. The 4 learned trial Court has failed to appreciate that the F.I.R was lodged by complainant Chandrika (PW-01) against the appellant only on the basis of intimation given to him by Mahendra (PW-08), whereas the said Mahendra Singh (PW-08) has specifically deposed before the learned trial Court that he has not seen the appellant committing murder of deceased Ramkumar. The dead body of deceased Ramkumar was lying in Sarnandand jungle, where the naxalites are active, therefore, it might be possible that the deceased was killed by naxalites. The learned trial Court has failed to appreciate that the deceased was an influential and active person and acted against the naxalites, therefore, the naxalites were trying to kill the deceased Ramkumar. The learned trial Court has failed to appreciate that there is no eye witness of the incident and even the prosecution has not alleged any motive or intention to kill the deceased. The appellant was not having any enmity with the deceased and none of prosecution witnesses have stated that there was animosity between the appellant and deceased. The learned trial Court has gravely erred in convicting the appellant only on the basis of testimony of interested witnesses, without there being any clinching or cogent evidence. The material prosecution witnesses have not supported the case of prosecution and they turned hostile. Therefore, impugned judgment is liable to be set-aside. Alternatively, he submits that it is clear from the statement and memorandum that out of sudden quarrel and anger, the appellant assaulted the deceased and as such, this is a case which is covered with Exception 4 of Section 300 of IPC and thus, the conviction of the appellant under Section 302 of IPC be converted to Section 304 (II) of IPC and his sentence be reduced to the period already undergone. 5 8. Ex adverso, learned counsel appearing for the State supported the impugned judgment and submitted that the prosecution has brought sufficient material in shape of oral and documentary evidence to convict the appellant for offence punishable under Sections 302 & 201 of IPC. The learned trial Court has minutely appreciated the oral and documentary evidence available on record and has rightly convicted the appellant and it is not a case where his conviction can be converted to Section 304 (II) of IPC. Therefore, the instant appeal deserves to be dismissed. 9. We have heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. The first question for consideration would be whether the death of deceased Ramkumar was homicidal in nature? 11. (PW-01) Chandrika stated that the deceased was his father and on 06.09.2018, at about 5:00 p.m. one Mahendra informed the complainant that the appellant Sohabbat Singh and the co-acused Shrawan Singh were dragging the deceased Ramkumar Marco towards drain. Upon hearing this much, Chandrika Singh (PW-01) went to the spot with Mahendra for searching his father and when he removed the soil, he found his father's slippers and dead body lying over there. Thereafter, he informed about the same in the police station vide morgue intimation Ex. P/01 and F.I.R. Ex. P/02. 12. (PW-14) Narendra Kumar Singh stated that he recorded morgue intimation No. 12/2018 vide Ex. P/01 as per information provided by Chandrika Singh (PW-01) and thereby lodged F.I.R vide Ex. P/02 and he issued notice vide Ex. P/04 and prepared inquest memo vide Ex. P/05 and dead body of Ramkumar was sent for postmortem with application vide Ex. P/10. 13. Dr. Rajesh Shresht (PW-17) conducted postmortem of deceased and found injuries in his external examination which is reproduced herein for 6 ready reference as under:- External Examination:- Dead body was found supine in position, B/L eye-close, Tongue – protruded & swell - Peeling of skin all over the body present with Blister form -Moderate foul smelling present. - Swelling of scrotum and penis. -Contusion on chest with underneath hematoma present. - Puffiness of face present. - Contusion on upper back, app. size 20cm x 6cm. -Lacerated wound on left side of perietal region on hand (app. Size 3cm x 1cm x 0.5cm) -Rigor mortis present. He further opined that cause of death of Ramkumar was due to cardio vascular response due to head injury and nature of death is homicidal. It is clear from his cross-examination that the death of deceased Ramkumar was homicidal in nature and it is also not being seriously disputed by the learned counsel for the appellant. The learned trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/25) and statement of Dr. Rajesh Shresht (PW-17) and after hearing learned counsel for the parties. In view of aforesaid medical evidence and statements of witnesses we are also of the opinion that learned trial Court has rightly held the death of the deceased Ramkumar to be homicidal in nature. We hereby affirm the said finding recorded by the learned trial Court. 14. The next question for consideration is whether the appellant is the 7 author of the crime? 15. The learned trial Court has also recorded this finding in affirmative relying upon the statements of witnesses. 16. (PW-01) Chandrika Singh stated that Mahendra Singh informed her that the appellant and the other co-accused person were dragging deceased Ramkumar towards drain. In cross-examination, he admitted that it is true that he did not see the incident. 17. (PW-02) Shivkumar also stated that when he returned from his school with Santosh and Bir Bahadur then he saw that the appellant and the other co-accused were dragging Ramkumar towards forest. He also admitted this suggestion that he did not see them fighting, but he remained firm on this point that he saw them dragging Ramkumar. 18. (PW-03) Santosh Kumar stated that he saw the appellant and the co- accused dragging Ramkumar towards forest and he informed his father Mahendra Singh regarding the incident. (PW-04) Santosh & (PW-05) Bir Bahadur have also stated that the appellant and the other co- accused person were dragging Ramkumar towards forest. 19. (PW-08) Mahendra Singh is a witness to Ex. P/06 which is memorandum of the appellant and he denied memorandum statement and also denied seizure of any articles. The prosecution declared him hostile and cross-examined him, then he admitted this suggestion that he went at with the Police at Panchagadaipara Injani and appellant was also traveling with them. He further submits that on the basis of the memorandum of the accused, a wooden stick and a iron spade seized and they were sent for chemical examination to FSL. 20. It is clear from the statements of (PW-02) Shiv Kumar, (PW-03) Santosh Kumar, (PW-04) Santosh and (PW-05) Bir Bahadur that they all saw the appellant and the other co-accused person dragging Ramkumar towards the forest and it is also clear from the statement of (PW-01) Chandrika Singh, son of the deceased that when Mahendra Gond 8 father of Santosh (PW-03) informed him about the incident, he went to the forest along with Mahendra Gond in search of his father and upon searching, he found dead body of Ramkumar and then he lodged morgue intimation Ex. P/01. All witnesses have remained firm in their cross-examination. The learned trial Court also minutely appreciated the oral and documentary evidence and rightly found that the appellant has assaulted the deceased with the co-accused person (juvenile) due to which the deceased died. 21. Now, we have to consider whether the learned trial Court has rightly convicted the appellant for the offence punishable under Section 302 of IPC or his act is covered with Exception 4 of Section 300 of IPC and thus, conviction of the appellant can be converted to Section 304 (II) of IPC. 22. At this stage, it would be appropriate to notice Exception 4 of Section 300 of IPC, which states as under:- “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.” 23. Hon’ble Apex Court in the matter of Arjun V. State of Chhattisgarh has held in paras 20 & 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 9 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 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 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 10 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”. 24. So, it is clear that Hon’ble Apex Court held that when and if there is intent and knowledge, the same would be case of Section 304(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 (II) of IPC. 25. In the light of above, in the present case also it is clear from the memorandum of the accused Ex. P/06 that the appellant and the juvenile i.e., co-accused stopped the deceased and asked him as to why he abuses their aunt filthily, to which the deceased Ramkumar replied after getting down from his motorcycle that he abused her and will keep abusing her, to which the appellant and his brother/co- accused beat the deceased Ramkumar with a wooden sticks lying there and upon noticing that deceased is out breathing, they dragged him towards the forest and dumped motorcycle over him. 26. It is thus clear that the incident took place over a sudden quarrel, in the heat of passion when the deceased replied that he abused the aunt of the appellant filthily and will keep abusing her which infuriated the appellant and he beat him with a wooden stick lying there. The manner in which the incident took place reveals that there was no premeditation on the part of the appellant to cause aforesaid bodily injuries to the deceased. It is also clear that while making such assault, the appellant did not act in a cruel or unusual manner. Keeping in view the overall facts and circumstances of the case giving rise to the incident and the manner in which the assault was made by the appellant, this Court is of the opinion that though the appellant may not have the intention to kill 11 the deceased, however, while making assault with a wooden stick on vital part i.e., head of the deceased, it cannot be denied that the appellant had knowledge that such bodily injuries being inflicted would result in his death. This being the position, the act committed by the appellant is covered under Exception 4 to Section 300 of IPC and makes him liable for conviction under Section 304 (II) of IPC. 27. On the basis of the aforesaid discussion, the appeal is allowed in part. Conviction of the appellant under Section 201/34 of IPC and sentence imposed thereunder by the Learned trial Court is hereby affirmed, whereas the conviction of the appellant under Section 302 of IPC is altered into Section 304 (II) of IPC and he is sentenced to undergo R.I. for 8 years and pay a fine of Rs. 1,000/- and in default thereof to suffer additional R.I. for 03 months. 28. The appellant is reported to be in jail since 11.09.2018, as such he has been behind the bars for the last 6 years and 6 months, therefore, he is entitled for set off of the detention period under section 468 of Bharatiya Nagarik Suraksha Sanhita, 2023. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge U.K. Raju