1 2025:CGHC:10992-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 762 of 2021 Kaleshwar Tigga @ Korwa S/o Mangla Tigga Aged About 35 Years R/o Khedar, Police Station- Sanna, District- Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through- The Station House Officer, Police Station- Sanna, District- Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Sanjeev Kumar Sahu, Advocate For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 06/03/2025 1. The appellant has preferred this criminal appeal under section 374(2) of the Criminal Procedure Code against the judgement of conviction and sentence dated 15.07.2021 passed by learned Sessions Judge, Jashpur, District Jashpur, in Sessions Case No. 19/2020, whereby the Digitally signed by VEDPRAKASH DEWANGAN 2 appellant has been convicted Under Section 302 of IPC and sentenced him for Life Imprisonment with fine of Rs. 250/-, in default of payment of fine additional imprisonment for 4 months. 2. The case of the prosecution in brief is that on 21.09.2019, at about 22:20 PM, the complainant Sahju Tigga/PW-1 gave a merg intimation to the police that at about 6:00 PM his nephew Kaleshwar Tigga (the accused) has committed murder of his wife Smt. Gutyari Bai by assaulting her by axe on the suspicion that she was playing witchcraft. The police has recorded the merg intimation/exhibit P-17 and FIR/Exhibit P/18 was also registered against the appellant for the offence under Section 302 of IPC. Inquest/Exhibit P/2 of the dead body was prepared in presence of the witnesses and the dead body of the deceased was sent for its postmortem to Primary Health Centre, Sanna, District Jashpur. PW-1/Dr. Sunil Lakra conducted the postmortem of the dead body of the deceased and gave postmortem report/exhibit P/13. While conducting the postmortem the doctor has found the following injuries on her body:- (1) Sharp injury present on left side of ear 3-2-2”. (2) Incised would present in back side of neck 4-2-2”. (3) Fracture on back side of neck with multiple fractures of head. 3. After conducting the postmortem the doctor has opined that the cause of death is coma due to head injury which is homicidal in nature. 3 4. The blouse of the deceased has also been seized vide seizure memo/exhibit P-11. Blood-stained and plain soil has been seized from the spot vide seizure memo/exhibit P-3. Spot map/exhibit P-4 was prepared by the police, and exhibit P-8 was prepared by the Patwari. The appellant was arrested on 22.09.2019 and blood like stained axe has been seized from him vide seizure memo/exhibit P-5. The said axe was sent for its query report to the doctor, who conducted the postmortem and the doctor has given his query report/exhibit P-14, which are as under:- 1- D;k tIr’kqnk dqYgkM+h ls e`frdk ds cnu ij pksV vk ldrh gSA ftlls e`frdk dh e`R;q gks ldrh gSA Opinion:- May be possible. 2- D;k blh dqYgkM+h ls ekjdj pksV igqapkus ls e`R;q gqbZ gSA Opinion:- May be possible. 3- dqYgkM+h ds /kkj ,oa iklk esa ekuo jDr fo|eku gSA Opinion:- Examine referred to FSL. 5. The blood stained and plain soil seized from the spot, axe seized from the appellant and blouse of the deceased were sent for its chemical examination to Regional FSL Ambikapur from where FSL report/exhibit P-25 was received and human blood was found on blood stained soil (Article ‘A’), axe seized from the appellant (Article ‘C’) and blouse of the deceased (Article ‘D’). The ‘O’ group of blood was found in the blood stained soil seized from the spot and axe seized from the appellant (Article ‘A’ and ‘C’). Statement of the witnesses under 4 Section 161 of CRPC has been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 302 of IPC and section 4 & 5 of The Chhattisgarh Tonhi Pratadna (Nivaran) Adhiniyam, 2005 before the learned Judicial Magistrate First Class, Bagicha, District Jashpur. The case was committed to the Court of learned Sessions Judge for its trial. 6. The learned trial Court has framed charge for the offence under Section 302 of IPC and Sections 4 & 5 of The Chhattisgarh Tonhi Pratadna (Nivaran) Adhiniyam, 2005. The appellant denied the charge and claimed trial. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 13 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 is innocent and has been falsely implicated in the offence. 03 defence witnesses- Dilbahal (DW-1), Kuldeep Ram (DW-2) and Nirmuni Bai (DW-3) have been examined by the appellant. 8. After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has convicted and sentence the appellant as mentioned in the earlier part of the judgment, hence this appeal. 5 9. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their statements are inconsistent. PW-1/Sahju Tigga is claimed to be the eyewitness, but from his evidence, it is clear that he was not able to see the incident due to his age and he could not see things beyond a particular distance. The appellant was implicated in the offence only on the basis of the fact that the appellant suspected that the deceased was playing witchcraft, except this there is no cogent and clinching evidence to hold the appellant guilty for the alleged offence. In alternative, he would submit that even if it is proved in the case that the appellant has caused injuries to the deceased, his act does not travel beyond the scope of the offence under Section 304 of IPC, as the incident was occurred in a heat of passion and it was a sudden quarrel. The appellant is in jail since 22.09.2019 and therefore, by altering his conviction from the offence of Section 302 of IPC to Section 304 Part-I of IPC, his undergone period may be considered to be the sufficient sentence for the offence. 10. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses are fully reliable. The case of the prosecution is based on eyewitness/PW-1 Sahju Tigga, who clearly deposed that on the date of incident, the appellant caused injuries to his wife. The appellant is 6 his nephew and there is no doubt of his identity as assailant. Though he was aged about 63 years and stated that the appellant was not clearly identifiable from the place, where he was standing, despite that from his evidence and also from the other evidence available on record, the guilt of the appellant has been duly proved by the prosecution. The injuries have been caused on the vital part of the body of the deceased that too by an axe, which shows the intention and knowledge of the appellant and therefore, after appreciating the entire evidence available on record, the learned trial Court has convicted and sentence the appellant, which is strictly in accordance with law and needs no interference. 11. We have heard learned counsel for the parties and perused the record with utmost circumspection. 12. With respect to the homicidal death of the deceased, the eyewitness/PW-1 Sahju Tigga has deposed that on the date of incident, the appellant has given axe blow on the neck of the deceased, by which she received injuries on her neck and she died due to the injuries. The witnesses to the inquest/exhibit P-2 namely Faitu/PW-3, Kameshwar Ram/PW-8, Savitri Bai/PW-9 have also supported the injuries found on the body of the deceased. 13. PW-7/Dr. Sunil Lakra, who conducted the postmortem of the dead body of the deceased, has stated in his deposition that on 22.09.2019, he conducted the postmortem of the dead body of the deceased Gutyari Bai and found sharp injury on left side of ear and incised 7 wound on back of neck, fracture of back side of neck and multiple fracture of head bone was present. He opined the cause of death is coma due to head injury and nature of death is homicidal. In his cross- examination, the defence could not bring any material, which led this Court to draw an adverse inference that the death of the deceased was not by the neck injury. Although, in cross-examination, the doctor has admitted that if anyone fell from the terrace on the ground, similar injuries could have been received by the person as has been found on the body of the deceased in the present case, but it is not the defence of the appellant that the deceased had fallen from her terrace, therefore, the homicidal death of the deceased is found proved. 14. So far as the involvement of the appellant in crime in question is concerned, PW-1/Sahju Tigga is the eyewitness to the incident, who is the uncle of the appellant and husband of the deceased. He stated in his deposition that on the date of incident, when he was tiding his cattle on the courtyard, his nephew/appellant came there, exhorted his wife and when she came out from the house, the appellant gave 5-7 blows by axe, by which she received injuries and fell down. The incident was also witnessed by Sanichar, Khaitu, Madud, Faitu and his wife. He lodged the report to the police. In cross-examination, though he admitted that his eye vision is not clear and he could not identify the person from a particular distance, but remain firm in saying that it is the appellant who caused injuries to his wife, by which she died. 8 15. PW-4/Madud is also an eyewitness to the incident, who too has proved that the appellant has given the axe blow on the deceased, who is the wife of Sahju. He too has remained firm in cross- examination that in his presence, the appellant had assaulted the deceased and due to fear that the appellant may also have caused the injuries to them, they did not intervene. He also proved the seizure of axe from the appellant and the document/exhibit P-5. The seizure of axe has also not been specifically challenged by the defence. 16. The said axe seized from the appellant was sent for its query report to PW-7/Dr. Sunil Lakra, who opined in query report/exhibit P-14 that the injuries found on the body of the deceased may be possible by the axe seized from the appellant. In the FSL report/exhibit P-25, ‘O’ group of blood was found on the blood stained soil seized from the spot and axe seized from the appellant, which directly connects the appellant with the offence in question. 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 of the 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:- 9 “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 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 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 : 10 (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; (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; 11 (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 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 v. 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 12 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 Supreme Court in the matter of Arjun v. 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 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 13 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 14 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”. 22. In the matter of Arjun (supra), the Supreme Court has held that if there is intention and not 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 Supreme Court in the matter of Rambir v. 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 15 (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 24. Reverting to the present case, it is quite vivid that on the date of incident, the appellant, who enraged by the act of the deceased and raising suspicion that she is playing witchcraft, by which his children were suffering and that anger state of mind, he gave axe blow on the back side of the body of the deceased. Two injuries have been found on her head. So far as the weapon of assault is concerned, had the appellant intended to kill the deceased, he would have made more blows. As per the evidence of defence witnesses- DW-1, DW-2 and DW-3, the husband of the deceased Sahju (PW-1) suspected the appellant that he is engaged in playing witchcraft. The manner of incident and their relationship as also the motive to commit the offence as projected by the prosecution, it can safely be hold in the peculiar facts and circumstances of the case that, the appellant did not have any intention to cause death of the deceased Gutyari Bai, but by causing such injury, he must have had the knowledge that such injury inflicted by him 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 the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC. 25. Considering the law laid down by Hon’ble the Supreme Court in aforesaid cases, above-stated facts, also considering the evidence of eyewitness- PW-1/Sahju Tigga and PW-4/Madud, it would meet the 16 end of justice that the appellant is liable for his conviction under Section 304 Part-I of the IPC instead of Section 302 of the IPC. 26. Accordingly, conviction of the appellant under Section 302 of the 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. 250/-, in default of payment of fine, additional imprisonment for 4 months. 27. As the appellant is stated to be in jail since 22.09.2019, he shall serve the remaining sentence as modified by this Court. 28. The criminal appeal is partly allowed to the extent indicated herein above. 29. 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. 30. 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