1 2025:CGHC:11758-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 800 of 2021 1 - Umeshwar Dewangan @ Shiva S/o Balkishan Dewangan Aged About 30 Years R/o Prem Nagar, Satnami Para, Rawabhatha, Khamtarai, District- Raipur, Chhattisgarh. 2 - Himanshu Chandradas S/o Bhikhari Charandas Manikpuri Aged About 25 Years R/o New Anand Nagar Sendhwa Near Pond, Bhanpuri, Khamtarai, District- Raipur, Chhattisgarh. ... Appellants Versus 1 - State of Chhattisgarh Through-Station House Officer, Police Station Bemetara, Civil & Revenue District-Bemetara, Chhattisgarh, District : Bemetara, Chhattisgarh ... Respondent For Appellant No.1 : Shri KP Sahu, Advocate. For Appellant No.2 : Ms. Jaya Gupta, Advocates. For State : Shri Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board 10.03.2025 Per, Ramesh Sinha, CJ. 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (in short, Cr.P.C.) against the judgment of conviction and sentence dated 07.07.2021 passed by the First Additional Sessions Judge Bemetara in Sessions Case No.59/2016 Digitally signed by INDRAJEET SAHU Date: 2025.03.21 17:01:09 +0530 2 whereby both the appellants have been convicted and sentenced in the following manner: Conviction Sentence U/s 302/34 IPC Life imprisonment with fine of Rs.1000-1000/-, in default of payment of fine, additional RI for 1-1 months to both appellants U/s 201/34 IPC RI for 5-5 years with fine of Rs.500-500, in default of payment of fine amount, additional RI for 15 days to both the appellants. 2. Brief facts of the case are that, on 17.04.2016 at about 5 PM the complainant Ramadhar Yadav, PW-6, gave a merg intimation to the police Ex.P/7 that at about 3:30 PM when he was taking paddy straw from his threshing field, he saw a dead body under the paddy straw. The dead body was unknown to him. He informed the matter to Suder Yadav, PW-2 and Kotwar Bisauha Das, PW-7. Dehati Nalisi Ex.P/6 was also recorded on 17.04.2016 at 05:05 PM. Inquest Ex.P/1 was prepared in presence of witnesses and dead body was sent for its postmortem to District Hospital, Bemetara where PW-12 Dr. Pawan conducted postmortem of the dead body of deceased and gave his report vide Ex.P/13. While conducting postmortem, the Doctor noticed five incised wound on upper chest of the deceased which are spindle shaped having size of 1.6x2x6cm, 2x0.5cm, 3x0.5cm, 4x1.5x1cm and 1x0.5cm. On internal examination, the left lobe of lung was found lacerated. He opined that cause of death was shock due to incised wound over chest and laceration of left lobe of left lung. Death was opined to be homicidal in nature. 3. The numbered merg intimation Ex.P/21 was registered at Police Station Bemetara and FIR Ex.P/20 was also registered for the offence 3 under Sections 302 and 201 IPC against unknown person. Spot map Ex.P/8 was prepared by the police whereas Ex.P/9 was prepared by the Patwari. Since dead body was unclaimed, the police performed the last rights and dead body was buried. When deceased was missing, a missing report was lodged at Police Station Khamtarai and during enquiry of missing person, the family members of the deceased have identified the dead body by its photograph and on their application the dead body was exhumed by the order of Sub Divisional Magistrate, Bemetara and handed over dead body to them for its last rights. The application for permission to exhume the dead body is Ex.P/39. During investigation, the appellants were taken into custody on 21.04.2016 and their memorandum statement were recorded. On the basis of memorandum statement of the appellant Umeshwar Dewangan @ Shiva Ex.P/25, one Auto rickshaw bearing registration No.CG-04-TA- 0302, one steel knife, one blood like stained full pant and one blood like stained shirt were seized from him vide seizure memo Ex.P/27. Based on memorandum statement of appellant Himanshu, Ex.P/26, one blood like stained T-Shirt and full pant were seized vide seizure memo Ex.P/28. The appellant Umeshwar Dewangan was also sent for his medical examination to District Hospital, Bemetara where he was medically examined by PW-17 Dr. Vinay Kumar Tamrakar, who, on his examination found one incised wound over anterior aspect of right thumb caused by sharp weapon and multiple abrasions on left side of chest caused by hard and blunt object which were simple in nature. His medical report is Ex.P/22. The Knife seized from appellant Umeshwar Dewangan was sent for its query report to the Doctor who gave his query report Ex.P/15 and opined that injury mentioned in postmortem 4 report can be caused by the above weapon Knife and also may cause death. The clothes seized from appellant were also sent for its query report to the Doctor and by giving query report Ex.P/14, the said clothes were sent for its chemical examination for confirmation of bloodstains. The clothes of deceased as well as appellants and Knife seized from appellant Umeshwar Dewangan were sent of its chemical examination to State FSL Raipur from where report Ex.P/38 was received, according to which, clothes of the deceased (Article A-1 to A- 4) were found to be stained with human blood, blood was found on the T-shirt of appellant Himanshu (Article-D) and Knife seized from the appellant Umeshwar Dewangan (Article-F). 4. The statement under Section 161 of Cr.P.C. of the witnesses were recorded. After completion of usual investigation charge-sheet was filed against the appellants before the Chief Judicial Magistrate, Bemetara for the offence under Sections 302, 201, 34 of I.P.C. The case was committed to the Court of Sessions Judge Bemetara from where the same was transferred to the trial Court for its trial. 5. The trial Court has framed charge against the appellants for the offence under Sections 302/34 and 201/34 of I.P.C. The appellants abjured their guilt and claimed trial. 6. In order to prove the charge against the appellants, the prosecution has examined as many as 25 witnesses. The statement under Section 313 of Cr.P.C. of the appellants have also been recorded in which they denied the circumstance appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial court has convicted and sentenced the 5 appellants as mentioned in the opening paragraph of this judgment. Hence this appeal. 8. Shri KP Sahu, learned counsel for the appellant Umeshwar Dewangan would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is no eye-witness to the incident and the chain of circumstances have not been completed by leading cogent and clinching evidence against him. The appellant has been convicted on surmises and conjectures. No motive has been proved by the prosecution. Except memorandum statement and alleged recovery of Knife and clothes, there is no other evidence available on record which connects the appellant in crime in question. Thus, in absence of concrete evidence, the appellant cannot be held guilty for the alleged offence and he is entitled for acquittal. 9. Ms. Jaya Gupta, learned counsel for the appellant Himanshu would also submit that except seizure of clothes, there is no evidence against the appellant Himanshu. Prosecution failed to establish that blood found on the clothes of appellant Himanshu was of same blood group with that of the deceased. Mere presence of blood on the clothes of appellant is not sufficient to connect him with the offence in question. Motive has not been proved. Last seen theory also has not been proved by the prosecution. The inculpatory part of memorandum statement is not admissible and recovery of clothes of the appellant does not connect him with the offence of murder of deceased. There are lot of broken and missing links in the case and chain of circumstances is not complete and therefore the appellant Himanshu is also entitled for acquittal. 6 10. On the other hand learned counsel for the State vehemently opposes the submission made by learned counsel for the appellants and have submitted that the prosecution has proved its case beyond reasonable doubt. Although, the case of prosecution is based on circumstantial evidence, but there are sufficient evidence available on record which connects the appellants with the offence of commission of murder of deceased. The witnesses have seen the appellants cleaning their Auto from where blood was coming out. The Auto was identified by the wife of deceased. The memorandum and seizure have also been proved by the witnesses and blood was found on the clothes of the appellant Himanshu and Knife seized from the appellant Umeshwar. Motive also has been proved by the prosecution that there was a dispute between appellants and deceased with respect to transaction of Rs.500/-. Thus, all the circumstances are connected with each other completing the chain of circumstances and therefore the trial court has rightly convicted and sentenced the appellants which needs no interference. 11. We have heard learned counsel for the parties and perused the records of the case. 12. The homicidal death of deceased has not been specifically challenged by the appellants. Further, homicidal death of deceased has been proved by the evidence of Dr. Pawan, PW-12, who have stated in his evidence that on 18.04.2016 the dead body of deceased was brought before him for its postmortem. On its postmortem he found five incised wound on the left side of chest, one lacerated wound on left eyebrow and contusion on forehead. On internal examination, he found fracture of 3rd & 4th left ribs and left lobe of lung was found lacerated. Smell of Alcohol was coming out from his stomach. He opined that the cause of 7 death was shock due to incise would over the chest and laceration of left lung and death was homicidal in nature. His postmortem report is Ex.P/13. He also examined the clothes seized from the appellants and referred it for its chemical examination. Knife was also produced before him for its query report and by giving his query report Ex.P/15 he opined that the injury mentioned in postmortem report can be caused by the said weapon Knife and can cause death too. In cross examination, he specifically stated that injuries found on the dead body was antemortem and the clothes of deceased was sodden with blood. Nothing could be extracted from this witness so that his evidence can be disbelieved or it can be held that deceased died due for some other reason. Further, the homicidal death of deceased was corroborated from the merg intimation Ex.P/7 and Dehati Nalisi Ex.P/6 lodged by the complainant Ramadhar Yadav, PW-6, as also from the evidence of witnesses to inquest PW-2 Sundar Yadav, PW-6, Ramadhar Yadav and PW-8 Ramswaroop Yadav who stated in their evidence that they saw the dead body near threshing field of the complainant having injuries on the body and this court is also of the considered opinion that trial court has rightly held that death of deceased was homicidal in nature. 13. The dead body of deceased was initially unclaimed but later it was identified by PW-24, Bharti Sunil Choudhary, wife of deceased, who have stated in her evidence that on 19.04.2016 they lodged a missing report at Police Station Khamtarai, District Raipur. He was missing since 17.04.2016. On the same day in the evening the police called them and subsequently they came to know that Bemetara police had performed the last rights and buried the dead body of her husband. 8 Thereafter, the dead body of her husband was exhumed which she has identified that it was her husband’s dead body. The identification of dead body has not been challenged by the appellants and there is nothing on record to disbelieve that the dead body found on the threshing field of the complainant Ramadhar Yadav was not the dead body of deceased Sunil Choudhary @ Bhau. 14. PW-6, Ramadhar Yadav, is the person who first seen the dead body in his threshing field. He stated in his evidence that near Shivnath bridge at village Temri his land is situated in which he cultivates vegetables. His threshing field is also there. While he was working, he saw a dead body which was kept under the paddy straw in his threshing field, the intimation about which was given by him to Sarpanch and village Kotwar. Thereafter, the Kotwar informed the incident to Bemetara Police and then he lodged merg intimation Ex.P/7 and Dehati Nalisi Ex.P/6. The police prepared inquest Ex.P/1 and spot map Ex.P/8. He was formally cross examined by the defence as there was nothing incriminating against the accused persons in his evidence and he is witness only to the fact that a dead body was found in his threshing field. 15. PW-1, Prakash Kumar Khelwar, have stated in his evidence that both the accused persons came to his Petrol Pump Sagar Fuels Sasaholi, Tilda for filling up Diesel. They cleaned their Auto in the Petrol Pump. At that time, blood was also coming out from the Auto. When he enquired about the blood, one of them replied that they have slaughtered a He-goat. Thereafter he scolded them and sent them away from that place. In cross examination he states that he knew both the appellants who came to Petrol Pump to fill diesel in their Auto. He 9 identified both the accused persons before the court also at the time recording his evidence. He further states that he could not remember the date and time when they had come. He further admits that after filling diesel, the appellants went away from petrol pump and he did not ask their names at that time. 16. PW-5, Khubchand Kaushik, is the owner of said Auto No. CG-04-TA- 0302. He stated in his evidence that he has given the said Auto to Sunil Choudhary (since deceased) who was resident of Bhanpuri. He also taken Rs.500/- from him for repairing of Auto. When the leading question was asked from this witness, he denied that on 19.04.2016 the appellant Umeshwar Dewangan @ Shiva came to him for return of the said Auto. In cross examination he reiterated that his Auto was being plied by Sunil @ Bhau on rent. 17. PW-14, Lalit Dewangan, have stated in his evidence that he was working at Sagar Fuels, Sasaholi Tilda. Adjoining to petrol pump there was a tube well where two persons were cleaning their Auto and he saw that blood was coming out from the Auto. When he asked about blood, they replied that blood is of He-goat and Fish. He scolded and get them away from that place. When this witness was asked leading questions, he voluntarily states that when one Sonu informed him that Auto was being cleaned near Tube well by the appellants, he asked them to go away from that place. 18. PW-22, Vilas Choudhary, the brother of deceased, have stated in his evidence that his brother Sunil was missing since 17.04.2016 and when his whereabouts could not be traced out, he lodged a missing report at Police Station Khamtarai. The police arrested both the appellants. The appellants threatened him that after about five years 10 when they will be released from jail, they will see him. He also disclosed that his brother had taken money from them and since he failed to repay the same, they committed his murder. On being interrogation by the police, they disclosed that they committed murder of deceased Sunil near Shivnath river bridge by giving repeated knife blow on his chest and concealed the dead body under the paddy straw. They also disclosed that they committed said offence in the Auto itself. On 20.04.2016 Auto No.CG-04-TA-0302 was seized from appellant Umeshwar @ Shiva from his rented house at Prem Nagar, Raipur. One steel knife and his pant & shirt were also seized. On the same day, the clothes of appellant Himanshu were also seized and he duly proved the memorandum statement of appellants Ex.P/25&26 and seizure memos Ex.P/27&28. In cross examination he has stated that prior to the incident he did not know the appellants. On 17.04.2016 his brother went to get the Auto repaired and since then he was missing. When the police persons seized the pant shirt of the appellants, he was present along with them. All the clothes were stained with blood. There is no cross examination from this witness on the point that Auto was not seized from the appellant Umeshwar. This witness remain firm in saying that both the appellants gave their memorandum statement, based upon which seizure of incriminating articles were made from the appellants. The defence could not extract any material in his cross examination so as to disbelieve memorandum statement and recoveries made. 19. PW-25, Hemlal Sahu, is the witness who accompanied with PW-22, Vilas Choudhary when he had gone to police station on 20.04.2016. He stated in his evidence that when he visited police station, both the 11 appellants were present. They disclosed before the police about commission of offence and states that they along with deceased Sunil proceeded for Bemerata from Raipur in the said Auto. Umeshwar was driving Auto and deceased Sunil was lying in the Auto as he was drunken. Near Shivnath river bridge the appellant Umeshwar with the help of co-accused Himanshu took out a knife and gave repeated blow on the chest of the deceased and concealed the dead body under paddy straw. The police seized steel knife, full pant, shirt and Auto from the house of appellant Umeshwar and T-Shirt and full pant from the appellant Himanshu. He also proved memorandum statement Ex.P/25&26 as also seizure memos Ex.P/27&28. In cross examination, he remain firm in memorandum statement given by the accused persons and seizures of incriminating articles from them. Auto was seized just in front of the house of appellant Umeshwar. Nothing could be elicited from this witness so that his evidence can be disbelieved. 20. As per FSL report Ex.P/38, blood was found on the clothes of the deceased Articles A-1 to A-4, T-Shirt of appellant Himanshu, Article-D and knife seized from the appellant Umeshwar, Article-F. The seizure of knife and clothes from appellants found proved. The said Knife and T- shirt of appellant Himanshu were found to be stained with blood. As per query report of Doctor, Ex.P/15, the injuries mentioned in the postmortem report was opined to have been caused by the said knife which may lead to death of the deceased. Further, the Auto rickshaw which was given to deceased by PW-5 Khubchand Kaushik (owner of the Auto) was recovered from the appellant Umeshwar Dewangan. Both the accused persons were found cleaning blood from their Auto 12 near petrol pump which was seen by witness PW-1 Prakash Kumar Khelwar and PW-14, Lalit Dewangan. The accused persons misguided them that blood was of He-goat and Fish. 21. The trial court has also considered the circumstances which led to conviction of appellants in paragraph 20 of its judgment that there was dispute between the appellants and deceased with respect to Rs.500/-, both the appellants took the deceased near Shivnath river bridge and committed his murder in the Auto itself by repeated knife blow on his chest and concealed the dead body under the paddy straw in a threshing field of Ramadhar Yadav, PW-6. The evidence produced by the prosecution is sufficient to connect the appellants with the offence in question as they caused injuries to the deceased by giving repeated knife blow. 22. The next question for consideration is, whether the case of the appellants are covered within Exception-4 to Section 300 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 the IPC. 23. The Hon'ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, 2002(3) SCC 327, has 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 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 13 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 24. The Hon'ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009(15) SCC 635 has 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 fro 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; (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 ? 14 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.” 25. Likewise, in the matter of State v. Sanjeev Nanda, 2012 (8) SCC 450, their Lordships of the Hon'ble Supreme Court have 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. 26. Further, the Hon'ble Supreme Court in the matter of Arjun v. State of Chhattisgarh, 2017(3) SCC 247 has elaborately dealt with the issue and observed in paragraph 20, 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 15 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.” 27. Further, the Hon'ble Supreme Court in the matter of Rambir v. State (NCT of Delhi), 2019(6) SCC 122 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.” 28. Reverting to the facts of present case, it is quite vivid that on the date of incident, there was a dispute between the appellants and deceased for Rs.500/-. It also comes on record that the deceased was in drunken condition which also reflects from his postmortem report Ex.P/13 that smell of Alcohol present on his stomach; the appellants took the deceased towards Shivnath river bridge and committed murder by giving repeated knife blow on his chest. On medical examination of appellant Umeshwar the injuries were found on his body also which also reflects that during scuffling when quarrel took place between them, he received injuries on his body. Appellant Umeshwar was also medically examined by PW-17, Dr. Vinay Kumar Tamrakar, who found certain injuries on his body and gave his report Ex.P/22. For the said 16 injuries, no satisfactory explanation was offered by the appellant Umeshwar. He simply replied “Not Known” in his 313 CrPC statement with regard to said injuries. Non explanation/false explanation of circumstances appears against appellant would further be considered as an additional chain of circumstance against him. 29. From the peculiar facts and circumstances of the case it can be inferred that the appellants did not have any intention to cause death of the deceased, but by causing such injury they must have had the knowledge that such injury inflicted by them would likely to cause death of the deceased and as such their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC. 30. Considering the above mentioned law laid down by Hon’ble the Supreme Court in the aforesaid cases and also considering the evidence available in the present case, ends of justice would meet if conviction of appellants is altered/converted from Section 302/34 IPC to Section 304 Part-1/34 IPC. 31. Accordingly, the appeal is allowed to extent that conviction of both the appellants under Section 302/34 IPC is set aside, however, they are convicted for the offence under Section 304 Part-I/34 of the IPC and sentenced to undergo R.I. for 10 years. Fine amount and default stipulation imposed upon the appellants by the trial court are maintained. 32. As the appellants are stated to be in jail, they shall serve the remaining sentence as modified by this Court. 17 33. 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. 34. 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 inder