1 2025:CGHC:7662-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 831 of 2021 1 - Manoj Khalkho S/o Shri Jayram Khalkho Aged About 26 Years Occupation Agriculture Labour, R/o Village Bhalukachhar Fokatpara, Thana Darima, District Ambikapur (Surguja) Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through The District Magistrate Ambikapur District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Sunil Sahu, Advocate. For Respondent(s) : Mr. Hari Om Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 13/02/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the judgment of conviction and sentence dated 12.07.2021 passed by Learned Sessions Judge, Ambikapur, District Surguja in Sessions Case No. 16/2020 whereby the 2 appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced for R.I. for life with fine of Rs. 1000/- in default of payment of fine further additional simple imprisonment for 03 months. 2. Brief facts of the case are that on 20.10.2019 at about 08:01 a.m. the police of Police Station Darima received a telephonic call that a dead body of a person is lying at village Bhalukachhar Phokatpara. When the police went there for its verification, he found the son of the deceased there and the son of the deceased namely Shivratan Khalkho gave dehati merg intimation Ex.P/14 in which he stated that since 6- 7 days back he had gone to Mekahara Hospital, Raipur for treatment of his wife and when he was coming back, on the way one Jai Mangal informed him by mobile phone that he his father has been murdered. There was a rumour in the village that his father Dalganjan has been murdered by his cousin brother Manoj Khalkho on the issue of tieding of cattles. Dehati FIR Ex.P/15 was also recorded. Inquest Ex.P/4 of the dead body was prepared in presence of the witnesses and dead body of the deceased was sent for its post-mortem to Community Health Centre, Darima where PW-4 Dr. Janeshwar Singh conducted the post-mortem of the dead body and gave his report Ex.P/10. While conducting the port-mortem of the dead body of the deceased, the doctor has found one lacerated wound with bleeding over occipital region of head and found skullbone fracture at occipital region and opined that the mode of death is hemorrhagic shock due to head injury leading to cardiorespiratory arrest it was homicidal in nature. 3. The spot map Ex.P/2 was prepared by the police and Ex.P/6 was prepared by the Patwari. The blood stain and plain soil and one axe has been seized from the spot vide seizure memo Ex.P/5. The appellant was arrested on 20.10.2019 and his memorandum statement Ex.P/7 was recorded based on his memorandum statement one tabbal and jeans pant have been seized vide seizure memo Ex.P/8. The seized tabbal and jeans pant were sent for 3 its query report to the doctor who conducted the post-mortem then he opined in its query report that the injury found on the body of the deceased could have been caused by said tabbal and for confirmation of blood he referred it for FSL examination. The numbered merg intimation Ex.P/14-A was recorded at Police Station, Darima and FIR Ex.P/15-A has been registered against the appellant for the offence under Section 302 of IPC. The blood stained and plain soil, tabbal and jeans pant have been seized from the appellant and jacket of the deceased were sent for its chemical examination to regional FSL, Ambikapur from where report Ex.P/17 was received and human blood has been found on the sent articles except the plain soil and 'A' group of human blood was found on the tabbal and jeans pant seized from the appellant and jacket of the deceased. 4. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned Judicial Magistrate First Class, Ambikapur for the offence under Section 302 of IPC. The case was committed to the Court of learned Sessions Judge, Ambikapur for its trial. 5. The learned trial Court has framed charge against the appellant for the offence under Section 302 of IPC. The appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant the prosecution has examined as many as 8 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded, in which he denied the circumstances appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. He would further stated that since the dead body was found near his house, he has been implicated in the offence. The deceased was his elder father and the police persons have falsely implicated in the offence. 4 7. After appreciation of material as well as documentary evidence led by the prosecution. The learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradiction in the evidence of prosecution witnesses which cannot be made basis to convict him in the offence in question. He would further submits that there is no eye-witnesses to the incident and the case of the prosecution is based on memorandum statement and seizure of alleged weapon of offence which is not sufficient to hold the appellant guilty for the commission of the offence. In alternative he would further submits that only one lacerated wound was found on the head of the deceased and the incident is occurred in the heat of passion as there was a quarrel between them on the issue of tieding the cattles and grazing of the fodder by the cattles, therefore, the offence of the appellant, is any, does not travel beyond the scope of Section 304 of IPC. Therefore, by altering his conviction from the offence under Section 302 IPC to Section 304-II of IPC, his sentence may be reduced for the period undergone by him. 9. On the other hand, learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable. There is evidence of previous quarrel between accused and the deceased which gave cause to made assault upon the body of the deceased by the appellant. On his memorandum the weapon of offence i.e. tabbal has been seized. His clothes have also been seized in which 'A' group of blood was found which also matched with the jacket of the deceased. Therefore, there is ample evidence against the appellant that he committed the murder of the deceased. The learned trial Court has rightly 5 appreciated the evidence available on record and passed the impugned judgment of conviction and sentence which needs no interference. 10. We have heard learned counsel for the parties and considered their rival submissions and gone through the records with utmost circumspection. 11. The first question for consideration would be, whether the death of the deceased Dalganjan was homicidal in nature or not? 12. The learned trial Court after appreciating the oral as well as documentary evidence available on record, particularly relying upon the evidence of PW-4 Dr. Janeshwar Singh who conducted the post-mortem of the dead body has came into conclusion that the cause of death was hemorrhagic shock due to head injury leading to cardiorespiratory arrest and homicidal in nature. Further from the evidence of the witnesses to the inquest Ex.P/4 Shivratan Khalkho PW-1, Shahdev PW-2, it is clear that they saw the dead body having injury on his head, the deceased died due to injuries received by him. As such we are also of the considered opinion that the finding recorded by the learned trial Court that the death of the deceased was homicidal in nature. The finding of fact based on evidence available on record. It is neither perverse nor contrary to the record and we hereby affirmed that finding. 13. Now the next question for consideration would be whether the accused/ appellant herein is the perpetrator of the crime in question which the learned trial Court has recorded in affirmative by relying upon the circumstantial evidence of motive, memorandum statement of the appellant and recovery of tabbal and jeans pant and further the FSL report Ex.P/17. 14. PW-2 Shahdev is the neighbor of the appellant as well as the deceased, he stated in his evidence that two days before the date of incident there was a quarrel between the appellant and the deceased on the issue of grazing the fodder by the cattles and on the date of incident also when he has taken the cattles of the deceased to the house of the deceased, he saw the dead body 6 near the house of the Manoj and the Manoj was also present at that place. Thereafter, he informed about the dead body to the nephew of the deceased. 15. PW-3 Jai Mangal Toppo, have stated in his evidence when he was going towards river, he was being called by Shahdev and informed about the dead body of the deceased and thereby he informed brother-in-law Shivratan by mobile phone who had gone to Raipur for treatment of his wife. He also proved the memorandum statement Ex.P/7 in which the appellant has disclosed that due to the dispute, he committed his murder. Nothing specific has come in his cross-examination so that he can be disbelieved. 16. PW-2, has seen the dead body of the deceased near the house of Manoj and he was also present. He is the witness to the memorandum and seizure of the weapon of the offence from the appellant. He stated in his evidence that the police has taken the appellant Manoj in custody and recorded his memorandum statement in his presence then he disclosed that the deceased used to abuse him. Therefore, he committed his murder and the tabbal by which he committed his murder is concealed in his house. Thereafter, tabbal and jeans pant of the appellant has been seized from his house vide seizure memo Ex.P/8. In cross-examination he stated that at the time when the police persons have interrogated the appellant he was also present on the distance about 5-6 feet. He also admitted that the appellant has disclosed that at the time of incident he wore jeans pant and on the memorandum statement, his jeans pant has also been seized in which blood like stains were there. The recording of memorandum statement and seizure of tabbal and jeans pant from the appellant could not be rebutted by the defence in his cross-examination. 17. PW-1, Shivratan Khalkho is the son of the deceased who was being informed by Jai Mangal by mobile phone that his father was being murdered at that time he was coming from Raipur and was on the way he came to his house, and saw the dead body of his father which was lying near the house of Manoj 7 and then he informed the police. In cross-examination he stated that his brother Sukhan and father of the appellant both have jointly constructed a house with the mutual agreement that 1 - 1 room shall be kept by them separately. He voluntarily stated that the room came in the share of Jai Ram was demolished and he was keeping his cattles in the room of Sukhan but he denied the dispute between them. He admitted that his father was used to consuming liquor, he shown his ignorance about any dispute between the appellant and the deceased. 18. Since he is not the witness of the incident as well as previous incident as he himself had gone to Raipur 6 – 7 back for treatment of his wife, his evidence is having no much relevance in the facts and circumstances of the case. But from the other evidences it has been proved that on the date when the dead body was found near the house of Manoj he was present there. On his memorandum the tabbal and jeans pant has been seized from him, further in FSL report Ex.P/17, 'A' group of human blood was found on the tabbal and jeans pant seized from the appellant and jacket of the deceased which firmly connected the appellant with the offence in question. The presence of 'A' group of blood found on the tabbal and jeans pant of the appellant has not ben explained by him in his 313 Cr.P.C. statement and presence of 'A' group of blood in these three articles would conclude that the appellant is connected with causing injury to the deceased. 19. The aforesaid finding brings us to the next question for consideration as to 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 contended by learned counsel for the appellants? 20. The Hon'ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana has observed that:- 8 “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.” 21. The Hon'ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana 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; 9 (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 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.” 22. Likewise, in the matter of State v. Sanjeev Nanda, 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. 23. Further, the Hon'ble Supreme Court in the matter of Arjun v. State of Chhattisgarh has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 10 “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 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 4 (2017) 3 SCC 2472024:CGHC:9062 DB 11 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 11 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. In the matter of Arjun (supra), the Hon'ble 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. 25. Further, the Hon'ble Supreme Court in the matter of Rambir v. State (NCT of Delhi) 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.” 26. According to the post-mortem Ex.-P/10, there was only one lacerated wound found on the occipital region of the head which was caused by the hard and blunt object, fracture of occipital bone was present. There is no other injury found on the body of the deceased and in the fact that there was a quarrel between the appellant and the deceased with respect to the cattles, it could be safely hold that he did not have the intention to cause the murder of the deceased though in a heat of passion, he would have assaulted the deceased. 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 i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was 12 committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. Had the appellant intended to cause murder of deceased Dalganjan, he would have given more blows from the sharp side of tabbal and would not present there. As such, it could be safely said that the appellant did not had the intention to kill the deceased. 27. In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellant under Section 302 of I.P.C. is altered/converted to Section 304 Part-II of I.P.C. 28. Accordingly, the conviction of the appellant under Section 302 of I.P.C. is set aside, however, he is convicted under Section 304 Part-II of I.P.C. and sentenced to undergo rigorous imprisonment for 7 years. 29. The appellant is reported to be in jail since 20.10.2019. He shall serve the remaining sentence as modified by this Court. 30. The criminal appeal filed by the appellant is partly allowed to the extent indicated herein above. 31. 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. 32. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.03.03 18:46:19 +0530