1 2025:CGHC:6754-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 958 of 2019 {Arising out of judgment dated 07.05.2019 passed in Special Sessions Trial (S.C./S.T. Act) No.110/2018 by the learned Special Judge Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, Dhamtari} 1 - Akash Dhruvanshi, S/o. Shri Ghanshyam Dhruvanshi, Aged About 20 Years, R/o. At Kargil Square Kurud, Police Station Kurud, District Dhamtari, Chhattisgarh. 2 - Bablu Yadav, S/o. Dayalu Yadav, Aged About 38 Years, R/o. Ward No.9, Shanti Nagar, Kurud, Police Station Kurud, District Dhamtari, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through Station House Officer, Police Of Police Station Kurud, District Dhamtari, Chhattisgarh. ... Respondent For Appellants : Ms. Nirupama Bajpai, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer (Division Bench) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.07 15:12:06 +0530 2 Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06.02.2025) Sanjay K. Agrawal, J. 1. Two appellants have preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment and order of conviction dated 07.05.2019, passed by the learned Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, Dhamtari, in Special Sessions Trial (S.C./S.T. Act) No.110/2018, by which the appellants have been convicted for offence under Section 302/34 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000-1000/-, in default of payment of fine, additional rigorous imprisonment for 03- 03 months. 2. Case of the prosecution, in brief, is that on 09.07.2018 at 04:15 P.M. at Liquor Shop Charra Road Kurud, Police Station- Kurud, District Dhamtari, the two appellants have assaulted Girwar Diwan @ Gajendra @ Gabbar (now deceased) by wooden stick & knife, by which he suffered grievous injuries and died; thereby, the offence has been committed. The matter was reported to the police, pursuant 3 to which, Merg Intimation was registered vide Ex.P-3, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-15 and dead body of deceased Girwar @ Gajendra was subjected to post-mortem, which was conducted by Dr. Bhupendra Kumar Markam (PW-18), who proved the post- mortem report vide Ex.P-32, according to which, cause of death was stated to be trauma on the head & neck causes excessive external bleeding, intracranial hemorrhage and death was homicidal in nature. Pursuant to memorandum statement of appellant No.1 (Ex.P-12), knife was seized vide Ex.P-13 and on the memorandum statement of appellant No.2 (Ex.P-10), wooden stick was recovered vide Ex.P-11, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-29), blood was found on the seized weapon. After due investigation, both the appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 19 witnesses and exhibited 43 documents and 4 the appellants-accused in support of their defence have neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offence under Section 302/34 of I.P.C. and sentenced them for life imprisonment against which the present appeal has been preferred. 5. Ms. Nirupama Bajpai, learned counsel for the appellants, would submit that taking into the prosecution case as it is, at the best, the offence under Section 304 Part-II of I.P.C. is made out against the appellants as per the statement of the eye-witnesses Khublal Sahu (PW-3) as all three i.e. both appellants and deceased were in state of intoxication and all of a sudden, they have started quarreling and the wooden stick which was used by the appellant No.2 for commission of offence was lying therein. As such, there was no intention on the part of the appellants to cause death of deceased but at the most knowledge can be attributed and therefore, the conviction of appellants for the offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and they be sentenced for the period already undergone, as they are in jail since 10.07.2018. 5 6. Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submit that it is not a case where the conviction of appellants for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C.; therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Girwar @ Gajendra @ Gabbar was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-32) proved by Dr. Bhupendra Kumar Markam (PW-18), according to which, cause of death was stated to be trauma on the head & neck causes excessive external bleeding, intracranial hemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor 6 contrary to the record and accordingly, we hereby affirm the said finding. 9. Now, the next question is, whether the appellant has caused the death of deceased Girwar Diwan @ Gajendra @ Gabbar? 10. Taking into the statements of Thanesh Sinha (PW-1), Ganeshwar Kumar Sahu (PW-2) and Khublal Sahu (PW-3) who are the eye-witnesses to the incident, they have clearly stated that the two appellants after consuming liquor in the liquor shop have assaulted the deceased, who also consumed liquor, by wooden stick which was lying there by which he suffered grievous injuries and died and furthermore, pursuant to memorandum statement of the appellants, weapon of offence i.e. wooden stick & knife were seized on which blood was found as per the FSL report (Ex.P-29), we are of the considered opinion that the finding recorded by the trial Court that it is the appellants who had caused the death of deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. Now, the question would be whether the case of the appellants would fall under Exception 4 to Section 300 of 7 I.P.C. and, as such, their conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellants ? 12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 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 is it 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 hit 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.” 1 (2017) 3 SCC 247 8 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 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”. 9 13. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellants to cause death, as according to the statement of the eye-witnesses Thanesh Sinha (PW-1), Ganeshwar Kumar Sahu (PW-2) and particularly Khublal Sahu (PW-3), on the date of offence, the two appellants and deceased all three were in the liquor shop and consuming liquor and in a state of intoxication, all of a sudden, they started quarreling and one of the appellant, out of sudden anger, has assaulted the deceased by wooden stick, which was lying therein, by which he suffered grievous injuries and died. As such, though there was no premeditation and intention on the part of appellants to cause death, but the appellants must have had knowledge that the injuries caused by them is likely to cause death and, as such, the case of appellants would fall under Exception 4 to Section 300 of I.P.C. 14. In view of the above, the conviction of appellants for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellants are sentenced to 8 years rigorous imprisonment. 10 15. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellants are suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok