1 2025:CGHC:625-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1204 of 2024 Karamsai S/o Shankar Ram, Aged About 30 Years R/o Village Devasrakhurd, Police Station Shankargarh, District Balrampur Ramanujganj C.G. ... Appellant(s) versus State Of Chhattisgarh Through Police Station Shankargarh, District Balrampur Ramanujganj Chhattisgarh. ... Respondent(s) (Cause title taken from Case Information System) For Appellant : Mr. Saurabh Dangi, Advocate For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, C.J. 06/01/2025 1. Though the matter has been listed for consideration on I.A. No.1, an application for suspension of sentence and grant of bail under section 389 of CRPC, but with the consent of the parties, the matter has been heard finally. 2. Challenge in the appeal is the judgment of conviction sentence dated Digitally signed by VEDPRAKASH DEWANGAN 2 30.04.2024, passed by learned Sessions Judge, Balrampur, placed Ramanujganj, in Sessions Case No. 23 of 2022, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence U/s. 302 of IPC R.I. for life and fine of Rs. 500/-, in default of payment of fine additional R.I. for 6 months. U/s. 201 of IPC R.I. for 3 years and fine of Rs. 200/-, in default of payment of fine additional R.I. for 2 months. Both the sentences will run concurrently 3. The brief facts of the case are that, the father of the deceased, namely Bandhan Ram/PW-1 gave a merg intimation on 21.10.2021, that in the morning he received the information through his mobile phone that his daughter is lying dead in her matrimonial house, her injuries were visible in her body and his son-in-law was not there in the house, the police has recorded the merg intimation (exhibit P-1) and FIR/exhibit P-2 for the offence of section 302 of IPC against the appellant. Inquest/exhibit P-5 was prepared by the police in presence of the witnesses and the dead body was sent for its post-mortem to Community Health Centre, Shankargarh, where PW-8/Dr. Aftab Ansari has conducted the post-mortem of the dead body and found lacerated wound on right hand, arm fracture, lacerated wound on left leg below knee, contusion over left leg thigh, abrasion on back spine region/lumbar region, lacerated wound on left temporoparietal region, lacerated wound on right temporoparietal region with fracture of bone, contusion on abdominal region and left 4th and 7th rib was found 3 fractured. The doctor has opined the cause of death is hypovolumic shock due to head injury and nature of death is homicidal and the post-mortem report is exhibit P-11. *******Spot map exhibit P-3 was prepared by the police and P-7 was prepared by the Patwari. Blood-stained and plain soil was seized from the spot vide seizure memo/exhibit P-8. Blood-stained petticoat of the deceased was also seized vide seized memo/exhibit P-15. The appellant was arrested on 24.10.2021 and his memorandum statement exhibit P-9 was recorded. Based on his memorandum statement, an axe and blood-stained school dress have been seized vide seizure memo/exhibit P-10. The blood-stained and plain soil, axe and shirt seized from the appellant and the petticoat of the deceased were sent for chemical examination to FSL Ambikapur, from where report/exhibit P-20 was received and according to the FSL report, the blood-stained soil, axe, shirt of the appellant and petticoat of the deceased were found to be stained with human blood. *******Statement of the witnesses under section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed in the Court of learned Judicial Magistrate First Class, Rajpur, District Balrampur-Ramanujganj for the offence under sections 302, 201 of IPC. 4. The case was committed to the Court of learned Sessions Judge, Balrampur, place Ramanujganj for its trial. The learned trial Court has framed charge for the offence under sections 302, 201 of IPC. The appellant denied the charge and claimed trial. 4 5. In order to prove the charge against the appellant, the prosecution has examined as many as 9 witnesses. Statement under section 313 of CRPC of the appellant 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. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment, hence this appeal. 7. 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, which cannot be made basis for conviction of the appellant in the alleged offence. He would also submit that there are no eyewitnesses to the incident and even the chain of circumstance has not been complete to hold guilty of the appellant in the offence in question. There is no evidence produced by the prosecution that on the date of incident, the appellant was present in his house and in absence thereof, the burden to prove cannot be shifted towards the appellant. The weapon of offence, which is alleged to be seized from the appellant, has not been proved to be stained with the blood of the deceased by producing any evidence about the blood group of the deceased. In alternative, he would also submit that the incident occurred in heat of passion, when after consuming the liquor, the dispute arose between them with respect to the nurture of their 5 children and also cooking food and in the heat anger of condition, he gave assault by the axe blow on her body and fled away from the place. Therefore, by altering his conviction under Section 304 of IPC, his undergone period may be considered to be sufficient sentence for the offence. 8. Per Contra, learned counsel for the respondent/State opposes the arguments advanced learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. The deceased was the wife of the appellant and he was with her on the alleged date and time and he has to explain as to how his wife is found to be dead in unnatural circumstance and injuries have been found on her body. The conduct of the appellant itself shows that he was the perpetrator of the crime and there is no explanation from his side for the same. The weapon of offence axe has been seized on the instance of the appellant, including cloth, by which he tried to clean the said axe and in both these articles, human blood was found, for which also there is no explanation from the appellant's side. Therefore, there are clinching and cogent evidence against the appellant, which leads towards guilt of the appellant in the offence in question and the learned trial Court has rightly considered the evidence available on record and the law applicable to the facts of the case and has convicted him, which is not required to be interfered with and his appeal is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the record. 10. With respect to the homicidal death of the deceased, the witnesses of 6 inquest have supported the prosecution case. PW-1/Bandhan Ram, PW-2/Maniyaro Bai, PW-3/Chandersai are the witnesses of inquest, who stated in their evidence that when they reached on the place of incident, they saw the dead body of the deceased and injuries on it. 11. PW-8/Dr. Aftab Ansari, who stated in his evidence that on 22.10.2021, he conducted the post-mortem of the dead body of the deceased/Pramila Bai and found number of injuries on her body including fracture of right radius ulna bone, right temporoparietal bone and left 4th and 7th ribs. The other abrasions and contusions were also found on her body, and opined that the death was due to hypovolumic shock due to head injury and homicidal in nature. In his cross- examination, the defence could not draw any material which led this Court to draw an adverse inference that the death of the deceased was not by the injuries found on her body, but for some other reason. Therefore, the death of the deceased being homicidal in nature has been proved by the prosecution, which has rightly been appreciated by the learned trial Court also and we find there is no perversity or infirmity in the said finding. 12. So far as the involvement of the appellant in the offence in question is concerned, PW-1/Bandhan Ram, who is the father of the deceased, has stated that there was frequent quarrel between his daughter and his son-in-law. After the incident, his nephew has informed about the incident and when he went to the house of the deceased, he saw her dead body and injuries on her body. His son-in-law was not there and he fled away from his house. He admitted that his daughter was 7 usually consumed liquor and the Sarpanch of the village had tried to stop her from consuming liquor. 13. PW-2/Maniyaro Bai, is the mother of the deceased. She too has stated that there was frequent quarrel between her daughter and her son-in- law and when they received information about death of her daughter, they had gone to her house and saw her dead body, which was lying there in injured condition 14. PW-3/Chandersai, is the brother-in-law of the deceased. He too has stated that when they received information about her death, they had gone to her house and saw her dead body in injured condition, but the appellant was not found there. 15. PW-4/Shankar Ram, is the father of the appellant, has stated in his evidence that on the date of incident, he had gone to the house of one Nanhesha and on the next day when he came to his house, he found that his daughter-in-law is lying dead and injuries were there in her body. He also stated that there was frequent quarrel between his son and his daughter-in-law. He admitted that after consuming liquor, his son was used to commit marpeet with his daughter-in-law and he suspected that his son has committed murder of his daughter-in-law. Although the father of the appellant has stated that 4-5 days prior to the date of incident, his son had gone to his work, but it is not the defence of the appellant in his 313 CRPC statement and he being the father of the appellant can easily make such a statement that his son was not there in the house at the time of incident. 16. From the evidence led by the prosecution, it is quite vivid that the dead 8 body of the deceased is found inside her house, where the deceased and appellant were residing. The appellant was fled away from the place after the incident and there is no explanation by the appellant as to where he was at the time of incident or what he did when he came to know about death of his wife. However, it is a murder inside the house that too in the night time, which normally the time of residing together in the house. The appellant could not explain his absence in the house at the relevant point of time. 17. In the case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, states as under: "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him. 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is 9 not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". 18. In the case of Nagendra Sah v. the State Of Bihar (2021) 10 SCC 725 the Hon’ble Supreme Court in Para 23 has held as under: “23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances.” 19. Further, from the axe seized from the appellant and clothes (school dress) seized from the appellant on his memorandum statement, human blood has been found, for which also there is no explanation from the appellant's side. The said axe was the weapon of offence, which has been used as a weapon of offence and the said weapon of offence has been seized from the appellant, in which human blood was found, which also a clinching circumstance against the appellant to connect him with the offence in question. Therefore, the involvement of the appellant in the crime in question has been proved by the 10 prosecution. 20. The next question for consideration would be, whether the case of the appellant is covered within exception 4 to section 300 of 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 learned counsel for the appellant. 21. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, reported in 2002 (3) SCC 327 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 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 22. The Hon’ble 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 :- 11 “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 : (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. 12 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.” 23. Likewise, in the matter of State Vs. 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 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. 24. Further, the Hon’ble Supreme Court in the matter of Arjun Vs. 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 : 13 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 : “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 14 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”. 25. In the matter of Arjun (supra), the Hon’ble Supreme Court has held that if there is intent and 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. 26. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. 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 (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 27. Considering the law laid down by the Hon’ble Supreme Court in the aforesaid cases, considering the evidence available on record and 15 also taking into consideration the fact that there was frequent quarrel between the appellant and the deceased after consuming liquor and the socio-economic condition of the appellant, the ends of justice would meet, if the conviction of the appellant under section 302 of IPC is altered/converted to one under section 304 Part-I of IPC. 28. Accordingly, the appeal is allowed to the extent that conviction of the appellant under section 302 of IPC is set aside, however he is convicted under section 304 Part-I of IPC and sentenced to undergo R.I. for 10 years with fine of Rs. 1000/-, in default of payment of fine, further R.I. for 1 month. The appellant is stated to be in jail since 25.10.2021. He shall serve the remaining sentence as modified by this Court. 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 original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved