1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1063 of 2019 Dheer Dhanuhaar S/o Bishun Dhanuhaar Aged About 35 Years R/o Village - Laxmipara, Vankheta, Chowki - Jatga, Police Station - Katghora, District - Korba Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through - S.H.O. Katghora District Korba Chhattisgarh. ... Respondent For Appellants : Mr. Anand Kumar Gupta, Advocate For Respondent/State : Ms. Isha Jajodiya, P. L. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 27/01/2025 1. The present criminal appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and sentence dated 14.05.2019 passed by Additional Judge to the Court of Additional Session Judge, Katghora, District – Korba, in Sessions Case No.32/2018, whereby the learned trial Court has convicted the appellant for the offence VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 19:35:37 +0530 2 under Section 304 of IPC and sentenced for R.I. 10 years with fine amount of Rs. 200/- in default of payment of fine amount additional R.I. for 1 month. 2. Brief facts of the case are that on 20.01.2018, Bishun Dhanuhar PW-1 has lodged merg intimation Ex.P/1 to the police that his wife Mangali Bai, has informed him that on the previous night when the deceased Meena Bai and her husband Dheer Dhanuj coming from their work, on the way, altercation took place between them by which she received injured on her body and she took her body with her and she died in her house. When he saw the dead body, he found injuries on the body of the deceased and then along with the persons of the village he came to lodge the merg intimation. Inquest of the dead body of the deceased Ex.P/4 was prepared in presence of the witnesses and the dead body was sent for its post-mortem to Community Health Center, Katghora where PW-12 Dr. Rakesh Singh had conducted the post- mortem of the dead body of the deceased and gave report Ex.P/7. While conducting the post-mortem the doctor has found contusion over right parietal region, contusion over left scapular region, contusion over right scapular region, right parietal bone is found fracture and hematoma present in the left parietal region. The doctor has opined that the cause of death is cardiopulmonary arrest due to neurogenic shock and head injury with hard and blunt object and nature of death is homicidal. FIR Ex.P/23 was recorded under Section 302 against the appellant, spot map Ex.P/2 was prepared by the police and Ex. P/18 was prepared by the Patwari blood stained and 3 plain soil has been seized from the spot vide seizure memo Ex.P/14. The appellant was taken into custody on 22.01.2018, his memorandum statement Ex.P/12 was recorded and based on his memorandum statement, two pieces of bricks has been seized vide seizure memo Ex.P/13. The underwear and T-shirt of the appellant have also been seized vide seizure memo Ex.P/15. The seized pieces of brick were sent for its quarry report to the doctor from where quarry report Ex.P/22 was received in which the doctor has opined that the injuries found on the body of the deceased could have been caused by the said seized pieces of brick and death could have been possible from it. Statement of the witnesses were recorded under Section 161 of Cr.P.C., and after completion of usual investigation charge-sheet was filed against the appellant for the offence under Section 302 of IPC before the learned Judicial Magistrate First Class, Katgora. The case was committed to the Court of learned Sessions Judge, Korba form where the same has been transferred to the learned trial Court for its trial. 3. The learned trial Court has framed charge for the offence under Section 302 & 201 of IPC, the appellant denied the charges and claimed trial. 4. 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 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. 4 5. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the appellant from the offence under Section 201 of IPC, However, instead of Section 302 of IPC, he has been convicted for the offence under Section 304 of IPC., and sentenced as given herein above in the earlier part of this judgment, Hence, this appeal. 6. Learned counsel for the appellant would submit that there is no eye- witness to the incident. The deceased was in drunken state of liquor, both of them were returning from the field and on the way due to intoxicated condition of the liquor she fell down on the brick piece and received injuries her body. The appellant himself was tried to took the deceased to his house. The incident is alleged to be occurred in an open place therefore, the burden could not be shifted upon the appellant to explain the injuries on the body of the deceased. He would further submit that the act of the appellant if any, does not trouble beyond the scope of Section 304 part II of IPC. The appellant is in jail since 22.01.2018 and he has already completed more than 7 years of his jail sentence and therefore by converting his conviction under Section 304 part II of IPC, his undergone period may be considered to be sufficient sentence for the alleged offence. 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission and contradictions there is no other discrepancies in the evidence of the witnesses which makes their evidence doubtful. She would further submit that from the evidence of 5 PW-4 Nanhi @ Kirtan Kawar, who witnessed the quarrel between the appellant and his wife and also from the evidence of PW-3, Mangali Bai, who immediately went there after receiving information about their quarrel and then she saw the deceased in the injured condition and the appellant picking up the body of the deceased, the involvement of the appellant in the offence is proved. 8. The evidence fo the prosecution witnesses are fully reliable, the appellant has failed to give any plausible explanation as to in his presence how the deceased has received injuries on her body. Considering the entire evidence available on record, the learned trial Court has already taken a lenient view and convicted the appellant for the offence under Section 304 of IPC and sentenced R.I. for 10 years which is absolutely justified and the appeal of the appellant does not have any merits and is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the record. 10. So far as the homicidal death of the deceased is concerned, it has not been disputed by the learned counsel for the appellant that the deceased died due to injuries found on her body. The witnesses to the inquest PW-8, Jaimangal as well as PW-1, Bishun, have proved that the injuries found on the body of the deceased and inquest Ex.P/4 was prepared in their presence. PW-1 Bishun Singh, is the person who lodged the merg intimation to the police. PW-12, Dr. Rakesh Singh who conducted the post-mortem of the dead body of the deceased have also duly proved the post-mortem report Ex.P/7. During the post-mortem the doctor has noticed that certain injuries 6 found on her body including fracture of right parietal bone, hematoma present and opined that the case of death is cardiopulmonary arrest due to neurogenic shock due to head injury with hard and blunt object and the nature of death is homicidal. 11. From the evidence of PW-12 the defence could not extracted any material which could makes his evidence doubtful or which can be held that the death of the deceased was not by the head injury but for other reason. Although, the doctor has found during her post-mortem, alcohol smell present on her abdomen but the defence has not cross- examined the doctor on that point and no question has been put that if any person is under intoxication of liquor and fell down on the ground on the stone, he/she can receive injuries on his body, therefore, the homicidal death of the deceased found prove by the learned trial Court and this Court has also in agreement with the finding recorded by the trial Court. 12. So far as the involvement of the appellant in the offence in question is concerned the PW-4 Nanhi @ Kirtan Kawar have stated in his evidence that on the date of incident threshing work of the paddy was going on in his house. After taking dinner, the appellant and his wife left his house to sleep in their own house. On the back side of his house they starting quarreling and thereafter he went for a sleep. At about 3:00 a.m. when he woke up for answering the call of nature, he saw that they still quarreling with each other thereafter at about 3:00 a.m. itself he informed about the quarrel between them to the mother of the appellant. On the next morning he came to know that the 7 deceased has died. In cross-examination, he admitted that when he went to the appellant and deceased he found that the deceased had consumed liquor. From the evidence of this witness the presence of the appellant with the deceased on the relevant point of time is established. It is also established that when PW-4 Nanhi @ Kirtan Kawar had seen them the deceased was not injured and immediately thereafter, he informed quarrel between them to the mother of the appellant. 13. PW-3 Mangli Bai who is the mother of the appellant have stated in her evidence that at about 3:00a.m. the grand son of Chamrin Bai has informed her that the appellant and the deceased are in the back side of this house and she be pleased to take her back. When she had gone to the place of incident she saw that the deceased was lying on the ground in injured condition and his son was trying to lift her. Blood was oozing out from the injuries of the deceased. Thereafter, she with the help of appellant and her son-in-law Sunder had taken the deceased to the house and after about one hour she died. In the next morning they informed the other villager. In cross-examination nothing has been asked from this witness that she has not seen the appellant and the deceased together and at that time deceased was in injured condition. PW-2 Chamreen Bai, has stated in her evidence that a day prior to the date of incident, they have called the appellant for threshing work of their paddy. The appellant was in their house up to 8:00 p.m. along with his wife, thereafter she did not know where they had gone. In the next morning the mother of the appellant had 8 informed her about the incident. She has been declared partially hostile and when she was being cross-examination by the prosecution she admitted that she saw the injuries on the body of the deceased. 14. PW-1 Bishun Dhanuhar is the person who lodged the merg intimation to the police, have stated that on the date of incident he had gone to village Ramakachar, and on the next morning when he came back to his house, his wife has informed him that she along with the appellant had taken the body of the deceased from the lane. He further stated that he had gone to police to lodge the report Ex.P/1 and he also proved the inquest Ex.P/4. When the leading question was asked, he disclosed and admitted that when he return back to his house his wife has informed about the quarrel between appellant and the deceased. He also saw the injuries on the body of the deceased. In cross- examination, he admitted that he has disclosed the incident at the instance of the police and he did not see anything on the spot. Although, PW-1 had not supported the prosecution’s case but from the evidence of PW-3 & 4 it is proved that just before the incident the deceased was with the appellant, she was being seen by the PW-4 and when PW-4 seen her she was not received any injuries on her body. Immediately after some time PW-3 had gone there to convince them, she saw the injury on the body of the deceased and the appellant was also there. He also tried to lift the body of the deceased and thereafter, they had taken back to the deceased to their house. From these two witnesses, the presence of the appellant is proved along with the deceased. At the relevant time, but she has not offered 9 any explanation as to how his wife has received injuries on her head including fracture of right parietal bone. From the memorandum statement of the appellant two pieces of brick have been seized and as per the quarry report of the doctor Ex.P/22, the injuries could have been caused by the said pieces of brick, therefore, learned trial Court after considering the entire material available on record come into conclusion that it is not a murder but it is a culpable homicide not amounting to murder. 15. Now the question would be what offence the appellant has committed either 304 part I or 304 part II IPC. 16. From the evidence available on record in the present case that both the appellant and the deceased were consumed liquor, they returning from the place of work on the way some altercation took place between them and appellant gave assault by pieces of brick on the head of the deceased by which she received injuries and ultimately she died. There is no premeditation or any use of traditional weapon, it appears that in heat of passion the incident occurred and in such condition it can not be inferred that the appellant had intention to commit murder of the deceased. Therefore, the case of the appellant is quarely covers with the offence under Section 304 part II of IPC. 17. Therefore, this Court is of the considered opinion that the conviction of the appellant for the offence under Section 304 of IPC may be modified to the offence under Section 304 Part II of IPC and his sentence is liable to reduced for R.I. for 7 years instead of R.I. for 10 years. 10 18. 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 light 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 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 11 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 ? 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 12 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 their Lordships of the 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. 21. 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 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 13 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 it 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 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 14 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 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.” 24. From the aforesaid discussions, the conviction of the appellant under Section 304 of IPC and sentence of R.I. for 10 years is modified/altered and he has been convicted for the offence under 15 Section 304 part II of IPC and sentenced to R.I. for 7 years with fine of Rs. 200/- in default of payment of fine further R.I. for one month. 25. With this modification/alteration, the appeal is partly allowed. The appellant is reported to be in jail since 22.01.2018, he is entitled for the benefit of set-off of his undergone period. 26. 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/- (Ravindra Kumar Agrawal) JUDGE vaibhav