1 2025:CGHC:4656-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1028 of 2019 Bihari Sidar @ Tegnu S/o Shri Nanki Sidar Aged About 52 Years R/o Sangeetrai Dipapara Chouki Juitmill District Raigarh Chhattisgarh Civil And Revenue District-Raigarh, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Police Station P/s City Kotwali District Raigarh Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Ajay Kumar Mishra, Advocate For Respondent(s) : Mr. Sakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, C.J. 27.01.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 29.03.2019 passed by the learned Fifth Additional Sessions Judge, District Raigarh (C.G.) in Sessions Case No.04/2018, whereby the appellant-accused has MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.01.29 10:38:48 +0530 2 been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine, to further undergo additional rigorous imprisonment for two months. 2. Case of the prosecution, in brief, is that on 24/09/2017 at 02.30 AM, informant Jagbandhu Mahant filed a report at the Jute Mill Police Outpost, City Kotwali, Raigarh, Chhattisgarh that after the death of the first wife of the deceased Marwari Sardar, the deceased had taken Kachra Bai from village Sangitarai as his second wife. Kachra Bai had a daughter. The deceased had left Kachra Bai 10-12 years ago and was residing in Jharsuguda, Odisha and used to come to village Sangitarai to see his daughter from time to time. Kachrabai's brother, accused Bihari Sidar alias Tenganu, used to stop him from coming to their house and beat him with a stick near his house saying that he does not listen to his refusal. Due to this, Marwari got internal injuries and died. On the report of the incident by the informant, a crime was registered and investigation was taken up. After investigation, a charge-sheet was filed under section 302 IPC under Crime Number 609/17 in the Court of Chief Judicial Magistrate, Raigarh which was registered as Criminal Case No. 885/2017. The learned Magistrate vide order dated 28.12.2017 committed the case to the Court of 5th Additional Sessions Judge, Raigarh and the case was registered as Sessions Trial No. 04/2018. 3 3. Charges were framed against the accused under Section 302 of the Indian Penal Code, 1860. The accused denied the charges and claimed trial. The accused was tried under Section 313 of the Criminal Procedure Code, 1973. During the trial, the accused stated that he was innocent and had been falsely implicated and would not produce any evidence in his defence. 4. In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 30 documents. The appellant-accused examined none in his defence nor any document has been exhibited. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 29.03.2019, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 6. Mr. Ajay Kumar Mishra, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that conviction and sentence awarded by the learned trial Court is not proper under the facts and circumstances of the case. Moreover, the prosecution has not proved its story beyond the reasonable doubt. He contended that the conviction is based on conjuncture and 4 surmises and the seizure witnesses have also not wholly supported the prosecution story. He also contended that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr. Sakib Ahmed, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 5 9. The first question for consideration would be, whether death of deceased Bihari Sidar @ Tegnu was homicidal in nature ? 10. Dr. S. Lakra (PW-10) has stated that he had examined the dead body of deceased Marwari Ram Rathiya on 26/09/2017. He further deposed that during the postmortem, he found following injuries in the dead body of the deceased:- 1. A crushed wound on the left hand on the external examination of the deceased's body. Blood had accumulated around it. 2. There was a mark of injury deep into the muscle below the knee of the left leg and blood was found accumulated inside that wound. 3. The bone of the leg also appeared crooked. 4. There were deep marks of injury in the middle of the chest bone and when the bone was pressed, it appeared broken. 5. The bone of the head also made a sound as if it was broken when tapped. The bone of the right leg had also become crooked and was showing its broken state. 6. On internal examination of the dead body, he found injuries to the skull, meninges and brain. There was blood clotting inside the skull. 7. The chest bone was broken and blood had accumulated 6 at the fractured site. 8. Both lungs were crushed. All the above injuries were antemortem and of a very serious nature. According to his opinion, the deceased died due to severe head injury and bleeding. All the injuries were caused by hard and blunt objects, which were homicidal. The postmortem report (Ex.P-18) was produced by Dr. S. Lakra (PW-10). 11. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the postmortem report (Ex.P-18) of Dr. S. Lakra (PW-10) has come to the conclusion that cause of death was severe head injury. 12. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Bihari Sidar @ Tegnu was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm 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 testimony of eye witness Fuleshwar Sahu (PW-1) and other witnesses, Lavkishore Sai (PW-12), Amit Shukla (PW-16). 7 14. Fuleshwar Sahu (PW-1), who is the eye witness of the incident has stated that on 24/09/2017 at 2:30 pm he slept in his house. After waking up, he went to the toilet to smoke tobacco. He was going to the water tank to wash his face, at the same time, the accused was beating the deceased with a stick near his house. At that time, he was standing near his house. His house and the accused's house are located at a distance of about 20-25 meters. Just then, Raghuvir Sidar from his village was coming there on a scooter and he asked him to make the accused understand. He went and made the accused understand but the accused did not listen to him. After that, he went to his house. Later at about 6-7 p.m. he came to know about the death of Marwari Sidar. He further deposed that in his presence, the accused had told in his memorandum (Ex.P-12) that he had hidden the stick in his house and had got it recovered. The accused had taken out the stick from his house and given it to the police. The police had seized it in his presence as per seizure memo (Ex.P-13). The police had arrested the accused in his presence as per arrest memo (Ex.P- 14). 15. Lavkishore Sai (PW-12) gave an unrefuted statement that the dead body of the deceased was taken to the hospital for post- mortem and the clothes of the deceased were brought from the hospital to the police station and were seized as per the seizure memo (Ex.P-21). 8 16. Amit Shukla (PW-16) is the Investigating Officer in the case and the entire investigation has been conducted by him. This witness gave notice of Section 175 of the Code of Criminal Procedure to the witnesses for the map Panchayat Nama (Ex.P-3), Panchnama of the dead body (Ex.P-4), prepared the site map after inspecting the spot (Ex.P-5), recording the statements of the witnesses as per their statement, getting the dead body identified by witnesses (Ex.P-8), seizing the blood stained soil from the spot as per seizure memo (Ex.P-11), recording the memorandum statement of the accused (Ex.P-12) in front of witnesses, seizing the stick as per seizure memo (Ex.P-13) in front of witnesses as per the memorandum statement of the accused, arresting the accused as per arrest memo (Ex.P-14) in front of witnesses, sending the seized stick to the hospital for query through the report (Ex.P-26), seizing the clothes of the deceased as per seizure memo (Ex.P- 21), writing the post-mortem report (Ex.P-25) for examining the dead body, first Filing of notice (Ex.P-23A), sending the seized articles for FSL investigation through written complaint (Ex.P-28) and receipt of FSL (Ex.P-28) and FSL investigation report (Ex.P- 30). He has made an unrefutable statement that action was taken to arrest the accused. The statement made by this witness could not be contradicted in cross-examination. 17. Thus, on the basis of testimony of eye witness Fuleshwar Sahu (PW-1), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to Bihari Sidar @ 9 Tegnu, due to which he died. Witness Phuleshwar Sahu himself saw the accused hitting the deceased with a stick. According to the statement of this witness, he had also forbidden the accused from hitting the deceased but the accused did not listen to him. The statement of witness Phuleshwar Sahu that he saw the accused hitting the deceased with a stick could not be refuted. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 18. The aforesaid finding brings us to the next question for consideration, 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 appellant ? 19. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 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 1 (2002) 3 SCC 327 10 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.” 20. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 2 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; 2 (2009) 15 SCC 635 11 (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 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.” 12 21. Likewise, in the matter of State v. Sanjeev Nanda 3 , 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. 22. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 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 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 13 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 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”. 23. In the matter of Arjun (supra), the 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 14 the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 24. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 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.” 25. In the present case, investigating officer Amit Shukla (PW-16) has stated in his evidence that he recorded the memorandum statement of the accused (Ex.P-12) in front of witnesses and seized the stick as per seizure memo (Ex.P-13) in front of witnesses as per the memorandum statement of the accused. Further, Fuleshwar Sahu (PW-1) has also deposed in his statement that in his presence, the accused had told in his memorandum (Ex.P-12) that he had hidden the stick in his house and had got it recovered. The accused had taken out the stick from his house and given it to the police. The police had seized it in his presence as per seizure memo (Ex.P-13). 26. Dr. S. Lakra (PW-10), Medical Officer has deposed that on 5 (2019) 6 SCC 122 15 26/10/2017, a wooden stick was brought to him from the Jute Mill police station for examination. There were blood stains on it at many places. According to his opinion on examination of the wooden stick, the injuries sustained by the deceased Marwari Rathia could have been caused by the stick brought for examination. He gave the query report Exhibit P-19. 27. The doctor has examined the stick brought before him and stated that the injury sustained by the deceased could have been caused by this stick. This witness has stated that the injury sustained by the deceased was of a human accidental nature. This makes it clear that the injury sustained by the deceased was of a fatal nature and was not caused by falling or being hit by a vehicle. 28. Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra) and considering the statements of the witnesses, it is quite vivid that as per evidence of eyewitness Fuleshwar Sahu (PW-1), at the relevant point of time he was present on the spot where the incident took place. He has stated that on 24/09/2017 at 2:30 pm he slept in his house. After waking up, he went to the toilet to smoke tobacco. He was going to the water tank to wash his face, at the same time, the accused was beating the deceased with a stick near his house. At that time, he was standing near his house. His house and the accused's house are located at a distance of about 20-25 meters. 16 Just then, Raghuvir Sidar from his village was coming there on a scooter and he asked him to make the accused understand. He went and made the accused understand but the accused did not listen to him. After that, he went to his house. Later at about 6-7 p.m. he came to know about the death of Marwari Sidar. He further deposed that in his presence, the accused had told in his memorandum (Ex.P-12) that he had hidden the stick in his house and had got it recovered. The accused had taken out the stick from his house and given it to the police. The police had seized it in his presence as per seizure memo (Ex.P-13). The police then arrested the accused in his presence as per arrest memo (Ex.P- 14). 29. Jugbandhu Mahant (PW-2), informant of the case has stated that after the death of the first wife of the deceased Marwari Sardar, the deceased had taken Kachra Bai from village Sangitarai as his second wife. Kachra Bai had a daughter. The deceased had left Kachra Bai 10-12 years ago and was residing in Jharsuguda, Odisha and used to come to village Sangitarai to see his daughter from time to time. Kachrabai's brother, accused Bihari Sidar alias Tenganu, used to stop him from coming to their house and beat him with a stick near his house saying that he does not listen to his refusal. Due to this, Marwari got internal injuries and died. 30. From deposition of above stated witnesses, it is clear that the appellant did had the intention to cause death of deceased 17 Marwari Sardar and by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Marwari Sardar, 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 satisfied 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 committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 31. 31. Considering the above-stated facts, further considering the evidence of eyewitness Fuleshwar Sahu (PW-1), taking into consideration the age of the appellant at present, the fact that he is in jail since 27.09.2017, also considering the postmortem report of the deceased (Ex.P-18) and the material available on record, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 32. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part- I of the IPC and sentenced to undergo RI for 10 years. 33. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 34. The criminal appeal is partly allowed to the extent indicated 18 herein-above. 35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, 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. 36. Let a copy of this judgment and the 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 Manpreet