1 2025:CGHC:15701-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 801 of 2015 1 - Payarelal Dinkar S/o Ramdayal Dinkar Aged About 40 Years R/o Baradawar Basti, P.S. Baradawar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh, 2 - Jeetram @ Jitu S/o Ramdayal Dinkar Aged About 36 Years R/o Baradawar Basti, P.S. Baradawar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh, 3 - Smt. Bhuri Bai W/o Payarelal Dinkar Aged About 30 Years R/o Baradawar Basti, P.S. Baradawar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh, ... Appellants versus 1 - State Of Chhattisgarh Through Police Station- Baradawar, District- Janjgir-Champa, Chhattisgarh, ... Respondent(s) For Appellants : Shri Gajendra Kumar Sahu along with Shri Avishek Bharti on behalf of Smt. Renu Kochar, Advocates. For Respondent(s) : Shri Sharad Mishra, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (03/04/2025) KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.04 18:53:51 +0530 2 Sanjay K. Agrawal, J 1. This Criminal Appeal preferred by the accuse/appellants under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 26.11.2014 passed by the 2nd Additional Sessions Judge, Sakti, District Janjgir Champa in ST No.69/2014 by which the appellants have been convicted for offence under Section 302 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo RI for 1 year. Apart from this, appellants No.1 & 2 namely Pyarelal & Jeetram have also been convicted under Sections 323 & 323/34 of the IPC and sentenced to undergo RI for 3 months whereas appellant No.3 namely, Smt. Bhuri Bai has also been convicted under Section 323/34 & 323/34 of the IPC and sentenced to undergo RI for 3 months on both the counts. 2. Case of the prosecution, in brief, is that on 2.1.2014 at about 11 am in village Basti Baradwar, PS Baradwar, three persons in furtherance of their common intention assaulted the deceased by hands, fists & legs, as a result of which the deceased sustained grievous injuries. She was taken to Community Health Centre, Sakti for treatment where she was declared brought dead. Merg intimation (Ex.-P/4) was lodged by (PW-2) Santuram. FIR (Ex.-P/5) was registered and inquest was conducted vide Ex.-P/25. 3 The spot map was also prepared. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. Krishna Sidar (PW-6) and he gave his report Ex.-P/20 opining that the cause of death is cardio-respiratory arrest with Asphyxia and the death is homicidal in nature. 3. In order to bring home the charge, the prosecution examined as many as 15 witnesses and exhibited 29 documents. 4. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants- accused questioning the impugned judgment of conviction and order of sentence. 5. Learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at best offence under Section 304 (Part-II) would be made out against the appellants herein because the appellants are said to have assaulted the deceased in spur of moment and they have no intention or premeditation to cause death of the deceased. Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is 4 culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC and, since the appellants remained in jail for more than 05 years 10 months, therefore, they be sentenced to the period already undergone by them. 6. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence and would submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellants under Section 302 of IPC requires to be altered to Section 304 (Part-II) of IPC. Thus, the present 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 and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has 5 recorded in affirmative by taking into consideration the postmortem report (Ex.P/20 & 21), wherein it has been opined that cause of death of deceased is cardio respiratory arrest with Asphyxia, which is duly proved by the statement of Dr. Krishna Sidar (PW-6). Accordingly, taking into consideration the postmortem report (Ex.P/20) and the statement of Dr. Krishna Sidar (PW-6), who has conducted postmortem on the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. 9. In order to base conviction, the trial Court has relied upon the statements of son of the deceased namely, (PW-2) Santuram and his father namely, (PW-4) Dharamlal, who are eyewitnesses to the incident. They have categorically stated in their statements that the accused/appellants were assaulting the deceased by hands, fists and legs. But in their cross-examination, nothing has been elicited to hold that the appellants have not assaulted the deceased by hands, fists and legs, and as such, the finding recorded by the trial Court is based on the statements of aforesaid eyewitnesses and the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. 10. The aforesaid finding brings us to the next question for 6 consideration, which is, whether the case of the appellants is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant? 11. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana1 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 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 1 (2009) 15 SCC 635 7 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. The Supreme Court in the matter of Arjun v. State of Chhattisgarh2 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which read 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 (2017) 3 SCC 247 8 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 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 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 9 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”. 13. 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 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 IPC. 14. From the statements of (PW-2) Santuram and his father (PW-4) Dharamlal, (son and husband of the deceased), it is vivid that the appellants had kept the sand in the Courtyard owned by (PW-2) Santuram, because of which a quarrel started, in which the accused/appellants assaulted the deceased by hands, fists and legs, as a result of which the deceased sustained grievous injuries. As such, it can safely be concluded on the basis of aforesaid evidence that the appellants had no premeditation or intention to cause death of the deceased. However, looking to the injuries sustained by the 10 deceased, though the appellants had no intention, but must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellants 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 committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. Moreover, appellant No.3 Smt. Bhuri Bai is physically challenged woman as per the statement of (PW-2) Santuram (para- 8). Therefore, we are of the opinion that conviction of the appellants under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC. 15. In view of the aforesaid discussion, conviction of the appellants for offence under Section 302 of IPC as well as the sentence of life imprisonment awarded to them by the trial Court is hereby set aside. Instead thereof, the appellants are convicted for offence under Section 304 Part-II of IPC and, for which, since the appellants remained in jail for a period of 05 years 10 months, they are sentenced to the period already undergo by them. However, the fine sentence and default stipulation imposed by the trial Court shall remain intact. Conviction imposed on the appellants under Sections 11 323 & 323/34 (thrice) of the IPC is maintained. Since the appellants are reported to be on bail, they need not to surrender, however, their bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. 16. This Criminal Appeal is partly allowed to the extent indicated herein-above. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve