1 2025:CGHC:26051-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1773 of 2017 {Arising out of judgment dated 23.09.2017 passed in Sessions Trial No.26/2016 by the learned Second Additional Sessions Judge, Mahasamund} Vishnu Sahu, S/o. Late Netram Sahu, Aged About 30 Years, R/o.Village Kolda, Police Station Khallari, District Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Station House Officer, Khallari, District Mahasamund, Chhattisgarh. ... Respondent For Appellant : Mr. Ravindra Sharma, Advocate For Respondent : Mr. R.S.Marhas, Addl. A.G. with Mr. H.A.P.S.Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (20.06.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.06.23 15:26:43 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.09.2017, passed by the learned Second Additional Sessions Judge, Mahasamund, in Sessions Trial No.26/2016, by which the appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine, additional rigorous imprisonment for 6 moths. 2. Case of the prosecution, in brief, is that on 28.01.2016 at about 7:30 P.M. near Kolda Nala in between village Koma & Kolda, Police Station Bhimkhoj, District Mahasamund, the appellant herein assaulted his elder brother Avon Sahu (now deceased) by wooden log, by which he suffered grievous injuries and died; thereby, the offence has been committed. The written report (Ex.P-10) was made by Jagdish Sahu (PW-10) and Dehati Nalisy (Ex.P-15) was lodged by the deceased himself for offence under Sections 294 & 323 of I.P.C. and thereafter, deceased Avon Sahu died on 10.03.2016 in the hospital during treatment. Merg Intimation was registered vide Ex.P-20, FIR was registered vide Ex.P-16, Inquest was conducted vide Ex.P-6 and dead 3 body of deceased Avon Sahu was subjected to post-mortem, which was conducted by Dr. M. Nirala (PW-8), who proved the post-mortem report vide Ex.P-13, according to which, cause of death was stated to be cardio respiratory failure as a result of head injury and its complications. Pursuant to memorandum statement of the appellant (Ex.P-9), the weapon of offece i.e. wooden log was seized vide Ex.P-8, which was sent for chemical examination to FSL, but no blood was found on the seized wooden log as per the FSL report (Ex.P-27). After due investigation, the appellant was 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 appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 27 documents and the appellant-accused in support of his defence has examined only one witness but not exhibited any document. 4 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life imprisonment against which the present appeal has been preferred. 5. Mr. Ravindra Sharma, learned counsel for the appellant, would submit that there was old dispute between the two brothers, the incident occurred on 28.01.2016 and the deceased died during treatment on 10.03.2016. Therefore, taking into the prosecution case as it is, at the best, the offence under Section 323 & 304 Part-II of I.P.C. is made out against the appellant, as there was no premeditation and intention on the part of the appellant to cause death but he must have had knowledge that the injury caused by him is likely to cause death. As such, the appellant be convicted for lesser offence and he be sentenced to the period already undergone, as he was in jail from 20.03.2016 till 09.05.2018 i.e. more than 2 years and the appeal be allowed in part. 6. Mr. R.S.Marhas & Mr. H.A.P.S.Bhatia, learned State counsels, 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 5 has rightly convicted the appellant for the aforesaid offence. They would further submit that it is not a case where the conviction of appellant for offence under Section 302 of I.P.C. can be converted to Section 323 & 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 Avon Sahu was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-13) proved by Dr. M.Nirala (PW- 8), according to which, cause of death was stated to be cardio respiratory failure as a result of head injury and its complications, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor 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 his brother deceased Avon Sahu ? 10. Considering the statement of the witnesses, Dehati Nalisy (Ex.P-15) which was lodged by the deceased himself and the finding recorded by the trial Court that there was old 6 dispute between the two brothers and the appellant has assaulted his elder brother (deceased) by wooden log, by which he suffered grievous injuries and died, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant 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 appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his 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 appellant ? 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 1 (2017) 3 SCC 247 7 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.” 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 8 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. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)2 has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of I.P.C., which reads as under: “16. A plain reading of Exception 4 to Section 300 I.P.C. 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.” 2 (2019) 6 SCC 122 9 14. 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 as per the Dehati Nalisy (Ex.P-15) and the evidence available on record, it is the appellant who assaulted the deceased by wooden log by which he suffered grievous injuries and remained hospitalized. The date of incident is 28.01.2016 and deceased remained in the hospital for 41 days and he died on 10.03.2016 after he undergone surgical operation in his intestine. There is no evidence on record to show that the injuries caused to the deceased were sufficient in ordinary course of nature to cause death. Considering the fact that the appellant and deceased were real brothers and appellant was in a state of intoxication at the time of incident and he assaulted his elder brother by wooden log, which is not a dangerous weapon and thereafter, the deceased was died in the hospital during treatment after 41 days of the incident, it is a fit case where the conviction of appellant for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C., as though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death. 10 15. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he remained in jail for more than 2 years. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 16. In the result, 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 concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Ashok Judge Judge