Page No.1 of 13 IN CRA-1019-2015 2025:CGHC:14716-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1019 of 2015 [Arising out of order dated 30.07.2015, passed in Sessions Case No.10 of 2013 (State of Chhattisgarh v. Tejram Sahu) by the Sessions Judge, Mahassamund (CG)] Tejram Sahu S/o Shri Jagat Ram Sahu Aged About 32 Years R/o Village - Ghonch, P.S. - Pithoura, Civil And Revenue District - Mahasamund Chhattisgarh., Chhattisgarh ... Appellant Versus State of Chhattisgarh Through The District Magistrate, Mahasamund, District - Mahasamund Chhattisgarh., Chhattisgarh ... Respondent [Cause-title taken from Case Information System (CIS)] -------------------------------------------------------------------------------------------- For Appellant : Mr. Rajendra Patel, Advocate For Respondent : Mr. Amit Buxy, Panel Lawyer --------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (27.03.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the appellant-accused herein under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 30.07.2015, passed in Sessions Case No.10 of 2013 (State of Chhattisgarh v. Tejram Sahu) by the Sessions Judge, Mahassamund (CG), whereby SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.03.29 13:51:37 +0530 Page No.2 of 13 IN CRA-1019-2015 he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.2,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 06 months. (2) The case of the prosecution, in short, is that on 05.11.2012, at Village Ghonch, which comes within the ambit of Police Station Pithoura, Mahasamund (CG) the accused-appellant herein with the intent to kill Jagdish (hereinafter referred to as the “deceased”) assaulted him by means of wooden stick and spade, due to which he suffered grievance injury and died later on during the course of his treatment in the hospital on 09.11.2012 and, thereby, said to have committed offence under Section 302 of IPC. (3) It is further case of the prosecution that when father of the deceased, namely, Mohan Sahu reported the matter to the police, marg intimation (Ex.P/13) and FIR (Ex.P/10) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were issued and inquest proceedings were conducted vide Ex.P/19. Nazari hnaksha was also prepared vide Ex.P/01. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/21), conducted by Dr. E.K. Thakur (PW-14), it was opined that the cause of death of deceased is cardio-respiratory failure due to head injury. Thereafter, the appellant was arrested vide Ex.P/14 and his memorandum statement was recorded vide Ex.P/06. Pursuant to the Page No.3 of 13 IN CRA-1019-2015 memorandum statement of the appellant, one spade has been seized vide Ex.P/07. Further, one shirt has also been seized from the appellant vide Ex.P/12. Thereafter, the seized articles were sent for chemical examination and, as per, FSL report (Ex.P/22), it has been no stains of blood has been found on the said spade and shirt seized from the appellant. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 22 documents, whereas the appellant in support of his defence, though not examined any witness, but exhibited 02 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict only the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Rajendra Patel, learned counsel appearing for the Page No.4 of 13 IN CRA-1019-2015 appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant 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 appellant herein because the appellant is said to have assaulted the deceased in spur of the moment and he has no intention or premeditation to cause death of the deceased for the reason that after the incident the appellant himself took the deceased to the hospital for treatment, where the deceased died during the course of his treatment that too after four days from the date of incident i.e. on 09.11.2012. 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 for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC and, since the appellant remained in jail from 09.11.2012 to 11.12.2017 i.e. for a period of about 05 years 01 month, therefore, he be sentenced to the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by Page No.5 of 13 IN CRA-1019-2015 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 appellant 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 appellant under Section 302 of IPC requires to be altered to Section 304 (Part-II) of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/21), wherein it has been opined that cause of death of deceased is cardio respiratory failure as a result of head injury, which is duly proved by the statement of Dr. E.K. Thakur (PW-14). Accordingly, taking into consideration the postmortem report (Ex.P/21) and the statement of Dr. E.K. Thakur (PW-14), who has conducted postmortem of 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. Page No.6 of 13 IN CRA-1019-2015 (10) Now, the next question would be whether the accused- appellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the statement of eye-witnesses, namely, Mohan Sahu (PW-02), who is father of the deceased. Mohan Sahu (PW-02) has stated before the Court that on the date and time of the offenc when he was sitting in front of his house, at that juncture, his son (deceased) came from the lane and, as the street dogs were fighting, the deceased abused them, on which, the appellant, who was also present there, presumed that the deceased is abusing him, upon which, the appellant, under anger and in heat of passion, assaulted the deceased by means of wooden stick and spade, due to which, the deceased suffered grievous injuries on his head and fell down on the floor. Vishakha Bai (PW-06), who is mother of the deceased has also made the similar statement and reiterated the stand made by Mohan Sahu (PW-02). Both the said witnesses were subjected to some extent of cross-examination, but they remained consistent in their version. As such, the testimonies of both the said witnesses inspire confidence and can be relied upon to hold the appellant guilty for the offence in question. Furthermore, pursuant to the memorandum statement of the appellant recorded vide Ex.P/06, weapon of the offence i.e. spade has been seized vide Ex.P/07. As such, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused Page No.7 of 13 IN CRA-1019-2015 who has caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. (11) The aforesaid finding brings us to the next question for consideration, which is, 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 IPC, as contended by learned counsel for the appellant? (12) 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; 1 (2009) 15 SCC 635 Page No.8 of 13 IN CRA-1019-2015 (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 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.” Page No.9 of 13 IN CRA-1019-2015 (13) 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 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 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 2 (2017) 3 SCC 247 Page No.10 of 13 IN CRA-1019-2015 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”. (14) 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. (15) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)3 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 3 (2019) 6 SCC 122 Page No.11 of 13 IN CRA-1019-2015 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.” (16) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgments, it is quite vivid that in the present case the appellant is said to have assaulted the deceased (who is his mother) in spur of the moment and he has no intention or premeditation to cause death of the deceased for the reason that as per the statements of Mohan Sahu (PW-02) and Vishakha Bai (PW-06), on the date of the offence, while the deceased was abusing the street dogs, the appellant presumed that the deceased is abusing him, upon which, the appellant under anger and in heat of passion, assaulted the deceased by means of wooden stick and spade, due to which, the deceased suffered grievous head injuries and died later on during the course of his treatment in the hospital on 09.11.2012 i.e. after 04 days from the date of incident. Further, it is has brought on record in the shape of evidence via statement of Mohan Sahu (PW- 02) that it is the appellant herein, who after the incident escorted the deceased to the hospital for treatment. As such, it can safely be concluded on the basis of aforesaid evidence that the appellant has no premeditation or intention to cause death of the deceased. Page No.12 of 13 IN CRA-1019-2015 However, looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by him 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 appellant 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 and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC. (17) In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and, for which, since the appellant remained in jail from 09.11.2012 to 11.12.2017 i.e. for a period of 05 years 01 month, he is sentenced to the period already undergo by him. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain Page No.13 of 13 IN CRA-1019-2015 intact. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. (18) This criminal appeal is partly allowed to the extent indicated herein-above. (19) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if