2025:CGHC:8817-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1269 of 2021 1 - Arvind Singh Paikra, S/o Bhem Prasad Paikra, Aged About 25 Years 2 - Bhagwan Singh Kanwar S/o Pratap Singh, Aged About 26 Years Both R/o Village Murmur, Police Station Pendra, District Gaurela - Pendra - Marwahi Chhattisgarh ... Appellant (s) versus State Of Chhattisgarh, Through - Station House Officer, Police Station Pendra, District Gaurela - Pendra - Marwahi Chhattisgarh ...Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellants : Shri Yogendra Chaturvedi, Advocate For Respondent/State : Shri Sakib Ahmad, Panel Lawyer --------------------------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ravindra Kumar Agrawal, J. 20.02.2025 1. The appellants/accused have filed the instant appeal under Section 374(2) of the CrPC, being aggrieved by the judgment of conviction and order of sentence dated 08.10.2021 passed by the learned Additional Sessions Judge, Pendraroad, District-Bilaspur, CG, in Session Case- 9 of 2020, whereby the appellants have been convicted and sentenced in the following manner: CONVICTION SENTENCE Cra 1269 of 2021 2 Under Section 302 r/w 34 of the IPC Life imprisonment and fine of Rs.100/- each, and in default of payment of fine, further RI for one month each Under Section 201 of the IPC RI for 3-3 years and fine of Rs.100/- each, and in default of payment of fine, further RI for one month each 2. Brief facts of the case are that on 14.07.2020 when Shanilal was standing near his house along with his brother-Manilal, his sister-in-law Manmati PW2 has informed him that the present appellants Arvind Singh Paikra and Bhagwan Singh Kanwar are assaulting his Uncle- Tejnarayan. It is also informed that appellant Arvind Singh Paikra assaulted Tejnarayan by a heavy stone. When Shanilal went near his house, he saw Tejnarayan lying there on the ground in injured condition, having injury on his head. Shanilal immediately took him to the hospital, where he was declared dead. Merg intimation Ex.P1 was lodged by Shanilal and FIR Ex.P2 was registered for the offence under Section 302, 34 of the IPC against the appellants. Inquest of the dead body of the deceased -Tejnarayan ExP4 was prepared in presence of the witnesses, and the dead-body was sent for its post-mortem to the Community Health Centre, Pendraroad, where PW11 Dr Johan Singh Kanwar has conducted the post-mortem, and found the following injuries on the dead body of the deceased: 1) Lacerated wound size 3 x 1 x bone deep on right parietal region of head 2) Abrasion 3 ½ x 3 cm on back of trunk in left scapular region Cra 1269 of 2021 3 3) Multiple abrasions of 2 ½ x 2 cm found on back of trunk in right upper region and other small sizes about 1 ½ x 1 cm injuries found on back of trunk in lumber region 3. On internal examination, right parietal bone of the deceased was found fractured, and hematoma was found at injured site in brain. The Doctor opined that the cause of death is hemorrhagic shock due to excessive bleeding from rupture of spleen and also from injury on head. Duration of death is between 18-24 hours and is homicidal in nature. Post-mortem report is Ex.P16. 4. Spot map Ex.P5 was prepared by the Police. Blood stained soil and plain soil seized from the spot vide Ex.P10. The appellants have been arrested on 15.07.2020, and their memorandum statements were recorded vide Ex.P8 (Arvind Singh Paikra), and Ex.P9 (Bhagwan Singh Kanwar). On the basis of memorandum statement of the appellant- Arvind Singh Paikra, one stone having weight of 12kg was seized vide seizure memo Ex.P11, his T-shirt has also been seized vide seizure memo Ex.P12. On the basis of memorandum statement of the appellant- Bhagwan Singh Kanwar, his banian was seized vide Ex.P13. The seized Stone was sent for its query report to the doctor, who conducted the post- mortem and after its examination, query report Ex.P17 was given, and it was opined that death is possible by assault from the stone, and for confirmation of blood on the stone, as well as on the clothes of the appellants, the same was sent for their FSL examination. The blood stained soil and plain soil, stone seized from the appellant- Arvind Singh Cra 1269 of 2021 4 Paikra, clothes of the appellants were sent for their chemical examination to the Regional FSL, Bilaspur, from where, report Ex.P27 was received, and according to the FSL report, in the T-shirt of appellant- Arvind Singh Paikra, article-D and underwear of the deceased, article-F, ‘A’ group blood was found. In the T- shirt of appellant- Arvind Singh Paikra, Banian of appellant- Bhagwan Singh Kanwar, and underwear of deceased- Tejnarayan, human blood was found, whereas, blood has been found in the blood stained soil, stone seized from appellant- Arvind Singh Paikra, clothes of the appellants as well as deceased. 5. Statement of witnesses under Section 161 of the CrPC have been recorded, and after completion of usual investigation, charge-sheet was filed against the appellants for commission of offence under Section 302 and 201 and 34 of the IPC before the learned Chief Judicial Magistrate, Pendra Road. The case was committed to the Court of learned Sessions Judge, Bilaspur, from where, it was transferred to the learned trial Court for its trial. The learned trial Court has framed charge against the appellants for the offence under Section 302/34, and 201 of the IPC. The appellants abjured their guilt and claimed trial. 6. In order to establish the charge levelled against the appellants, prosecution has examined 13 witnesses. Statement of the appellants under Section 313 CrPC have also been recorded, in which they denied the circumstances appearing against them, pleaded innocense, and submitted that they have been falsely impleaded in the offence. Cra 1269 of 2021 5 7. After appreciation of oral as well as documentary evidence led by the prosecution, learned trial Court has convicted the appellants, and sentenced them as mentioned in the earlier part of the judgment. Hence this appeal by the appellants. 8. Learned counsel for the appellants would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict them for the offence in question. There are material inconsistencies in the evidence of prosecution witnesses. There is no eye-witness to the incident, and the appellants have been convicted on the basis of their memorandum statement and recoveries made through it. The FSL report is not sufficient to connect the appellants with the offence in question. Therefore, in absence of any cogent and clinching evidence against the appellants, they cannot be convicted. In alternative, he would also submit that the offence, even if it is proved against the appellants, it does not travel beyond the scope of Section 304 of the IPC, and after converting their conviction from Section 302 of the IPC, to Section 304 of the IPC, their sentence may be reduced for the period already undergone by them, as the appellants are in jail since 16.07.2020. 9. On the other hand, learned counsel for the State vehemently opposes the submissions made by learned counsel for the appellants, and would submit that but for minor omissions, and contradictions, the evidence of the prosecution witnesses is fully reliable. Cra 1269 of 2021 6 10. PW2-Manmati is the eyewitness to the incident, who informed other family members. There is eye-witness to the incident that the appellants have committed ‘mar pit’ with the deceased, and the appellant- Arvind Singh Paikra had thrown a heavy stone on his head for committing his murder. From the query report of the doctor, as well as the FSL report, blood has been found on the stone, and clothes of the appellants as well as the deceased. ‘A’ Group blood was found on the clothes of the deceased, as well as T-shirt of the appellant- Arvind Singh Paikra, which duly connected him with the offence in question. Both the accused persons were assaulting the deceased by sharing their common intention, and therefore, both of them are liable to be convicted for the offence of murder of deceased- Tejnarayan, and their appeal is liable to be dismissed. 11. We have heard learned counsel for the parties, and perused the record of the case. 12. The first question for consideration would be, whether the death of the deceased- Tejnarayan was homicidal or not. The learned trial Court, after appreciating the evidence of PW11 Dr Johan Singh Kanwar, who conducted the post-mortem of dead body, has come into conclusion that death of the deceased was homicidal in nature. 13. PW11 has stated in his evidence that on 15.07.2020, he conducted the post-mortem of dead-body of the deceased- Tejnarayan. He found injuries on his body, including fracture of right parietal bone and found Cra 1269 of 2021 7 hematoma at injured sight in brain, and opined that the cause of death is hemorrhagic shock due to excessive bleeding from rupture of spleen and also from injury on head, which is homicidal in nature. In cross- examination, he admitted that he has not separately written in his post- mortem report as to when and at what time the injury was caused to the deceased. He also admitted that the infection of injury has not been mentioned by him. He also admitted that if anybody would fall on a stone, he could have received the injury as has been found on the head of the deceased. He also admitted that by falling on a stone on his abdomen side, the spleen may be ruptured. He also admitted that he has not defined as to whether the death of deceased was as a result of rupture of his spleen or head injury. But he voluntarily stated that it is the cumulative effect of bleeding by both the injuries by which the deceased has died. 14. From the evidence of above witness, it has duly been proved that death of the deceased is homicidal in nature by the injuries found on the body of the deceased. The learned trial Court has further considered the evidence of PW1 Shanilal, who is witness to the inquest, and merg intimation, and also in view of the evidence of eye-witnesses, death of deceased is found to be homicidal in nature, based on proper appreciation of evidence. 15. Now, next question for consideration would be, whether the present accused persons/appellants are the perpetrators of crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eye-witnesses, PW2-Manmati, PW5- Simran, and PW-7 Cra 1269 of 2021 8 Rohit Kumar, and subsequent conduct of the appellants proved by PW-1 Shanilal, PW3-Manilal, and PW4- Reshma. 16. PW-2 Manmati has stated in her evidence that on the date of incident, when she was working in her kitchen garden, she heard the noise of quarrel between the appellants, and the deceased, and she saw their quarrel, and then informed her brother-in-law Shanilal, and in the evening, she came to know that Tejnarayan has died. Though this witness has not seen the actual assault made by the appellant- Arvind Singh Paikra upon the deceased by stone, but she duly supported that when she informed her brother-in-law Shanilal, they were quarrelling with the deceased, and immediately thereafter, when Shanilal came to the spot, he saw the deceased lying in injured condition, having injury on his head. 17. PW4-Reshma, and PW5- Simran have stated that Tejnarayan is their Uncle, and they were playing near kitchen garden. At that time, appellants-Arvind Singh Paikra and Bhagwan Singh Kanwar have assaulted their uncle by hands and fists. PW5 stated that Arvind Singh Paikra has assaulted her Uncle by stone, and PW4 has stated that the appellants were washing the blood of the stone, and thereafter, both of them took the deceased to their house, and laid him there. In cross- examination, they too remain firm in saying that they have seen the incident, assaulting the deceased by the accused persons. Looking to age of these two witnesses, who are about 13 years (Reshma) and 9 years (Simran), and their evidence was recorded after about six months Cra 1269 of 2021 9 of the incident. Minor discrepancies in their evidence do not affect their credibility, and it is proved that these witnesses have seen the appellants assaulting the deceased. PW7- Rohit Kumar is also the eyewitness, who stated that at the time of incident, he had seen the incident from his house that the appellants assaulting the deceased. 18. PW1-Shanilal has stated in his evidence that when his sister-in-law Manmati (PW2) informed him about the incident, he went on the spot, and saw that Arvind Singh Paikra was taking the body of Tejnarayan inside his house, and when they saw, they found that Tejnarayan has already died. 19. PW3- Manilal was also accompanied PW1-Shanilal when her sister- in-law informed about the incident. He too went to the spot, and saw that both the accused persons were sitting on the road. When they asked about Tejnarayan, Arvind Singh Paikra replied that he is sleeping in his house. After some time, he came to know that the deceased has died. 20. The memorandum statement of the appellants Ex.P8 and P9 were recorded and the witnesses to the memorandum statements, and seizure memos have not fully supported the prosecution case but they admitted their signatures on the documents. PW9 Shivprasad and PW10 Rakesh Kumar Baghel are the witnesses to memorandum and seizure. 21. The clothes seized from the appellants as well as stone seized from the appellant- Arvind Singh Paikra were sent for their FSL examination, and as per FSL report Ex.P27, blood has been found on the sent articles Cra 1269 of 2021 10 except plain soil, and ‘A’ Group of blood was found on the T-shirt of appellant- Arvind Singh Paikra, and underwear of the deceased. Therefore, involvement of the appellants in the offence in question is duly proved by the prosecution by leading sufficient evidence with that respect, and we hereby affirm the said finding. 22. The aforesaid finding would bring us to the next question for consideration, whether the case of the appellants in present appeal is covered within Exception 4 to Section 300 of the 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 the IPC, as contended by learned counsel for the appellants? 23. The Hon’ble 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 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 1 (2002) 3 SCC 327 Cra 1269 of 2021 11 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.” 24. The Hon’ble 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; (f) The age and general health condition of the accused; 2 (2009) 15 SCC 635 Cra 1269 of 2021 12 (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, Cra 1269 of 2021 13 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.” 25. Likewise, in the matter of State v. Sanjeev Nanda 3 , their Lordships of the Hon’ble 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. 26. Further, the Hon’ble 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 Cra 1269 of 2021 14 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 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 Cra 1269 of 2021 15 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 Cra 1269 of 2021 16 unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 27. 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. 28. Further, the Hon’ble 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.” 29. According to post-mortem report Ex.P16, except the head injury, the other injuries were abrasions, and were simple in nature. The head injury caused by the stone in which right parietal bone was fractured. The said injuries were inflicted by the stone by appellant-Arvind Singh Paikra. 5 (2019) 6 SCC 122 Cra 1269 of 2021 17 Even the eye-witnesses have stated that deceased was being assaulted by hands and fists, the accused persons were not armed with any deadly weapons, and they after committing mar pit, they were sitting near the house of deceased, and they laid the deceased inside the house. The said conduct of the accused persons show that they did not have any intention to cause murder of the deceased, though in heat of passion, Arvind Singh Paikra assaulted him with stone. 30. It is also not the case of prosecution that the appellants came there with heavily, or deadly weapons. Initially, the quarrel took place between them and the accused persons assaulting him by hands and fists, and subsequently, Arvind Singh Paikra threw a heavy stone on his head. When these witnesses came there, they saw that the accused persons taking the body of the deceased inside his house. As such, the case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant- Arvind Singh Paikra completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC they are, (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(s) had not taken any undue advantage or acted in a cruel or unusual manner. Had the appellant- Arvind Singh Paikra intended to cause murder of Tejnarayan, he would have given more blows with the stone and would not have sit there near the house of the deceased. As such, it could be safely said that the appellant- Arvind Singh Paikra did not had the intention to kill the deceased. Cra 1269 of 2021 18 31. In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellant- Arvind Singh Paikra under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. 32. Accordingly, conviction of the Appellant- Arvind Singh Paikra under Section 302 IPC is set aside, and he has been convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 7 years. As the appellant is stated to be in jail since 16.07.2020, he shall serve out the remaining sentence as modified by this Court. 33. Appellant- Arvind Singh Paikra is convicted for the offence under Section 201 of the IPC for causing disappearance of evidence in the case. It has come in the evidence of witnesses that when they reached to the spot, appellant- Arvind Singh Paikra was taking the body of deceased inside his house, and laid him down on the ground there, which has also been proved from their evidence, and thus, conviction and sentence of the appellant- Arvind Singh Paikra for commission of offence under Section 201 IPC is hereby affirmed. His both the sentences are directed to run concurrently. 34. So far as the appellant- Bhagwan Singh Kanwar is concerned, there is no allegation against him that he also assaulted the deceased by stone, or assisted the appellant-Arvind Singh Paikra in assaulting the deceased by stone. Even there is no allegation against appellant- Bhagwan Singh Kanwar that he has also caused grievous injuries to the deceased, as the allegation against him is only assaulting the deceased Cra 1269 of 2021 19 by hands and fists. The doctor who conducted postmortem of the deceased opined that spleen of the deceased found ruptured, which may be caused by contusion on the spleen, and the rupture of the spleen injury could be caused by falling on a stone, except the lacerated wound on the head of the deceased, the minor abrasions were found on the body of the deceased, and when the witnesses have proved that the appellant- Bhagwan Singh Kanwar was assaulting the deceased by hands and fists, it can be said that he was not having any intention with the appellant- Arvind Singh Paikra to commit murder of the deceased as there is no evidence against him that he actively participated or sharing any common intention to cause murder of the deceased. There is no evidence against appellant-Bhagwan Singh Kanwar that he also caused disappearance of evidence in the case. Therefore, his act would come only under Section 323 of the IPC instead of 302/34 of the IPC. Therefore, the conviction of appellant- Bhagwan Singh Kanwar under Section 302 and 201 of the IPC is set aside, and he has been acquitted from the said offence. Instead thereof, he is convicted for the offence punishable under Section 323 of the IPC, and sentenced to undergo RI for one year. Since he already served out the entire sentence of one year, he need not require to surrender again. 35. Appellant- Bhagwan Singh Kanwar is reported to be on bail. His bail bonds shall continue for further period of six months as provided under Section 481 of the BNSS 2023. Cra 1269 of 2021 20 36. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellant- Arvind Singh Paikra is undergoing his jail sentence 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. 37. 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 padma