1 2025:CGHC:11036-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1262 of 2021 Tekram Vishwakarma S/o Late Shivkumar Vishwakarma Aged About 22 Years Resident Of Village Poplatola, Police Station Doundilohara, District Balod Chhattisgarh., District : Balod, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Doundilohara, District Balod Chhattisgarh ... Respondent For Appellant : Ms.Sofia Khan, Advocate For Respondent : Mr.Swajeet Ubeja, 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. 06/03/2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 9.9.2021 passed by learned First Additional Sessions Judge, Balod in Sessions Case No.5/2020, whereby the appellant-accused has been convicted for BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.03.10 10:51:39 +0530 2 offence under Sections 302 and 201 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine, to further undergo RI for 30 days and RI for 7 years and fine of Rs.100/-, in default of payment of fine to further undergo RI for 30 days. 2. Case of the prosecution, in brief, is that on 25.11.2019 appellant Tikaram was talking on his mobile at home and on this issue, his father had an argument with him and Shivkumar Vishwakarma, his father snatched his mobile phone from him. On 26.11.2019 appellant Tikaram’s sister Ku.Kajal (PW-4) and his mother Gomti had gone to the fields to work. They both returned to have lunch in the afternoon and after eating, they again went to the fields. The appellant and his father were at home, then at around 2.30-3.00 P.M, the appellant asked his father for his mobile phone back and when he did not give it to him, the dispute took place between the two, then for this reason, the appellant killed his father by assaulting him with axe. When Ku.Kajal (PW-4) and her mother returned at around 4 P.M., they saw that the house was locked. Thinking that Tekram must have gone to the field, her mother started going towards the field to bring the keys. Then after about 5-10 minutes, appellant Tikaram came near the house from the colony side. When Ku.Kajal (PW-4) asked him about her father, he told that he had killed his father by assaulting him with axe due to the dispute over mobile and kept his body inside the room. After telling this and opening the lock of that house, appellant Tikaram 3 fled from there. Ku.Kajal (PW-4) went inside the house and saw that appellant Tikaram had killed his father, taken his body to the cattle shed and hidden it there and had covered the blood that had fallen on the floor in the shade with water. The appellant had killed his father by assaulting him near the temporal region with axe. On receiving information about this incident, the police of Dondilohara Police Station reached the spot on the same day and recorded Dehati Merg Intimation (Ex.P-11) in zero about deceased Shivkumar Vishwakarma and as per the statement of Ku.Kajal (PW-4), dehati nalishi (Ex.P-12) was recorded in front of witnesses. Inquest was prepared over the body of the deceased vide Ex.P-3. Spot map was prepared by the investigating officer vide Ex.P-1. Memorandum statement of the appellant was recorded vide Ex.P-4. Plain soil, bloodstained soil and bloodstained cloth of the cot were seized vide Ex.P-5. One mobile was seized on production of the appellant vide Ex.P-6. Axe stains with blood, t-shirt and jeans pant were seized from the appellant vide Ex.P-7. The appellant was arrested on 27.11.2019 vide arrest memo Ex.P-8. Dead body of the deceased was sent for postmortem to Community Health Center, Dondilohara where Dr.Vinod Kumar Chorka (PW-6) conducted postmortem over the body of the deceased and found following symptoms:- “A dead body of an average built middle aged made, rigor mortis present, both eyes closed, conjunctivae congested, pupil diluted, blood clots present in both 4 nostrils, moth closed, tongue inside oral cavity. A incised wound of size 9cmx2cmx10cm present in right cheek (temporal region) in front of right ear 2 cm from ear. Blood clots present around injury. Skin subcutaneous tissue, muscle and bone temporal maxilla are cut. Fracture of frontal and parietal bone present meninges ruptured. Haemorrhage present in side cranial cavity. Abdomen mild distended. Both hand clenched. Thumbs inside. Blood stain present in both hands (palm). Injury are antemortem caused by sharp object.” The doctor has opined that the cause of death was shock due to haemorrhage resulting from incised wound on temporal region and right cheek and death was homicidal in nature. Patwari also prepared the spot map vide Ex.P-27. FIR was registered vide Ex.P-30. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-39), human blood was found on Full shirt (Article A), sando (Article B) and Full pant (Article C) of the deceased, soil (Article D) seized from the spot, axe (Article G), t-shirt (Article H) and jeans pant (Article I) seized from the appellant. Statements of the witnesses were recorded. 3. After due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Dondilohara, who in turn, committed the case to the Court of Sessions, Balod, from where 5 the First Additional Sessions Judge, Balod received the case on transfer for trial. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has been falsely been implicated in crime in question. 4. In order to bring home the offence, the prosecution examined as many as 9 witnesses and exhibited 43 documents. The appellant- accused examined none in his defence nor any document has been exhibited in support of his case. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 9.9.2021, convicted the appellant for offence under Sections 302 and 201 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 6. Ms.Sofia Khan, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 and 201 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits 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 the dispute arose when the appellant asked his father for his mobile phone back and when he did not give it to him and for this reason, the appellant assaulted killed his 6 father by assaulting him with axe. The appellant under heat of passion and in anger 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 for offence 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.Swajeet Ubeja, 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. 9. The first question for consideration would be, whether death of deceased Shivkumar Vishwakarma was homicidal in nature ? 10. The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Vinod Kumar Chorka (PW-6), who conducted postmortem, has 7 come to the conclusion that cause of death was shock due to haemorrhage resulting from incised wound on temporal region and right cheek and death was homicidal in nature. 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 Shivkumar Vishwakarma 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. 11. 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 Ku. Kajal Vishwakarma (PW-3). Thus, on the basis of testimony of Ku. Kajal Vishwakarma (PW-3), it is clear that it is the appellant who on the fateful date and time has caused grievous injuries to the deceased, due to which he died. 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. 12. 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 8 Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 13. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 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 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.” 14. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 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 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 9 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 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 10 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.” 15. Likewise, in the matter of State v. Sanjeev Nanda3, 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. 16. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 11 “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 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 12 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”. 17. 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 the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 18. 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.” 19. In the present case, Ku. Kajal Vishwakarma (PW-3) has stated before the trial Court that the incident is of November, 2019. On 5 (2019) 6 SCC 122 13 the day of that incident, her mother Gomti Bai and she went to the field to harvest paddy. After that, they returned home in the afternoon. After having food at home, her mother and she again went to harvest paddy in the evening. When they returned home at around 4.30 P.M. in the evening, they saw that the house was locked. Her father Shivkumar and brother Tekram Vishwakarma were not there, then she told her mother that they may have gone to the field, go and check and bring the keys, then her mother went to bring the keys. Then after a while, appellant Tekram Vishwakarma came, then she asked how did you lock it, then the appellant opened the lock and himself said that he has killed his father and thrown him in the room, go and see. Saying this, the appellant ran away from there. 20. Investigating Officer R.P. Yadav (PW-8) in para-8 of his evidence has stated that on the basis of memorandum statement of the appellant, axe, t-shirt and jeans pant were seized from him vide seizure memo Ex.P-7 and as per FSL report Ex.P-39), human blood was found on axe (Article G), t-shirt (Article H) and jeans pant (Article I) seized from the appellant. 21. 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), it is quite vivid that the dispute arose when the appellant asked his father for his mobile phone back and when he did not give it to him, the appellant under heat 14 of passion and in anger caused injuries to the deceased. There was no premeditation on the part of the appellant to cause death of deceased Shivkumar Vishwakarma, only on a petty ground the quarrel took place between the appellant & the deceased and out of that anger and in heat of passion, the appellant assaulted Shivkumar Vishwakarma by axe by which he died. The appellant did not have any intention to cause death of deceased Shivkumar Vishwakarma, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Shivkumar Vishwakarma, 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 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. 22. Considering the above-stated facts, also considering the evidence of Ku.Kajal Vishwakarma (PW-4) and investigating officer R.P.Yadav (PW-8) and taking into consideration that the appellant is in jail since 27.11.2019, 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. 15 23. 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 7 years and fine of Rs.100/-, in default of payment of fine to further undergo RI for 30 days. His conviction and sentence under Section 201 of the IPC is hereby maintained. 24. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 25. The criminal appeal is partly allowed to the extent indicated herein-above. 26. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his 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 the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu