1 2025:CGHC:44528-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR {Arising out of the judgment dated 01.07.2019 passed in Sessions Trial No.01/2019 by the learned Sessions Judge, Janjgir-Champa} CRA No. 1292 of 2019 Pramod Rathore, S/o. Niranjan Prasad Rathore, Aged About 30 Years, R/o. Purani Basti, Bhagat Chowk, P.S.- Janjgir, District Janjgir- Champa, Chhattisgarh. --- Appellant versus State Of Chhattisgarh, Through District Magistrate, Janjgir, District Janjgir-Champa, Chhattisgarh. --- Respondent & CRA No. 1086 of 2019 Niranjan Prasad Rathore, S/o. Late Shri Kaliram Rathore, Aged About 62 Years, R/o. Purani Basti, Bhagat Chowk, Janjgir, Police Station And Tehsil - Janjgir, District Janjgir Champa, Chhattisgarh. --- Appellant Versus State Of Chhattisgarh, Through Station House Officer, Janjgir, District Janjgir Champa, Chhattisgarh. --- Respondent ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.09.03 10:45:33 +0530 2 For Appellants : Mr. Rishi Sahu, Advocate For Respondents : Mr. H.A.P.S.Bhatia, Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (02.09.2025) Sanjay K. Agrawal, J. 1. Since common question of law and facts are involved in both the appeals and have been arisen from Sessions Trial No.01/2019, they have been clubbed together, heard together and are being decided by this common judgment. 2. The two appellants Pramod Rathore (A-1) and Niranjan Prasad Rathore (A-2) both son & father have preferred this appeal under Section 374(2) of Cr.P.C. challenging the impugned judgment dated 01.07.2019, passed by the learned Sessions Judge, Janjgir-Champa, in Sessions Trial No.01/2019, by which, the appellants have been convicted and sentenced as under : Conviction & Sentence of Pramod Rathore (A-1) CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment and fine of Rs. 20,000/- in default of payment of fine, 2 years 3 additional rigorous imprisonment. U/s.307 of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.5,000/-, in default of payment of fine, 1 year additional rigorous imprisonment. U/s. 449 of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.5,000/-, in default of payment of fine, 1 year additional rigorous imprisonment. All the sentences to run concurrently. Conviction & Sentence of Niranjan Prasad Rathore (A-2) CONVICTION SENTENCE U/s. 307/34 of IPC. : Rigorous imprisonment for 10 years and fine of Rs.5,000/-, in default of payment of fine, 1 year additional rigorous imprisonment. 3. Case of the prosecution, in short, is that on 24.09.2018 at 9:00 P.M. at Bhagat Chowk, Purani Basti, Police Station Janjgir, District Janjgir-Champa, the two appellants (father & son) in furtherance of their common intention tress-passed into the 4 house of Vishnu Prasad Nirmalkar (now deceased) to recover interest @20% on the amount loaned to him, but on refusal to pay, the two appellants herein assaulted the deceased by hand & fist and banging his head on the stairs, by which he suffered grievous injuries and during course of treatment, he died. They also caused injuries to son of the deceased Gourishankar Nirmalkar (PW-4) by knife, which was sufficient in ordinary course of nature to cause death and thereby, committed the aforesaid offences. Further case of the prosecution is that the incident is witnessed by eye-witnesses Shraddha Nirmalkar (PW-5), daughter-in-law of the deceased, Brihaspati Bai Nirmalkar (PW-6), wife of the deceased and Gajanand Prasad Bareth (PW-7), neighbor of the deceased. The matter was reported to the police, pursuant to which, zero Merg was registered vide Ex.P-1, Merg Intimation was registered vide Ex.P-27, Dehati Nalsi was recorded vide Ex.P-2, Spot Map was prepared vide Ex.P-6, FIR was registered vide Ex.P-28 & Ex.P-29 and dead body of deceased Vishnu Prasad Nirmalkar was subjected to post-mortem, which was conducted by Dr. Sandip Kumar (PW-11), who proved the post-mortem report vide Ex. P-16, according to which, cause of death was stated to be injuries to the vital organ of the body like Lungs, Head & Brain resulting in cardio pulmonary arrest and death was homicidal in 5 nature. Pursuant to memorandum statement of the appellant Pramod Rathore (A-1), knife was seized vide Ex.P-13 and as per the query report (Ex.P-24), injuries can be caused by the seized knife. Injured eye-witness Gourishankar (PW-4) was subjected to MLC by Dr. Rajesh Vastrakar (PW-12) and vide Ex.P-20, he was found to be suffered grievous injuries. After due investigation, both the appellants were charge-sheeted for the aforesaid offences 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 appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 4. In order to bring home the offences, prosecution examined as many as 17 witnesses and exhibited 37 documents and the appellants-accused in support of their defence have examined only 4 witnesses and exhibited 4 documents. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the aforesaid offences and sentenced them as mentioned in the opening paragraph of this judgment, against which the present appeals have been preferred. 6 6. (a) Mr. Rishi Sahu, learned counsel for the appellants, would submit that so far as the alleged murder is concerned, no dangerous weapon was used, it is said to have caused by hand & fist and by ganging the head of deceased on stairs, therefore, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant (A-1), as there was no premeditation & intention on the part of the appellant (A-1), but he must have knowledge that the injuries caused by him is likely to cause death and, as such, the conviction of appellant (A-1) for offence under Sections 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone. (b) Learned counsel for the appellants would also submit with regard to appellant (A-2) that he had already remained in jail for more than 2 years, therefore, he be sentenced for the period already undergone for offence under Section 307/34 of I.P.C. Therefore, both the appeal be allowed in part. 7. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offences. He further submits that it is not a case where 7 the conviction of appellant (A-1) for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C., therefore, the 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 question for consideration as to whether the death of deceased Vishnu Prasad Nirmalkar was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-16) proved by Dr. Sandip Kumar (PW-11), according to which, cause of death was stated to be injuries to vital organ of the body like Lungs, Head & Brain resulting in cardio pulmonary arrest and death was homicidal in nature, 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. 10. Now, the next question is, whether the the trial Court has rightly convicted appellant (A-1) for the offence under Sections 302 & 449 of I.P.C. and both the appellants (A-1 & A-2) for offence under Section 307 of I.P.C. 8 11. The conviction of appellant (A-1) is based on the testimony of the eye-witnesses : Shraddha Nirmalkar (PW-5), daughter-in- law of the deceased, Brihaspati Bai Nirmalkar (PW-6), wife of the deceased and Gajanand Prasad Bareth (PW-7), who is neighbor of the deceased, they have clearly stated that Pramod Rathore (A-1) came to the house of the deceased and asked for interest @20% on the amount which the deceased had borrowed from him, but the deceased declined to pay, as he was having no money, therefore, the appellant (A-1) assaulted the deceased by hand & fist and banging his head on the stairs, by which he suffered grievous injuries and thereafter, while he was being escorted to the hospital, the Doctor declared him dead in the hospital. Though the three eye-witnesses were subjected to some extent of cross-examination, but nothing has been extracted to hold that they were not the eye-witnesses and they have not seen the incident. As such, as per the statement of the eye- witnesses PW-5, PW-6 & PW-7, it is the appellant (A-1) who had assaulted the deceased, by which he suffered grievous injuries on the vital parts of his body, which has been proved by Dr. Sandip Kumar (PW-11) vide Ex.P-16, according to which, cause of death was stated to be injuries on the vital parts of the body like Lungs, Head & Brain resulting in cardio pulmonary arrest and death was homicidal in nature. As such, the trial Court has 9 recorded a correct finding of fact that on account of the injuries caused by appellant (A-1), deceased Vishnu Prasad Nirmalkar has died. Similarly, the finding of the trial Court relying upon the statement of eye-withnesses and statement of injured eye- witness Gourishankar Nirmalkar (PW-4), the conviction for offence under Sections 307/34 & 449 of I.P.C. is well merited, however, the sentence of 10 years rigorous imprisonment is reduced to 2 years rigorous imprisonment. 12. Now, the question is whether the offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C. so far as the appellant Pramod Rathore (A-1) is concerned. 13. The case of the prosecution is based upon the statement of three eye-witnesses that the appellant (A-1) came into the house of the deceased and wanted 20% interest on the amount loaned to him, but he could not arrange to pay and therefore, he assaulted the deceased by hand & fist and ganging his head on the stairs and no dangerous weapon was used. As such, the intention of the appellant (A-1) was to recover the amount and at the most, it can be said that he had no intention but he had knowledge that the injuries caused by him is likely to cause death. 10 14. 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 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) 1 (2017) 3 SCC 247 11 “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 unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 15. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I of I.P.C. and if it is only a case of 12 knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of I.P.C. 16. Coming 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 there was no premeditation and intention on the part of the appellant (A-1) to cause death, but the appellant (A-1) must have had knowledge that the injuries caused by him is likely to cause death of deceased. As such, the conviction of Pramod Rathore (A-1) for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and he is hereby sentenced to 8 years rigorous imprisonment. However, the conviction of the appellant (A-1) for the offence under Section 307 & 449 of I.P.C. is well merited, but the sentence is reduced from 10 years rigorous imprison- ment to 2 years rigorous imprisonment. Similarly, the conviction of Niranjan Prasad Rathore (A-2) for the offence under Section 307/34 of I.P.C. is maintained, however, the sentence is reduced from 10 years rigorous imprisonment to 2 years rigorous imprisonment, which he had already suffered. The fine amount shall remain intact. 17. Accordingly, both the criminal appeals are partly allowed to the extent indicated herein-above. 13 18. The appellant Niranjan Prasad Rathore (A-2) 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. 19. 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. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant (A-1) is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok