1 2025:CGHC:6997-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1348 of 2021 1 - Budhram Madkami S/o Shri Pandu Madkami Aged About 32 Years R/o Village Bhadrimahu , Permapara, Police Station Darbha, District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh 2 - Pandu Madkami S/o Late Ganga Madkami Aged About 54 Years R/o Village Bhadrimahu , Permapara, Police Station Darbha, District Bastar Chhattisgarh. ... appellants versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Darbha, District Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh ... Respondent For appellant : Mr. Sanjeev Kumar Sahu, Advocate For Respondent : Mr. Shailendra Sharma, Advocate Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 07.02.2025 1. The matter has been listed on consideration on I.A. No. 1 which is an application for suspension of sentence and grant of bail and with the concent of the parties, the matter has been heard finally. 2 2. The present criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 25/09/2021 passed by learned Sessions Judge, Bastar, Jagdalpur (CG) in Sessions Trial No. 51/2019 whereby the appellants has been convicted and sentenced as below:- S.No Conviction Sentence 1. Under Section 302 r/w 34 of IPC Life imprisonment and fine amount of Rs. 1000/- and in default of payment of fine further R.I. for three months. 2. U/s 323 r/w 34 of IPC S. I. For one year (both the sentences shall run concurrently) 3. Brief facts of the case are that the complainant Moti Madkami who is the wife of the deceased Deva Madkami gave a merg intimation on 11/07/2019 (Ex- P/26) that on 09/07/2019, in the night, when her husband was sleeping in her house, her father in law Pando Madkami and brother-in-law Budhram came there and tried to oust them from their house. When her husband objected that the house is belongs to him also and he will not leave it, then her father- in-law and brother-in-law assaulted her husband by axe and wooden log by which her husband has received injuries on his head. When she intervened, she too have been assaulted by them and she also received injuries. When she raised alarm for help, the other family members came there and intervened. Since, it was the night time, they could not took him to hospital for his treatment and on the next day i.e. 07/10/2019 her husband has died due to injuries. The FIR (Ex-P/27) was registered against the appellant for the offence under Section 302, 323, 34 of IPC. Inquest (Ex-P/9) of the dead body of the deceased was prepared in presence of witnesses and the dead body of the deaced was sent for its post mortem to Community Health Centre, Darbha, Dist- Bastar, where PW/7 Dr. Hitesh Kumar Chandravansi conducted the post mortem of the dead body of the deceased and gave 3 report (Ex-P/17). While conducting the post mortem, the doctor has noticed contusion with lacerated wound, 5X 3X2 cm in temporo-parietal region on head, lacerated wound over left parietal region 4X2X2 cm on head. Hematoma present in frontal and parietal region and opined that above injuries are antimortem in nature, caused by blunt object and opined that cause of death was coma due to head injury on temporo-parietal region of head leading to cardiopulmonary arrest and nature of death is homicidal. Blood stained and plain soil have been seized from the spot vide seizure memo (Ex-P/7). The victim Moti Madkami was also sent for her medical examination to Govt. Hospital, Darbha, where she was also medically examined by PW/7 Dr. Hitesh Kumar Chandravanshi who gave his report Ex- P/18. While examining the complainant (PW/13), the doctor has found superficial incised wound on frontal region and abrasion on knee and her medical report is (Ex-P/18). Spot map (Ex-P/30) was prepared by Patwari. The appellants were arrested on 11.07.2019 and their memorandum statements (Ex-P/3) and (Ex-P/4) have been recorded. Based on their memorandum statement, half t-shirt, wooden log have been seized from the appellant Budhram vide seizure memo (Ex-P/5). On the basis of memorandum statement of the appellant Pandu, one Axe and his t-shirt have been seized vide seizure memo (Ex-P/6). The seized articles were sent for its query report to doctor who gave his query report (Ex-P/19) and according to which, the objects can made such injuries and the injuries can cause death. For confirmation of blood on the sent articles, he referred for its chemical examination. Statement of the witnesses, under Section 161 of Cr.P.C. have been recorded. The blood stained and plain soil, t-shirt of the deceased, t-shirt and wooden log seized from the accused Budhram and t- shirt and axe seized from the accused Pandu were sent for chemical examination to regional FSL, Jagdalpur, Dist- Bastar, from where report (Ex- P/39) was received and according to the FSL 4 report no blood was found on plain soil, t-shirt of the appellant Budhram and axe seized from appellant Pandu whereas the human blood was found on the other articles. 4. After completion of usual investigation, charge-sheet was filed against the present appellants before the learned Chief Judicial Magistrate, Bastar, Place-Jagdalpur for the offence under Section 302, 323 and 34 of IPC. The case was committed to the court of learned Sessions Judge, Bastar (Jagdalpur) for its trial. 5. Learned Sessions Judge has framed charge against the appellants for the offence under Section 302 read with Section 34 and 323 read with section 34 of IPC. The appellants denied the charge and claimed trial. 6. In order to prove the charge, the prosecution has examined as many as 14 witnesses. Statement of the appellants under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and submitted that they have been falsely implicated in the offence. They further submitted that a day before the date of incident, both of them have gone to jungle in search of their cattle and came back on the next day of incident. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellants and sentenced them as mentioned in Para-1 of this judgment. Hence this appeal. 8. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond regionable doubt. There are material omission and contradiction in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellants for the alleged offences. The so called eye witness (PW/13) Moti Madkami is interested witness and her evidence is not sufficient to hold the appellants guilty. There is region for false implication of the appellants that she is in possession of the property till the time when the appellants are in jail. He would further submit that the 5 seizure of the weapons from the appellants has also not been proved, further there is no blood group could have been determined on the seized weapon of offence and therefore, the same can not be connected the appellants with the offence in question. In alternative, he would further submit that the incident is occurred in a heat of passion and the single blow of axe was inflicted on the body of the deceased. He would further submit that even if, the prosecution story is taken to be true, at the most the case of the appellants does not travel beyond the scope of Section 304 part 1 or part 2 of IPC. The appellants have no intention to cause death of the deceased and as such the appeal deserves to be allowed. 9. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellants and has submitted that the prosecution has proved its case beyond regionable doubt. The allegation against the appellants is supported by the evidence of eye witness (PW/13) Moti Madkami who is the wife of the deceased. She witnessed the incident and duly supported the prosecution’s case. The weapon of offence axe and wooden log have been seized from the appellants and in the FSL report, human blood was found on the wooden log. Therefore, the involvement of the appellants in the offence in question has duly been proved by the prosecution irrespective of the number of injuries on the body of the deceased. The deceased died due to injuries inflicted upon him by the appellants and the death of the deceased was homicidal in nature. Therefore, there is no scope for any interference in the present appeal and the appeal filed by the appellants is liable to be dismissed. 10.We have heard learned counsel for the parties and perused the record. 11.The first question arises for consideration would be whether death of the deceased Deva was homicidal in nature or not. 12.The learned trial Court after appreciating the oral as well as documentary evidence which are available on record, particularly relying upon the 6 evidence of Dr. Hitesh Chandravanshi (PW/7) who conducted the post mortem of the dead body of the deceased, has come into conclusion that the cause of death of the deceased was coma due to head injury on temporo- parietal region and frontal region of head leading to cardiopulmonary arrest and nature of death is homicidal. Further from the evidence of PW/13 Moti Madkami, it is proved that the appellants caused injuries by assault by axe and wooden log on the head of the deceased by which he received injuries on his body and ultimately died. From the merg intimation (Ex-P/26) and FIR (Ex-P/27) and also from the inquest of the dead body (Ex-P/9), the homicidal death of the deceased is proved by the prosecution and the finding recorded by the learned trial Court that the deceased died due to homicidal death is based on proper appreciation of evidence which is neither perverse nor contrary to the evidence available on record and we hereby affirmed that finding. 13.Now the question for consideration would be whether the accused persons/ appellants herein are the perpetrator of the crime in question which the learned trial Court has recorded by relying upon the testimony of the eye witness (PW/7) Moti Madkami. She stated in her evidence that the accused Pandu is her father in law and accused Budhram is her brother in law. The deceased was her husband who has been murdered by the accused persons. She has got married with her husband, two years back. She was residing in the adjoining houses of the persons where the accused persons along with their family members were also residing. There was dispute between her husband and her father in law and brother in law on the issue of residing separately from them. On the date of incident at about 8-9 pm, when they were sleeping after having their dinner, the appellants came to their house and started assaulting her husband. The appellant Pandu has assaulted by axe and Budhram assaulted by wooden log. When she tried to intervene, then she too have been assaulted by the accused persons. After 7 some time in the night itself her husband has died. On the next morning, she informed the incident to the persons of vicinity and lodged the report. In cross-examination though she admitted that she did not disclose in the village that the deceased was being murdered by the appellants and she disclosed that he died due to fallen on the ground, but the fact of assault made by the accused persons upon the deceased could not be rebutted by the defence. She being the wife of the deceased is natural witness and her presence is also quite natural. From the evidence of this witness, the defence could not extract any material to disbelieve her evidence. 14.PW/1 Ganga is the witness to the memorandum and seizure of weapon of offence from the appellants who duly supported the memorandum and seizure of the appellants. Although, he declared hostile on the later part of his evidence, he duly supported the recording of the memorandum of the appellants and seizure of the weapon of offence from them. He also supported the seizure of cloths from the accused persons. 15.PW/2 Smt. Payake who is the mother of the deceased and appellant Budhram and wife of the appellant Pandu, stated in her evidence that her sister in law had informed her that her son Deva has died in his house and when she came to his house, she saw that her son was lying dead and pooled with blood. His wife Moti informed her that he fell down near the door and has died. At that time, her husband Pandu and another son Budhram had gone to collect their cattle. This witness has turn hostile and has not supported the case of prosecution. 16.PW/3 Hadma Madkami, is another witness of memorandum and seizure but she turned hostile and not supported the prosecution’s case. 17.PW/4 Budhri Kawasi is the sister of the deceased as well as appellant Budhram and daughter of the appellant Pandu. She too have turned hostile and not supported the prosecution’s case. 8 18.From the evidence produced by the prosecution, it is quite vivid that the PW/13 Moti Madkami, who is the wife of the deceased, has duly supported the prosecution’s case that it is the appellants who caused injuries to the deceased by which the deceased died. From perusal of her evidence, it is clear that it is appellants who committed the offence and caused injuries to the deceased on the date of incident which is witnessed by her. The seizure of weapon of offence has also been proved by PW/1 Ganga Kawasi and in the FSL report (Ex-P/39) human blood was found on the T-shirt of the deceased, wooden log seized from the appellant Budhram and T-shirt of appellant Pandu. As such the learned trial Court has rightly held that the appellants caused injuries over the body of the deceased accordingly we hereby affirm the said finding. 19.The aforesaid finding bring us to next question for consideration whether the case of the appellants are covered within exception 4 to Section 300 of IPC vis a vis culpable homicide not amounting to murder and their conviction can be altered to Section 304 Part (I) or Part (II) of IPC. 20.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 1) 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." 1 (2002) 3 SCC 327 9 21.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; 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 behavior 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? 2 (2009) 15 SCC 635 10 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." ……………. 22.Likewise, in the matter of State v. Sanjeev Nanda 3 , 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. 23. 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 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, (1) 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 11 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 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". 24. In the matter of Arjun (supra), the Hon’ble 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. 25. 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 5 (2019) 6 SCC 122 12 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. 26. According to the post mortem report (Ex-P/17), there was contusion with lacerated wound on temporo-parietal region and lacerated wound over frontal region on the head which was caused by blunt object which were grievous in nature. There is no fracture of any head bone found on the body of the deceased and the doctor has admitted that the injuries found on the body of the deceased could also have been caused by fall on the door and ground. The doctor PW/7 has also admitted that the injuries could also have been caused by dash with the cot and it may be the accidental. There is no other injury found on the other part of body of the deceased. Even the eye witness Pw/13 Moti Madkami deposed that both the appellants started assaulting the deceased by axe and wooden log but from the nature of injuries found on the body of the deceased shows that the appellants did not had the intention to cause the murder of the deceased, though in a heat of passion, they have assaulted the deceased on the issue that they did not want to permit him to reside their as the deceased has performed marriage with PW/13 against their will and there was quarrel going on between them on that very issue. From the evidence of the doctor (PW/7), it also appears that the sharp side of axe has not been used for assault and no incised wound or corresponding injury found on the body of the deceased and as such the case of the appellants would fall within the purview of Exception 4 of Section 304 of IPC 13 as the act of the appellants herein completely satisfies the necessary ingredients of Exception 4 of Section 304 of IPC. As such it would be safe to hold that the appellants did not had the intention to kill the deceased. 27.So far as the conviction of the appellants for the offence under Section 323/34 of IPC is concerned for causing simple injuries to Moti Madkami (PW/13), she has duly proved that when she intervened in the quarrel, she too have been assaulted by the appellants and received injuries on her body. The injuries found on the body of the PW/13 Moti Madkami has been proved by PW/7 Dr. Hitesh Chandravanshi who gave his MLC report (Ex-P/18). While examining the PW/13, the doctor has noticed superficial incised wound on frontal region which are simple in nature and thus, the injuries inflicted upon the PW/13 Moti Madkami has also been proved by the prosecution for which they are liable to be convicted for the offence under Section 323/34 of IPC. 28.In view of the above discussion, we hold that the offence of the appellants comes under Section 304 part (II) of IPC and not under Section 302 of IPC and the same is altered and converted accordingly. 29.Therefore, the conviction of the appellants under Section 302/34 of IPC is set aside and they are convicted under Section 304 Part (II) read with Section 34 of IPC and sentenced to under go R.I. for 7 years with fine of Rs. 1000/-, in default of payment of fine, further R.I. for 01 month. The conviction and sentence of the appellants under Section 323 read with Section 34 of IPC is hereby maintained. All the sentences shall run concurrently. 30.The appellant Budhram is in jail since 11/07/2019 and the appellant Pandu is in jail since 15/07/2019. They shall undergo, their remaining part of sentence as awarded by this Court. 31.The criminal appeal is partly allowed to the extent indicated hereinabove. 32.Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to 14 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. 33.Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.02.21 11:37:18 +0530