1 2025:CGHC:10187-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1564 of 2018 {Arising out of judgment dated 05.06.2018 passed in Sessions Trial No.07/2018 by the learned Fourth Additional Sessions Judge, Bilaspur} Laxmi Prasad Bhaskar, S/o. Heeralal Bhaskar, Aged About 37 Years, R/o. Kisan Parsada, Police Station Masturi, Civil & Revenue District Bilaspur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Acting Through Officer In Charge, Police Station Masturi, Civil & Revenue District Bilaspur, Chhattisgarh. ... Respondent For Appellant : Ms. Swati Verma, Advocate For Respondent : Mr. Soumya Rai, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (03.03.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.03.04 16:03:06 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 05.06.2018, passed by the learned Fourth Additional Sessions Judge, Bilaspur, in Sessions Trial No.07/2018, by which, the appellant herein has been convicted for offence under Section 302 & 201 of Indian Penal Code and sentenced as under : CONVICTION SENTENCE U/s. 302 of I.P.C. : Life imprisonment and fine of Rs. 500/- in default of payment of fine, 3 months' additional rigorous imprisonment. U/s.201 of I.P.C. : Rigorous imprisonment for 2 years and fine of Rs.500/-, in default of payment of fine, 3 months' additional rigorous imprisonment. Both the sentence to run concurrently. 2. Case of the prosecution, in brief, is that on 09.09.2017 at 7:30 to 8:00 A.M., the appellant herein assaulted Bahura Bai (now deceased) by iron rod, by which she suffered grievous injuries and died and the appellant, in order to screen himself from the offence, hide the iron rod and burnt the clothes which he wore at the time of offence and 3 thereby, the offences have been committed. The matter was reported to the police, pursuant to which, Dehati Nalsi was recorded vide Ex.P-1, Merg Intimation was registered vide Ex.P-6 & P-16, FIR was registered vide Ex.P-17 & P-31, Inquest was conducted vide Ex.P-9 and dead body of deceased Bahura Bai was subjected to post-mortem, which was conducted by Dr. Dharmendra Kumar (PW-30), who proved the post-mortem report vide Ex.P-10, according to which, cause of death was stated to be cardio respiratory failure due to shock, as a result of head injury. Pursuant to memorandum statement of the appellant vide Ex.P-26, iron rod was recovered vide Ex.P-25, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-39), blood was not found on the seized iron rod. After due investigation, appellant was charge-sheeted for the aforesaid offence 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 appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 32 witnesses and exhibited 40 documents and 4 the appellant-accused in support of his defence has examined only 2 witnesses (DW-1 & DW-2) and exhibited 3 documents i.e. Ex.D-1 to Ex.D-3. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 & 201 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Ms. Swati Verma, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appeal deserves to be allowed. In alternative, she would submit that, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant considering the injuries inflicted by the appellant and therefore, the conviction of appellant for offence under Section 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, as he is in jail since 12.09.2017. 6. Mr. Soumya Rai, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable 5 doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that it is not a case where the conviction of appellant 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. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Bahura Bai was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-10) proved by Dr. Dharmendra Kumar (PW-30), according to which, cause of death was stated to be cardio respiratory failure due to shock, as a result of head injury, 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. 9. Now, the next question is, whether the appellant has caused the death of deceased Bahura Bai ? 10. In this regard, Manglu Kumar Ratre (PW-2), son of deceased and Chhahura Kumar Bhaskar (PW-13), brother 6 of the deceased, both are the eye-witnesses and they have clearly supported the case of the prosecution that since the appellant had outraged the modesty of daughter-in-law of the deceased, therefore, the deceased has lodged a report against the appellant for which the appellant had a grudge with the deceased and, on account of which, the appellant has assaulted the deceased by iron rod, by which she suffered grievous injuries and died. As such, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who had caused the death of deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ? 12. 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 :- 1 (2017) 3 SCC 247 7 “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) “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 8 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”. 13. 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 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. 9 14. 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 to cause death. As per the statement of Dr. Dharmendra Kumar (PW-30), who has conducted the post-mortem of the deceased vide Ex.P-10, two injuries were inflicted over the shoulder and forearm of the deceased, rupture of ribs number 1 to 4 and lacerated wound 4cm x 1cm deep on the temporal region of the deceased were also there. Considering the same, it appears that though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injuries caused by him is likely to cause death of deceased. As such, it is the fit case where the conviction of appellant for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C. 15. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is hereby sentenced to 10 years rigorous imprisonment. However, the conviction and sentence of the appellant for the offence under Section 201 of I.P.C. is well merited, which the appellant had already suffered. 10 16. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 17. 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 is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok