1 2025:CGHC:5220-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1548 of 2021 1 - Shatruhan Singh Kanwar S/o Late Vishambhar Singh Kanwar Aged About 26 Years R/o Dondro, Police Station Balco, District- Korba, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Balco, District- Korba, Chhattisgarh. ... Respondent(s) For Appellant : Ms. Nirupama Bajpai, Advocate. For State : Shri Malay Jain, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board Per, Ravindra Kumar Agrawal, J 29.01.2025 1. The appellant has preferred this criminal appeal under section 374 (2) of the Criminal Procedure Code against the judgement of conviction and sentence dated 11.03.2016 passed by the Sessions Judge, Korba, in Sessions Case No. 76/2015, whereby the appellant has been convicted Under Section 302 of IPC and sentenced for Life Imprisonment with fine of Rs. 2000/-, in default of payment of fine amount, additional R.I for one year. 2. The case of prosecution in brief is that on 11.01.2015 at about 9 AM while the deceased Shivkunwar was working near Belgarhi canal and preparing the land for cultivation of vegetable along with her daughters Ku. Surja Kanwar and Ku. Chanda Kanwar, at about 12:30 PM the appellant, armed with Farsa Digitally signed by INDRAJEET SAHU Date: 2025.02.12 18:02:33 +0530 2 came there and assaulted the deceased Shivkunwar. The deceased received injuries on her head, neck and left arm. He also chased both her daughters but they fled away towards vicinity. Ku. Surja Kanwar informed the incident to Kaushalya Bai and Bundkunwar and she lodged merg intimation Ex.P/16 to the police. Dehati Nalisi Ex.P/1 was also recorded on the instance of Ku. Surja Kanwar. FIR, Ex. P/15-A was registered against the appellant for the offence under Section 302 IPC. Dehati Merg Ex.P/2 was also recorded on the same day. Inquest of the dead body of the deceased Ex.P/4 was prepared in presence of the witnesses. The body was sent for its postmortem to District Hospital, Korba where PW-8 Dr. O.S. Kanwar conducted the postmortem of the dead body of deceased and found incised wound on left side of shoulder 6x2x1 cm, incised wound on back side of neck 8x3x1 cm, fracture of cervical vertebra was also found and opined that cause of death is shock due to severe hemorrhage which is antemortem in nature. From the spot, bloodstained and plain soil and one Spade was seized vide seizure memo Ex.P/7. Spot map Ex.P/8 was prepared by Patwari whereas Ex.P/18 by the Police. The appellant was arrested on 11.01.2015. His memorandum statement Ex.P/5 was recorded and based on his memorandum statement one Farsa was seized from him vide seizure memo Ex.P/6. The said Farsa and Spade were sent for its query report to the doctor who gave its query report Ex.P/20 and referred for its chemical examination to FSL for confirmation of presence of human blood. The clothes of the deceased, bloodstained and plain soil seized from the spot, Spade seized from spot, and Farsa seized from the appellant were also sent for chemical examination to State FSL, Raipur, from where report Ex.P/21 was received, according to which, blood was found on the sent articles, however, their origin was not determined as the same were disintegrated. 3. The statement of witnesses under Section 161 CrPC have been recorded and after completion of usual investigation charge sheet was filed against the 3 appellant before the Chief Judicial Magistrate, Korba, for the offence under Section 302 IPC. The Sessions Judge framed charge against the appellant for the offence under Section 302 IPC. The appellant denied the charge and claimed trial. 4. In order to bring home the Charge, the prosecution has examined 8 witnesses. Statement Under Section 313 of Cr.P.C. of the appellant was also recorded in which he denied the circumstances appears against him and plead innocence and have submitted that he has been falsely implicated in the offence. 5. After considering the evidence led by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgement. Hence, this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses. The alleged eyewitness are not reliable as they are the interested witness being the daughter of deceased. No motive has been proved by the prosecution for commission of the said offence. Even if it is proved that the appellant has inflicted the injury on the body of deceased, the act of the appellant does not travel beyond the scope of Section 304 IPC. The appellant is in jail since 11.01.2015 and converting his conviction from 302 IPC to 304 IPC, his undergone period may be considered to be sufficient sentence for the alleged offence. 7. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the prosecution has proved its case beyond reasonable doubt. The case of prosecution is based on the evidence of eyewitness PW-1 Surja Kanwar who is the daughter of deceased. Her presence on the spot is quite natural and she has duly supported the prosecution’s case. The appellant came on the 4 spot armed with deadly weapon like Farsa and assaulted the deceased on her neck which is the vital part of body which shows his intention that he was premeditated for commission of the offence and gave a Farsa blow on the neck of deceased. Therefore, the involvement of the appellant in the offence is question as well as murder of the deceased Shivkunwar has duly been proved by the prosecution. Therefore, the impugned judgement of conviction and sentence needs no interference. 8. We have heard the learned counsel for the parties and perused the record carefully. 9. With respect to homicidal death of the deceased, P.W- 7 Haricharan Sarthi, Assistant Sub Inspector, have proved Rojnamcha Sanha Ex.P/13. After receiving information about the incident, on the spot he recorded Dehati Merg intimation Ex.P/2 and Dehati Nalilsi Ex.P/1. He also prepared inquest Ex.P/4 in presence of witnesses and sent the dead body for its postmortem. 10.PW-1, Surja Kanwar, have also proved the Farsa blow by the appellant upon her mother. She also proved Dehati Merg intimation Ex.P/2 and Dehati Nalisi Ex.P/1 and further the inquest. The witnesses to inquest PW-2, Arun Kumar Kanwar, have proved the inquest Ex.P/4 who have stated in his evidence that when he received information about the incident, he went on the sport and saw the deadbody of shivkunwr in the sand of the river pooled with blood. He is the witness of inquest Ex.P/4. 11. PW-8, Dr. O.S. Kanwar, who conducted the postmortem of the dead body of the deceased, have stated in his evidence that on 11.01.2015 he conducted the postmortem of dead body of deceased and found one incised wound on left shoulder, one incised wound on back side of neck. There was cut in her cervical vertebra. He opined that cause of death is shock due to excessive hemorrhage and it was homicidal in nature. In his cross examination, he remain firm in saying that the injuries have been found on the body of deceased which was the cause of her death and she died homicidal death. 5 The trial court after considering the evidence available on record came into conclusion that deceased died due to homicidal death which is based on proper appreciation of evidence and there is no illegality or infirmity in the said findings of the trial court. 12.So far as involvement of the appellant in crime in question is concerned, P.W.-1, Surja Kanwar is the eyewitness to the incident who is daughter of the deceased. She stated in her evidence that on the date of incident at about 11 AM when she along with her mother and sister Chanda Kanwar were working in the field, at about 12-12:30 PM the appellant came from her back side having Farsa in his hand, chased her mother to assault her, she started running from the field but fell down due to stuck in her Sari and thereafter the appellant gave Farsa blow on the shoulder of her mother and thereafter repeated blow was given on her neck. She did not know as to why he assaulted her mother. After giving assault to her mother, he also chased them, but they ran away from the place. Her mother died on spot. Thereafter, she lodged a report at Balco Police Station. In cross examination, she denied the suggestion that there was a dispute between the appellant and her father. She also denied that the appellant was also working in his field which was adjoining to their field. She denied that just before the incident there was any quarrel between them. She firmly states that the appellant gave Farsa blow on her mother by which she died. Nothing could be extracted from this witness by the defence to disbelieve her evidence. Her presence on the spot was quite natural and merely because this witness is daughter of deceased, her evidence cannot be disbelieved on that ground alone. When she remain firm in stating about the incident without there being any corroboration, she can be believed and her evidence can be considered as sufficient evidence against the appellant. 6 13.PW-2, Arun Kumar Kanwar, reached on the spot subsequently and saw the dead body. He is the witness of inquest Ex.P/4, memorandum Ex.P/5, seizure of Farsa Ex.P/6 & P/7. He duly supported the case of prosecution. 14.PW-3, Khelan Prasad, is the Patwari who prepared the spot map. PW-4, Chhattar Singh, is the witness to memorandum of appellant Ex.P/5 and seizure of Farsa Ex.P/6 and he too have duly supported the prosecution’s case. PW-5, Sudhir Toppo, is the Constable, who have taken the dead body for its postmortem and is witness to seizure of clothes of deceased Ex.P/10. 15.PW-6, Vivek Sharma and PW-7, Haricharan Sarthi, are the police officers who conducted the part of investigation and proved the investigation which they have conducted. 16.As per the FSL report, blood was found on the clothes of the deceased, blood-stained and plain soil seized from the spot, Spade seized from the spot and Farsa seized from the appellant which is also corroborative with the evidence of PW-1 who is the eyewitness. Thus, the prosecution has duly proved the involvement of appellant causing injuries to the deceased by which she died. 17.The next question for consideration would be as to whether the case of the appellant is covered within Exception-4 to Section 300 IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as submitted by the learned counsel for the appellant. 18.The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, reported in 2002 (3) SCC 327 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 7 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.” 19.The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009 (15) SCC 635, 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 for 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 deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? 8 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.” 20.Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the Hon’ble Supreme Court has 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. 21.Further, the Hon’ble Supreme Court in the matter of Arjun Vs. State of Chhattisgarh, 2017 (3) SCC 247, 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 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 9 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 : “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”. 22.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 IPC and if it is only a case of knowledge and not the intention to cause murder or any bodily injury, then the same would be a case of Section 304 Part-II of the IPC. 10 23.Further, the Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients 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) he 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.” 24.Reverting to the facts of present case, it is quite vivid that on the date of incident the appellant came to the spot and gave Farsa blow on the neck of the deceased. On the postmortem, the doctor has found one incised wound on the neck and one incised wound on shoulder of the deceased. Though the suggestion given by the defence that there exist property dispute between the appellant and the father of this witness and the appellant has cultivated the adjoining field of the deceased, the dispute between the appellant and the deceased can be considered in the peculiar facts and circumstances of the case. Though no motive has been proved by the prosecution, but in the case where eyewitnesses are available, non proving of motive does not affect the prosecution case. The manner in which the incident occurred and the nature of injuries found on the body of the deceased, it can be considered that the appellant did not have any intention to cause death of the deceased, but by causing such injury he must have had the knowledge that such injury inflicted by him would likely to cause death of the deceased and 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 ingredients of Exception 4 to Section 300 IPC. 25.Considering the law laid down by Hon’ble the Supreme Court in the aforesaid cases, considering the evidence of eyewitness Surja Kanwar (PW-1), and 11 also taking into consideration the other evidence available on record, ends of justice would meet if the conviction of the appellant under Section 302 IPC is altered/converted to one under Section 304 Part-I of the IPC. 26.Accordingly, the appeal is allowed to the extent that conviction of the appellant under Section 302 IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 10 years with fine of Rs. 2000/-, In default of payment of fine, further R.I. for two months. 27.The appellant is stated to be in jail since 11.01.2015, he is entitled for set off of his undergone period during trial as well as during the pendency of the present appeal. 28. 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 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. 29.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 inder