1 2025:CGHC:2742-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1669 of 2021 Tirith Kumar S/o Dayalu Prasad Chandra Aged About 40 Years R/o Village Devarghata, Police Station Hassaud, District- Janjgir-Champa (C.G.) ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station- Station Hassaud, District, District-Janjgir -Champa Chhattisgarh ---- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Sudhir Kumar Bajpai, Advocate For Respondent/State : Mr. Sakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, C.J. 16/01/2025 1. The present criminal appeal has been filed by the appellant under section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 30.05.2017, passed by learned First Additional Sessions Judge, Sakti, District Janjgir-Champa, in Sessions Case No. 138 of 2015, whereby the appellant has been convicted for the offence under section 302 of IPC Digitally signed by VEDPRAKASH DEWANGAN 2 and sentenced for life imprisonment with fine of Rs. 500/- in default of payment of fine further R.I. for 1 month. 2. The brief facts of the case are that the complainant Smt. Uma Chandra was residing along with her husband Tirith Kumar, her in-laws Dayalu Prasad and Shantibai and her children. On 11.05.2015, there was a quarrel between the appellant and the deceased Dayalu Prasad for not giving money to the appellant by the deceased. At about 11:30 in the night, when the deceased was sleeping in his courtyard, the appellant assaulted the deceased by knife, who is his father. After hearing the noise of the assault, the wife of the deceased woke up and saw the dead body. The incident was informed to other persons of the vicinity and relatives, then PW-1/Smt. Uma Chandra, who is the wife of the appellant had lodged Merg Intimation/Exhibit P-2 to the police. Based on the Merg Intimation, the FIR/Exhibit P-1 was recorded by the police against the appellant for the offence under section 302 of IPC, in which the appellant was named as the assailant and the incident was witnessed by them. *******The inquest of the dead body of the deceased/Exhibit P-8 was prepared in presence of the witnesses and the dead body was sent for its post-mortem to Primary Health Centre, Hasaud where PW-18/Dr. Manoj Kumar Rathore has conducted the post-mortem of the dead body of the deceased and gave report/Exhibit P-29. While conducting the post-mortem, the doctor has noticed the following injuries on the body:- (i) Stab wound on the left hypochordium region 3 x 1.5 3 x 0.8 cm/Downward Medially Cut, (ii) Stab wound on the epigastric region 2 x 0.5 x 6 cm/Downward Medially Cut, (iii) Stab wound on the left aspect of neck 3 x 2 x 5 cm/Upward Medially Cut, Trachea at C-4 level cut, (iv) Incised wound on right forearm/Upward Laterally 8 x 2 cm, (v) Incised wound on right arm/Upward Laterally 5 x 2 cm. 3. The doctor has opined that cause of death of the deceased is shock due to hemorrhage due to injury in the multiple part of the body, which are antemortem and homicidal in nature. Spot map/Exhibit P-9 was prepared by the police and P-3 was prepared by the Patwari. The appellant was arrested on 12.05.2015. From the spot, one mattress and iron knife was seized vide seizure memo/Exhibit P-14. The mattress cover, knife and half shirt seized from the appellant was sent for its chemical examination to State FSL Raipur, from where FSL report/Exhibit P-26 was received and human blood was found on the sent articles. The knife seized from the spot was also sent for its query report to the doctor, from where query report/Exhibit P-24A was received and the doctor has opined that if the knife was not bend and it was straight in condition, the injuries could have been caused by the said knife, but in such bend condition the injuries found on the body of the deceased could not be caused by said knife. *******Statement under section 161 of CRPC of the witnesses have been recorded. Statement under section 164 of CRPC of the complainant Uma Bai Chandra was also recorded and after 4 completion of usual investigation, charge sheet was filed against the appellant for the offence under section 302 of IPC before the learned Judicial Magistrate First Class, Jaijaipur. The case was committed to the court of learned Sessions Judge, Janjgir-Champa from where the same has been transferred to the learned trial Court for its trial. 4. Learned trial Court has framed charge against the appellant for the offence under section 302 of IPC. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant, the prosecution has examined as many as 18 witnesses. Statement of the appellant under section 313 of CRPC has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt against the appellant that he is the perpetrator of the crime. There are material omission and contradictions in the evidence of the prosecution witnesses, which cannot be made basis for conviction of the appellant in the alleged offence. He would further submit that the deceased was in habit of drinking liquor and in the night he was in the influence of the liquor and fell down on the ground. The agricultural knife was lying in 5 the courtyard, on which the deceased fell down and received injuries on his body. Since the appellant was not having good relation with his father and frequent quarrel was going on between them, the other family members in order to eliminate him from the house, lodged a report against him that he committed murder of the deceased. He would further submit that the deceased was the father of the appellant and he cannot cause his death by committing his murder. In alternative he would submit that there was frequent quarrel between them for one or other issue in the house as they were difference of opinion in the routine work and on the date of incident also there was a quarrel on the issue of money transaction between them and in the heat of passion the appellant caused injuries to the deceased which resulted into his death. The appellant was not intended to cause his death and therefore the offence does not travel beyond the scope of section 304 of IPC and by altering his conviction under section 304 part-I or part-II of IPC, his undergone period may be considered to be sufficient sentence as the appellant is in jail since 12.05.2015. 7. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omission or contradictions the evidence of prosecution witnesses are fully reliable. The case of the prosecution is supported by eyewitnesses, whose presence on the spot is quite natural. The eyewitnesses are related to both the appellant as well as the deceased and there is no reason for his false implication. He would also submit that the number and nature of the injuries found on the 6 body of the deceased makes it clear that the appellant was intended to cause death of the deceased for which he gave knife blows on his body repeatedly. The manner in which the incident occurred, cannot be said to be done in the heat of passion and therefore the learned trial Court has rightly convicted and sentenced the appellant which needs no interference. 8. We have heard learned counsel for the parties and perused the record carefully. 9. With respect to homicidal death of the deceased, the eyewitnesses PW-1/Uma Bai, who is the wife of the appellant, PW-5/Shanti Bai, wife of the deceased and mother of the appellant, PW-6/Sarita, relative of the deceased, have clearly deposed that they have seen the assault made by the appellant upon the deceased by knife, by which the deceased received numerous injuries on his body and died due to the said injuries. The eyewitnesses of Inquest/Exhibit P-8, PW-2/Gulab Singh Chandra, PW-10/Anil Das Mahant and PW-12/Milan Ram have also supported the prosecution's case that they saw the injuries on the dead body of the deceased and they witnessed the inquest. 10. PW-18/Dr. Manoj Kumar Rathore has stated in his deposition that on 12.05.2015, he conducted the post-mortem of the dead body of the deceased- Dayalu Prasad and found stab wound and incised wound on his body. He found stab wound on left hypocordium region, epigastric region and left aspect of neck in which trachea at C-4 level was cut and incised wound on right forearm and right arm. He opined that the cause of death is shock due to hemorrhage due to injury in the 7 multiple part of the body, which is antemortem and homicidal in nature. In this cross-examination, the defence could not elicit any material, which makes the evidence of the doctor doubtful. Thus, from the evidence of the aforesaid witnesses as well as the post-mortem report/Exhibit P-29, the death of the deceased being homicidal in nature has been proved by the prosecution. 11. So far as the involvement of the appellant in the offence in question is concerned, the aforesaid eyewitnesses PW-1/Umawai, PW-5/ Shantibai, PW-6/Sarita Chandra have clearly deposed that at about 12:00 in the night when they were sleeping in their house, the appellant caused injuries to the deceased by knife and on being heard the noise of assault and the deceased, they woke up and saw the incident. The appellant was holding the knife in his hand. PW-5/ Shantibai has also proved the incident that she saw the appellant assaulting the deceased. Nothing could be extracted from her also in her cross-examination, but she stuck by saying that the appellant caused injuries to the deceased. PW-6/Sarita is also one of the relatives of the deceased as well as the appellant and has stated in her evidence that on the date of incident, they were sleeping in their courtyard and when they heard the noise, they woke up and saw that the appellant assaulting the deceased. The appellant was caught hold on the spot and tied by rope. She also remained firm in her cross- examination by saying that it is the appellant who caused injuries to the deceased by knife. 12. PW-7/Hemlal is also a witness to the fact that when he was being 8 informed by his cousin brother that the quarrel is going on between the appellant and the deceased and he asked to come there to pacify the quarrel, he also went there and saw that the deceased was lying on the cot in the injured condition. Blood was coming out from his body and the appellant was standing on the side having knife in his hand. After seeing him, he got the knife bended and thrown there. Thereafter, they caught hold of the appellant and called the police. All these witnesses have unerringly deposed against the appellant that he is the person, who caused injuries on the body of the deceased and their evidence remains un-rebutted in their cross-examination. In such quality of evidence, the minor omission or contradictions in the evidence of these eyewitnesses, does not make the case of the prosecution doubtful and these omission or contradictions are insignificant in the facts of the case. Therefore, the involvement of the appellant in the offence in question has been proved by the prosecution. 13. The next question for consideration is 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 learned counsel for the appellant ? 14. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, 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 9 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.” 15. 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; 10 (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 ? 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.” 16. 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 11 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. 17. 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 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 12 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”. 18. 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. 19. Further, the Hon’ble 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 13 (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 20. Reverting to the facts of the present case, it is quite vivid that the appellant is the son of the deceased. There was frequent quarrel exists between them on the issue of money transaction. As per the evidence of PW-1/Umabai, it comes that on the date of incident also the appellant demanded money from the deceased, which the deceased has given to him. From the Merg Intimation/Exhibit P-2 lodged by Smt. Uma Chandra, wife of the appellant, it reflects that on the date of incident also there was a quarrel between them and thereafter the appellant caused injuries to the deceased. Except this, no other reason for causing injuries to the deceased have been disclosed by the witnesses. From the 164 CRPC statement of Smt. Umabai (Exhibit P-5), it also reflects that there was frequent quarrel going on between the appellant and the deceased on that very issue that the appellant demanded money from him and even after their money transaction, her husband (appellant) sold the household articles regularly, which gives reason to consider that the appellant caused injuries to the deceased on heat of passion, which ensued due to quarrel between them. 21. From the overall evidence came on record, in the peculiar facts and circumstances of the present case, it can safely be hold that the appellant did not have any intention to cause death of the deceased- Dayalu Prasad, but by causing such injuries, he must have had the knowledge that such injury inflicted by him would likely to cause death 14 of the deceased and as such, his case would fall within the purview of Exception 4 of Section 300 of the IPC, as the act of the appellant herein completely satisfied the 04 necessary ingredients of Exception 4 to Section 300 of IPC. 22. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases, considering the evidence of eyewitnesses, PW-1/Umawai, PW-5/Shantibai and PW-6/Sarita Chandra and also taking into consideration the fact that the appellant is in jail since 12.05.2015, ends of justice would meet, if the conviction of the appellant under section 302 of IPC is altered/converted to one under section 304 part-I of IPC. 23. Accordingly, the appeal is allowed to 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. 1000/-, in default of payment of fine, further R.I. for two months. 24. As the appellant is stated to be in jail, he shall serve the remaining sentence as modified by this Court. 25. 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. 15 26. 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 ved