1 2025:CGHC:4182-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1692 of 2021 Vikram @ Vicky Dhanuhar S/o Indrapal Aged About 20 Years R/o Village Saplava, Police Station Pali, District Korba, Chhattisgarh ... Appellant versus State Of Chhattisgarh, Through Station House Officer Of Police Station Pali, District Korba Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Roop Ram Naik, Advocate For Respondent/State : Mr. Nitansh Kumar Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgment on Board Per Ram esh Sinha, C.J. 23/01/2025 1. The present appeal has been listed for consideration on I.A. No. 1, which is the application for suspension of sentence and grant of bail to the appellant, but with the consent of the parties, the matter has been heard finally. 2. The present appeal has been filed against the impugned judgment of conviction and sentence dated 24.11.2021, passed by learned First Digitally signed by VEDPRAKASH DEWANGAN 2 Additional Sessions Judge, Katghora, District, Korba, in Sessions Case No. 1 of 2020, whereby the appellant has been convicted under Section 302 of IPC and sentenced for life imprisonment with fine of Rs. 1000/- in default of payment of fine, additional R.I. for 6 months. 3. The brief facts of the case are that, in the morning hour of 23.09.2019, the appellant had gone to temple near Canal having a trident in his hand. When he was returning back from the temple, near Atal Chowk at village Saplava, the deceased Raghunath Dhanuhar met him and asked, why he is roaming along with trident in the morning. By this, the appellant became enraged and gave trident blow on his chest and also from hand and fist. The deceased was immediately being taken to the hospital at Community Health Centre, Pali and he was shifted to CIMS, Bilaspur, but he could not recover from the injuries and his family members have taken back him to his houses. Due to his injuries, he died on 30.09.2019. 4. The Merg Intimation/Exhibit P-5 was given by Santosh Kumar Dhanuhar/PW-2 to the police. The inquest of the dead body of the deceased/Exhibit P-4 was prepared in presence of the witnesses and the dead body was sent for its post-mortem to Community Health Centre, Pali where PW-15/Dr. Anil Saraf conducted the post-mortem of the dead body of the deceased and found lacerated wound/penetrated wound on right side of chest, lacerated wound on chest, old lacerated wound on shoulder, fracture of left 3rd to 7th ribs, intestine was perforated and his left humerus bone was dislocated. The doctor has opined the cause of death of the deceased is due to Cardio-respiratory failure along with Anemia as a result of injury 3 along with fracture of bones and nature would be given after police investigation report. His post-mortem report is Exhibit P-17. The FIR/Exhibit P-1 was registered against the appellant for the offence under Sections 294, 506 and 323 of IPC on 23.09.2019. The Spot Map/Exhibit P-2 and P-6 were prepared by police and Exhibit P-14 was prepared by Patwari. One sweater of the deceased has been seized vide seizure memo/Exhibit P-9. The Discharge Memo and City Scan Report of the deceased has also been seized vide seizure memo/Exhibit P-10. When he was initially taken to the Community Health Centre, Pali for his treatment PW-15/Dr. Anil Sharaf has given his MLC Report/Exhibit P-18. The appellant was arrested on 02.10.2019. His memorandum statement/Exhibit P-11 was recorded and based on his memorandum statement, one trident has been seized from him vide seizure memo/Exhibit P-12. The Sweater of the deceased as well as trident seized from the appellant were sent for chemical examination to Regional FSL Bilaspur, from where Report Exhibit P-32 was received and blood has been found on the sent articles. The sweater of the deceased was found stained with human blood, whereas the origin of the blood found on the trident could not be determined as the same was disintegrated. 5. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet has been filed against the appellant for the offence under Sections 294, 506, 323, 324 and 302 of IPC before the learned Judicial Magistrate First Class, Pali. 4 6. The case was committed to the Court of learned Sessions Judge, Korba from where the same has been transferred to the learned trial Court for its trial. 7. Learned trial Court has framed charge against the appellant for the offence under Sections 294, 506-B and 302 of IPC. The appellant denied the charge and claimed trial. 8. In order to prove the charge against the appellant, the prosecution has examined as many as 16 witnesses. Statement under Section 313 of CRPC of the appellant has also been recorded, in which he denied the circumstances, appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. He has not assaulted the deceased and he is innocent. 9. After consideration 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 this judgement. Hence this appeal. 10. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses, which cannot be made basis for the alleged commission of offence. There are material contradictions in the statement of eyewitnesses and their evidence are inconsistent. The deceased was died due to some other reason and there is no nexus with the alleged incident of assault as well as his death, as the doctor himself has opined that the nature of death could be opined after investigation of 5 the matter. The deceased was discharged from the hospital on 23.09.2019, whereas he died in his house on 30.09.2019. Therefore, no offence of commission of murder of the deceased is made out against the Appellant. 11. Learned counsel for the appellant would further submit that even if it is found that the appellant caused injuries to the body of the deceased, the manner in which the incident occurred and the injuries found on the body of the deceased, the offence, if any, does not travel beyond the scope of Section 304 of IPC and by altering his conviction, his undergone period may be considered to be sufficient sentence for the alleged offence. 12. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. The deceased was being assaulted by the appellant by trident, which he was having in his hand. Blow given by the trident on the chest of the deceased itself shows his intention that he intended to commit murder of the deceased. The nature of injuries found on the body of the victim also shows the grievousness of the offence that his ribs were fractured, intestines were perforated and blood was collected inside the lungs. Though the deceased has died after about 6 days of incident, but that itself cannot dilute the offence committed by the appellant. The learned trial Court, after meticulously examined the evidence available on record, rightly hold conviction of the appellant for the alleged offence and sentenced him as prescribed under the law. Therefore, no merits in the appeal filed by the appellant and the same is liable to be dismissed. 6 13. We have heard learned counsel for the parties and perused the record of the case. 14. The first question arises for consideration with respect to the homicidal death of the deceased, as to whether the deceased died due to homicidal death or not ? 15. The learned trial Court has considered the evidence of the witnesses to the inquest. PW-1/Sawan Singh, PW-7/Jaitram, who proved that they saw the dead body of the deceased and found injuries on his body. They are the witness to the inquest/Exhibit P-4. They opined that the deceased died due to injuries, which has been inflicted by the appellant by trident. The learned trial Court has also considered the evidence of PW-15/Dr. Anil Saraf, who conducted the post- mortem of the dead body of the deceased. During his postmortem, he found certain injuries on the chest of the deceased, fracture of his ribs and perforation of intestine and also found blood collected inside the lungs and opined that the death of the deceased was due to Cardio-respiratory failure as a result of injuries along with fracture of bones. 16. Although the doctor has opined that the nature of death could be ascertained as per the police investigation report, but the evidence available on record clearly revolves around the death of the deceased is homicidal in nature, which is caused due to the injuries inflicted by the appellant by trident. After considering the evidence available on record, the learned trial Court has held that the death of 7 the deceased is homicidal in nature, which is neither perverse nor contrary to the evidence available on record. 17. Now, the second question arises for consideration about the involvement of the appellant in the offence in question ? 18. PW-3, Smt. Pavariya Bai is the eyewitness to the incident, who stated in her evidence that on the date of incident at about 6:00-7:00 AM, when she had gone to fetch water to hand pump and coming from there, she saw that her grandfather-in-law Raghunath was being assaulted by the appellant by trident. Their quarrel was being intervened by the other persons of the vicinity and when her grandfather-in-law had been taken to his house, she saw the injuries on his chest and abdomen. On being asked, he informed that the appellant Vikram @ Vicky had assaulted him by trident. The deceased was being taken to Pali hospital, from where he was referred to CIMS, Bilaspur. At CIMS, he was admitted for about 4 days and thereafter, he was being taken back to his house and after 3-4 days, he died. In her cross-examination, she remained firm in saying that she has seen the incident that the appellant assaulting the deceased by trident. The defence could not elicit any material from her evidence that she has not seen the incident. 19. PW-4/Chain Singh, PW-5/Rajkumari and PW-6/Sohan Singh are also the eyewitnesses, who deposed that the appellant gave trident blow on the chest of the deceased. The deceased received injuries on his body. He was immediately taken to Pali hospital from where he was shifted to CIMS, Bilaspur and after a few days, he died. Nothing 8 could be extracted from these two eyewitnesses by the defence, so that their evidence could be disbelieved. 20. From these eyewitnesses, the involvement of the appellant in the assault to the deceased has been duly proved by the prosecution that on the date of incident, he assaulted the deceased by trident, which has been seen by the witnesses. Therefore, the learned trial Court has also rightly come into conclusion that the appellant has caused injuries on the body of the deceased, by which he died. 21. The next question for consideration would be, whether the case of the appellant is covered within exception 4 to section 300 of 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. 22. 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 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 9 of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 23. 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; 10 (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.” 24. 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. 11 25. 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 12 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”. 26. In the matter of Arjun (supra), the Hon’ble Supreme Court has held that if there is intent 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. 27. 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: 13 “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.” 28. From the evidence, it comes on record that on the date of incident at about 6:00-6:30 AM, when the appellant had gone to temple having a trident in his hand and when he was returning back, the deceased asked him, as to where he was roaming along with the trident in the early morning. For that reason, the appellant became enraged and gave trident blow on the chest of the deceased. The act of the appellant is on the spur of moment and it was not premeditated and on the heat of passion. 29. 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 have the intention to cause death of the deceased, but by causing such injuries, he was not having 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 the IPC, as the act of the appellant herein completely satisfied the 04 necessary ingredients of Exception 4 to Section 300 of IPC. 30. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases, considering the evidence of eyewitnesses and also 14 taking into consideration the fact that the appellant is in jail since 02.10.2019, 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. 31. 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. As the appellant is stated to be in jail, he shall serve the remaining sentence as modified by this Court. 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 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 ved