1 2025:CGHC:14979-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1785 of 2022 1 - Ravikant @ Patel Agariya S/o Muneshwar Agariya Aged About 23 Years R/o Village Kuberpara, P.S. Darima, District Sarguja Chhattisgarh 2 - Muneshwar Agariya S/o Duhan Ram Lohar Aged About 48 Years R/o Village Kuberpara, P.S. Darima, District Sarguja Chhattisgarh ... Appellants versus State Of Chhattisgarh Through Station House Officer Police Station Darima, District Ambikapur Sarguja Chhattisgarh ---- Respondent (Cause title taken from Case Information System) For Appellants : Ms. Sangeeta Soni, Advocate For Respondent/State : Mr. Shaleen Singh Baghel, Dy. G.A. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgement on Board VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.02 17:22:01 +0530 2 Per Ramesh Sinha, C.J. 28/03/2025 1. Present is a criminal appeal under section 374(2) of the Criminal Procedure Code filed by the appellants against the impugned judgment of conviction and sentence dated 11.10.2022 passed by learned Third Additional Sessions Judge, Surguja, place Ambikapur in Sessions Case No. 127 of 2019, whereby the learned trial Court has convicted and sentenced the appellants in the following manner:- Conviction Sentence U/s. 302/34 of IPC Life imprisonment and fine of Rs. 500- 500/-, in default of payment of fine additional R.I. for 02-02 months to each appellants. 2. The brief facts of the case are that on 07.09.2019 at about 9:00 PM when the deceased Hari Lal Agariya was talking with Muneshwar Agariya through his mobile phone at that time the appellant asked him as to whom he is talking and when he replied that he is talking with his son in law, the appellant also insisted him that he will also talk to him, when the deceased Hari Lal did not give his mobile phone to talk to his son in law, the appellant abused him. In the next morning, i.e. on 08.09.2019, at about 7:00 AM, when the deceased returning to his house after answering the call of nature, near the well the appellant came there and asked him as to why he abused him in the last night and then appellant and his father Muneshwar Agariya assaulted him by lathi. The deceased was immediately taken to Medical College Hospital, Ambikapur, where he died during treating. The death 3 intimation was sent by the doctor to the police on 09.09.2019, where merg intimation (exhibit P-17) was recorded. The said merg intimation was sent to Police Station Darima, where numbered merg intimation (exhibit P-16) was recorded. 3. The inquest (exhibit P-4) was prepared by the police in presence of the witnesses and the dead body was sent for its postmortem report to Medical College Hospital, Ambikapur, where PW-9/Dr. J.S. Saruta conducted the postmortem of the dead body of the deceased and gave report (exhibit P-15). While conducting the postmortem, the doctor has noticed one contusion on the frontal reason of head 4 x 3 cm, left parietal region , 3 x 3 cm and parietal right side 1 x 3 cm. On opening the scalp, hematoma present on the frontal and parietal region. The fracture present on the frontal and parietal reason. Extradural hematoma present on the parietal and frontal region. After conducting the postmortem, the doctor has opined that the cause of death is shock due to fracture of bone and excessive hemorrhage. Homicidal in nature. The FIR (exhibit P-18) was registered against the accused persons for the offence under Sections 302/34 of IPC. Spot map (exhibit P-1) was prepared by the police and Exhibit P-2 was prepared by the Patwari. The discharge slip (exhibit P-23), inpatient slip (exhibit P-24) has also been seized by the police. The appellants have been arrested on 10.09.2019 and their memorandum statement (exhibit P-7 and P-8) have been recorded and on the basis of the memorandum statement of appellant Ravikant @ Patel one thick wooden club has been seized vide seizure memo (exhibit P-9). From 4 the appellant Muneshwar Agariya, a thick wooden club has also been seized from him vide Exhibit P-10. The wooden clubs seized from the appellants were sent for its query report, who gave report (exhibit P- 16), whereby he opined that the injuries found on the body of the deceased could have been caused by the said wooden clubs, death may be possible by the injuries received by the deceased on his head. Statement under Section 161 of CRPC of the witnesses have been recorded. After completion of usual investigation, charge sheet was filed against the appellants for the offence under Sections 302/34 of IPC before the learned Judicial Magistrate First Class, Ambikapur. The case was committed to the Court of learned Sessions Judge, Surguja, from where the same has been transferred to the learned trial Court for its trial. 4. The learned trial Court has framed charge against the appellants for the offence under Sections 302/34 of IPC. The appellants denied the charge and claimed trial. 5. In order to prove the charge against the appellants, the prosecution has examined as many as 13 witnesses. Statement under Section 313 of CRPC of the appellants have also been recorded, in which they denied the circumstances, pleaded innocence and have submitted that they have been falsely implicated in the offence. They have further submitted that on the date of incident, while coming from Darima Police Station, their motorcycle was met with an accident, by which the deceased received injuries and he was being taken to his house by Jhabbu Rajwade and he died due to the said injuries, which received 5 in accident and the same is given shape of murder. Two defence witnesses Shyam Bai (DW-1) and Jhabbu Rajwade (DW-2) have been examined by the appellants in their defence. 6. After appreciation of oral and documentary evidence led by the parties, the learned trial Court convicted and sentenced the appellants as mentioned in the earlier part of the judgment, hence this appeal. 7. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is material omissions and contradictions in the evidence of prosecution witnesses. Such evidence cannot be considered to be sufficient to hold guilty of the appellants. He would further submit that it is the deceased, who was the aggressor and raised quarrel with the appellants. The so called eyewitnesses are closely related the deceased and they are the interested witnesses. He would also submit that the incident is occurred in a heat of passion and it was a sudden quarrel. No deadly weapon has been used to assault the deceased. There was no intention and knowledge to commit murder of the deceased and therefore, the offence, if any, does not travel beyond the scope of section 304 of IPC. Therefore, by altering the conviction of the appellants under section 304 Part-I of IPC, the period undergone by the appellants may be considered to be sufficient sentence for the alleged offence. 8. Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellants and has 6 submitted that the prosecution has proved its case beyond reasonable doubt. The incident is supported by the eyewitnesses, who are fully reliable. But for minor omission or contradiction, nothing is there in their evidence to disbelieve them. Close relation with the deceased is no ground to disbelieve their evidence, when there is no infirmity. Number of injuries have been found on the body of the deceased including various fractures of head bones. Repeated assaults made by the appellants on the head of the deceased by lathi, itself shows their intention and knowledge that the deceased may have died by the assault made by them. Therefore, there is sufficient and cogent evidence against the appellants to hold them guilty for commission of the murder of the deceased Hari Lal and their appeal is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the record. 10. The homicidal death of the deceased has been proved by the prosecution by the evidence of doctor PW-9/Dr. J.S. Saruta, who conducted the postmortem of the dead body of the deceased. He stated in his evidence that on 09.09.2019, the dead body of the deceased Hari Lal was brought before him for its postmortem. While conducting the postmortem, he found contusion present over the frontal and parietal region. On opening the scalp hematoma on frontal and parietal region, depressed fracture on frontal and parietal region were found and extradural hematoma also was found on frontal and parietal region and he opined the cause of death is shock due to fracture of skull bone and excessive hemorrhage and the death is 7 homicidal in nature. In cross-examination, he stated that except the head injuries, no other injuries were found on other parts of the body. He admitted that the injuries found on the body of the deceased could have been caused by the motor accident, if the deceased could have driven his vehicle in very high speed and dashed with the object on the head side. From his cross-examination, the defence could not be able to extract any material, so that his evidence can disbelieve. The evidence of homicidal death of the deceased has further been corroborated by the evidence of PW-1/Smt. Samkeli, PW-2/Manilal, PW-3/Kashinath, PW-4/Dhanilal, PW-7/Dubraj and PW-8/Kundanlal, who all are the witnesses, who saw the injuries on the dead body of the deceased and thus, the finding recorded by the learned trial Court that the death of the deceased was homicidal in nature is neither perverse nor contrary to the record and we are also in the agreement with the said finding. 11. So far as the involvement of the appellants in the offence in question is concerned, the case of the prosecution is based on eyewitnesses. PW-1/Smt. Shamkeli, who is the wife of the deceased has stated in her evidence that a day before the date of incident, she along with her husband had gone to answering the call of nature and thereafter, her husband asked her go the house of Shyam Bai, but she insisted to return back to her house. On his insisting, when they had gone to the house of Shyam Bai, her brother called them in mobile phone. A quarrel took place there with the appellant Ravikant and the deceased. Thereafter, they came back to their house. In the next morning, when 8 her husband had gone to well, and asked the appellant Ravikant, as to why he has beaten him yesterday night, then the appellant Muneshwar exhorted the appellant Ravikant to commit his murder, when her husband shown her innocence, as to why they will kill him without any reason and then the appellants started abusing him and Ravikant assaulted her husband by danda, due to which her husband fell down on the ground. At that time, Muneshwar also came there along with danda and he too had assaulted him on his head. She intervene the incident and then the appellant Muneshwar dragged her by holding her hairs and then her brother-in-law Dhanilal came there and intervene. Her husband had received head injuries and blood was coming out from the injuries. Thereafter, her husband had gone to Police Station along with her brother-in-law and he was being taken to hospital for his treatment, but at about 11:00 PM he died due to injuries. In cross- examination, she remained firm in saying that she witnessed the incident and both the appellants have assaulted her husband by danda, by which he received injuries and ultimately died. Even after detailed cross-examination, she is not deviated from the fact that she witnessed the incident and the appellants assaulted her husband, by which her husband died. 12. PW-2/Manilal is the brother of the deceased stated in his evidence that at the time of incident, the deceased had gone to the well and at that time the appellant Ravikant assaulted him by danda, by which he received head injuries and died due to the same. When the leading question was asked to him, he supported the prosecution’s case and 9 earlier incident of last night. He also witnessed the present incident and assault made by both the appellants. In cross-examination, he stated that at the time when the deceased and his wife informing him about the incident, Dubraj, Dhanilal, Pradhan and Kundlal were present and the defence tried to say that he is not the eyewitness to the incident, but from his entire evidence it is quite vivid that he is the eyewitness to the incident and saw the incident. 13. PW-3/Kashinath is the father of the deceased. He stated in his evidence that on the date of incident, his son Hari Lal was cleaning his teeth by tobacco paste, at that time the deceased asked from appellant Ravikant, as to why he abused him yesterday night and then both the appellants become enraged and started assaulting the deceased by danda. By the assault made by the appellants, the deceased fell down and he was being immediately taken to the Police Station and after lodging of the report, he was taken to hospital, but he died during treatment. In cross-examination, he too has disclosed entire incident in the manner in which the incident occurred. He firmly denied that he is not the eyewitness to the incident. From his evidence also, the involvement of the appellants, the offence in question has duly been proved. 14. PW-4/Dhanilal is another eyewitness to the incident, who is the brother of the deceased. He too has fully supported the prosecution’s case and the manner in which the incident occurred and the appellants assaulted the deceased. Despite the detailed cross-examination from this witness, nothing could be elicited by the defence, so that he can 10 be disbelieved. He is the person, who has taken the deceased to his house from the place of incident and took him to Police Station and hospital. All the time, he was with the deceased, even at the time of alleged incident. His presence on the spot is also quite natural as in the village area, normally the people had gone near well or pond for their daily work. Only on the ground that he being the brother of the deceased, his evidence cannot be discarded. 15. PW-7/Dubraj and PW-8/Kundlal have also supported the prosecution’s case that by the assault made by the accused persons, the deceased received injuries on his head and ultimately died. 16. All these evidence makes it clear that the accused persons/appellants are the perpetrators of crime. On the memorandum statement of the appellants (exhibit P-7 and P-8), the wooden lathi have been seized from them vide seizure memo (exhibit P-9 and P-10). As per the query report (exhibit P-16), the injuries found on the body of the deceased could have been caused by the said wooden lathi and death may be possible by the said injuries. Thus, the involvement of the appellants I the offence in question has been proved by the prosecution. 17. 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 the learned counsel for the appellant? 18. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of 11 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 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; 12 (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 ? 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.” 13 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 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.” 14 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 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. 23. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT 15 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 the present case, it is quite vivid that on the date of incident, there was an altercation before the incident between the appellants and the deceased and when the deceased asked from them, as to why they have abused him in the last night, they assaulted the deceased by danda, by which the deceased received head injuries and ultimately died. There was a quarrel in the last night between them on a trivial issue with respect to talking with the son-in-law of the deceased in the mobile phone. The incident is occurred near the well, when the deceased was cleaning his teeth. There was no premeditation on the part of the appellants to commit murder of the deceased and only because altercation took place between them, on the issue of quarrel of previous night, incident occurred. The appellants were not acted in a cruel or unusual manner, the appellants did not have any intention to cause injuries of the deceased Hari Lal, but by causing such injuries, they must have had the knowledge that 16 such injuries inflicted by them would likely to cause death of the deceased. As such their case would fall within the purview of Exception-4 of Section 300 of IPC as the act of the appellants completely satisfies the ingredients of Exception-4 of section 300 of IPC. 25. Considering the law laid down by the Hon’ble Supreme Court in the aforesaid cases, considering the evidence of eyewitnesses PW-1, PW- 2, PW-3, PW-4, the offence of the appellants would fall under section 304 Part-I of IPC and their conviction is liable to be altered from section 302 of IPC to section 304 Part-I of IPC. 26. Accordingly, the appeal is allowed to extent that conviction of the appellants under Section 302 IPC is set aside, however, they are convicted under Section 304 Part-I of the IPC and sentenced to undergo R.I. for 10 years. The fine amount imposed upon the appellants by the learned trial Court is hereby affirmed. 27. As the appellants are stated to be in jail, they shall serve the remaining sentence as modified by this Court. 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are 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. 17 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 ved