1 2025:CGHC:5260-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1593 of 2019 1. Pradeep Sarthi S/o Gautam Kumar Sarthi, Aged About 28 Years, R/o Village Ledari Police Station Jhagrakhand District Koriya Chhattisgarh 2. Jyoti Sarthi S/o Late Bhajanlal Sarthi, Aged About 25 Years R/o Gandhinagar Near Gandhi Chowk Police Station Gandhinagar, Ambikapur District Surguja Chhattisgarh ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station Gandhinagar, District Surguja Chhattisgarh ... Respondent For Appellants : Mr. Shakti Raj Sinha, Advocate For Respondent/State : Mr. Pankaj Singh, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (29.01.2025) Digitally signed by BHOLA NATH KHATAI Date: 2025.01.31 10:24:38 +0530 2 Sanjay K. Agrawal , J. 1. The two appellants herein have jointly preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 21.10.2019, passed by 6th Additional Sessions Judge, Ambikapur, District Surguja (C.G.) in Sessions Trial No.87/2018, whereby the appellants have been convicted for offence punishable under Section 302/34 IPC and sentenced in the following manner :- Name Conviction Sentence Pradeep Sarthi u/s 302 of IPC Life Imprisonment and fine of Rs.500, in default of payment of fine, additional RI for 2 months. Jyoti Sarthi u/s 302 of IPC Life Imprisonment and fine of Rs.500, in default of payment of fine, additional RI for 2 months. 2. The case of prosecution, in brief, is that on 18.06.2018 at about 10:00 p.m., at Gandhinagar, Ambikapur, District Surguja, the appellants herein assaulted Jagatlal Sarthi (now deceased) by hands and fists on his chest and banged his head on the floor, by which, he suffered grievous injuries and died; thereby, the offence has been committed. It is an admitted position that deceased Jagatlal Sarthi is the real brother of appellant No.2 Jyoti Sarthi and real maternal uncle of appellant No.1 Pradeep Sarthi. It is the case of prosecution that a dispute arose when the deceased came to his house at about 9:30 p.m. on the date of incident and demanded keys of the motorcycle, which was denied by the accused for the reason that the deceased was heavily drunk. It is alleged that the deceased was severely assaulted with 3 hands and fists and he died on account of rupture of liver. The matter was reported to the Police by Parmeshwari (PW- 1), pursuant to which, Merg Intimation was recorded vide Ex.P-4 and FIR was registered vide Ex.P-01 & 01A. Inquest was conducted vide Ex. P-06 and dead body of deceased Jagatlal Sarthi was subjected to post-mortem, which was conducted by Dr. Mahesh Kumar (PW-7), who proved the post-mortem report Ex.P-14, according to which, cause of death was liver rupture, mode of death was excessive bleeding due to liver rupture (Injury of Liver) and nature of death was homicidal. After due investigation, appellants were 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. 3. During the course of trial, in order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 18 documents in support of its case. The statements of the appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellants in support of their defence have not examined any witness but exhibited 2 documents. 4. Learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred by the appellants questioning the legality, validity and correctness of the impugned judgment. 4 5. Mr. Shakti Raj Sinha, learned counsel for the appellants, would submit that at the most, the offence under Section 304 Part-II of I.P.C. is made out against appellant No.1, as there was no motive found by the trial Court and no lethal weapon was used by appellant No.1 in assaulting the deceased. As such, the conviction of appellant No.1 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 20.06.2018. So far as the conviction of appellant No.2 is concerned, she is the real sister of the deceased and according to the eye witness Manjula Yadav (PW-5), she was only standing there and no overt act was caused by her, therefore, she is entitled for acquittal on the basis of benefit of doubt. Thus, the present appeal deserves to be allowed in full or in part. 6. On the other hand, Mr. Pankaj Singh, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of appellant No.1 Pradeep Sarthi can be modified for lesser offence, therefore, the instant 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 Jagatlal Sarthi was homicidal in nature has 5 been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-14) proved by Dr. Mahesh Kumar (PW-7), according to which, cause of death was liver rupture, mode of death was excessive bleeding due to liver rupture (Injury of Liver) and nature of death was homicidal, 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 question for consideration would be whether the appellants have assaulted the deceased? 10. The case of prosecution is based on the testimony of eye witnesses Manjula Yadav (PW-5), Shushila Yadav (PW-6), Ashok (PW-9) and Smt. Seema Singh (PW-12), out of them, Manjula Yadav (PW-5) and Shushila Yadav (PW-6) had seen the actual assault. However, Manjula Yadav (PW-5) would not attribute any assault to the deceased by appellant No.2 Jyoti Sarthi and state that she was only standing there but Shushila Yadav (PW-6) would state that both the appellants were assaulting the deceased. Considering the contrary statements of both the eye witnesses in respect of participation of appellant No.2 Jyoti Sarthi while making the actual assault and also considering the fact that appellant No.2 is the real sister of the deceased and no overt act has been attributed to her and as per the statement of eye witness Manjula Yadav (PW-5) she was only standing there, we are of the opinion that the case of prosecution against appellant No.2 Jyoti Sarthi is not found to be proved beyond reasonable doubt and therefore, she deserves to be acquitted of the said offence on the basis of benefit of doubt. 6 11. However, considering the statements of eye witnesses Manjula Yadav (PW-5) and Shushila Yadav (PW-6) and also the post-mortem report Ex.P-14, we are of the considered opinion that the finding recorded by the trial Court only to the extent that on the date of offence, appellant No.1 Pradeep Sarthi assaulted Jagatlal Sarthi (deceased) by hands and fists by which he suffered grievous injuries and died, is correct finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. 12. Now, the question would be whether the case of appellant No.1 Pradeep Sarthi 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 appellants ? 13. 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 :- “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 1. (2017) 3 SCC 247 7 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 : (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 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, 8 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”. 14. 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 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 IPC. 15. Reverting to the facts of the present case, in the light of the aforesaid proposition of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no motive on the part of appellant No.1 to cause death of the deceased as recorded by the trial Court in para-77 of its judgment. As per the postmortem report Ex. P-14 proved by Dr. Mahesh Kumar (PW-7), the cause of death was rupture of liver but the doctor PW-7 Dr. Mahesh Kumar did not say that the said injury was sufficient in the ordinary course of nature to cause death. It is also evident from the evidence that the appellants and the deceased were living together. On the date of incident, a dispute arose when the deceased came to his house under the influence of liquor and demanded keys of the motorcycle which was denied by the accused. Thereupon, appellant No.1 assaulted the deceased by hands and fists, by which he suffered injuries and died. No lethal weapon was used to assault the deceased. As such, there was no intention on the part of appellant No.1 Pradeep Sarthi to cause death but he must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause his death and, as 9 such, the case of appellant No.1 would fall under Exception 4 to Section 300 of I.P.C. 16. In that view of the matter, the conviction of appellant No.1 Pradeep Sarthi for offence punishable under Section 302/34 of I.P.C. is altered/converted to Section 304 Part-II of I.P.C. and he is sentenced to 7 years rigorous imprisonment. However, the fine amount and its default stipulation imposed by learned trial Court shall remain intact. The conviction of Appellant No.2 Jyoti Sarthi under Section 302/34 is set aside and she is acquitted of the said charge. Appellant No.2 Jyoti Sarthi is on bail, she need not surrender, however, her bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC. 17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein appellant No.1 is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Khatai