1 2025:CGHC:12052-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1618 of 2019 Manoj Dahriya S/o Late Shri Mandas Dahriya Aged About 30 Years R/o Village Rasota, P.S. Palari District Balodabazar Chhattisgarh ... Appellant In Jail versus State Of Chhattisgarh Through Police Station Punjipathra District Raigarh Chhattisgarh. ... Respondent For Appellant : Mrs. Renu Kochar, Advocate. For Respondent : Mr. Ankur Kashyap, Dy. Govt. Advocate. Hon'ble Smt. Justice Rajani Dubey, & Hon'ble Shri Justice Sachin Singh Rajput, JJ Judgment On Board (11th March, 2025) Per Rajani Dubey, J The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated 31.7.2019 passed by 5th Additional Sessions Judge, Raigarh in ST No.43/2018 convicting the appellant under Section 302 of IPC and 2 sentencing him to undergo imprisonment for life, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for one year. 02. Case of the prosecution, in brief, is that complainant Parvatiya Bai Kujur lodged a report on 16.1.2018 at Police Station-Punjipathra, Distt. Raigarh to the effect that today at around 6 pm she went to attend the call of nature near her house and while returning she peeped into the house of accused Manoj Dahariya by slightly opening the front gate and found Lata Dahariya lying dead there with head injury from which blood was oozing and one brick was lying on the place of occurrence. Seeing this, she immediately informed Ranjan Kumar Mahto as also the plant staff. Based on this report, offence under Section 302 of IPC was registered against the accused/appellant. 03. During investigation, inquest over the dead body was conducted vide Ex.P/2; plain and bloodstained soil were seized from the place of occurrence vide Ex.P/4; spot map Ex.P/5 was prepared; clothes and ornaments of the deceased worn at the time of incident were seized vide Ex.P/8 and statements of the witnesses were recorded. Postmortem of the deceased was conducted on 18.1.2018 by PW-10 Dr. Prakash Kumar Chetwani vide Ex.P/10 and in his opinion, the cause of death was head injury resulting in neurogenic shock and the death appears to be homicidal in nature but needs to correlate with circumstantial evidence. As per FSL report (Ex.P/17), human blood 3 was found on the brick and clothes of the deceased, however, its group could not be determined. After completing usual investigation, charge sheet under Section 302 of IPC was filed against the accused followed by framing of charge accordingly by learned trial Court which was abjured by him and he prayed for trial. 04. In order to substantiate its case the prosecution examined 12 witnesses. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 05. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal. 06. Learned counsel for the appellants submits that the impugned judgment is bad in law, perverse, erroneous and liable to be set aside. The prosecution has failed to attribute any motive to the appellant for commission of this heinous offence. Learned trial Court ought to have seen that PW-2 Parvatiya Bai, PW-3 Neha Kujur, PW-4 Dhyan Kumar, PW-5 Raju Kumar Gupta and PW-6 Sachin Kumar are not reliable witnesses as they are interested and partisan witnesses. From the evidence of PW-3 Neha Kujur it is clear that initially she did not state anything against the appellant despite being asked repeatedly but after 4 lunch break when she was again asked by the prosecution whether she saw the appellant assaulting the deceased with brick and informed about the same to her grand-mother, she nodded in affirmative. Thus, she being a tutored witness, learned trial Court rightly did not rely upon her evidence. On the date of incident when the police reached the spot, PW-1 to PW-6 were though present there but did not disclose the police anything about the incident and their statements were recorded after one day which creates doubt on veracity of their statements. She further submits that the prosecution has also failed to offer any explanation as to why copy of FIR was sent to the Magistrate belatedly. Medical evidence also does not support the prosecution case. Even FSL report is also not conclusive because though human blood was found on the seized articles but its group could not be determined. She submits that the appellant was not at all present at the place of occurrence when the crime was committed. The entire case is based on circumstantial evidence but the prosecution has utterly failed to prove a complete chain of circumstances which could unerringly point towards guilt of the appellant. Being so, the impugned judgment is liable to be set aside and the appellant be acquitted of the charge by giving him benefit of doubt. Alternatively she submits that looking to the facts and circumstances of the case, the fact that the incident took place all of a sudden in the heat of passion upon a sudden quarrel without any 5 premeditation, the nature of injury suffered by the deceased; the weapon of offence and the manner in which assault was made where the appellant did not act cruelly, at the most the appellant can be held guilty under Section 304 Part-I of IPC and therefore, his conviction may be modified accordingly. Reliance has been placed on the judgment dated 5.4.2022 of this Court in CRA No.428/2014 in the matter of Shivprasad @ Jhelsai Vs. State of CG and judgment dated 15.7.2024 in CRA No.1299/2018 in the case of Bhagwan Singh Maravi Vs. State of CG. 07. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having regard to the overall evidence on record, oral and documentary, has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. Hence the appeal being without any substance is liable to be dismissed. 08. Heard learned counsel for the parties and perused the material available on record. 09. It is clear from the record of learned trial Court that the appellant was charged under Section 302 of IPC for committing murder of his wife Lata Dahariya on 16.1.2018 by assaulting her with bricks on her head. In order to substantiate its case the prosecution examined 12 witnesses and after appreciation of oral and documentary evidence on 6 record, learned trial Court convicted the appellant under section 302 of IPC and sentenced as mentioned above. 10. PW-12 Vinod Katlam, Inspector, states that on 16.1.2018 complainant Parvatiya Bai Kujur informed that the accused/appellant Manoj Dahariya was beating his wife Lata Dahariya and also assaulted her with brick as a result of which she started bleeding and died. On this, he registered merg intimation No.02/18 and issued notice to the panch witnesses vide Ex.P/3 and prepared inquest memo Ex.P/2. He admits his signature on these documents from D to D part. He states that he sent the dead body for postmortem through Constable 430 Santram Kenwat and the application for postmortem is Ex.P/9 which bears his signature from A to A and B to B part. 11. PW-10 Dr. Prakash Kumar Chetwani conducted postmortem on the body of the deceased on 18.1.2018 and found the following injuries on her body: "Both ear bleed, oral bleed present, right ear teared cut through including ear cartilage near to ear pin piercing. One 3 cm long LW at right parietal region of scalp skull depth, one 9 cm LW at right parietal region of scalp, bone depth with fractured skull beneath seen. One interrupted ligature mark over neck only in anterior and right lateral aspect with prominent in right side oof neck 6 mm width, 3 cm length. One impact bruise over right side of face and upper neck (9 x 15 cm2) with abrasion lateral to right eye 1 x 2 cm2 and posterior to right ear 5 1/2 x 2 cm2. One 7 triangular shape bruise lateral to left eye, height 5 cm base 2 cm. Abrasion above left eye 3 x 2 1/2 cm2 with skull compressed at left side of forehead." It is mentioned in the postmortem report that all these injuries are antemortem in nature, grievous, caused by impact with hard and blunt object with heavy force. In his opinion, the cause of death is head injuries resulting in neurogenic shock followed by death. The doctor opined that the mode of death seems to be homicidal in nature but needs to correlate with circumstantial evidence. The autopsy surgeon also examined the brick seized from the spot and opined that injuries sustained by the deceased on her head could be caused by this brick vide Ex.P/12. In cross-examination he denied the suggestion that such injuries could be caused in accidental case. However, he admitted that apart from this brick, the injuries suffered by the deceased could be caused by any other solid and heavy object. 12. Considering the nature of injuries and the evidence of the autopsy surgeon (PW-10) it stands proved beyond all reasonable doubt that deceased Lata Dahariya died due to head injuries and her death was homicidal in nature. 13. Now we have to examine whether death of Lata Dahariya was caused by the appellant? 14. PW-1 Santoshi, PW-2 Parvatiya Bai, PW-4 Dhyan Kumar, PW-5 Raju Kumar Gupta, PW-6 Sachin Kumar, PW-7 Rikhiram Sahu and 8 PW-8 Satyaveer Singh, all are hearsay witnesses who state that upon coming to know about murder of Lata dahariya from some other person, they reached the spot and found her lying dead in pool of blood. 15. PW-3 Neha Kujur, a child witness, was found to be a tutored witness by the learned trial Court because for the first time when she appeared before the Court and asked as to whether she knows Neeraj, she did not utter anything and gave answer in negative through gestures. When she was asked as to whether she knows the accused, again she answers in negative by moving her head. Despite being repeatedly asked by the prosecution whether she saw the appellant assaulting the deceased with brick and informed about the same to her grand-mother, she neither said anything nor did give answer through gestures. However, after some time when she appeared before the learned trial Court and the same question was put to her, she nodded in affirmative. Looking to the statement and conduct of child witness Neha Kujur, the said finding of learned trial Court that she is tutored and unreliable witness, is just and proper. 16. PW-2 Parvatiya who informed the police about death of Lata Dahariya states that at about 6 pm she went out near the room for attending the call of nature and while returning she peeped into the 9 room of the accused and saw that wife of the accused was lying on the floor, she was bleeding and one brick was lying near her. She states that her grand-daughter Neha informed her that father of Neeraj has killed his mother and warned her not to go there. She states that she lodged report of Ex.P/1. 17. PW-12 Vinod Katlam also states that as per information given by Parvatiya Bai, he registered the FIR (Ex.P/2). 18. PW-6 Sachin Kumar states that on being informed by Dhyan Kumar that the accused having killed his wife has fled when he along with Satveer went to the house of the accused, they saw deceased Lata lying in the room with head injury bleeding and a piece of brick and mobile were also lying there. 19. PW-7 Rikhiram Sahu, father of the deceased, states that the accused used to beat his daughter Lata Dahariya and she had reported this matter to the police. He states that he was informed by the police over phone that the accused having killed his daughter has fled with one of his children. 20. Learned trial Court observed that the appellant was arrested after two days of the incident on 18.1.2018 at 11:00 hours. None of the witnesses saw the appellant at his house at the time of incident. the appellant was out of his house with his son for two days after murder of his wife. He failed to explain as to where he had gone and for what 10 reason he moved away with his child. This unusual conduct of the appellant also goes against him and is suggestive of the fact that in order to save himself from the punishment for committing murder of his wife he absconded from the spot with his son. 21. Learned trial Court also found that although child witness Neha Kujur has not supported the prosecution case but as per statements of other witnesses and conduct of the appellant, it stands proved beyond reasonable doubt that it is the appellant who assaulted his wife Lata Dahariya with brick on her head and thus caused her death and thereafter absconded from the spot with his son. 22. The next question which arises for consideration is whether the act of the appellant makes him liable for conviction under Section 302 of IPC or is covered with any of the exceptions to Section 300 of IPC? 23. This Court in the matter of Shivprasad @ Jhelsai (supra) observed in paras 22 & 23 of its judgment as under: "22. The Supreme Court in the matter of Arjun v. State of Chhattisgarh, (2017) 3 SCC 147 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 the 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 11 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: (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 12 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 provisions means "unfair advantage". 23. 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. It has been further held that injuries/incised wound caused on head i.e. right parietal region and right temporal region and also occipital region, of deceased, indicate that appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part-I of IPC." 24. In light of above decisions, if we examine the facts and evidence emerging in the present case, it is quite vivid that the appellant and the deceased were living together with their children; there used to be quarrel between them; on the date of incident also due to some quarrel between the appellant and the deceased all of a sudden, the appellant got furious and without there being any premeditation on his part assaulted the deceased with a brick on her head and fled from there with his son. The nature and extent of injury sustained by the deceased do not show that the appellant acted in an unusual or cruel manner 13 while assaulting her. It is clear that no deadly weapon was used by the appellant in making assault. As per postmortem report, cause of death is head injury resulting in neurogenic shock followed by death. Thus, looking to the manner in which the incident took place and the appellant assaulted the deceased with brick on her vital part head with such a force that led to her instantaneous death, it can safely be inferred that while making such assault that appellant had intention of causing such bodily injury to her which would result in her death. Being so, the act of the appellant makes him liable for conviction under Section 304 Part-I of IPC and sentence of 10 years' RI with fine of Rs.1000/- thereunder would serve the ends of justice. 25. In the result, the appeal is allowed in part. Conviction of the appellant under Section 302 of IPC is altered to Section 304 Part-I of IPC and he is sentenced to undergo RI for 10 years, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for one year. The fine amount already deposited shall be adjusted accordingly. He is reported to be in jail since 18.1.2018, therefore, no order regarding his arrest, surrender etc. is required to be passed and he is entitled for set off of the detention period already undergone by him under Section 468 of Bharatiya Nagarik Suraksha Sanhita, 2023. Sd/ Sd/ (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN