1 CRA No. 1673 of 2019 2025:CGHC:7729-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1673 of 2019 (Ari sing out of judgment dated 22.06.2018 passed in Sessions Trial No.122/2017 by the Sessions Judge, Ambikapur, District Surguja, Chhattisgarh. )  Masat Ram S/o Shri Malik Ram, aged about 29 years, R/o Village - Dhodha Kesara Rai Dandpara Police Outpost - Kunni, Police Station - Lakhanpur, District - Surguja Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Out Post - Kunni, Police Station Lakhanpur, District - Surguja Chhattisgarh. ... Respondent For Appellant :- Mr. Manoj Kumar Mishra, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For State-Respondent :- Mr. Vivek Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (13.02.2025) Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.14 10:39:51 +0530 2 CRA No. 1673 of 2019 dated 22.06.2018 passed by the learned Sessions Judge, Ambikapur, District Surguja, Chhattisgarh in Sessions Trial No. 122/2017 by which appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment for six months. 2. Case of the prosecution in, nutshell, is that on 20.10.2017 at about 10:00 pm at village Dhodha Kesara Rai Dandpara Police Outpost - Kunni, Police Station - Lakhanpur, District - Surguja Chhattisgarh, the appellant assaulted his wife Dhanmet by hand-fist and leg by which she suffered grievous injuries and died and thereby he committed the aforesaid offence. The said incident was reported by village Kotwar Dilbodhan (PW-4) pursuant to which merg intimation was registered vide Exs.P/11 & P/11A. Zero FIR and numbered FIR were registered vide Exs.P/10A & P/10; P/10B, respectively. Crime details form and spot map was prepared vide Exs.P/3 & P/9, respectively. Inquest proceedings (Ex.P/2) were conducated and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/16A) proved by Dr. I.D. Bhatnagar (PW-10) cause of death was coma haemorrhagic shock due to head 3 CRA No. 1673 of 2019 injury caused by breaking of mandible bone and multiple injuries and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/4) his t- shirt was seized vide Ex.P/5. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report on the clothe of the deceased blood was found. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 10 witnesses and exhibited 24 documents and defence in support of its case has neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein 4 CRA No. 1673 of 2019 questioning the impugned judgment of conviction and order of sentence. 6. Mr. Manoj Kumar Mishra, learned counsel for the appellant, submit that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that in view of the finding recorded by the trial Court in paragraph No.40 of its judgment, at best, the conviction for offence under Section 304 Part II would be made out and the appellant is in jail since 21.10.2017 more than 7 years, and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr. Vivek Mishra, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant 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 the 5 CRA No. 1673 of 2019 appellant can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/16A) proved by Dr. I.D. Bhatnagar (PW-10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The trial Court has catalogued the incriminating circumstances in paragraph No. 17 of its judgment. To base the conviction of the appellant the trial Court has applied Section 106 of the Indian Evidenc Act, 1872 (for brevity “IEA”) as on the date and time of offence the appellant and 6 CRA No. 1673 of 2019 the deceased were only two inmates in the house in question as the appellant had given the custody of his child to Baratu (PW-6), cousin brother, therefore, he required to explain as to how and under what circumstances his wife died which he failed and the trial Court has also relied upon the extra-judicial confession which the appellant had made before Dilbodhan (PW-4), Baratu (PW-6) and Jugo Bai (PW-7) to base the conviction of the appellant. 12. 12. Considering the statements of Dilbodhan (PW-4), Baratu (PW-6) and Jugo Bai (PW-7) to whom the appellant had given extra-judicial confession and further considering the fact that on the date and time of offence the appellant and the deceased were only two inmates in the house in question, therefore, the appellant is required to explain as to how and under what circumstance his wife died, which he failed, the trial Court has rightly held that it is the appellant who assaulted his wife (deceased) by which she suffered grievous injuries and died, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. 13. Now, the question is, whether the case of the appellant would fall under Exception 4 to Section 300 of IPC? 7 CRA No. 1673 of 2019 14. 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 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) 1 (2017) 3 SCC 247 8 CRA No. 1673 of 2019 “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”. 15. 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 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. 9 CRA No. 1673 of 2019 16. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)2 has laid down four ingredients which should be tested for 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) 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.” 17. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgment, it is quite vivid from the statement of Baratu (PW-6) that on the date and time of offence the appellant came to the house after participating in the Karma dance and asked his wife for food which she did not prepare due to which, dispute arose between them and out of anger, the appellant is said to have assaulted his wife by which she suffered greivous injuries and died. As such, there was no premeditation on the part of the appellant to cause death of his wife Dhanmet, but due to dispute with regard to 2 (2019) 6 SCC 122 10 CRA No. 1673 of 2019 making food the appellant is said to have assaulted his wife. Considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (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 appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC. 18. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of his wife Dhanmet (deceased) 11 CRA No. 1673 of 2019 and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 8 years. However, the fine amount imposed by the learned trial Court shall remain intact. 19. This criminal appeal is partly allowed. 20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit