1 2025:CGHC:3060-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1757 of 201 9 (Arising out of judgment dated 30.10.2019 passed in Sessions Trial No. 102/2018 by the learned Sessions Judge, Raipur) 1. Daulal Dhiwar S/o Rama Dhiwar aged about 65 years, R/o Village Tekari, Police Station – Vidhansabha, District – Raipur, Chhattisgarh. 2. Smt. Kamla Bai Dhiwar W/o Daulal Dhiwar aged about 50 years, R/o Village Tekari, Police Station – Vidhansabha, District – Raipur, Chhattisgarh. ---- Appellant s Versus • State of Chhattisgarh, Through : the Police Station – Vidhansabha, District – Raipur, Chhattisgarh. ---- Respondent --------------------------------------------------------------------------------------- For Appellants : Mr. Punit Ruparel, Advocate. For Respondent-State : Mr. H.A.P.S. Bhatia, Panel Lawyer. ----------------------------------------------------------------------------------------- DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (17.01.2025) Sanjay K. Agrawal, J. Digitally signed by HEERA LAL SAHU Date: 2025.01.22 16:50:41 +0530 2 1. The appellant Daulal Dhiwar (A-1) and the appellant Smt. Kamla Bai Dhiwar (A-2) both have preferred this appeal under Section 374(2) of the CrPC, calling in question the validity, legality and correctness of the impugned judgment dated 30.10.2019, passed by learned Fourth Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No. 102/2018, whereby they have been convicted and sentenced as under, with a direction that both the sentences were run concurrently:- Conviction Sentence U/s 302/34 of IPC Life imprisonment and fine of Rs. 200/-, in default of payment of fine amount additional imprisonment for 2 months. U/s 307/34 of IPC Rigorous imprisonment for 5 years and fine of Rs. 100/-, in default of payment of fine amount additional imprisonment for 1 month. 2. The case of the prosecution, in short, is that on 28.12.2017 at about 6:00 pm, at Ward No. 1, in Village Tekari, Police Station – Vidhanshabha, District - Raipur, the two appellants herein in furtherance of their common intention caused the death of Shankar Nirmalkar (now deceased), and also caused injuries to Malti Nirmalkar (PW-3) which were sufficient to cause death, thereby committed the offences under Sections 302/34 and 307/34 of IPC. 3 3. Further, the case of the prosecution, in a nutshell, is that on 28.12.2017 at about 20:35 hours, complainant Narendra Nirmalkar (PW-2) lodged a report to the effect that on that day at about 06:30 pm, his elder brother Manoj Nirmalkar informed him over the phone that their mother Malti Nirmalkar and father Shankar Nirmalkar were stabbed by Daulal Dhiwar (A-1) and Kamla Bai Dhiwar (A- 2), he immediately returned home and saw that both of them were injured and were lying on the ground. The villagers called 108 (ambulance) and admitted them to Mekahara Hospital for treatment. When he asked his mother Malti (PW-3), she said that Daulal Dhiwar (A-1) and his wife Kamla Dhiwar (A-2) were abusing her. When his father Shankar stopped them from abusing, Daulal Dhiwar came out of his house with a knife and started stabbing his mother in the waist and back. When his father Shankar came to intervene, Daulal (A-1) stabbed him too and injured him in the stomach. At the time of the incident, Kamla Bai (A-2) threw his mother on the ground and sat on her and covered her mouth with her feet. Accused Daulal Dhiwar stabbed Shankar Lal Nirmalkar (deceased) in the stomach with a knife in his hand and inflicted grievous injuries on him. When he was taken to Mekahara Hospital for treatment, the doctor declared him dead. On the basis 4 of the said complaint, Dehati Nalsi was registered vide Ex.P-11 and FIR was registered vide Ex. P-16 against the appellants (A-1 & A-2). Crime Details Form was prepared vide Ex.P-12 and Inquest was conducted vide Ex.P-2 The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P-24), Dr. M. Nirala (PW-9) opined that the cause of death was due to haemorhagic shock as a result of multiple stab injuries and the death was homicidal in nature. Thereafter, appellants were arrested vide Exs.P-9 & P-10 Memorandum statement of appellant Daulal Dhiwar (A-1) was recorded vide Ex.P-5. Pursuant to the memorandum statement of the appellant (A-1), seizure of the knife was made vide Ex.P-7 and sent for chemical examination to FSL. However, the FSL report has not been exhibited but brought on record. In the FSL report human blood of ‘O’ group was found on the knife (Article-E). 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 26 documents. The statement of the appellants was 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 5 appellants have only exhibited two document (Exs.D-1 & D- 1) in support of their defence. 5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants herein for offence under Sections 302/34 & 307/34 of IPC and sentenced them as mentioned herein-above against which this appeal has been preferred by the appellants questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel for the appellants submits that the learned trial Court is not justified in convicting the appellants for the offence under Section 302/34 of IPC. He submits that if the entire prosecution case is taken as it is, at best the offence under Section 304 Part-II of IPC is made out against the appellant (A-1) as Shankarlal (deceased) had gone to the place of occurrence to intervene in the dispute between Malti Nirmalkar (PW-3) and Kamla Bai (A- 2). There was no intention to cause the death of the deceased on the part of the appellant (A-1). Thus, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant (A-1) can be converted/altered to an offence 6 under Section 304 Part-II of IPC and, further, since Daulal Dhiwar (A-1) is in jail since 30.12.2017 i.e. more than 7 years, taking into consideration the period he has already undergone, the appellant be released from jail. He further submits that so far as appellant Smt. Kamla Bai Dhiwar (A- 2) is concerned, there was some dispute between appellant (A-2) and Malti Nirmalkar (PW-3), as such, there was no overt by the appellant and she was not armed with any weapon, therefore, the appellant (A-2) may be acquitted from the offence punishable under Section 302/34 of IPC. He also submits that the appellants were aged about 50-65 years at the time of the incident, therefore, considering the facts and circumstances of the case, in the interest of justice, it is appropriate to reduce the sentence of the appellants (A-1 & A-2) for the offence punishable under Section 307/34 of IPC. Hence, the present appeal deserves to be partly allowed. 7. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt, as such, the learned trial Court has rightly convicted the appellant (A-1) for the offence under Section 302/34 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where the 7 conviction of the appellant (A-1) under Section 302/34 of IPC requires to be altered to Section 304 Part-II read with Section 34 of IPC of IPC, thus, the present appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.P-24) which is duly proved by the evidence of Dr. M. Nirala (PW-9). Accordingly, taking into consideration the postmortem report (Ex.P-24) and the statement of Dr. M. Nirala (PW-9), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding. 10.Now the next question would be whether the appellants are the author of the crime in question? 8 11.The instant case is based on direct evidence as well as on circumstantial evidence. For the sake of direct evidence, the statement of the injured eyewitness, Malti Nirmalkar (PW-3) has been brought on record. It is the case of the prosecution that both the appellants and the deceased and Malti Nirmalkar (PW-3) were village neighbours. There was a dispute with regard to the throwing of the brick on the house of the deceased and Malti (PW-3), in this regard a complaint was also made by the deceased and Malti (PW-3) in the village Panchayat, as such, there was enmity between the appellants and deceased and Malti (PW-3). Malti Nirmalkar (PW-3) stated in her Court statement that on the date of the offence i.e. 28.12.2017 at about 6:30 pm, when she was stood at her door, at that time, the appellant (A-2) dragged her out from the house and the appellant (A- 1) started assaulting her and caused three stabbed injury on her, due to which blood was oozing out from the injuries and she fell down, then her husband (deceased) came to the place of incident to intervene and save her, then the appellant (A-1) stabbed 6-7 injuries on her husband (deceased) too, by which her husband fell down, this incident was witnessed by Rohit (not examined) and Dani Dhruw (PW-4) and they have also rescued her. Dani Dhruw (PW-4) has stated that on the date of the offence, the 9 appellants (A-1 & A-2) were quarrelling with Malti Nirmalkar (PW-3), appellant Daulal (A-1) armed with a knife and assaulted to Malti (PW-3) with a knife, at that time, Shankar Lal (deceased) came to intervene but he was also assaulted by the appellant (A-1), by which Shankar Lal suffered grievous injuries and died that day in the hospital. Furthermore, pursuant to the memorandum statement (Ex.P-5) of the appellant (A-1) the weapon of offence i.e. knife was seized vide Ex. P-7 which was sent for chemical examination to FSL and in the FSL report blood of ‘O’ group was found on the knife. It is quite vivid that there was a dispute between the appellant (A-2) and Malti Nirmalkar (PW-3), then the appellant (A-1) came there and firstly caused stabbed injury to Malti (PW-3) and when the husband of PW-3 Shankarlal came there to intervene he (deceased) was also caused stabbed injury by the appellant (A-1), due to which he suffered grievous injuries and died. As such, we are of the considered opinion that the appellant (A-1) has caused the injuries upon the deceased and he is the author of the crime in question. 12.The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court has rightly convicted the appellant (A-1) for offence punishable under Section 302 of IPC or his case is covered with Exception 4 10 of Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part II of IPC, 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 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 11 “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”. 14. 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. 15.Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)2 has laid down four ingredients which 2 (2019) 6 SCC 122 12 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.” 16.Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of Supreme Court, it is quite vivid that there was no premeditation on the part of appellant Daulal Dhiwar (A-1) to cause the death of the deceased but knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant (A-1) 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 302/34 of IPC can be altered/converted to Section 304 Part-II of IPC. 13 17.In view of the aforesaid discussion, the conviction of appellant Daulal Dhiwar (A-1) for offence punishable under Section 302/34 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 appellant Daulal Dhiwar (A-1) to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, appellant Daulal Dhiwar (A-1) is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount imposed by the learned trial Court shall remain intact. Further, considering the fact that no overact on the part of appellant Smt. Kamla Bai Dhiwar (A-2) as per the statement of Dani Dhruw (PW-4) who is an independent eyewitness came to rescue the deceased and Malti Nirmalkar (PW-3), appellant Smt. Kamla Bai Dhiwar (A-2) is acquitted for the offence punishable under Section 302/34 of IPC. 18.However, considering the evidence of injured eyewitness Malti Nirmalkar (PW-3) and further considering the statement of Dani Dhruw (PW-4), the conviction of the appellant (A-1) for the offence punishable under Section 307 of IPC only is well merited and the appellant (A-2) is 14 acquitted of the offence punishable under Section 307/34 of IPC also. However, considering the facts and circumstances of the case and further considering the age of the appellant (A-1) who was 65 years of age at the time of the incident, his sentence is hereby reduced to 3 years’ rigorous imprisonment from 5 years’ rigorous imprisonment for the offence punishable under Section 307 of IPC; however, the fine amount imposed by the learned trial Court shall remain intact. 19.This criminal appeal is partly allowed to the extent indicated herein-above. 20.Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where appellant (A-1) lodged and suffering jail sentence, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu