1 2025:CGHC:1446-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1760 of 201 9 (Arising out of judgment dated 14.10.2019 passed in Sessions Trial No. H-02/2019 by the learned Additional Sessions Judge, Patthalgaon) Sidhi Ram S/o Munjan Ram aged about 65 years; R/o Village Pemla; Police Station- Bagbahar; District- (Revenue & Civil) – Jashpur, Chhattisgarh. ---- Appellant (In Jail) Versus State of Chhattisgarh, Through : District Magistrate Jashpur, District (Revenue & Civil) – Jashpur, Chhattisgarh. ---- Respondent --------------------------------------------------------------------------------------- For Appellant : Mr. S.D. Singh, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State : Mr. Pankaj Singh, Panel Lawyer. ----------------------------------------------------------------------------------------- DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (09.01.2025) Sanjay K. Agrawal , J. (1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 14.10.2019, Digitally signed by HEERA LAL SAHU Date: 2025.01.10 17:44:52 +0530 2 passed by learned Additional Sessions Judge, Patthalgaon, District - Jashpur (C.G.) in Sessions Trial No. H-02/2019, whereby the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for six months. (2) The case of the prosecution, in brief, is that on 07.06.2018 at about 6:00 am, in village Pemla, Police Station -Bagbahar, District Jashpur, the appellant assaulted Bihani Bai (now deceased), who was living with the appellant as a wife, by means of iron rod, by which she suffered grievous injuries and died, thereby, committed the offence under Section 302 of IPC. (3) The further case of the prosecution, in a nutshell, is that a Merg was lodged vide Ex.P-18 by complainant Smt. Meena (PW- 10) to the effect that the appellant-accused had kept her mother as his wife for about 13 years. Accused Sidhi Ram used to assault her mother every day under the influence of liquor. On 07.06.2018 at about 6:30 pm, her aunt called from village Pemla and informed her about the death of her mother Bihani Bai (deceased). Upon which the complainant came from her work to the house of the accused-appellant. There were blood stains and a slipper of Sidhi Ram lying in front of the house and there were also signs of the dead body being dragged behind the house. Accused-appellant Sidhi Ram was drunk and the accused had 3 killed Bihani Bai (deceased). On the said information, FIR was registered vide Ex. P-19 against the appellant-accused. Crime Details Form was prepared vide Exs. P-3 & P-7 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/13), Dr. A.S. Thakur (PW-5) opined that the cause of death was coma which may be caused by head injury and the death was homicidal in nature. Thereafter, appellant-accused was arrested vide Ex.P/12 Memorandum statement of the accused was recorded vide Ex.P-4. Pursuant to the memorandum statement of the accused-appellant, seizure of spade and iron axe was made vide Exs. P-5 & P-9, respectively and sent for chemical examination to FSL. In FSL report (Ex.P/25) human blood was found on axe and slipper (Articles-H & E) and ‘B’ blood group was found on Articles B, C, D & E. (4) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 27 documents. The statement of the appellant/accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the appellant-accused has only exhibited one document (Ex.D-1) in support of his defence. 4 (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant herein for offence under Section 302 of IPC and sentenced him as mentioned herein-above against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Learned counsel for the appellant submits that the learned trial Court is not justified in convicting the appellant for the offence under Section 302 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 as only one fracture was found in the jaw of the deceased as per the statement of Dr. A.S. Thakur (PW-5) and Dr. A.S. Thakur (PW-5) did not opine that the injuries caused to the deceased by the appellant were sufficient in the ordinary course of nature to cause death. 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 can be converted/altered to an offence under Section 304 Part-II of IPC and, further, since the appellant is in jail since 07.06.2018 i.e. more than 6 years, taking into consideration the period he has already undergone, the appellant-accused be released from jail. Hence, the present appeal deserves to be partly allowed. 5 (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 and the incriminating circumstances have been culled out by the Trial Court in para 20 of its judgment which has been found proved by the Trial Court, as such, the learned trial Court has rightly convicted the appellant for the offence under Section 302 of IPC. Exception 04 to Section 300 of IPC is not attracted in this case and it is not a case where the conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-II 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/13) which is duly proved by the evidence of Dr. A.S. Thakur (PW-5). Accordingly, taking into consideration the postmortem report (Ex.P/13) and the statement of Dr. A.S. Thakur (PW-5), 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 6 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 accused- appellant is the author of the crime in question? (11) The instant case is not based on direct evidence and is based on circumstantial evidence, incriminating circumstances 1 to 10 have been culled out by the learned Trial Court in para 20 of its judgment and thereby trial Court recorded a finding that the appellant and the deceased used to quarrel and on the basis of the theory of last seen together that the appellant and the deceased were residing together on 07.06.2018, and the dead body of the deceased was found in the house of the appellant, furthermore, pursuant to the memorandum statement (Ex.P-4) of the appellant the weapon of offence i.e. spade was seized vide Ex. P-5 and all the incriminating circumstances were found proved, we are of the considered opinion that the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased is based on evidence available on record. Accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused 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 for offence punishable under Section 302 7 of IPC or his case is covered with Exception 4 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 appellant ? (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 8 “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 should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: 2 (2019) 6 SCC 122 9 “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 the appellant to cause the death of the deceased as it appears from the nature of the injury that only there was a fracture in the upper jaw and in the right 2 ribs No. 3 and 4 were fractured and there was a lacerated wound on the right parietal region and Dr. A.S. Thakur (PW-5) who examined did not opine that the injuries caused to the deceased by the appellant were sufficient in the ordinary course of nature to cause death, as such, considering the nature of the injuries, we are of the considered opinion that there was no intention but knowledge that such injuries 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 of 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 10 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. (17) 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 the deceased 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 10 years. However, the fine amount imposed by the learned trial Court shall remain intact. (18) This criminal appeal is partly allowed to the extent indicated herein-above. (19) 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 he 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