1 CRA No. 189 of 2016 2025:CGHC:52237 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 189 of 2016 Pancham Rathor S/o Bhiyalal Rathor Aged About 26 Years R/o Village Bagghabharra, Sadhwani, P.S. Gaurela, District Bilaspur, Chhattisgarh., Chhattisgarh Appellant(s) versus State Of Chhattisgarh Through S.H.O. Gaurela, District Bilaspur, Chhattisgarh., Chhattisgarh Respondent(s) (Cause-title taken from Case Information System) For Appellant : Mr. Hemant Gupta, Advocate For Respondent(s) : Mr. R.C.S. Deo, PL Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 27/10/2025 1. In the present case, there were two accused persons, namely the appellant herein, Pancham Rathore, and one Bhelan Singh Rathore. The Trial Court, while convicting the appellant, acquitted co-accused Bhelan Singh Rathore of the charge framed under Section 302 of the IPC. 2. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure against the impugned judgment of conviction and RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.10.28 17:58:13 +0530 2 CRA No. 189 of 2016 order of sentence dated 29.01.2016 passed in Sessions Trial No. 20/2015 by the learned Additional Sessions Judge, Pendra Road, District Bilaspur (C.G.), whereby the appellant has been convicted under Section 304 Part I of the IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, with default stipulation. 3. The brief facts of the case are that on 30.05.2015 at about 4:30 PM, an intimation of an unnatural death (marg intimation) was lodged at Village Baggabharra, Sadhwani by the informant Gaurishankar Rathore. He reported that on the said day, his father Ayodhya Prasad Rathore, aged about 45 years and resident of the same village, had gone to the backyard (badi) around 4:15 PM to tie the cattle. At that time, the accused persons, namely Pancham Rathore and Bhelen Singh Rathore, were cutting a badhar tree near the fence made of dry bushes and wooden sticks. When Ayodhya Prasad objected to their act, a verbal altercation ensued between him and the accused persons. During this altercation, Shakun, the wife of his younger brother, also reached the spot. Suddenly, Ayodhya Prasad fell to the ground and appeared to have lost consciousness. He was immediately brought home by his younger son Ved Prasad and daughter-in-law Shakun. Information was given to the Sanjeevani ambulance service for medical assistance. However, when the ambulance attendant arrived and examined Ayodhya Prasad, he was found dead. Upon receiving the information, the police officers from Police Station Gaurela registered a marg intimation under Section 174 Cr.P.C. The inquest proceedings were conducted, statements of witnesses were recorded, and the 3 CRA No. 189 of 2016 dead body was sent for post-mortem examination. During investigation, finding sufficient evidence against the accused persons, they were taken into custody. The memorandum statement of accused Pancham Rathore was recorded, and an axe (tangiya) used in the incident was seized from his possession. After completion of investigation, a charge-sheet was filed on 27.08.2015 against the accused persons. Charges were framed against the accused persons under Sections 302 and 34 of the IPC. 4. In order to bring home the offence, the prosecution examined as many as 12 witnesses. The statements of the accused persons under Section 313 Cr.P.C. were recorded, in which they denied the allegations and claimed to have been falsely implicated. 5. The Trial Court, after appreciating the oral and documentary evidence available on record, by its judgment dated 29.01.2016, acquitted co-accused Bhelan Singh Rathore of the charge framed against him. However, it convicted and sentenced the present appellant as mentioned in paragraph two of this judgment. Hence, the present appeal by the appellant. 6. Mr. Hemant Gupta, learned counsel appearing on behalf of appellant submits that the appellant has been falsely implicated in the present case. He would submit that even if the entire prosecution case is accepted in its entirety, the same would not constitute an offence punishable under Section 304 Part I of the Indian Penal Code, but would, at the most, fall within the ambit of Section 304 Part II IPC. It was contended that there was no premeditation or intention on the part of the appellant to cause the death of the deceased; the 4 CRA No. 189 of 2016 incident occurred all of a sudden in the heat of passion during a verbal altercation when the deceased objected to the cutting of the tree. The appellant had no motive or prior enmity against the deceased, and the act, if any, was without the intention to cause death but with the knowledge that it was likely to cause such result. Learned counsel would further submit that the Trial Court failed to properly appreciate the surrounding circumstances and the nature of the quarrel, which clearly indicates that the occurrence was a result of a sudden provocation and not a deliberate act. The appellant has already undergone a five years two months and eight days period of incarceration, and considering the facts and circumstances of the case, his conviction may appropriately be altered from Section 304 Part I to Section 304 Part II IPC, and the sentence may be reduced to the period already undergone by him. 7. Mr. R.C.S. Deo, learned panel lawyer appearing on behalf of the State would oppose the submission and submitted that the conviction of the appellant is based on well appreciation of evidence available on record, therefore, there requires no interference in the order passed by the trial Court. 8. I have heard learned counsel for the parties and have perused the record and evidence with utmost circumspection. 9. The Court, at the outset, considers it appropriate to examine the cause of death of the deceased, for which the statement of the doctor who examined the deceased is of crucial importance. 10. The postmortem report of the deceased is Ex.P/7. According to Dr. B.S. Paikra (PW-9), while examining the deceased, he found that the deceased was 5 CRA No. 189 of 2016 wearing blue undergarments; his eyes and mouth were partially open, and rigor mortis was present in both hands and legs. Both ears bore contusion marks which, in his opinion, were caused by a hard and blunt object. On further examination, he found two abrasions on the left knee measuring 2 cm × 0.5 cm and 2 cm × 1 cm, one abrasion on the upper portion of the head measuring 3 cm × 2 cm, and a contusion mark on the right side of the chest measuring 3 cm × 2 cm. Clotted blood was found beneath the scalp as well as inside the brain, and the head injury could have been caused by a hard and blunt object. The external genital organs were normal, and the deceased was of average build. The lungs, trachea, bronchi, and both chambers of the heart were congested; the stomach contained partially digested food; the small intestine contained fluid, while the large intestine contained gas and fecal matter; and the liver, spleen, and kidneys were also found congested. In his opinion, the cause of death was coma resulting from head injury, and the nature of death was homicidal, which had occurred within 12 to 15 hours prior to the post-mortem examination. His post-mortem report was proved as Exhibit P/7, bearing his signature. He further deposed that on 30.07.2015, one tangiya (axe) was produced before him for examination, the blade of which measured 11 cm, with a handle 85 cm in length and 8 cm in thickness. Upon query, he opined that the injuries found on the deceased could have been caused by the handle of the said tangiya. In cross-examination, he admitted that blood clots in the brain may also form due to high blood pressure, resulting in brain stroke or hemorrhage. He further stated that abrasions can occur if a weak or ill person falls on a hard 6 CRA No. 189 of 2016 surface. He also admitted that there was no mention in Exhibit P/8 regarding the tangiya being sealed when received or when returned after examination, and that the deceased had not been brought to him for medical treatment during his lifetime. 11. Upon consideration of the medical evidence, particularly the testimony of Dr. B.S. Paikra (PW-9) and the post-mortem report (Ex.P/7), it emerges that although multiple injuries were found on the body of the deceased, none of them, by themselves, were shown to be sufficient in the ordinary course of nature to cause death. The doctor opined that death had occurred due to coma resulting from head injury and described the nature of death as homicidal. However, in cross-examination, he candidly admitted that blood clots in the brain may also form due to high blood pressure resulting in brain stroke or hemorrhage, and that abrasions could occur if a weak or ill person falls on a hard surface. He further admitted that there was no mention of sealing or resealing of the tangiya (axe) in Exhibit P/8, thereby affecting the evidentiary reliability of the alleged weapon. 12. The Court now proceeds to consider whether, in the light of the entire evidence on record, the case of the appellant would fall within the ambit of Section 304 Part-II of the IPC. 13. PW-1 Ved Prakash Rathore, the son of the deceased Ayodhya Prasad Rathore, deposed that on 30.05.2015, he was sleeping at his house when, at about 3:30 to 4:00 a.m., he heard the voice of his wife coming from the courtyard (baadi). On going towards the baadi, he saw both accused persons, Pancham Rathore and Bhelan Rathore, cutting a barhar tree. He also saw his 7 CRA No. 189 of 2016 father lying face down on the ground in an unconscious condition. He, along with his wife, lifted his father and brought him inside the house. Believing that his father was still alive, he called the 108 ambulance, but the medical staff informed him that his father had already died. The witness stated that he believed his father had been killed by the accused persons, as both of them were standing near the spot holding a tangiya (axe). In cross-examination, he admitted that the baadi of the accused persons was enclosed by a wooden fence and surrounded by trees, and that the khuta (wooden peg) used for tying cattle was located about five feet inside the fence. He denied the suggestion that the accused had been falsely implicated or that no such incident had occurred. 14. PW-2 Shakun Bai Rathore, the daughter-in-law of the deceased, deposed that on 30.05.2015 she was cleaning rice in the courtyard while her husband was sleeping inside. Her father-in-law had gone to the baadi to tie a calf when she heard accused Pancham abusing loudly. On reaching there, she saw both accused, Pancham and Bhelan, cutting a barhar tree. When her father-in-law objected, a quarrel ensued. She asked them to call the Patwari for demarcation, but Pancham retorted that the tree stood on his side and that he would cut it that day and the mango tree next. When her father-in-law bent down near the tree to show the boundary, Pancham struck him with a tangiya. She could not say whether the blow was with the blade or handle. The deceased fell down near the fence, and despite efforts, did not respond. In cross-examination, she admitted that accused Pancham had a plaster 8 CRA No. 189 of 2016 on his hand at that time and was not cutting the tree himself. She denied suggestions that she had not witnessed the incident or that no quarrel had taken place. 15. PW-3 Govind deposed that while bringing back his cattle, he saw a quarrel between the accused and the deceased. In the altercation, accused Pancham struck the deceased on the chest and head with the handle of a stick- like mia, causing him to fall. He admitted that the area was surrounded by trees and that he did not immediately inform the police. 16. PW-4 Hota Singh deposed that he witnessed the inquest proceedings and noticed an injury mark on the abdomen of the deceased. He confirmed that photographs were taken and the site map was prepared in his presence. PW-5 Sunna Kumar admitted signing the memorandum (Ex.P/4) and seizure memo (Ex.P/5), but clarified that no article was seized in his presence. He was declared hostile. PW-6 Ratan Singh stated that he knew the accused and deceased. He saw a doctor’s vehicle come to the deceased’s house and later saw the police bringing out two axes from the accused’s house. He denied witnessing any assault. PW-7 Bhaiyalal, nephew of the deceased, deposed that he was present inside the house when he heard a quarrel but did not witness the incident. 17. After careful examination of the above evidence and the medical testimony, it becomes evident that on the date of the incident, the appellant Pancham Rathore and the deceased Ayodhya Prasad Rathore entered into a quarrel over cutting of a barhar tree near the boundary of their baadi. During 9 CRA No. 189 of 2016 the altercation, in a sudden fit of anger and without premeditation, the appellant, who had a plastered hand, picked up a tangiya and assaulted the deceased with its handle. The deceased fell down and became unconscious, leading to his death. The tangiya was recovered at the instance of the appellant pursuant to his memorandum (Ex.P/4). The evidence thus establishes that the appellant was responsible for the act leading to the death of the deceased. 18. The question that now arises is whether the conviction of the appellant under Section 304 Part-I of the IPC is justified in light of the evidence on record. 19. The Supreme Court in State Tr. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda, AIR 2012 SC 3104, held that to attract Section 304 Part-II IPC, the prosecution must establish that the death was caused by the act of the accused and that he knew such act was likely to cause death, though without any intention to cause death or such bodily injury likely to cause death. 20. In Surendra Singh v. State of Uttaranchal, AIR 2006 SC 1920, and Hafiz v. State, AIR 2006 SC 632, the Supreme Court held that when a death occurs on the spur of the moment and without premeditation, the conviction should appropriately fall under Section 304 Part-II IPC rather than Section 302 IPC. 21. Reverting to the present case, the evidence shows that the appellant and the deceased were related and that the quarrel arose suddenly over a trivial issue of tree cutting. The appellant, in a momentary fit of anger, struck the deceased with the handle of a tangiya without intention to kill. The medical 10 CRA No. 189 of 2016 evidence confirms that the injury was not sufficient in the ordinary course of nature to cause death and that death resulted from internal hemorrhage and coma. There is no evidence of any deliberate or repeated assault. 22. Considering the totality of evidence, this Court finds that although the appellant had no intention to cause death, he must be attributed with knowledge that his act was likely to cause death. Thus, his case squarely falls under Section 304 Part-II IPC, and the conviction under Section 304 Part-I IPC cannot be sustained. 23. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant under Section 304 Part-I IPC is modified to one under Section 304 Part-II IPC. Since the appellant has already remained in custody for about five years and two months, he is sentenced to the period already undergone. The appellant is on bail, his bail bonds is not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. 24. Let the trial court record along with a copy of this judgment be sent back to the concerned trial court forthwith for information, compliance, and necessary action. Sd/- (Bibhu Datta Guru) Judge Rahul/Gowri