1 2025:CGHC:336-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 434 of 2019 Jairam S/o Lakhama Madiya Aged About 35 Years Caste Madiya, Occupation Agriculturist, R/o Village Binta, Police Station Maardum, District Bastar, Chhattisgarh. District : Bastar(Jagdalpur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Maardum, District Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh ... Respondent For appellant : Shri Rishi Rahul Soni, Advocate For Respondent : Shri Amit Buxy, PL Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sachin Singh Rajput, JJ Judgment On Board (03.01.2025) Sanjay K. Agrawal, J. By way of this appeal filed under Section 374(2) of the Code of Criminal Procedure the appellant has assailed the judgment impugned dated 07.02.2019 passed by Sessions Judge, Bastar at Jagdalpur, CG in Sessions Trial No. 29/2018 convicting him under Section 302 IPC and sentencing to undergo imprisonment for life with fine of Rs. 500/-, in default of payment of fine, to further undergo RI for 03 months. 2. Facts of the case in brief are that father of complainant Butki Bai had kept the mother of the accused/appellant as his wife. Two months prior to the date of incident 2 i.e. 10.08.2008, the accused/appellant went to the house of the complainant and demanded from her husband the land falling in the share of his mother. On the date of incident the accused/appellant came to the house of the complainant carrying axe with him and took her son Chaitan (the deceased in this case) with him towards the field on the pretext of outing. On being asked by the complainant as to where her son was being taken, the accused/appellant asked Chaitan for the land in the share of his mother, picked up the dispute and in furtherance of which he made an attack with the sharp edged axe on his head and thus caused injury to his right temple and back of the head. After the complainant reached there, the accused/appellant threatened her of the same consequences in case she lodged a named report against him. Thereafter, he fled away towards the forest along with axe. Injured Chaitan was then taken home by the complainant from where he was shifted to the local hospital where he was declared dead by the doctor. On the information given from the hospital, merg (Ex.P-9) was recorded followed by registration of FIR (Ex.P- 13) for the offence under Sections 302 and 506-B IPC. After making inquest under Ex.P-11, the dead body was sent for postmortem examination which was conducted by Dr. C. Maitri (PW-6) who gave his report (Ex.P-4). After completion of investigation, charge-sheet was filed against the accused/appellant under the same Sections as in the FIR, followed by framing of charge accordingly. 3. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 11 witnesses. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. Defence however has not examined any witness in support of its case. 4. After hearing the parties and going through the material available on record including the evidence of the witnesses, learned Sessions Judge acquitted the accused/appellant of the charge u/s 506-B IPC but has convicted and sentenced the him as detailed in paragraph No. 1 of this judgment. Hence this appeal. 3 5. Learned counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, the conviction of the accused/appellant under Section 302 IPC is not made out as the premeditation or prior intention in opening the assault by the accused remained un-established. He submits that most of the witnesses including the important ones being PW-1 to PW-5 and PW-7 have not supported the case of the prosecution and have been declared hostile. He further submits that looking to the injuries noticed on the body of the deceased and the statement of the doctor conducting post mortem examination, the conviction of the accused/appellant under Section 302 IPC is not sustainable in law, and at the most the act of the accused/appellant may fall under Section 304-II IPC. He further submits that after the incident the accused remained absconding for a considerable long period and has been arrested on 24.02.2018 and thus has remained in jail for a period of about seven years, and therefore it would be in the interest of justice if he is sentenced to the period already undergone. 6. On the other hand, learned counsel appearing for the State supports the judgment impugned and submits that the findings recorded by the trial Judge holding the accused/appellant guilty under Section 302 IPC being based on proper appreciation of the evidence including the medical one, on record are fully justified and do not call for any interference in this appeal, and being so the appeal is liable to the dismissed. 7. Heard learned counsel for the parties at length and went through the evidence on record with utmost care and caution. 8. The finding recorded by the trial Court that looking to the evidence of the doctor (PW-6) who conducted postmortem examination on the body of the deceased and gave his report (Ex.P-4) the death of the deceased was homicidal in nature, appears to be fully justified and thus it is affirmed by this Court also. 4 9. Now the question to be decided by this Court is whether the act of accused/appellant would lead to his conviction under Section 302 as has been done by the trial Court, section 304 (Part-I) or 304 (Part-II) IPC? 10. If the evidence of the complainant (PW-1) is seen, it emerges that the quarrel between the accused and the deceased had erupted on account of a cock belonging to the deceased being killed by the accused/appellant and for that another cock was being demanded by the deceased. According to this witness, there was no land related dispute between the accused and the deceased who was just 13 years of age at the relevant time. Though this witness has admitted that mother of the accused was kept by her husband as his wife yet she has categorically stated that the accused/appellant never demanded any share of their property. Looking to her version being full of contradictions and omissions, this witness has been declared hostile. Likewise, PW-2 has also stated that the dispute between the accused and the deceased was over the cock and not on anything else. Then contradicting herself in the cross examination, she has stated that there was a land related dispute between her mother (PW-1), the deceased and the accused. She has however stated that she did not see the accused assaulting the deceased with axe. Her entire testimony is also full of contradictions and omissions and for that she has been declared hostile. Thus from the material collected by the prosecution including the medical evidence, the premeditation or prior intention to eliminate the deceased on the part of the accused/appellant which is required for holding the accused guilty under section 302 IPC, appears to be completely missing. 5 10. The Supreme Court in the matter of Arjun and another 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 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 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 1 (2017) 3 SCC 247 6 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”. 11. 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 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. 12. It now appears apposite to look into the evidence of the doctor (PW-6) who conducted postmortem examination on the body of the deceased and gave his report Ex. P-4. According to this witness, one contusion near the right ear in the size of 1x1x1/2 cm and one swelling on the right cheek in the size of 2x2 cm was present, and cause of death has been opined to be hemorrhage and shock due to head injury. The more important fact in this case is that the axe which is said to have been used for commission of the offence has not been seized. 13. If a brief recapitulation of the factual background of the case is resorted to, it becomes manifest that the incident of assault was the outcome of sudden dispute erupted over the cock of the deceased being killed by the accused and for that the deceased was demanding another cock. Even the important witnesses have stated that there was nothing other than this 7 leading to the occurrence. In this view of the matter as already held herein- above, the ingredients the offence punishable under Section 302 IPC are not attracted to the case in hand. Being so, this Court is of the opinion that act of the accused/appellant squarely falls within the sweep of Exception 4 to Section 300 IPC entailing his conviction under Section 304 (Part-II) IPC. It is held accordingly. 14. As regards sentence, considering the role attributed against the accused, the circumstances in which the incident occurred, this Court thinks it just and proper to sentence the accused/appellant to undergo RI for the period he already spent in jail as he is in jail since 24.02.2018, but keeping the sentence of fine intact. Order accordingly. 15. In the result, the appeal is allowed in part. Conviction of the accused/appellant under Section 302 IPC and the resultant sentence imposed by the trial Court are set aside. Appellant is however convicted under Section 304 (Part-II) IPC and sentenced to undergo RI for the period he remained in incarceration. Sentence of fine is however, left undisturbed. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Jyotishi AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.01.07 14:10:13 +0530