1 2025:CGHC:13455 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 305 of 2025 1 - Nanhoo Das Mahant S/o Shri Jay Das Mahant Aged About 47 Years R/o Village- Thangan, Police Station- Dabhara, District- Sakti (C.G.) 2 - Shiv Das Mahant S/o Shri Nanhoo Das Aged About 27 Years R/o Village- Thangan, Police Station- Dabhara, District- Sakti (C.G.) 3 - Laxmi Das Mahant S/o Shri Nanhoo Das Mahant Aged About 23 Years R/o Village- Thangan, Police Station- Dabhara, District- Sakti (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through- The Station House Officer, Police Station- Dabhara, District- Janjgir-Champa (C.G.) ... Respondent(s) For Petitioner(s) : Shri P.M.Shriwas, Advocate For Respondent/STate : Shri K.K.Bahrani, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 20/03/2025 This appeal is directed against the impugned judgment of 2 conviction and order of sentence dated 21.01.2025 passed by the Special Judge, SC/ST (Prevention of Atrocities Act) Janjgir, District Janjgir-Champa in Special Criminal Case No. 45/2023 whereby the appellants in the aforesaid appeal have been held guilty of the commission of offences and sentenced as described below: Conviction Sentence U/s. 304-II/34 IPC To undergo RI for 5 years U/s. 323/34 IPC To undergo RI for 1 month (2 times) Both the sentences were ordered to run concurrently. 2. Facts of the case in brief are that on the date of incident ie. 31.05.2023, when the complaint returned home from the market, accused/appellant were abusing his wife and mother as there was some dispute of water pipe connection and thereafter they assaulted them with club and stone and they sustained injuries. They were shifted to Commujnity health Centre Dabhra and looking to the injuries sustained by his mother Surja Bai, she was referred to Government Hospital, Raigarh where she was admitted from 31.05.2023 to 7.6.2023 and was discharged thereafter and on 20.06.2023, she died. The incident was witnessed by Sunil Kumar Chouhan and others. On the information given by the complainant Narad Chouhan at Police station Dabhra, Crime No. 166/2023 was registered against the appellants under Sections 294, 506,323,34 IPC. Based on the above, FIR Ex.P-1 was registered, spot map Ex.P-3. On the basis of memorandum of accused/appellant Shiv Das Mahant, bricks and concrete, plain soil and blood stained soil was seized vide Ex.P-5 and seizure Ex. P-7 was prepared. On account of the assault, injured Surja Bai died and the information was reported at police station Dabhra and merg intimation 3 is Ex.P-2. Notice was prepared vide Ex.P-13, panchama of the body was prepared vide Ex.P-14 amd the body was sent for post mortem examintion to Community Health Centre, Dabhra where Dr. Rajendra Kumar Patel (PW-12) conducted post mortem and gave his report Ex.P-18A. He opined that the cause of death was brain hemorrage due to head injury. The seized club and blood stained sari of the deceased was sent for query report to Dr. Manoj Dadsena (PW-6) for chemical examination and he gave his report Ex.P-18 and 19. The seized articles were sent to FSL, Bilaspur vide Ex.P-16 and the report is Ex.P- 17. The caste certificate was seied vide Ex.P-8 and arrest memo Ex..P- 9 to 11 were prepared, and after recording the statement of the witnesses Sections 302,294,506,323,34 IPC and Section 3(1)(n)(/k) and 3 (2)(V) of the SC/ST Prevention of Atrocities Act) was registered against the accused/appellants. After completion of investigation, charge sheet was filed in the Court of Special Judge (Atrocities), Janjgir, District Janjgir-Champa where the appellant Vishun Korwa was charged for the offence under Sections 294, 506 Part II, 323 (2 times)/34 IPC and Sections 3(2)(Va) and 3(2)(V) of theSC/ST (Prevention of Atrocities) Act, 1989. 3. During the course of trial, the appellants abjured their guilt and claimed to be tried. The prosecution on their behalf examined as many as 12 witnesses. After entire trial the appellants were convicted as aforesaid. Hence this appeal. 4. Learned counsel for the appellants submits that the judgment impugned passed by the trial court is contrary to law, facts and circumstances of the case and therefore it is liable to be quashed. He submits that on the date of incident, the victims themselves had started 4 the dispute with the family members of the appellants for water supply connection and the mother of the complainant Surja Bai fell down and was hit by stone as a result fo which she sustained injury and later on died. He submits that as per proscution story, the incident happened in a public ;ace and there is no independent witness to the incident. He submits that the complainant and the witnesses have deposed different story about the incident and therefore the ingredients of the offence against the appellants are missing. He submits that the deceased was discharged from the hospital and after about 7-8 days, she died and therefore the offence as alleged is not made out against the appellants. It is submitted that there is no such evidence on record to indicate that there was any premeditation on the part of the appellants to cause death of the deceased and the police has registered the offence under Section 323/34 IPC for causing injury to the deceased and after his death Section 302 IPC was added. Learned counsel for the appellant would submit that the trial Court failed to appreciate the fact that the incident happened on spur of moment and there was no intention to kill so as to take the case within the ambit of Section 304 Part-II of I.P.C. He submits that the trial court had committed illegality in convicting the appellants beyond the shadow of doubt. He submits that the trial court ought to have given benefit of doubt to the appellants. He further submits that the incident occurred on a spur of moment in a sudden provocation for the reason that the altercation broke out as his sister was not given food expenses. He further submits in order to convict the accused under Section 304 Part-II, the intention of causing death is the necessary ingredient, which was absent in this case along-with the knowledge. The incident had taken place in the spur of the moment 5 without there being any premeditation. It has been further contended that as held in the case of Chhota Ahirwar Vs. State Of Madhya Pradesh, AIR 2020 SC 1150, mere participation in the incident of assault is not sufficient to draw the conclusion of premeditated intention. Thus, Section 34 of the IPC cannot be pressed into service. 5. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellants and would submit that the judgment of the Court below is well merited which do not call for any interference. 6. Heard learned counsel for the parties and perused the records with utmost circumspection. 7. The date of incident in this case was of 31.05.2023 The FIR Ex.P-1 would show that the report was made by Narad Chouhan (PW- 1) on 20.06.2023. Initially the crime was registered under Section 294, 506 & 323 of I.P.C. and Sections 3(2)(Va) and 3(2)(V) of theSC/ST (Prevention of Atrocities) Act, 1989 but subsequently when Surja Bai died, Section 302 of I.P.C. was added and the charge sheet was filed. Perusal of the FIR would show that on a petty issue of water supply connection, the quarrel took place and it arose into assault by the appellants which resulted to the death of the deceased and the FIR speaks about the deceased was taken initially to the Community Health Centre Dabhra from where she was referred to higher centre ie. Govt. Hospital, Raigarh and after getting treatment for 7-8 days discharged on 07.06.2023. However, on 20.06.2023, she died. 8. Narad Kumar (PW-1) has stated that deceased Surja Bai was his 6 mother and that the accused/appellants are neighbours. On the date of incident, when he was returning from the market, he came to know tht the appellants were quarreling with his wife and mother. He came home and and asked the appellant Nanhu Das as to why he was quarelling and scuffle took place between them in which Surja Bai fell on the ground and hit on the stone as a result of which she sustained injury. Immediately after the incident, they went to the polcie station Dabhra and reported the matter vide FIR Ex.P-1. The police took hismother formedical examination and from where she was referred to Medical College Raigrh. After treatment, she was discharged from hospital and after 20 days of the incident, she died. He reported the information vide Ex.zp-2 and therafter spot map was prepared vide Ex.P-3 and 4, seized the brick and concrete mix vide Ex.P-5, the bamboo club Ex.P-6 and sari of the deceased vide Ex.P-7. The caste certificate Article -1 was seized vide Ex.P-8 and after preparing arrest memo Ex.P-9,10 and 11, the appellants were arrested. Savita Bai (PW-2) wife of the complainant and injured has stated that on the date of incident, the appellants who are the neighbours were quarreling for filling water from the government pipe and in the scuffle, Surja Bai fell down and hit on the stone as result of which she sustained head injury. Deshram Chouhan (PW-4) has stated that he is the neighbour of the appellants and injured. He has stated that on the date of incident, there was some quarrel between them and Surja Bai fell on the stone and sustained injury on her head. Dr. Manoj Dadsena (PW-6) Medical Officer at Community Health Centre Dabhra, District Sakti has stated that he had medically examined the injured Savita Bai and has found superficial lacerated 7 wound present on left temporal region on head in the size 5 x 0.5 cm ; superficial abrasion present on left wrist joint in the size of 1 x0.5 cm. He has opined that the injury was simple in nature. Dr. Rajendra Kumar Patel (PW-12) Block Medical Officer, Community Health Centre, Dabhra, District Sakti has conducted the postmortem examination on the body of deeased Surja Bai and opined that the cause of death was brain hemorrage due to head injury. 13. The entirety of the evidence would show that the way the offence occurred the intention to cause death cannot be gathered. The facts would suggest that a sudden altercation took place between the appellants for taking water from government pipe connection and which rose to such an extent that there was scuffle between them and the deceased fell down and hit on a stone which, later on resulted to her death. Consequently, the inference can be drawn that such altercation led to provocation and on spur of moment, the incident occurred. 14. Therefore, according to the eye-witness, the way the incident happened would show that some altercation took place between the appellants and the deceased and injured, who are the neighbours and for some or the other reason they entered into altercation and scuffle. It is not the case of the prosecution that at the time of incident, the appellants were armed with weapon but both the appellants and deceased as well as injured were empty handed while they were quarreling. 15. The Supreme Court in Jagriti Devi v. State of Himachal Pradesh, (2009) 14 SCC 771 held that Section 304 Part-II comes into play when the death is caused by doing an act with knowledge that it is 8 likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. 16. In case of Andhra Pradesh v. Rayavarapu Punnayya & Another (1976) 4 SCC 382, the Court succinctly examined the distinction between Section 299 and Section 300 of the Indian Penal Code and in para 12 of the judgment held as under: “In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is culpable homicide' but not vice- versa. Speaking generally, 'culpable homicide' sans' special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304.” 17. It was further held that the difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. The word “likely” in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words “bodily 9 injury...sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury having regard to the ordinary course of nature. 18. It was laid down that the question whether is a murder or culpable homicide not amount to murder has to be decided on the suggestions. The first suggestion would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. In the principles as has been cited would show the nature of dispute which resulted into injury was not most probable to cause death and the circumstances can be summarized that as per the statement of Kawal Sai (PW-1), when the quarrel was taking place, the deceased was trying to pacify the quarrel and therefore, it points out there was no premeditated mind and the accused/appellant at the relevant time was without any arm. 19. Therefore, taking into the facts into chronologically order, it would lead to show that the intention and the knowledge on the part of the appellants/accused to cause death, with the act may cause death has not been established by the prosecution beyond reasonable doubt. It cannot be unreasonably concluded that the appellants had intention to cause death of the deceased. The unfortunate scuffle had occurred after a sudden quarrel. If the appellants had an intention to cause 10 death, they would have been come armed. Instead, facts suggest that over a trivial issue the appellants had assaulted and unfortunately she hit on the stone which caused her death ultimately and it was without any intention to kill her. 20. Considering the nature of injuries sustained by the deceased and also considering the facts and circumstances of the case, I am of the view that the complicity of the accused/appellants in the commission of the offence has been duly proved by the prosecution and thus looking to the act of appellants and the evidence adduced by the prosecution, their conviction under Sections 304 Part II/34 and 323/34 IPC appears to be justified. 21. However, looking to the facts and circumstances of the case and keeping in mind the fact that the incident occurred in a spur of moment as they were intoxicated and there is no premeditation and there is no intention to kill the deceased, there are no criminal antecedents against the appellants and the appellants are in jail since 20.06.2023, I am of the view that ends of justice would be served if the sentence imposed on them is reduced to the period undergone by them. 22. Consequently, the appeal is allowed in part. Accused/appellants are in jail, they be set at liberty forthwith, if not required in any other case. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 12:38:01 +0530