1 2025:CGHC:50024-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 881 of 2015 1 - Krishna Yadav @ Tinna S/o Narayan Yadav Aged About 23 Years R/o Near Shankar Mandir, Chamda Godam, Adarsh Nagar Raigarh, P.S. Kotwali, District Raigarh, Chhattisgarh, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through P.S. Janjgir, District Janjgir-Champa, Chhattisgarh, Chhattisgarh ---- Respondent For Appellant : Mrs. Kiran Jain, Advocate. For State : Mr. Ajay Pandey, G.A. Division Bench : Hon'ble Smt. Rajani Dubey and Hon'ble Shri Amitendra Kishore Prasad, JJ. Judgment on Board (08.10.2025) Amitendra Kishore Prasad, J 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 conviction and order of sentence dated 30.06.2015 passed in Sessions Trial No.66/2015 by the learned 2nd Additional Sessions Judge, Janjgir, C.G., by which, the appellant stands convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.2,000/-, in default of payment of fine amount to undergo additional simple imprisonment for two months. 2. Case of the prosecution, in brief, is that on 29.01.2015, PW-1/complainant- Vijay Singh Rajput reported at Janjgir Police Station that he and others were working as painters under contractor Ravi Nirmalkar (hereinafter called as ‘deceased’) at Aparajita TVS Showroom, Janjgir, and were residing on its third floor. On the date of the incident, at about 9:00 p.m., after dinner, deceased went to the terrace, where accused- Krishna Yadav alias Tinna, who had recently returned to work, demanded his wages. When deceased expressed inability to pay immediately, accused-Krishna Yadav, in anger, assaulted him on the head with a wooden plank, by which, deceased suffered grievous injuries and fell unconscious. Thereafter, the co-workers caught the accused/appellant while the injured was taken to the hospital, where he was declared dead. On this report, FIR (Ex.P-1) was registered at Police Station Janjgir against appellant-Krishna Yadav alias Tinna for committing the murder of deceased-Ravi Nirmalkar. Thereafter, merg intimation was recorded vide Ex.P-12 and spot map (Ex.P-9) was prepared. Inquest proceeding was 3 conducted vide Ex.P-3 and dead body of deceased was sent for postmortem examination which was conducted by PW-20 Dr. Vijay Shrivastava, who has proved the postmortem report Ex.P-20. According to the postmortem report, the cause of death of the deceased was a head injury resulting in intracranial hemorrhage and its complications. During investigation, memorandum statement of the appellant was recorded vide Ex.P/04, pursuant to which, blood like stained wooden plank were seized vide Ex.P-05. From the spot, blood stained soil and plain soil were seized Ex.P- 06. Vide Ex.P-7, clothes of appellant were seized. Seized articles were sent to FSL for chemical examination vide Ex.P-18, but no FSL report has been brought on record. 3. After due investigation, appellant was charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which, appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence. 4. In order to bring home the offence, prosecution has examined as many as 21 witnesses and brought on record 22 documents whereas, the appellant in defence has examined none and not exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 4 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred. 6. Learned counsel for the appellant submits that, even if the prosecution's case is accepted in its entirety, no offence under Section 302 of the IPC is made out against the present appellant, as it is not a case of murder. Accordingly, it is contended that his conviction is liable to be set aside. Alternatively, it is submitted that the case of the appellant would fall under Exception 4 to Section 300 of the IPC, and therefore, his conviction under Section 302 IPC may be altered to one under Part II of Section 304 IPC. It is further submitted that the appellant has already undergone a sentence of six years and eleven days, he has no criminal antecedents and he has been facing the lis since 2015. Hence, it is prayed that he be sentenced to the period already undergone by him. 7. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the IPC. It is further submitted that this is not a case falling under Exception 4 to Section 300 of the IPC; as such, the appellant’s conviction cannot be converted to one under Part II of Section 304 of the IPC. Therefore, the instant appeal deserves to 5 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 question for consideration would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-20) proved by Dr. Vijay Shrivastava (PW-20), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10.The question that now arises is whether the appellant is the author of the crime in question. 11. Upon consideration of the statements of PW-1 (Vijay Singh Rajput) and PW-2 (Ravindra Nirmalkar), who are eyewitnesses to the incident and have clearly supported the prosecution's case, it is evident that the it was the appellant who assaulted the deceased with a wooden plank, by which, he suffered grievous injuries and died. In addition, pursuant to the memorandum statement of the appellant, wooden plank were recovered and seized. The trial Court, after considering oral and documentary evidence available on record, clearly recorded a finding that it was appellant who has committed the offence. Such finding, in our considered opinion, is a 6 finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 12.Now, the question that requires consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant? 13.In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 wherein it has been observed as under :- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts 1 (2002) 3 SCC 327 7 below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 14.The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana2, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; 2 (2009) 15 SCC 635 8 (c)The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused with premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital 9 immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 15.Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It is further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 3 (2012) 8 SCC 450 10 16.Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 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 4 (2017) 3 SCC 247 11 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 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 12 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”. 17.In the matter of Arjun (supra), the Supreme Court has held that when and 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 of IPC. 18.Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)5 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: “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; 5 (2019) 6 SCC 122 13 (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.” 19.Reverting to the facts of the present case and in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the statements of PW-1 (Vijay Singh Rajput) and PW-2 (Ravindra Nirmalkar), who are the eye- witnesses to the incident, that on the date of incident, quarrel took place between the appellant and deceased with regard to payment and when deceased refused to pay money to the appellant immediately, appellant, out of anger, assaulted him with wooden plank and caused grievous injuries to the deceased, by which, he died. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injury found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased- Ravi Nirmalkar, on a sudden quarrel erupted between them and out of sudden anger, in the heat of passion, appellant assaulted the deceased with wooden plank, by which, he suffered grievous injuries over his body leading to his death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased, but no intention of causing his death can be attributed to him. 14 20.In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. 21.As regards the sentence, considering the facts and circumstances of the case, further considering the fact that appellant has no criminal antecedents, he has remained in jail for six years and 11 days and he is facing the lis since 2015, therefore, ends of justice would be served, if appellant is sentenced to the period already undergone by him. Accordingly, the appellant is sentenced to the period already undergone by him. However, the fine amount imposed by the trial Court shall remain intact. 22.In the result, the criminal appeal is partly allowed. 23.The appellant is reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for 15 grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 24.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha