1 2025:CGHC:3874-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 315 of 2023 Raju Kadhti @ Mitthu Alias S/o Budhram Kadthi Aged About 28 Years R/o Nayapara Gadamalli, Police Station Jangla, District Bijapur (C.G.) ... Appellant versus State of Chhattisgarh Through Police Station Constable Center Jangla, District Bijapur (C.G.) ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Rishabh Chandra Singh Deo, Advocate For Respondent-State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board (22.01.2025) Per Ramesh Sinha , Chief Justice 1. Heard Mr. Rishabh Chandra Singh Deo, learned counsel for the appellant as well as Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State/respondent. 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.01.23 14:33:53 +0530 2 sentence dated 15.12.2022, passed by the learned Additional Sessions Judge, Special Judge (Naxal), Dantewada, District South Bastar Dantewada (C.G.) in Sessions Case No.349 of 2017, by which the appellant has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for one year. 3. The case of the prosecution, in a nutshell, is that, on 12.08.2017 at about 12.00 Noon, at village Nayapara Gadamalli within the ambit of Police Station Jangla, District Bijapur (C.G.), the appellant-accused has assaulted his wife by means of wooden stick upon her head due to which, she sustained grievous injury and died. and thereby the appellant-accused has committed aforesaid offence. 4. Further case of the prosecution is that the complainant Pandu (father of the deceased) lodged a report at Police Station Jangla alleging therein that his son-in-law Raju Kadti always quarreled with his wife Tulsi, doubting upon her character and the said fact was told by Tulsi to him. It has been further alleged that on 12.08.2017, at about 12:00 Noon, in the courtyard of the house, the accused Raju Kadti, doubting his wife Tulsi's character, started a quarrel and threatened to kill her and assaulted on her head with the help of wooden stick, due to which, Tulsi suffered serious head injuries. When complainant Pandu went to intervene, the accused threatened to kill him too and assaulted him on the head with a wooden stick and fled from the spot. In relation 3 to the said incident, Dehatinalishi was recorded vide Ex.P/3 and merg intimation was also recorded vide Ex.P/8. On the basis of Dehatinalishi (Ex.P/3), First Information Report was registered in zero at Bijapur Police Station vide Ex.P/6 and on the said basis, numbered First Information Report was registered at Jangla Police Station vide Ex.P/7. Site map of the incident and crime details form were prepared vide Ex.P/2 and Ex.P/9, respectively. Memorandum statement of the appellant was recorded vide Ex.P/7, based upon which, one axe along with wooden handle was seized vide Ex.P/8 at the instance of the appellant. Clothes of the deceased was seized vide Ex.P/10. The dead body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/1), Dr. Gyanendra Kumar (PW-5) opined that the cause of death seems to be cardio-respiratory failure as a result of head injury and nature of death is homicidal. Thereafter, appellant- accused was arrested vide Ex.P/11. The seized articles were sent to the office of Joint Director Regional Forensic Science Laboratory Ambikapur, Surguja (C.G.) for chemical analysis, but the FSL report has not been exhibited. 5. After completion of the investigation, the appellant was charge- sheeted for the offence punishable under Sections 302 and 307 of the IPC before the concerned jurisdictional Court and thereafter, the case was committed to the Court of Sessions from where the case was transferred to the Court of Additional Sessions Judge, Special Judge (Naxal) Dantewada, District South Bastar Dantewada (C.G.) for hearing 4 and trial in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entered for trial. 6. During the course of trial, in order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 11 documents. In defence, no witness has been examined, but two documents have been exhibited. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 7. After conclusion of the trial, the learned trial Court, by impugned judgment dated 15.12.2022, on appreciation of the oral and documentary evidence available on record, has convicted and sentenced the appellant-accused as mentioned herein-above, against which, this appeal has been preferred by the appellant-accused calling in question the legality, validity and correctness of the impugned judgment. 8. Mr. Rishabh Chandra Singh Deo, learned counsel for the appellant submits that though the death of deceased Rambai is said to be homicidal in nature, but there was no motive or intention on the part of the appellant-accused and only on account of sudden quarrel and under heat of passion on suspicion of character, the appellant-accused is said to have assaulted his wife, pursuant to which, she sustained grievous injury over her person and died and thereby committed the 5 offence. It is contended that in case of circumstantial evidence, every link should be interconnected and there should be solid evidence in this regard so that only conclusion can be drawn that appellant is found to be guilty. Lastly, it was argued that even if total case of the prosecution is accepted, the case of the present appellant-accused falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant-accused is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant-accused can be converted/altered to an offence under Section 304 Part-I of IPC and, further, since the appellant-accused is in jail since 23.08.2017 i.e. more than 08 years and 05 months, taking into consideration the period he has already undergone, the appellant-accused be released from jail forthwith. Hence, the present appeal deserves to be partly allowed. 9. Per contra, Mr. Shailendra Sharma, 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 by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant-accused for 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 conviction of the appellant- accused under Section 302 of IPC requires to be converted/altered to Section 304 Part-I/304 Part-II of IPC, thus, the present appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their 6 rival submissions and gone through records with utmost circumspection. 11. The first and foremost question is as to whether the death of the deceased was homicidal in nature ? 12. The learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly, considering postmortem report (Ex.P/1) which is duly proved by the evidence of Dr. Gyanendra Kumar (PW-5). Accordingly, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased Tulsi is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding. 13. Now in order to prove guilt of appellant, we shall examine the case on the basis of evidence set-forth before the trial Court. The case of the prosecution is based on circumstantial evidence. The Supreme Court in the matter of Sharad Birhichand Sarda v. State of Maharashtra1 has laid down the following five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence:- “153. A close analysis of this decision would show that the following conditions must be 1 (1984) 4 SCC 116 7 fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, 8 (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 14. As regards the next question as to whether the appellant is author of the crime and has caused death of his wife, Tulsi, the learned trial Court has also recorded in affirmative by relying upon the testimony of Dr. Gyanendra Kumar (PW-5), who conducted postmortem had opined that the cause of death is cardio-respiratory failure as a result of head injury. The Doctor ultimately opined through his report the nature of death to be homicidal. Thus, on the basis of testimony of Dr. Gyanendra Kumar (PW-5), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to the deceased, due to which she died. As such, the learned trial Court has rightly held that it is the appellant/accused who has caused injuries over the body of the deceased and caused her death. Accordingly, we hereby affirm the said finding. 15. The aforesaid finding brings us to the next question for 9 consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 16. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana2 has 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 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 2 (2002) 3 SCC 327 10 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.” 17. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana3 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 of the IPC, 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 fro 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; (c) The intention/knowledge of the accused while inflicting the blow or injury; 3 (2009) 15 SCC 635 11 (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 without 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 to cause 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 12 accused after the incident. Whether the accused had taken the injured/the deceased to the hospital 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.” 18. Likewise, in the matter of State v. Sanjeev Nanda4, 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 4 (2012) 8 SCC 450 13 years or with fine or with both. It has 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. 19. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh5 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 5 (2017) 3 SCC 247 14 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 15 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 16 manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 20. 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 the 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 the IPC. 21. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)6 has laid down four ingredients which should be tested to 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; (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.” 6 (2019) 6 SCC 122 17 22. Smt. Somli (PW-3), who is mother of the appellant, has stated in her deposition that the accused is her son and deceased Tulsi was the wife of accused Raju Kadti and Pandu is the father of deceased Tulsi. She further deposed that the incident took place last year during Rakhi festival and on the date of incident, she along with Tulsi and her father Pandu had gone to the forest to cut wood and appellant was also went to the forest to collect Basta (vegetable obtained from bamboo). At about 3:00 PM, accused was assaulting his wife Tulsi, then his father-in- law came to rescue her and he also suffered injuries in the incident. She deposed that appellant has assaulted his wife with the help of axe, due to which she fell down. Tulsi suffered injuries over her temporal region and Pandu suffered injuries over his upper side of his head. 23. Conviction of the appellant-accused is mainly based on the evidence of Dr. Gyanendra Kumar (PW-5), who has conducted postmortem on the body of deceased, vide Ex.P/1 and he found following injuries on the dead body of the deceased:- “The body of the deceased was of normal height and was covered with blue, red, orange and multicoloured blankets. The deceased was wearing a green gown, a black bra, a black necklace, earrings in both ears, a nose ring on the left side of the nose, a blue bangle on the left wrist, 3 blue and 1 red bangle on the right wrist and a toe ring on the second toe of both feet. 18 The face of the deceased was red, eyes were swollen. The pupils were blurred, the mouth was half-open and the tongue was inside, both the hands were separate. The upper and lower arms of the deceased were straight. It was not possible to determine the postmortem stiffness on the body of the deceased, because the deceased was kept in the freezer on 14.08.2017. The postmortem redness present on the back of the deceased was pink in colour. The following antemortem injuries were also found on the body of the deceased :- (01) On the dorsal side of the deceased's body there was a straight sharp cut wound measuring 15 x 0.5 cm on the middle part of both scapulae which was dragged upto the muscle. The lower end of the 6th scapula was going downwards. (02) Deceased had a medically stitched wound on left fronto-parietal part of head measuring 4 cms in length with 5 stitches. This wound was present 5.4 cms above the outer part of left eye brow. The underlying muscle was reddened. Left temporalis muscle was 19 reddened. There were torn fractures in the skull, that is, crater and linear fractures were present on left parietal, left frontal, right parietotemporal part. The crater fracture extended upto the brain. Subdural and subarachnoid blood stains were present all over the brain. Cerebellum was reddened, blood clotted in the frontal part of brain below the frontal lobe. The above injuries are shown in the photograph. Upon internal examiantion, he found that all the remaining internal organs of the deceased were red. About 20 ml of brown pasty substance was present in the stomach of the deceased. Internal mucosa was normal. The uterus of the deceased was enlarged which had reached the navel, the size of which was 21 x 17 cm, inside which a male foetus was present, the length of which was 25 cm and the age of the foetus was about 5 months. Opinion- The deceased died due to cardiac arrest and respiratory failure. Which was caused by head injuries. This injury was sufficient under normal circumstances to cause the death of the deceased. This injury was 20 caused by a heavy and heavy sharp instrument. The deceased's clothes and viscera were preserved, sealed and handed over to the concerned constable. The deceased died on 13.08.2017 at 08.30 pm in Maharani Hospital, Jagdalpur.” 24. According to Dr. Gyanendra Kumar (PW-5), the cause of death of deceased is cardio-respiratory failure as a result of head injury and the nature of death to be homicidal. It has been also opined by the concerned Doctor i.e. Dr. Gyanendra Kumar (PW-5) that the injury caused to the deceased has been by the sharp edged weapon and the same may be caused by the wooden stick. 25. Reverting to the facts of the present case, in light of principles of law laid down by their Lordships of the Supreme Court in the above- stated judgments, it is quite vivid that the Pandu (father of the deceased) has lodged a First Information Report alleging that, on the date of incident, some quarrel took place between the appellant and the deceased on the suspicion of character of the wife, then out of anger and on sudden quarrel, the appellant assaulted the deceased with wooden stick on her head, by which she suffered grievous injuries and died and upon his memorandum, incriminating article i.e. wooden stick has been recovered from his instance, which was sent for chemical examination but the FSL report has not been exhibited. It is apparent that though there was no premeditation on the part of the appellant to cause death of deceased as the appellant did not had any intention to 21 cause death of deceased, but by causing such injury, he must had the knowledge that such injuries inflicted by him would likely to cause death of his wife, as such, his case 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 or unusual manner. 26. Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that at present appellant- Raju Kadhti @ Mitthu is aged about 28 years and he is in jail since 23.08.2017 i.e. more than 08 years and 05 months, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-I of the IPC. 27. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 10 years. 28. The appellant is stated to be in jail since 23.08.2017 being the date of arrest. He is directed to serve out the sentence as modified above. 29. The criminal appeal is allowed in part to the extent indicated hereinabove. 22 30. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu