1 2025:CGHC:20662-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1363 of 2017 • Gangaram Kumar S/o Bannu Ram Kumar, Aged About 44 Years R/o Village Kallemeta, Police Station Nagri, District Dhamtari Chhattisgarh ...Appellant versus • State of Chhattisgarh Through Police Station Nagari, District Dhamtari Chhattisgarh ... Respondent For Appellant : Mr. Hanuman Prasad Agrawal, Advocate For Respondent/State : Mr. Ashutosh Shukla, Panel Lawyer Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (06/05/2025) Deepak Kumar Tiwari , J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 05.08.2016 passed by PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.05.08 10:47:07 +0530 2 the Sessions Judge, Dhamtari in ST No.17/2016 by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo RI for life and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo RI for 1 month. 2. Case of the prosecution, in brief, is that on 13.3.2016 at about 5:20 pm, in village Kallemeta, PS Nagri, a hot talk took place between Dashrath Ram Kamar (PW-6) and the appellant regarding worship of god and goddess. In the said quarrel, the appellant picked up a wood stick and tried to hit Dashrath Kamar (PW-6). The deceased, who is the brother of Dashrath Kamar (PW-6), came to his rescue, on which, the appellant assaulted the deceased by using a club, as a result of which, he died on the spot. Merg intimation (Ex.-P/1) was recorded on 13.03.2016 at about 21:40 hours and the FIR (Ex.-P/2) was registered against the appellant. Crime details form was prepared vide Ex.-P/3. The spot map was prepared vide Ex.-P/4. After issuing the notice vide Ex.-P/5, an inquest report (Ex.-P/6) was prepared. The dead body of the deceased was sent for postmortem examination, which was conducted by Dr. A.K. Gour (PW-8) and he gave his report (Ex.P/10), in which, he found that the cause of death was on account of head injury. The wooden stick, which was used in the offence, was seized vide Ex.P/7. Statements of witnesses were recorded. After completion of the 3 investigation, the charge sheet has been filed. Thereafter, the case was committed to the Court of Sessions. 3. During the trial, the appellant/accused abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 8 witnesses and exhibited 14 documents. Appellant in his examination under Section 313 of the CrPC stated that he has been falsely implicated in the case. 4. Upon appreciation of fact and evidence, the trial Court came to the conclusion that the appellant had committed the offence and thereby, convicted and sentenced him as mentioned supra. Thus, this Appeal. 5. Learned counsel appearing for the appellant submits that the learned trial Court has wrongly convicted the appellant for the offence under Section 302 of the IPC. He submits that even if the case is taken at its face value, the case would not travel beyond Section 304 (Part-II) of the IPC, as a sudden quarrel took place between the brothers and the appellant assaulted the deceased with a lathi by giving a single blow, as a result of which, the deceased succumbed to the injuries. There was no repeated blows. Therefore, it is evident that there was no motive or intention to kill the deceased. He prays to alter the conviction from Section 302 of the IPC to Section 304 (Part-II) of the IPC. He lastly submits that since 4 the appellant has already suffered the jail incrimination for 7 years & 5 months; he may be sentenced to the aforesaid period. 6. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence. He would submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the evidence of Dashrath Kamar (PW-6), it is clear that the appellant is the person who assaulted the deceased and the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC. It is also submitted that Exception 4 to Section 300 of the IPC is not attracted in this case and it is not a case where conviction of the appellant under Section 302 of the IPC requires to be altered to Section 304 (Part-II) of the IPC. Thus, the present Appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/10), wherein it has been opined that cause of death of deceased is head injury, which is duly proved by the statement of Dr. A.K. Gour (PW-8). Accordingly, taking into consideration the 5 postmortem report (Ex.P/10) and the statement of Dr. A.K. Gour (PW-8), who has conducted the postmortem on the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record. We hereby affirm the said finding. 9. In order to base conviction, the trial Court has relied upon the evidence of daughter of the deceased namely, Anita (PW-1), Surjan Singh (PW-2), Kaushilya (PW-3), Kamitala (PW-4), Surit Kumar Kamar (PW-5) and Dashrath Kamar (PW-6). They have categorically stated that the appellant is the person who assaulted the deceased. Dashrath Kamar (PW-6) categorically deposed that when he and the appellant were quarreling, deceased Jhanglu Ram came to the rescue for pacifying both of them and also asked them to stop the quarrel. However, suddenly, the appellant assaulted the deceased from the back with a club on his head, causing the deceased to fall down and thereafter, the appellant ran away. Similar is the statement of the daughter of the deceased Anita (PW- 1), who stated that there was a quarrel between Dashrath Kamar (PW-6) and the appellant with regard to worship of god and goddess. Her father had gone to settle the above dispute and thereafter, when he was returning back, suddenly the said incident 6 took place. From the aforesaid evidence, it is explicit that the appellant is the author of the crime in question, who caused the injury to the deceased on his head, on account of which, he succumbed to the said injury. 10. The aforesaid finding brings us to the next question for consideration, which is, 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? 11. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana1 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 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; (d) Whether the death ensued instantaneously or 1 (2009) 15 SCC 635 7 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 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.” 8 12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh2 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which read 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 is it 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 2 (2017) 3 SCC 247 9 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 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”. 13. 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 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. 14. From the evidence of Dashrath Kamar (PW-6), it is vivid that the incident took place suddenly without any premeditation or intention to cause the death of the deceased. The appellant and the witnesses were quarreling and the deceased came to their rescue, on which, 10 the appellant hit the deceased. Taking into consideration the injuries sustained by the deceased, though the appellant had no intention to kill the deceased, it is vivid that only a single blow was given by lathi and there was no repeated blows. Therefore, from the aforesaid evidence, it is evident that the appellant must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death, as such, this is a case which this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 of the 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. Therefore, we are of the opinion that conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 (Part-II) of the IPC. 15. In view of the aforesaid discussion, conviction of the appellant for offence under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the trial Court is hereby set aside. Instead thereof, the appellant is convicted for offence under Section 304 (Part-II) of the IPC and, for which, since the appellant remained in jail for more than a period of 07 years, he is sentenced to the period already undergone by him. However, the fine sentence 11 and default stipulation imposed by the trial Court shall remain intact. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bond shall remain in force for a further period of six months in view of the provision contained under Section 437-A of the CrPC. 16. This Criminal Appeal is partly allowed to the extent indicated herein-above. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Priyanka