1 2025:CGHC:3578-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 297 of 2022 Vijay Korwa S/o Haricharan Korwa Aged About 40 Years R/o Village Lamori, Police Station Basantpur, Police Station Shankargarh, District Balrampur-Ramanujganj, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Basantpur, District Balrampur-Ramanujganj, Chhattisgarh ... Respondent(s) For Appellant : Mr.Samir Singh, Advocate For Respondent : Mr.Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, C.J. 21/01/2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 31.12.2021 passed by the learned Second Additional Sessions Judge, Ramanujganj in Sessions Case No.50/2015, whereby the appellant-accused has been convicted for offence under Section 302 of the IPC and BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.22 10:32:26 +0530 2 sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine, to further undergo RI for two months. 2. Case of the prosecution, in brief, is that on 20.02.2015 complainant Birsai lodged a report in Basantpur Police Station to the effect that on 13.02.2015 (Friday), he had gone to village Lamori to see his daughter Basanti and stayed overnight at the daughter’s and son-in- law’s house. On 14.02.2015 at about 11 A.M. when he was leaving to return to his house, his son-in-law Vijay said, why did you come to our house to see your daughter, we do not talk to each other, today I will kill you and finish you off, saying this he assaulted him once with sharp edge of axe on the back of his neck with an intention of killing him, blood started flowing from the cut and he fell down, then his son-in-law Vijay ran away, later he called 108 ambulance from Wadrafnagar Hospital and took his daughter Basanti and his brother-in-law Haricharan to Wadrafnagar Hospital in 108 ambulance, from there on the advice of the doctor to take him to Ambikapur, he was admitted and treated in the District Hospital, Ambikapur on 14.02.2015. On 17.02.2015 he was brought back to his home in Palgi . When his injury did not heal, he went to Dhana with his daughter Basanti and elder brother Ramdev to report the matter. On the basis of the aforesaid report of the complainant, First Information Report No.13/2016 under Section 307 of the IPC was registered at Police Station Basantpur vide Ex.P-36. 3. In the course of investigation, accused Vijay Korwa was taken into 3 custody and memorandum of the accused was recorded in front of witnesses as Ex.P-6. Thereafter, as per thee statement given by the accused, axe was seized from the possession of the accused vide Ex.P-7. Inquest was prepared over the body of the deceased vide Ex.P-4. Bloodstained soil and plain soil were seized from the spot vide Ex.P-5. Thereafter, during the investigation, the investigating officer had prepared the spot map of the incident (Ex.P-37) in front of witnesses at the spot itself for preparing the site panchnama in front of witnesses and a report was sent to the Tahsildar for preparing the site map of the site, on the basis of which the concerned Patwari had prepared the site map Ex.P-9. The appellant was arrested on 21.03.2015 vide arrest memo Ex.P-8. During the treatment, Birsai died on 21.03.2015. Postmortem was conducted by Dr.Govind Singh (PW-14) vide Ex.P-27 and found that there was a stitched injury in a horizontal position at the back of the neck. He opined that the deceased died due to shock which caused injury to vital organs. The nature of death was homicidal. Bloodstained soil, plain soil and axe were sent to FSL for examination and as per FSL report, blood was found on axe seized from the appellant. 4. Statements of the witnesses were recorded. After due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Wadrafnagar, who in turn, committed the case to the Court of Additional Sessions Judge, Ramanujganj. The appellant/accused abjured his guilt and entered into defence that he has not committed any offence and he has been falsely been 4 implicated in crime in question. 5. In order to bring home the offence, the prosecution examined as many as 17 witnesses and exhibited 41 documents. The appellant- accused examined none in his defence, nor any document has been exhibited in support of his case. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 31.12.2021, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 7. Mr.Samir Singh, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment. There was no motive or intention on the part of the appellant to cause death of the deceased and the dispute arose all of sudden and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 5 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 8. On the other hand, Mr.Hariom Rai, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 9. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 10. The first question for consideration would be, whether death of deceased Birsai was homicidal in nature ? 11. The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Govind Singh (PW-14), who conducted postmortem, has come to the conclusion that cause of death was due to shock which caused injury to vital organs and death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Birsai was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby 6 affirm that finding. 12. Now, the next question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of witness Basanti (PW-1). Thus, on the basis of testimony of Basanti (PW-1), it is clear that it is the appellant who on the fateful date and time has caused grievous injuries to the deceased, due to which he 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 his death. Accordingly, we hereby affirm the said finding. 13. The aforesaid finding brings us to the next question for 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 ? 14. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 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 1 (2002) 3 SCC 327 7 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 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.” 15. The 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 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; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; 2 (2009) 15 SCC 635 8 (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.” 9 16. 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 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. 17. 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 10 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 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”. 18. 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. 19. Further, the Supreme Court in the matter of Rambir v. State (NCT 11 of Delhi)5 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.” 20. In the present case, Basanti (PW-1) is eyewitness of the incident. In para 2 of her evidence, she has stated that on the morning of the incident, her father was leaving her in-laws house to go to his house, at that time, the accused assaulted her father on the neck with axe, due to which her father fell down on the spot. At that time, her brother-in-law came and called a vehicle from Wadrafnagar and took her father to Wadrafnagar Hospital for treatment, from where he was taken to Ambikapur Hospital for further treatment. In para 4, she has stated that her father was treated in Ambikapur hospital for four days, after that he was brought home, but his condition was not good and after fifteen days her father died. 21. 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 (supra), it is quite vivid that the dispute arose when deceased Birsai was leaving the house of her daughter to his house, at that time, some quarrel took place between the accused 5 (2019) 6 SCC 122 12 and the deceased, then out of anger and on sudden quarrel, the appellant assaulted Birsai by axe, by which he received grievous injuries and died after 35 days of the incident. There was no premeditation on the part of the appellant to cause death of deceased Birsai, only on a petty ground the quarrel took place between the appellant & the deceased and out of that anger and in heat of passion, the appellant assaulted Birsai by knife by which he died. The appellant did not have any intention to cause death of deceased Birsai, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of Birsai, 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. 22. Considering the above-stated facts, also considering the evidence of eyewitness Basanti (PW-1), evidence of Dr.Govind Singh (PW-14) and taking into consideration that the appellant is in jail since 21.03.2015, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 13 23. Accordingly, conviction and sentence of the appellant for offence under Section 302 of the IPC are set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo RI for 10 years. 24. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 25. The criminal appeal is partly allowed to the extent indicated herein- above. 26. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, 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 with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu