1 2025:CGHC:21573-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1718 of 2017 {Arising out of judgment dated 17.08.2016 passed in Sessions Trial No.83/2014 by the learned First Additional Sessions Judge, Rajnandgaon} 1 - Toran Nishad, S/o. Ashok Nishad, Aged About 28 Years, R/o. Village Singdai, Ward No. 41, Police Station Basantpur, District Rajnandgaon, Chhattisgarh. 2 - Ganesh Nishad, S/o. Ashok Nishad, Aged About 20 Years, R/o. Village Singdai, Ward No. 41, Police Station Basantpur, District Rajnandgaon, Chhattisgarh. ... Appellants versus State Of Chhattisgarh, Through the Station House Officer, Police Station Basantpur, District Rajnandgaon, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellants : Mr. Ajay Ayachi, Advocate For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.05.13 10:40:08 +0530 2 (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (09.05.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellants under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 17.08.2016, passed by the learned First Additional Sessions Judge, Rajnandgaon in Sessions Trial No.83/2014, by which the two appellants herein have been convicted for the offence under Section 302/34 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.2000/- each, in default of payment of fine, 1 year additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that, on 19.08.2014, the two appellants herein, in furtherance of their common intention, assaulted Udayram Nishad (now deceased) by stone, by which he suffered grievous injuries and died on 20.08.2014; thereby, the offence has been committed. The matter was reported to the police, pursuant to which, Dehati Merg Intimation was recorded vide Ex.P-1, Merg Intimation 3 was registered vide Ex.P-1A, Dehati Nalsi was registered vide Ex.P-2, FIR was registered vide Ex.P-2A, Nazari Naksha was prepared vide Ex.P-4, Inquest was conducted vide Ex.P-20 and dead body of deceased Udayram was subjected to post- mortem, which was conducted by Dr. Rajendra Baraw (PW- 14), who proved the post-mortem report vide Ex.P-16A, according to which, cause of death was stated to be cranio cerebral damage consequent upon blunt force trauma to the head, injuries No.1, 2 & 3 were sufficient to cause death in ordinary course of duration and death was homicidal in nature. Pursuant to memorandum statement of the appellant No.1 (Ex.P-5), stone was seized vide Ex.P-9, which was sent for chemical examination to FSL and as per the FSL report (Ex.P-26A), human blood was found on the seized stone. After due investigation, the appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated. 4 3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 28 documents and the appellants-accused in support of their defence have not examined any witness but has exhibited the documents Ex.D-1 & Ex.D-2. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offence under Section 302/34 of I.P.C. and sentenced them for life imprisonment against which the present appeal has been preferred. 5. Mr. Ajay Ayachi, learned counsel for the appellants, would submit that the trial Court is absolutely unjustified in convicting the appellants for the offence under Section 302/34 of I.P.C., as there was no intention on behalf of the appellants to cause death. He would further submit that as per the statement of eye-witness Radhika Nishad (PW-1), at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellants and they are in jail from 21.08.2014 to 22.06.2023 i.e. 8 years & 10 months; therefore, the conviction of appellants for offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and they be 5 sentenced for the period already undergone and the appeal be allowed in part. 6. Mr. H.A.P.S. Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the aforesaid offence. He would further submit that it is not a case where the conviction of appellants for offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C.; therefore, the 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 question for consideration as to whether the death of deceased Udayram was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-16A) proved by Dr. Rajendra Baraw (PW-14), according to which, cause of death was stated to be cranio cerebral damage consequent upon blunt force trauma to the head, injuries No.1, 2 & 3 were sufficient to cause death in ordinary course of duration and death was homicidal in 6 nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. Now, the next question is, whether both the appellants have caused the death of deceased Udayram ? 10. Considering the statement of eye-witness Radhika Nishad (PW-1), wife of deceased, that the appellants have assaulted the deceased by stone, by which he suffered grievous injuries and died and further considering the fact that pursuant to memorandum statement of the appellants, weapon of offence i.e. stone was seized on which human blood has been found as per the FSL report (Ex.P-26A), we are of the considered opinion that the finding recorded by the trial Court that it is the appellants who had caused the death of deceased is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. 11. Now, the question would be whether the case of the appellants would fall under Exception 4 to Section 300 of I.P.C. and, as such, their conviction under Section 302 of I.P.C. can be 7 altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellants ? 12. The Supreme Court in the matter of Arjun v. State of Chhattisgarh1 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 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 hit 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 1 (2017) 3 SCC 247 8 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”. 13. 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 I.P.C. 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 I.P.C. 9 14. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellants to cause death, as the appellants and deceased both were neighbour and because of abusive language by the son of deceased, Tameshwar, aged about three years, the appellants scolded him, on account of which, quarrel took place between the appellants and deceased and the appellants are said to have assaulted the deceased by stone lying therein. As such, though there was no premeditation and intention on the part of appellants to cause death, but the appellants must have had knowledge that the injuries caused by them is likely to cause death. Accordingly, it is a fit case where the conviction of appellants for offence under Section 302 of I.P.C. deserves to be converted to Section 304 Part-II of I.P.C. 15. In view of the above, the conviction of appellants for offence punishable under Section 302 of I.P.C. is altered/modified to Section 304 Part-II of I.P.C. and the appellants are sentenced to the period already undergone, as they remained in jail from 21.08.2014 to 22.06.2023 i.e. 8 years & 10 months. 10 16. The appellants are on bail, they need not surrender; however, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok