1 2025:CGHC:19826-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 373 of 2018 {Arising out of judgment dated 16.10.2017 passed in Sessions Trial No.83/2014 by the learned Sessions Judge, Mahasamund} Manoj Singh Thakur, S/o. Late Ramkripal Singh Thakur, Aged About 45 Years, R/o. Ganjpara, Near Bamleshwari Mandir, Mahasamund, Police Station & District Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The Station House Officer, Police Station Mahasamund, District Mahasamund, Chhattisgarh. ... Respondent For Appellant : Mr. Mirza Keshar Beg, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (01.05.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.05.03 14:51:41 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 16.10.2017, passed by the learned Sessions Judge, Mahasamund, in Sessions Trial No.83/2014, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC : Imprisonment for life and fine of Rs.1000/-, in default of payment of fine, 6 months additional rigorous imprisonment. U/s. 323 of IPC : Rigorous imprisonment for 1 year. U/s. 25 of Arms Act, 1959. : Rigorous imprisonment for 3 years and fine of Rs.1000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. U/s. 27 of Arms Act, 1959. : Rigorous imprisonment for 3 years and fine of Rs.1000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. All the sentences to run concurrently. 3 2. Case of the prosecution, in brief, is that on 18.09.2014, about 9:00 A.M. at Mahasamund, the appellant herein made gunshot injury to his mother-in-law Sukhwati (now deceased) by which, she suffered grievous injury and died. The appellant has also threatened his wife Shyama Bai (PW-3) and he also found in possession of country made pistol without any license and thereby, the aforesaid offences have been committed. The matter was reported to the police, pursuant to which, FIR was registered vide Ex.P-15, Inquest was conducted vide Ex.P-2 and dead body of deceased Sukhwati was subjected to post-mortem, which was conducted by Dr. Arvind Gupta (PW-17), who proved the post-mortem report vide Ex.P-27, according to which, cause of death was stated to be cardio respiratory arrest because of hemorrhagic shock due to gunshot injury and death was homicidal in nature. The country made pistol, live cartridge & fired cartridge were seized from the appellant, which were sent for examination to Central Forensic Science Laboratory vide Ex.P-29 as under : “Details of the Parcels/Exhibits received : Parcel No. No. of Seals & Impression Description 01 Four (04) “7” Ex. A One sealed doth parcel stated to contain one country made pistol marked as Ex.A in the laboratory. 4 02 Four (04) “7” Ex. B One sealed doth parcel stated to contain three 8 mm cartridges marked as Ex.B/1 to Ex.B/3 in the laboratory. 03 Five (05) “7” Ex. C One sealed doth parcel stated to contain one fired 8 mm cartridge case marked as Ex.C in the laboratory. 04 One (01) “SHA.SWA.KENDR MAHASAMUND” in Hindi script Ashoka emblem at the centre Ex. D One sealed plastic box stated to contain one fired 8 mm bullet marked as Ex.D in the laboratory. RESULTS OF EXAMINATION/OPINION The exhibits marked Ex.A, Ex.B/1 to Ex.B/3, Ex.C and Ex.D were examined and the following opinions are formed. 1. The Exhibit marked Ex.A was examined and found to be a country made pistol. 2. The barrel swabs of the country made pistol marked Ex.A were taken for chemical examination. On chemical examination firing discharge residues were detected. I therefore, came to conclusion that the country made pistol marked Ex.A had been fired through. 3. The 8mm cartridges marked Ex.B/1 to Ex.B/3 were test fired through the country made pistol marked Ex.A in the laboratory. On test firing the 8mm cartridges marked Ex.B/1 to Ex.B/3 were found to be live and the country made pistol marked Ex.A was found in working condition. 4. On thorough examination and comparison of individual characteristic marks present on the crime and test fired cartridge cases under Comparison Microscope, I came to the conclusion that the fired 8mm cartridge case marked Ex.C had been fired through the country made pistol marked Ex.A and it could not had been fired through any other firearm because every firearm has its own individual characteristic marks. 5. On thorough examination and comparison of individual characteristic marks present on the crime and test fired bullets under Comparison Microscope, I came to the conclusion that the fired 8mm bullet marked Ex.D had been fired through the country made pistol marked Ex.A and it could not had been fired through any other firearm because every firearm has its own individual characteristic marks.” 5 3. After due investigation, the appellant was charge-sheeted for the aforesaid offences 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 appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 4. In order to bring home the offence, prosecution examined as many as 18 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has examined only one witness DW-1 but has not exhibited any document. 5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offences as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 6. Mr. Mirza Keshar Beg, learned counsel for the appellant, would submit that the statements of eye-witnesses Yog Maya Singh (PW-2) and Shyama Rajput (PW-3) could not have been relied upon by the trial Court to base the conviction and even otherwise, it is a case where only it can be said that there was 6 knowledge but the appellant has no intension to cause death and, as such, the conviction of appellant for the offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as the appellant is in jail since 19.09.2014 i.e. more than 10 years. 7. Mr. Sharad Mishra, 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 appellant for the aforesaid offences. He would further submit that it is not a case where the conviction of appellant 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. 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 as to whether the death of deceased Sukhwati was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-27) proved by Dr. Arvind Gupta 7 (PW-17), according to which, cause of death was stated to be cardio respiratory arrest because of hemorrhagic shock due to gunshot injury and death was homicidal in 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. 10. Now, the next question is, whether the appellant has caused the death of his mother-in-law i.e. deceased Sukhwati ? 11. The conviction of the appellant is based on the testimony of his daughter Yog Maya Singh (PW-2) and his wife Shyama Rajput (PW-3) who were eye-witnesses and furthermore the country made pistol alongwith live cartridges & used cartridge were recovered from the appellant and as per the ballistic expert report (Ex.P-29), the fired 8mm bullet marked as Ex.D had been fired through the seized country made pistol marked as Ex.A and it could not had been fired through any other firearm because every firearm has its own individual characteristic marks. In that view of the matter, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who had caused the death of deceased 8 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. 12. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ? 13. 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 1 (2017) 3 SCC 247 9 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 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 10 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”. 14. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)2 has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of I.P.C., which reads as under: “16. A plain reading of Exception 4 to Section 300 I.P.C. 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.” 15. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that as per the statement of Shyama Rajput (PW-3), wife of the appellant herein, the dispute occurred between the appellant and his wife, as the appellant 2 (2019) 6 SCC 122 11 was trying to sell liquor, which his wife (PW-3) had opposed, on account of which, quarrel has taken place between them and all of a sudden, the deceased came on the spot and asked them why they were quarreling and she also told the appellant that he always used to threaten her for life, if he has guts to kill, show to her and on that provocation, the appellant went inside the house and came with revolver and fired on his mother-in-law (deceased). As such, as per the statement of eye-witness Shyama Rajput (PW-3) since the deceased came to intervene the dispute between the appellant and his wife (PW-3) and provoked the appellant to kill, he is said to have made the gunshot on the deceased. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injury caused by him is likely to cause death and, as such, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted to Section 304 Part-II of IPC. 16. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to undergo 12 10 years rigorous imprisonment, which he had already undergone as he is in jail since 19.09.2014 i.e. more than 10 years. However, the conviction & sentence awarded to the appellant for the offences under Section 323 of IPC, under Sections 25 & 27 of the Arms Act shall remain as it is, which he had already suffered. Accordingly, the appellant be released forthwith from jail, if his detention is not required in any other offence. 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. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok