1 / 15 2025:CGHC:15391-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 286 of 2021 1 - Smt. Sunita Bai Wife of Shivbrat Aged About 28 Years Resident of Village Shardapur, Barpara, Police Station Chalgali, District Balrampur Ramanujganj (Chhattisgarh) ... Appellant versus 1 - State of Chhattisgarh Through Police Station Chalgali, District Balrampur Ramanujganj, (Chhattisgarh) ... Respondent For Appellant : Mr. Vivek Kumar Shrivastava, Advocate For State : Mr. Shailendra Sharma, PL Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board Per, Ramesh Sinha, C.J. 02/04/2025 1. This criminal appeal preferred by the appellant under Section 374 of the Code of Criminal Procedure is preferred against the impugned judgment of conviction and order of sentence dated 09/02/2021 passed by the learned Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, C.G. in Sessions Trial No.R-26/2018, whereby the appellant has been convicted for ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.04.04 13:16:42 +0530 2 / 15 commission of offence under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay fine of Rs.1000/-, in default of payment of fine amount to undergo additional R.I. for 3 months. 2. The prosecution case in brief, is that the complainant Ku. Suman Ayam lodged a report on 30/11/2017 stating therein that on 30/11/2017 at about 3.00 PM while she and her grandfather Basawan were sitting outside of their house, at that time the appellant came there and started assaulting on head, neck of Basawan with spade by saying that today she will kill him and caused grievous injuries to him. When the complainant tried to intervene, the appellant chased her also to assault and in order to save herself she went inside the house. Thereafter, when the appellant fled from the spot, then the complainant came out and saw that her grandfather is lying unconscious and the blood was oozing out from his head. The complainant informed about the incident to her father, who reached on the spot and took Basawan to Wadrafnagar Hospital, where the injured died during the course of treatment on 01/12/2017. On the basis of the complaint lodged by the complainant, the offence under Section 302 IPC was registered against the appellant and after completion of investigation, the charge-sheet was filed. 3. Subsequently, the deceased was subjected to postmortem wherein the cause of death was shown as Comma caused by 3 / 15 head injury leading to cardio pulmonary arrest and the death was homicidal in nature. The police recorded the various statements and the trial Court primarily relied on the statement of eyewitnes Suman (PW-1) and convicted the accused as aforesaid. 4. During the course of trial, the appellant abjured her guilt and claimed to be tried. The prosecution in order to prove the guilt of the appellant examined as many as 15 witnesses and exhibited 24 documents. The trial Court after evaluating the evidence and other material available on record convicted the appellant/accused as aforesaid. Hence this appeal. 5. Learned counsel for the appellant would submit that the eye witness Suman (PW-1) is the relative/ granddaughter of the deceased and she is an interested witness. He would further submit that the alleged weapon which was seized at the instance of appellant was found to be stained with human blood, but in absence of any serological report disclosing the group and origin of the blood, the same cannot be taken against the appellant. He would next contend that there is no motive of the appellant to commit the murder of the deceased. He would further contend that the appellant is mentally unfit, therefore, the sentence may be converted to under Section 304 Part I & II IPC by interfering in the impugned judgment of conviction and order of sentence. 6. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the respondent/State supports the impugned 4 / 15 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 7. We have heard learned counsel for the parties and perused the record. 8. The first question for consideration would be, whether death of deceased Basawan was homicidal in nature ? 9. The postmortem report (Ex. P/7) in this case which is proved by Dr. K.R. Tekam (PW-8). On inspection the following injuries were found:- “External examination- Postmortem stiffness was present in the entire body. There was a scratch on the left hand. There was a wound of 3 x 2 x 1 cm on the upper part of the head. There was a wound of 2 x 2 x 1 cm above the left ear. There was a wound of 2 x 2 x 1 cm on the left side of the head. Internal examination - The skull was filled with clotted blood. The left temporal bone was fractured.” The cause of death was due to cardiac arrest and respiratory failure due to coma caused by head injury before death and death was homicidal in nature. 10. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. K.R. Tekam (PW-8), who conducted postmortem, has come to the conclusion that cause of death was due to cardiac arrest and respiratory failure due to coma caused by head injury before 5 / 15 death 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 Basawan 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 afÏrm that finding. 11. 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 afÏrmative by relying upon the testimony of eyewitness Suman (PW-1), who is the granddaughter of the deceased and at the relevant point of time was present on the spot where the incident took place. The clothes of the deceased i.e. blood stained vest and spade which was used for commission of crime was also seized and the seized articles were sent for FSL and the FSL report was positive. Thus, on the basis of the FSL report and the testimony of Suman (PW-1), 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 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 afÏrm the said finding. 12. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within 6 / 15 Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 13. 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 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.” 14. The Supreme Court in the matter of Gurmukh Singh v. State of 1 (2002) 3 SCC 327 7 / 15 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; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; 2 (2009) 15 SCC 635 8 / 15 (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 sufÏcient 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, 9 / 15 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.” 15. 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. 16. 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) 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 10 / 15 “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 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 11 / 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 sufÏcient 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”. 17. 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 12 / 15 a case of Section 304 Part-II of the IPC. 18. Further, the Supreme Court in the matter of Rambir v. State (NCT 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.” 19. In the present case, Suman (PW-1) (granddaughter of the deceased and the eyewitness of the incident) who lodged an oral complaint to the Police Station Chalgali and on the basis of that information FIR (Ex.P-1) has been lodged. She has stated in his evidence that one year has passed from the date of incident. She stated that she do not remember the day and date of the incident. On the date of the incident she was at her home on that day her grandfather/deceased was sitting outside the house on the place near the wall. Her father had gone to the field, and mother was also not at home, she had gone towards the colony. At the same 5 (2019) 6 SCC 122 13 / 15 time accused Sunita Bai was coming saying give me iron, give me spade, she started hitting my Baba with the edge of the iron spade. Due to which he got injured on the upper part of the ear of his head, due to which a lot of blood oozed out. Then she asked accused Sunita that why are you hitting my grandfather, then accused Sunita started running to hit her also. Then she got scared and entered in the house. After that the accused ran away from there. Then she went to her grandfather since he was unconscious, she sprinkled water on him, and a lot of blood was coming out from his head. She called her aunt, by then the people of the nearby area also reached there. Later she told her father Rajaram, Hardev Ram of the village about the whole incident. After that her father took the deceased to Wadrafnagar Hospital and from there to Ambikapur Hospital, and the deceased died in Ambikapur Hospital on 01/12/2017. She in her cross-examination stated that the accused has been mentally unstable since her child died. She also stated that after the child has died, the accused did not stay at home, she used to run away. She also stated that the accused did not even wear clothes properly. She also stated that after killing her grandfather, the accused ran away from there, she do not know where she ran away. 20. 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 as per evidence of eyewitness Suman (PW-1), on the date of incident, Suman (PW-1) 14 / 15 was sitting outside her house along with her grandfather Basawan, at that time, the appellant assaulted Basawan by spade, by which he received grievous injuries and died during the treatment due to cardio pulmonary arrest as a result of head injury & its complications. There was no premeditation on the part of the appellant to cause death of deceased Basawan on spur of moment. The appellant did not has any intention to cause death of deceased Basawan, but by causing such injuries, she must has had the knowledge that such injuries inflicted by her would likely to cause death of Basawan, as such, her 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. 21. Considering the above-stated facts, also considering the evidence of eyewitness Suman (PW-1), who is the granddaughter of the deceased, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-I of the IPC. 22. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, she is convicted under Section 304 Part- I of the IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1000/- and in default of payment of fine amount to undergo additional R.I. for 3 months. 15 / 15 23. The appellant is in jail and she shall serve out the sentence as modified above. 24. The criminal appeal is partly allowed to the extent indicated hereinabove. 25. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. SD/- SD/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice ashu