1 2026:CGHC:7020-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1869 of 2025 Rahul Choubey @ Nitin S/o Late Ramesh Kumar Choubey Aged About 39 Years R/o House No.1134, Road No.21, Shanti Nagar, Bhilai, Police Station Vaishali Nagar, District : Durg, Chhattisgarh ... Appellant(s) versus State of Chhattisgarh Through Police Station Vaishali Nagar, District : Durg, Chhattisgarh ...Respondent(s) (Cause-title taken from Case Information System) For Appellant : Mr. Syed Majid Ali, Advocate. For Respondent/State : Mr. S.S. Baghel, Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 09 .02.2026 1. Heard Mr. Syed Majid Ali, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Government Advocate, appearing for the State/respondent. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2026.02.19 10:20:19 +0530 2 2. This criminal appeal is preferred under Section 415 (2) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is directed against the impugned judgment dated 23.08.2025 passed by the learned 8th Additional Session Judge, Durg, District Durg (C.G.) in Session Trial No. 230 of 2021, by which the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 302 of the Indian Penal Code (for short, ‘IPC’), amended Section 103 of the Bharatiya Nyaya Sanhita (for short, ‘BNS’) Rigorous imprisonment (for short, ‘R.I.’) for life and fine of Rs. 500/-, in default of payment of fine, 02 months R.I. more. 3. The case of the prosecution, in brief, is that on 25.05.2021, the complainant, Utpal Taunk (PW-1), lodged a First Information Report (FIR) at Police Station Vaishali Nagar, District Durg, stating that at about 03:18 PM, the accused, Rahul Choubey, called him over the phone and asked him to come to his house. After some time, the complainant went to his house. The accused, Rahul Choubey, opened the lock of the channel gate, and when the complainant entered the house, he saw Shabbir Ahmed lying unconscious in a blood-soaked condition in the front room. He had been attacked with a pickaxe (gaiti) on his head with the intention to kill him. The pointed end of the pickaxe was embedded in his head and there was heavy bleeding. The accused, Rahul Choubey, was sitting inside the house after assaulting him and appeared very frightened. 3 4. On the report of complainant Utpal Taunk (PW-1), information regarding unnatural and accidental death was registered at Police Station Vaishali Nagar vide report Ex.P/30, and intimation of the merg was sent to the SDM. An FIR (Ex.P/1) was registered against the accused under Section 302 of the IPC, and the investigation was taken up. During the investigation, a spot map (Ex.P/2) of the place of occurrence was prepared. The inquest report (Ex.P/9) of the dead body was prepared. The dead body was sent for postmortem, and the postmortem report (Ex.P/20) was obtained. In the presence of witnesses, seizure memos of the CCTV (Ex.P/18) and air conditioner (Ex.P/19) were prepared. 5. After interrogating the accused, a memorandum statement (Ex.P/11) under Section 27 of the Indian Evidence Act was recorded. From the accused, Rahul Choubey, the jeans pant, underwear, and T- shirt worn at the time of the incident were seized. From the spot, blood- stained cotton, plain cotton, a plastic container containing plain soil (tile pieces), and blood-stained tile pieces were seized, and a seizure memo (Ex.P/12) was prepared. One McDowell No. 1 whisky bottle, half-filled with liquor, four glass tumblers, a 16 GB pen drive, T-shirt, 14 photographs, an Onida company CCTV camera, an air conditioner, and the sharp-edged pickaxe used in the incident were seized vide seizure memos Exs.P/13 to P/19 and P/31. The accused was arrested in the presence of witnesses, and an arrest memo (Ex.P/17) was prepared. 6. In the present case, the clothes worn by the deceased at the time 4 of the incident, underwear and T-shirt seized from the accused, Rahul Choubey, blood-stained cotton, plain cotton, tile pieces, plain tile pieces, pickaxe, underwear, jeans, and T-shirt were sent to the Forensic Science Laboratory (FSL) by preparing the necessary draft, and the same were deposited at the FSL Office, Raipur. The FSL report (Ex.C/1) was received. 7. Statements of the witnesses were recorded. After due investigation, the police filed a charge-sheet against the appellant under Sections 307 and 302 of the IPC before the jurisdictional criminal court, and the case was committed to the Court of Session for trial. Thereafter, the learned 8th Additional Sessions Judge, Durg, District Durg (C.G.), received the case on transfer for trial, hearing, and disposal in accordance with law. 8. The learned trial Court framed charges against the appellant for the offence punishable under Section 302 of the IPC (amended Section 103 of the BNS) and proceeded with the trial. The appellant abjured guilt and entered a defence stating that he had not committed any offence and had been falsely implicated. 9. In order to prove the offence, the prosecution examined as many as 17 witnesses and exhibited 31 documents in support of its case. The appellant neither examined any witness in his defence nor exhibited any document. 10. The learned trial court, upon appreciation of the oral and documentary evidence available on record, by its judgment dated 5 23.08.2025, convicted the accused/appellant for the offence punishable under Section 302 of the IPC (amended Section 103 of the BNS) and sentenced him as aforementioned, against which this criminal appeal has been filed. 11. Learned counsel for the appellant submits that the learned trial Court is wholly unjustified in convicting the appellant for the offence punishable under Section 103 of the BNS (corresponding to Section 302 of the IPC), as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the conviction and sentence awarded by the learned trial Court are not proper in the facts and circumstances of the case. Moreover, the prosecution has failed to establish its case beyond reasonable doubt. He contends that the conviction is based on conjectures and surmises, and the seizure witnesses have also not fully supported the prosecution case. He further contends that even if the prosecution case is accepted in its entirety, the appellant is alleged to have caused injuries to the deceased in the spur of the moment. There was no motive or premeditated intention on the part of the appellant to cause the death of the deceased, and it was only on account of a sudden quarrel, in the heat of passion and anger, that the appellant caused injuries to the deceased, which resulted in his death. Therefore, the case of the present appellant falls within the ambit of Exception 4 to Section 100 of the BNS (corresponding to Exception 4 to Section 300 of the IPC), and the act of the appellant would amount to culpable homicide not amounting to murder punishable under Sections 101 and 102 of the BNS (corresponding to Section 304 Part-I or Part-II 6 of the IPC). Hence, this is a fit case where the conviction of the appellant under Section 302 of the IPC (now Section 103 of the BNS) deserves to be altered to an offence punishable under Sections 101/102 of the BNS. Accordingly, the present appeal deserves to be allowed, either in full or in part. 12. On the other hand, learned State counsel supports the impugned judgment and submits that the present case does not fall within any of the exceptions contained in Section 100 of the BNS, and the learned trial Court has rightly convicted the appellant under Section 302 of the IPC (now Section 103 of the BNS). It is further submitted that this is not a case where the conviction of the appellant can be altered to an offence punishable under Sections 101 or 102 of the BNS, and therefore, the instant criminal appeal deserves to be dismissed. 13. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 14. The first question for consideration would be, whether death of deceased was homicidal in nature ? 15. Dr. Sonika Williams (PW-9), upon conducting the postmortem examination of the dead body of the deceased, Shabbir Ahmed, stated that there were 20 stitches between both parietal bones of the head extending to the right temporal bone. She opined that the cause of death was cardio-respiratory arrest resulting from the injuries sustained by the deceased and proved the postmortem report (Ex.P/20), which 7 bears her signature. Her statements are duly corroborated by the postmortem report (Ex.P/20). Even in cross-examination, the testimony of the aforesaid prosecution witness remained unshaken. Thus, from the testimony of the said witness and the postmortem report produced by the prosecution, it stands duly proved that the death of Shabbir Ahmed was homicidal in nature. The learned counsel for the appellant has not been able to controvert the finding recorded by the learned trial Court on this aspect. Therefore, we are of the considered opinion that the finding recorded by the learned trial Court that the death of the deceased was homicidal in nature is a finding of fact based on the evidence available on record. The said finding is neither perverse nor contrary to the material on record. Accordingly, we affirm the said finding. 16. The next question for consideration is whether the accused/appellant herein is the perpetrator of the crime in question. The learned trial Court has answered this issue in the affirmative by relying upon the testimony of Dr. Sonika Williams (PW-9), who conducted the postmortem examination and opined that the death occurred due to excessive bleeding from the injuries sustained by the deceased, which resulted in cardiac arrest and shock, and that the nature of death was homicidal. From the medical evidence and other evidence available on record, it is clear that the appellant, on the fateful date and time, caused grievous injuries to the deceased, which ultimately resulted in his death. As such, the learned trial Court has rightly held that it was the appellant/accused who caused injuries to the deceased, leading to his 8 death. Accordingly, we hereby affirm the said finding. 17. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 100 of the BNS (corresponding to Exception 4 to Section 300 of the IPC) vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to under Sections 101 and 102 of the BNS (corresponding to Section 304 Part-I or Part-II of the IPC), as contended by learned counsel for the appellant ? 18. The Hon’ble 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 1 (2002) 3 SCC 327 9 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.” 19. The Hon’ble 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 2 (2009) 15 SCC 635 10 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; (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 11 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.” 20. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of the Hon’ble 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 3 (2012) 8 SCC 450 12 act of his is likely to cause death. 21. Further, the Hon’ble 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 4 (2017) 3 SCC 247 13 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 14 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”. 22. In the matter of Arjun (supra), the Hon’ble 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. 23. Further, the Hon’ble 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: 5 (2019) 6 SCC 122 15 “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.” 24. The complainant, Utpal Taunk (PW-1), deposed that on 25.05.2021 at about 3:00 p.m., he had come to his house at Vaishali Nagar for lunch. At that time, he received a phone call from the accused, Rahul Choubey, asking him to come to his house. After finishing lunch, he went to the accused’s house and knocked at the door, which was opened by the accused. Upon entering the hall, he saw Shabbir Ahmed writhing in pain with a pickaxe lodged in his head and blood oozing out. Frightened, he proceeded to Police Station Vaishali Nagar, Bhilai, and lodged the report (Ex.P/1). The police prepared the spot map (Exs.P/2 and P/3) and recorded his statement. In cross- examination, he admitted that he did not know how, why, or by whom the injuries were caused. He further admitted that the accused never told him that he had assaulted the deceased. He also conceded that in 16 the FIR he did not state that the accused had killed the deceased and was present at the spot. He further admitted that the FIR was written by the police and was neither read over to him nor read by him before signing. Thus, his testimony does not establish that he witnessed the accused assaulting the deceased. However, it establishes that upon being called by the accused and entering his house, he saw the deceased in an injured condition with a pickaxe embedded in his head. 25. Arvind Kumar Dubey (PW-2) stated that on the morning of 25.05.2021, at about 9:00–9:15 a.m., the deceased called him to collect liquor and deliver it to Rahul Choubey’s house. He did so and later also delivered onions at the deceased’s request. He consumed one drink and returned to his duty. At about 2:00 p.m., he went home and later received missed calls from Shabbir and the accused, which he could not attend. In the evening, he was called to the police station and questioned. In cross-examination, he admitted that he had no knowledge of how or by whom the incident was committed. His testimony only establishes that the deceased was present at the accused’s house earlier in the day and that they had consumed liquor together. 26. Sunder Singh (PW-3) stated that on the date of the incident, he arranged mutton at the request of the deceased and accompanied him to the accused’s house. There, Rahul, Shabbir, Arvind, and he consumed liquor together. He stated that Shabbir had paid Rs.7,000/- to Rahul in connection with AC repair. However, he denied that any quarrel 17 took place between the accused and the deceased regarding the said amount. He further admitted in cross-examination that no dispute or fight occurred in his presence and that he had no knowledge of how the incident occurred. His testimony thus only establishes that the parties were together earlier in the day and were consuming liquor. 27. Suyash (PW-4), the AC technician, deposed that he had earlier repaired the AC at the accused’s house and had removed the PCB for repair. He further stated that on the following day, the accused repeatedly called him and used abusive language, due to which he blocked the number. His testimony establishes prior dealings between the accused and the deceased in connection with AC repair but does not directly prove the occurrence of the assault. 28. Adil Ahmed (PW-5), son of the deceased, stated that his father had gone to the accused’s house for AC repair work. He later learned that the accused had assaulted his father with a pickaxe. However, his knowledge of the incident was based on information received from his uncle Wakeel Ahmed. His testimony is therefore hearsay insofar as the actual assault is concerned. 29. Irshad Ahmed (PW-6) also stated that a dispute had occurred between the accused and the deceased regarding AC repair, resulting in the assault. However, in cross-examination, he admitted that no dispute took place in his presence and that his statement was based on information provided by others. His evidence, therefore, is also hearsay regarding the actual occurrence. 18 30. Nawabuddin Kaji (PW-7) deposed regarding the seizure of various articles including blood-stained soil, tile pieces, whisky bottle, glasses, clothing of the accused, photographs, and CCTV footage. However, in cross-examination, he admitted that the documentation was prepared at the police station and not at the spot in his presence, and that he was unaware when the accused was interrogated. Thus, while seizure of articles is proved, procedural irregularities weaken the evidentiary value of the memorandum statement. 31. Wakeel Ahmed (PW-8), brother of the deceased, stated that a dispute arose at the accused’s house regarding AC repair, following which the accused assaulted the deceased with a pickaxe. However, his knowledge of the actual assault is not based on personal observation. He reached the hospital after the incident and saw the deceased in a critical condition with the pickaxe lodged in his head. 32. Reverting to the facts of the present case, it is evident from the testimonies of material witnesses that none of them witnessed the actual assault. The evidence establishes that the deceased and the accused were together at the accused’s house and had consumed liquor. The presence of the accused at the scene is established, and the deceased sustained fatal injuries by a pickaxe inside the accused’s house. The evidence further suggests that there was a monetary transaction regarding AC repair and that both parties were under the influence of alcohol. There is no direct evidence of premeditation. The circumstances indicate that the incident occurred in the course of a 19 sudden altercation. Thus, although the act of the accused in inflicting the injury with a pickaxe is established by circumstantial evidence, the prosecution has not proved beyond reasonable doubt that the act was committed with the intention to cause death so as to attract Section 302 IPC. The circumstances rather indicate a sudden quarrel without premeditation, committed in the heat of passion, without evidence of undue advantage or cruelty beyond the act itself. Accordingly, the case would fall within the ambit of Exception 4 to Section 300 IPC (now Section 101 read with Section 105 of the Bharatiya Nyaya Sanhita, 2023), and the offence would be punishable under Section 105 of the Bharatiya Nyaya Sanhita, 2023. 33. Considering the totality of the evidence, the nature of injury, the surrounding circumstances, and the fact that the appellant-Rahul Choubey @ Nitin is about 39 years of age and has been in custody since 25.05.2021, this Court is of the considered opinion that the conviction recorded under Section 302 of the IPC (now Section 103 of the BNS) deserves to be modified. 34. Consequently, the conviction and sentence of the appellant under Section 302 of the IPC (now Section 103 of the BNS) are set aside. Instead, he is convicted under Section 105 of the Bharatiya Nyaya Sanhita, 2023 (corresponding to Section 304 Part-I of the IPC) and sentenced to undergo rigorous imprisonment for 10 years. The fine amount and default stipulation imposed by the learned trial Court shall remain unaltered. 20 35. The appellant is presently in custody and shall serve out the remaining sentence as modified hereinabove. 36. The criminal appeal is partly allowed to the extent indicated above. 37. The Registry is directed to transmit a copy of this judgment to the concerned Superintendent of Jail where the appellant is lodged, for compliance and for informing him that he is at liberty to prefer 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. 38. Let a certified copy of this judgment along with the original record be sent to the trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan