CGHC010044992023 2026:CGHC:32287-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 359 of 2023 Beersingh Bariha S/o Lingraj Bariha, Aged About 26 Years R/o Village Birajpali, Chouki - Bundeli, Ps- Tendukona,, District : Mahasamund, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer (Sho) Ps- Tendukona,, District : Mahasamund, Chhattisgarh ...Respondent(s) (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Ms Saumya Sharma, Advocate For Respondent/State : Shri Sumeet Singh, Dy GA --------------------------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per R amesh Sinha, Chief Justice 28.07.2026 Heard Ms Saumya Sharma, learned counsel for the appellant. Also heard Shri Sumit Singh, learned Dy GA for the State. 1. Present appeal has been listed for consideration of IA-1 of 2026, which is repeat application for suspension of sentence and grant of bail to the appellant. 2. Considering the fact that the appellant is in jail since 14.03.2020, and his first application for suspension of sentence and grant of bail has Digitally signed by V PADMAVATHI Date: 2026.08.03 11:17:49 +0530 Cra 359 of 2023 2 already been rejected by this Court on 09.01.2024, with the consent of the parties, we heard the appeal finally. Accordingly, IA-1 of 2026 application for suspension of sentence and grant of bail is disposed of. 3. Present appeal filed under Section 374(2) of the CrPC has been filed by the appellant against the impugned order dated 18.07.2022 passed by the learned Sessions Judge, Mahasamund in Sessions case No.H 51 of 2020, whereby the appellant has been convicted for the offence punishable under Section 302 of the IPC and sentenced RI for life and to pay fine of Rs.1,000/-, in default of payment of fine, further RI for three months. 4. Case of the prosecution is that on 09.03.2020, complainant- Chandrabhan Bariha gave merg intimation to the Police that at about 7 pm, when he was returning to his house from talab, his uncle Vedprakash @ Bau Bariha was present near Durga Chowk along with Kaleshwar. Complainant asked his uncle to go to his house with him and at that time when he accompanied his uncle Vedprakash @ Bau Bariha by his motorcycle, near grocery shop of Tukeshwar when they stopped their motorcycle to purchase gutka, appellant came there armed with axe and gave a blow on the head of his uncle Vedprakash @ Bau Bariha by which he received injuries and fell down. He gave repeated blow and then his uncle died on the spot. 5. Based on the merg intimation Ex.P6, an un-numbered FIR Ex.P27 was registered against the appellant under Section 302 of the IPC. The Cra 359 of 2023 3 un-numbered FIR was transferred to the jurisdictional Police Station, where the numbered FIR Ex.P34 was registered. Inquest Ex.P2 of the dead-body of the deceased was prepared in presence of the witnesses and the dead-body was sent for its postmortem to the Community Health Centre, Bagbahra, district-Mahasamund, where PW8-Dr LL Dhankar, Medical Officer, CHC conducted postmortem and gave his postmortem report Ex.P3. While conducting the postmortem, he noticed two incised wounds. One incised wound over the left mastoid region with underlying bone fractured and the other incised wound on left occipital region of the skull, and found fracture of left mastoid bone and occipital bone of skull. He opined that cause of death is due to shock and injury to brain and hemorrhage caused fatal head injury in assault and nature of death is homicidal. Spot map Ex.P10 was prepared by the Patwari. Ex.P30 and P31 were prepared by the Police. One axe, one piece of plastic bag, blood stained and plain soil have been seized from the spot vide seizure memo Ex.P29. Appellant was arrested on 14.03.2020 and he too was sent for his medical examination to the CHC, Pithora, district- Mahasamund, where he was medically examined by the doctor, who gave his report Ex.P36. While medically examining the appellant, the doctor has noticed abrasion on right side of the neck and abrasion on left side of the chest of the appellant, which was within the duration of 7 days from the date of examination. Memorandum statement of the appellant Ex.P6 was recorded and based on his memorandum statement, his half pant has been seized vide seizure memo Ex.P7. Recovery Panchnama Cra 359 of 2023 4 Ex.P11 was also prepared with respect to recovery of half pant of the appellant. Seized axe, piece of plastic bag, blood stained soil, plain soil and half pant of the appellant were sent for its query report to the doctor, who gave his query report Ex.P16 and Ex.P17 and opined that the injuries found on the body of the deceased could be possible by the seized weapon-axe and for confirmation of blood on the articles, it was referred for chemical examination. The axe seized from the spot, pieces of plastic bag, blood stained and plain soil seized from the spot, T-shirt and jean pant of the deceased and half pant of the appellant were sent for their examination to the State FSL, Raipur and its report is Ex.P37. As per the report, human blood was found on the blood stained soil, clothes of the deceased, as well as half pant of the appellant and blood was also found on the axe seized from the spot. 6. Statement of the witnesses under Section 161 of the CrPC have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant before the learned Judicial Magistrate First Class, Pithora, district-Mahasamund, for the offence punishable under Section 302. 7. Case was committed to the Court of learned Session Judge for its trial and the learned Sessions Judge framed charge against the appellant for the offence under Section 302 of the IPC. Appellant denied the charge and claimed trial. Cra 359 of 2023 5 8. In order to prove the charge against the appellant, prosecution has examined as many as 19 witnesses. Statement of the appellant under Section 313 of the CrPC have also been recorded in which he denied the circumstances appearing against him, pleaded innocence, and submitted that he has been falsely implicated in the alleged offence. 9. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 10. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions, and contradictions in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellant for the alleged offence. PW14- Chandrabhan Bariha, who alleged to be the eyewitness to the incident is the interested witness and there are material discrepancies in the evidence of witnesses and such inconsistent evidence cannot be made basis to convict the appellant in the offence in question. There is no motive proved by the prosecution to commit murder of the deceased. Even in the FSL report, the blood group on the half pant of the appellant has not been proved to connect that the same blood was of the deceased, which has been found on the half pant of the appellant. He would further submit that the weapon of offence has also not been seized from the appellant and it is only to settle his personal Cra 359 of 2023 6 score, i.e., the dispute with respect to fishery activities, present appellant has been involved in the offence in question. The other eyewitnesses produced by the prosecution are also shaky and their evidence is also inconsistent. In alternative, he would submit that if involvement of the appellant is found proved in the offence in question, it does not travel beyond the scope of Section 304 of the IPC, as only two injuries have been found on the body of the deceased and there is no other repeated assault or he also does not acted in a cruel, or unusual manner. The appellant is in jail since 14.03.2020 and by converting his conviction under Section 304 Part II of the IPC, his sentence may be reduced for the period already undergone by him. 11. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submitted that the prosecution has proved its case beyond any reasonable doubt. But for minor omissions or contradictions, the evidence of the prosecution witnesses are reliable and sufficient to held the appellant guilty for the alleged offence. The incident was witnessed by PW6- Narad Kumar Bariha, PW14-Chandrabhan Bariha and PW19-Smt Tijiya Bai and they have duly supported the prosecution case. The motive to commit murder of the deceased has also been proved by PW6, who stated that the appellant is having dispute with respect to fishery activities in the pond. He would further submit that on half pant of the appellant, blood was found present to which there is no explanation from him and further injuries on the body of the appellant have also been found while he was Cra 359 of 2023 7 medically examined by the doctor. All these evidences establish guilty of the appellant that he is the perpetrator of the crime, through which the deceased died. The fatal injury found on the head of the deceased and therefore, the appellant is not entitled for any leniency for altering his conviction from Section 302 to Section 304 of the IPC. Therefore, his appeal does not have any merit and the same is liable to be dismissed. 12. We have heard learned counsel for the parties and perused the record of the trial Court. 13. The first and foremost question arises for consideration would be the nature of death of the deceased-Vedprakash @ Bau Bariha. 14. The prosecution has mainly relied upon the evidence of PW8-Dr LL Dhankar, who conducted the postmortem of dead body of the deceased. He stated in his evidence that on 10.03.2020, he conducted postmortem of the deceased and found two incised wounds on his head, including fracture of head bone. He opined that cause of death is due to shock and injury to brain and hemorrhage caused fatal head injury in assault and nature of death was homicidal. In cross-examination, he denied the suggestion given by the defence that the injuries found on the body of the deceased could be caused by falling on rough surface. From the evidence of the doctor, homicidal death of the deceased has been proved and there is no infirmity could be extracted by the defence in his cross-examination. He Cra 359 of 2023 8 proved the postmortem report Ex.P3 and further, as per the query report Ex.P17, he also proved that the injuries found on the body of the deceased could have been caused by the axe, which was sent to him for its query report. Thus, the death of the deceased has been found proved that he died homicidal death and there is no infirmity, or perversity in the finding recorded by the learned trial court. 15. So far as the involvement of the appellant in the offence in question is concerned, case of the prosecution is based on the eyewitness PW6- Narad Kumar Bariha, PW14-Chandrabhan Bariha and PW19-Smt Tijiya Bai. 16. PW14-Chandrabhan Bariha is the complainant and the person with whom the deceased accompanied to his house. In his evidence, he stated that when they were coming to his house by motorcycle and stopped near the shop to purchase gutka, at that time, appellant came towards the vicinity having axe with him and assaulted the deceased- Vedprakash @ Bau Bariha by which he fell down and thereafter, he gave another blow. At that time, the other villagers also came and the appellant fled away. He lodged the report and then, the Police proceeding has been started. In cross-examination, he remained firm in alleging that the appellant made assault upon the deceased by axe by which he received injury and died. He firmly denied the suggestion given by the defence that he could not see the incident. Cra 359 of 2023 9 17. PW6-Narad Kumar Bariha is another eyewitness to the incident, who stated in his evidence that there was a dispute between the appellant and the deceased with respect to fishery activities in the village pond. On the date of incident, he had gone to grocery shop of Tukeshwar and after purchasing grocery items, he was standing near his bicycle. At the same time, the deceased and PW14-Chandrabhan Bariha came there on a motorcycle and at that time, appellant came there and assaulted the deceased by axe, and he fell down. When he tried to intervene, appellant fled away. In his cross-examination also, he firmly denied the suggestion that he had not seen any incident. He too remain firm in alleging that the appellant caused injuries to the deceased. 18. Another eyewitness PW19-Smt Tijiya Bai has also duly supported the prosecution case and assault made by the appellant upon the deceased by axe. There is no infirmity, or inconsistency in all these three eyewitnesses and from their evidence, the involvement of the appellant has duly been proved that he is the perpetrator of the crime, and assaulted the deceased by axe, which has been witnessed by the aforesaid three witnesses (PW6, PW14 and PW19) and thus, involvement of the appellant in crime in question has been proved by the prosecution. 19. The other evidence which prosecution relied upon is the MLC report of the appellant Ex.P36. While the appellant was arrested on 14.03.2020, he was also sent for his medical examination, in which abrasions were Cra 359 of 2023 10 found on the right neck and left chest, which was caused within 7 days from the date of his examination, which duly supported the allegation alleged against the appellant. Further, from the FSL report Ex.P7, blood was found on the half pant of the appellant and the axe, blood stained soil, and clothes of the deceased. 20. In view of above, we do not find any reason to interfere with the consideration of the learned trial Court that the appellant is the perpetrator of the crime. 21. The next question for consideration is, whether case of the appellant is covered within Exception-4 to Section 300 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 submitted by the learned counsel for the appellant. 22. Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 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 Cra 359 of 2023 11 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.” 23. Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, 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 states 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 for 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; (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; Cra 359 of 2023 12 (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.” 24. Likewise, in the matter of State Vs. Sanjeev Nanda, (2012) 8 SCC 450, Hon’ble Supreme Court has 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. Cra 359 of 2023 13 25. Further, the Supreme Court in the matter of Arjun Vs. State of Chhattisgarh, (2017) 3 SCC 247, 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 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 : “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 Cra 359 of 2023 14 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”. 26. In the matter of Arjun (supra), 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. 27. Further, Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), (2019) 6 SCC 122, has laid down four ingredients to Cra 359 of 2023 15 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) he 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.” 28. Reverting to the facts of the present case, it is quite vivid that on the date of incident, when the deceased was going with the PW14- Chandrabhan Bariha to his house, and when they stopped near grocery shop to purchase gutka, the deceased asked PW6-Narad Kumar Bariha whereabouts of the appellant. At the same time, appellant came there and assaulted the deceased. From the postmortem report Ex.P3, deceased was found to be intoxicated with liquor, stomach of the deceased contains alcoholic odour and when the assault was made and the deceased fell down on the ground, when the witnesses tried to intervene the appellant, he fled away. Though there is allegation of repeated assault, however, the appellant did not try to make assault upon the person, who intervened in the incident. 29. From the evidence of PW6-Narad Kumar Bariha, it reveals that firstly, the deceased extorted the appellant and at the same time, appellant came there and assaulted the deceased. Thus, it would goes to show that the incident took place in heat of passion and sudden provocation. There was no premeditation on the part of the appellant to Cra 359 of 2023 16 cause death of the deceased. As the appellant not acted in a cruel and unusual manner, and he has no intention to cause death of the deceased and only because of dispute with respect to fishery activity, assault was made. As the appellant not acted in a cruel and unusual manner, did not have any intention to cause death of the deceased but by causing such injury, he must have had knowledge that such injury inflicted by him would likely to cause death of the deceased and as such, his case would fall within the purview of exception 4 of section 300 IPC, as an act of the appellant herein completely satisfies the four ingredients of Exception 4 to Section 300 IPC, they are, (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. 30. As a fall out of the aforesaid consideration and the law laid down by Hon’ble Supreme Court, evidence available on record, this court is of the considered opinion that the appellant is liable to be convicted for the offence under Section 304 Part-I of the IPC instead of Section 302 of the IPC and accordingly, the conviction and sentence of the appellant for the offence under section 302 of the IPC is set aside, and instead thereof, he is convicted for the offence under Section 304 Part-I of the IPC and sentenced RI for 7 years with fine of Rs.1,000/-. In default of payment of fine, he shall further undergo RI for 3 months. Cra 359 of 2023 17 31. Appellant is reported to be in jail since 14.03.2020. He shall serve the entire sentence as modified/awarded by this court. 32. The criminal appeal is partly allowed to the extent indicated herein- above. 33. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 34. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellant is undergoing the jail sentence 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 assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma