1 CGHC010010032022 2026:CGHC:34095-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 61 of 2022 Ishwar Sweeper S/o Chandu Sweeper Aged About 30 Years R/o Civil Line Simga P.S. Simga District Balodabazar Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellant(s) versus State of Chhattisgarh Through Police Station Simga District (Revenue And Civil) Balodabazar Bhatapara (Chhattisgarh), District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. Sumit Jhawar, Advocate. For Respondent(s) : Mr. Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board Per, Ramesh Sinha, Chief Justice. 05/08/2026 1. The appellant has preferred the present criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and sentence dated 24.11.2021 passed by the learned 4th Additional Sessions Judge, Bhatapara, District ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.08.10 11:59:11 +0530 2 Balodabazar-Bhatapara, in Sessions Trial No. H-26/2019, whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.1,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for six months. 2. The case of the prosecution, in brief, is that on 04.06.2019, at about 8:00 A.M., the appellant and his wife, Neha, had a quarrel at their residence. At about 9:15 A.M., when the mother of the deceased, Sarojni Deep (PW-1), returned home from work, she found Neha lying on the floor in a semi-conscious condition with a bleeding head injury. On being asked, Neha allegedly disclosed that the appellant had assaulted her on the head with an iron rod after suspecting her character. The injured was immediately taken to the Community Health Centre, Simga, from where she was referred to Dr. B.R. Ambedkar Memorial Hospital (Mekahara), Raipur, where she succumbed to her injuries on 13.06.2019 during treatment. On the basis of the Dehati Nalishi, FIR was registered at Police Station Simga in Crime No.176/2019. During investigation, the inquest was conducted, the dead body was sent for post-mortem examination and, on the memorandum statement of the appellant, an iron rod alleged to have been used in the commission of the offence was seized. Dr. Snigdha Jain Bansal (PW-8), who conducted the post-mortem examination, found, inter alia, a surgically stitched wound over the left side of the head with fracture of the parietal bone, extradural haemorrhage, 3 subarachnoid haemorrhage and swelling of the brain. The Doctor opined that all the injuries were ante-mortem, caused by a hard and blunt object, and that the cause of death was head injuries and the complications arising therefrom. The death was opined to be homicidal in nature. During investigation, the spot map Ex.P-2 was prepared by the Police and another spot map Ex.P-12 was prepared by the Patwari. A blood-stained yellow-red coloured gamchha was seized vide seizure memo Ex.P-3. After the death of the injured on 13.06.2019, the merg was registered and the inquest proceedings were conducted vide Ex.P-5. The seized iron rod and the blood-stained gamchha were sent for medical query, where Dr. P.L. Chandan (PW-3) opined vide query report Ex.P-11 that the injuries sustained by the deceased could have been caused by the seized iron rod and advised chemical examination regarding the blood stains. The seized articles were thereafter sent to the State Forensic Science Laboratory, Raipur for chemical examination, and the FSL report Ex.P-20 was obtained during the course of investigation. The statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure were recorded and, after completion of investigation, the charge-sheet was filed before the jurisdictional Judicial Magistrate First Class, Simga, who committed the case to the Court of Sessions for trial. 3. The case was committed to the Court of Sessions by the learned Judicial Magistrate First Class, Simga, and thereafter tried by the 4 learned 4th Additional Sessions Judge, Bhatapara, District Balodabazar-Bhatapara. The learned Trial Court framed charges against the appellant under Sections 294, 506 Part-II and 302 of the Indian Penal Code. The appellant denied the charges, abjured his guilt and claimed to be tried. 4. In order to bring home the charges, the prosecution examined 11 witnesses. The statement of the appellant under Section 313 of the Code of Criminal Procedure was also recorded, wherein he denied all the incriminating circumstances appearing against him, pleaded innocence and stated that he had been falsely implicated in the present case. The appellant did not examine any witness in defence. 5. After considering and appreciating the oral and documentary evidence available on record, the learned Trial Court acquitted the appellant of the charges under Sections 294 and 506 Part-II of the Indian Penal Code, but convicted him under Section 302 of the Indian Penal Code and sentenced him as mentioned in paragraph 1 of this judgment. Hence, the present appeal. 6. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the present case. It is argued that the prosecution has failed to establish the charge under Section 302 of the IPC beyond reasonable doubt. The conviction is based mainly on the alleged oral dying declaration said to have been made by the deceased to her mother, which is not reliable and is not corroborated by any independent witness. It 5 is further submitted that there is no direct eyewitness to the occurrence and the case rests entirely on circumstantial evidence. The memorandum statement of the appellant and the alleged recovery of the iron rod are doubtful and have not been proved in accordance with law. The seized weapon was not found to contain any confirmed blood stains connecting it with the crime and, therefore, the recovery does not advance the prosecution case. It is further contended that there are material omissions and contradictions in the testimonies of the prosecution witnesses, which have been ignored by the learned Trial Court. The prosecution has also failed to establish any intention or motive on the part of the appellant to commit the alleged offence. It is, therefore, submitted that the impugned judgment of conviction and sentence deserves to be set aside and the appellant is entitled to be acquitted of the charge. 7. On the other hand, learned counsel for the State supports the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt. It is contended that the deceased, immediately after the incident, made an oral dying declaration before her mother (PW-1) stating that the appellant had assaulted her on the head with an iron rod. The testimony of PW-1 is duly corroborated by PW-2, who has deposed regarding the strained relationship between the appellant and the deceased, the appellant's suspicion regarding the character of the deceased, and the circumstances immediately after the incident. It is further 6 submitted that the medical evidence of PW-3 and the post-mortem report proved by PW-8 fully support the prosecution case by establishing that the head injuries sustained by the deceased could have been caused by the seized iron rod and that the death was homicidal in nature. The memorandum statement of the appellant and the consequent recovery of the iron rod have also been duly proved by the prosecution witnesses. It is, therefore, submitted that the learned Trial Court has rightly appreciated the oral as well as documentary evidence available on record and has rightly convicted the appellant under Section 302 of the Indian Penal Code. Accordingly, the appeal, being devoid of merit, deserves to be dismissed. 8. We have heard the learned counsel for the parties and perused the record carefully. 9. With respect to the homicidal death of the deceased, PW-1 Sarojni Deep has deposed that when she returned home from work on the date of the incident, she found her daughter Neha lying in a semi-conscious condition with a bleeding head injury. On being asked, the deceased informed her that the appellant had assaulted her on the head with an iron rod. The injured was immediately taken to the Community Health Centre, Simga and thereafter referred to Dr. B.R. Ambedkar Memorial Hospital (Mekahara), Raipur, where she succumbed to the injuries during treatment. The inquest proceedings and the post-mortem examination also establish that the deceased had sustained a 7 grievous head injury and that her death occurred as a result of the said injury and its complications. 10.PW-3, Dr. P.L. Chandan, who initially examined the injured Neha on 04.06.2019 at Community Health Centre, Simga, has deposed that the injured was brought before him at about 10:30 A.M. by the police for medical examination. On examination, he found a lacerated wound measuring about 3 × 2 inches over the left posterior side of her head with active bleeding and noticed that she was unconscious. After providing primary treatment, he referred her to Dr. B.R. Ambedkar Memorial Hospital (Mekahara), Raipur for further management. Subsequently, on a police query, he examined the seized iron rod (sabbal) and the blood-stained gamchha and opined vide Ex.P-11 that the injuries sustained by the deceased could have been caused by the seized iron rod. He further noticed blood-like stains on the iron rod and the gamchha and advised their chemical examination. Nothing substantial has been elicited in his cross-examination to discredit his testimony. 11.PW-8, Dr. Snigdha Jain Bansal, who conducted the post-mortem examination on the body of the deceased, found a surgically stitched wound over the left side of the head with fracture of the parietal bone, extradural haemorrhage, subarachnoid haemorrhage and swelling of the brain. She opined that all the injuries were ante-mortem in nature and had been caused by a hard and blunt object. According to her, the cause of death was the head injuries and the complications arising therefrom. She 8 further stated in her cross-examination that, having regard to the nature of the injuries, the death could be homicidal. No material contradiction could be elicited in her cross-examination so as to disbelieve her medical opinion. Thus, the prosecution has successfully established that the death of the deceased was homicidal in nature. 12.With respect to the involvement of the appellant in the offence in question, we again examine the record. 13.PW-1, Sarojni Deep, the mother of the deceased, has deposed that on the date of the incident she had left for work while the appellant and the deceased were quarrelling in the house. When she returned at about 9:00-9:30 A.M., she found her daughter lying in a semi-conscious condition with a bleeding head injury. On being asked, the deceased informed her that the appellant had assaulted her with an iron rod and fled away. She immediately shifted the injured to the hospital, from where she was referred to Mekahara Hospital, Raipur, where she later succumbed to the injuries. She has also proved the Dehati Nalishi and other seizure proceedings. Her testimony regarding the quarrel, the condition of the deceased immediately after the incident and the oral dying declaration remained substantially unshaken during cross- examination. 14.This witness has duly proved that when she left the house, the appellant and deceased were quarreling. When both of them were together, then the burden shifts upon the appellant to prove that at 9 what time he departed the company of the deceased and under what circumstances, his wife received injuries, failing which, a presumption should be drawn against the appellant. 15.In the case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, states as under: "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him. 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience.” 10 16.PW-2, Abhishek Deep, the brother of the deceased, has deposed that the appellant and the deceased were residing in his house and their relations were not cordial as the appellant used to suspect the character of the deceased and frequently quarrelled with her. On the date of the incident, after receiving information from his mother, he returned home and found his sister lying injured with a head injury. She was taken to the hospital and later died during treatment. He has further proved the memorandum statement of the appellant and the recovery of the iron rod at the instance of the appellant. Though he admitted that he had not actually witnessed the assault, his evidence corroborates the prosecution case regarding the circumstances immediately following the occurrence as well as the recovery proceedings. 17.PW-4, Rajaram Patil, the Patwari, prepared the spot map (Ex.P- 12) on the basis of the directions of the Tahsildar. PW-5, C.R. Chandra, and PW-10, Bulaki Lal Audil, have also deposed regarding the investigation carried out by them, including preparation of the spot map and forwarding of the seized articles for medical opinion. Their testimonies are formal in nature and support the prosecution case with regard to the investigation. 18.PW-6, N.R. Sahu, the officer who recorded the Dehati Nalishi and the First Information Report, has proved Ex.P-1 and Ex.P-13 respectively. He has also proved the application sent for medical examination of the injured. His testimony remained unshaken in material particulars. 11 19.PW-7, J.S. Rajput, has proved the merg proceedings and the formal investigation conducted after the death of the deceased. His evidence is formal in nature and lends support to the prosecution case regarding the procedural aspects of the investigation. 20.PW-9, Deenbandhu Uike, the Investigating Officer, has deposed that on 15.06.2019 he recorded the memorandum statement of the appellant (Ex.P-7) and, pursuant thereto, recovered the iron rod from the place pointed out by the appellant under seizure memo Ex.P-8. He has further proved the seizure of the blood- stained gamchha, the forwarding of the seized articles for forensic examination and other steps taken during investigation. Despite detailed cross-examination, no material contradiction has been brought on record to discredit his testimony. 21.PW-11, Seema Behra, did not support the prosecution case and was declared hostile. However, it is well settled that the evidence of a hostile witness is not to be discarded in its entirety and the prosecution case can still be accepted if it is otherwise proved by reliable evidence available on record. 22.The prosecution case substantially rests upon the oral dying declaration made by the deceased to PW-1 immediately after the incident, the evidence regarding the strained relationship between the appellant and the deceased, the medical evidence establishing that the injuries could have been caused by the seized iron rod, and the recovery of the weapon at the instance of 12 the appellant. The testimony of PW-1 is natural and inspires confidence, and the same finds due corroboration from the medical evidence of PW-3 and PW-8 as well as the investigation conducted by PW-9. The defence has not been able to bring on record any circumstance creating a reasonable doubt regarding the prosecution case. The evidence, when appreciated as a whole, establishes the involvement of the appellant in causing the fatal injuries to the deceased. 23.The next question for consideration is, whether the 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 ? 24.The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, reported in 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 the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to 13 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.” 25.The 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 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 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; (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. 14 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.” 26.Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the 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. 27.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 :- 15 “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 unusual manner; and (d) the fight must have been with the 16 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”. 28.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 a case of Section 304 Part-II of the IPC. 29.Further, the Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: 17 “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.” 30.Reverting to the facts of the present case, it is quite vivid that on the date of the incident, the appellant and the deceased, who were husband and wife, had a quarrel in their house. The evidence on record establishes that the altercation took place all of a sudden and, in the heat of passion, the appellant assaulted the deceased with an iron rod, causing a single head injury. The medical evidence corroborates that the deceased sustained a grievous head injury and subsequently succumbed to the same during treatment. There is nothing on record to indicate that the appellant had come to the spot with any premeditated intention to commit the murder of the deceased. The incident occurred on account of a sudden quarrel between the spouses, and after inflicting the injury, the appellant did not repeat the assault or act in a cruel or unusual manner. Therefore, although the appellant had no intention to cause the death of the deceased, he must be attributed with the knowledge that the injury inflicted by him on the vital part of the body was likely to cause her death. As such, the case would fall within the purview of Exception 4 to Section 300 of the IPC, as the essential ingredients thereof, namely, that the occurrence was without premeditation, in the course of a sudden 18 quarrel, in the heat of passion, and without the appellant having taken any undue advantage or acted in a cruel or unusual manner. 31.Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases, the evidence of Sarojani Deep (PW-1), Abhishek Deep (PW-2), the medical evidence, and the overall facts and circumstances of the case, this Court is of the considered opinion that the conviction of the appellant under Section 302 of the IPC deserves to be altered. Accordingly, the conviction of the appellant under Section 302 of the IPC is set aside and, instead, he is convicted under Section 304 Part-I of the IPC. 32.Accordingly, the appeal is partly allowed to the extent that the conviction of the appellant under Section 302 of the IPC is set aside. However, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs.1,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for six months. 33.As the appellant is stated to be in jail since 15.06.2019, he shall serve the remaining sentence as modified by this Court. 34. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment 19 passed by this court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 35.Let a copy of this judgment and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok