1 CGHC010236182022 2026:CGHC:34098-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1146 of 2022 Fagun @ Fagu Manjhwar S/o Late Chamaru Ram Mnjhwar Aged About 34 Years R/o Village Aamadand Para Amaldiha, Police Station Kartala, District- Korba, Chhattisgarh. ... Appellant(s) versus State of Chhattisgarh Through Station House Officer, Police Station Shyang, District- Korba, Chhattisgarh. ... Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. Arun Kumar Shukla, Advocate. For Respondent(s) : Mr. Sumit Singh, Dy. Advocate General. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board 05/08/2026 Per, Ramesh Sinha, Chief Justice. 1 The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 20.06.2022 passed by the learned Sessions Judge, Korba, District Korba (C.G.), in Sessions Trial No.80/2019, whereby the appellant has been convicted and sentenced in the following manner:- ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.08.10 11:56:09 +0530 2 Conviction Sentence Under Section 302 of Indian Penal Code Life imprisonment and fine of Rs. 100/- and in default of payment of fine amount further R.I. for 05 Days. 2 The brief facts of the case are that, on 14.06.2019, complainant Sajan Singh (PW-6) lodged a report at Police Station Shyang, District Korba, stating that on 13.06.2019, after harvesting and dividing the paddy crop, the appellant and his wife Sushila @ Fotki had gone to the weekly market at Amaldiha, where they sold one bag of paddy, purchased household articles and thereafter consumed mahua liquor. While returning home at about 8:00 p.m., the deceased asked the appellant to carry the articles purchased from the market, which led to a quarrel between them. It is alleged that the appellant became enraged, assaulted the deceased by slaps and dragged her by her hair on the road despite the intervention of the complainant. Later in the night, the appellant allegedly informed the complainant that he had killed his wife and thereafter fled from the spot. On the following morning, the deceased was found lying dead near the place where the quarrel had taken place. Based on the report (Ex.P/9), FIR was registered against the appellant under Section 302 of the IPC. During investigation, merg proceedings were conducted, inquest over the dead body was prepared and the dead body was sent for post-mortem examination. PW-10 Dr. Deepak Singh Raj conducted the post-mortem examination on the dead body of a female lying supine in the mortuary with mouth and eyes open. Rigor mortis was present all over the body. The whole face showed blackish discoloration, pupils were dilated, and the cornea showed a lustreless dry appearance. The hair over the head was matted with soil. On external examination, multiple wounds 3 were present over the body, including a lacerated wound measuring 1½ x 1 cm over the right side of the forehead just above the right eyebrow, a lacerated wound measuring 1 x 1 cm over the right temporal region of the head, and extensive abrasions over different parts of the body. On internal examination, swelling of the frontal lobe and a blood clot over the left temporal aspect of the brain were found. The doctor opined that the head injuries were caused by a hard and blunt object, the abrasions were caused by forceful dragging and repeated impact against a hard surface, and that the cause of death was coma resulting from head injury. The doctor further opined that the cause of death is coma due to head injury and was homicidal in nature and the death occurred within 24hrs from the date and time of performance of post mortem examination. During investigation, the blood-stained shirt and shorts allegedly worn by the appellant at the time of the incident were seized pursuant to his memorandum under Section 27 of the Indian Evidence Act and were sent for forensic examination, wherein human blood was detected on the seized clothes. 3 During the course of investigation, the spot map of the place of occurrence was prepared by the Investigating Officer and a detailed site map was also got prepared through the Patwari. 4 Statement of the witnesses under Section 161 of the Cr.P.C. were recorded and the statements of material witnesses were also recorded under Section 164 of the Cr.P.C. After completion of the usual investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Kartala, District Korba for the offence under 4 Section 302 of the IPC. The case was committed to the Court of learned Sessions Judge, Korba, District Korba for its trial. 5 The learned trial Court framed charge against the appellant for the offence punishable under Section 302 of the IPC. The appellant abjured the guilt, denied the charge and claimed to be tried. 6 In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was also recorded, in which he denied the circumstances appearing against him, pleaded innocence and stated that he has been falsely implicated in the offence. 7 After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court convicted the appellant and sentenced him in the manner mentioned in the earlier part of this judgment. Hence, this appeal. 8 Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses, which have not been properly appreciated by the learned trial Court. He would further submit that there is no eye- witness to the actual incident of assault causing the death of the deceased and the entire case of the prosecution rests on circumstantial evidence, but the chain of circumstances is not complete so as to unerringly point towards the guilt of the appellant. He would also submit that the memorandum and seizure witnesses have not supported the prosecution case and the recovery of the alleged blood- stained clothes as well as the FSL report are not sufficient to connect the appellant with the commission of the offence. It is further submitted 5 that the prosecution has failed to establish any motive on the part of the appellant and, therefore, the conviction recorded by the learned trial Court under Section 302 of the IPC deserves to be set aside by extending the benefit of doubt to the appellant. In the alternative, it is submitted that even if the prosecution case is accepted in its entirety, the facts and circumstances of the case would not attract the offence punishable under Section 302 of the IPC and, at the most, the case would fall within the ambit of Section 304 of the IPC. Therefore, by altering the conviction of the appellant from Section 302 of the IPC to Section 304 of the IPC, his sentence may suitably be reduced. 9 On the other hand, learned counsel for the State opposes the appeal and would submit that the prosecution has proved its case beyond reasonable doubt. Though some of the prosecution witnesses have not fully supported the prosecution case, the evidence of the material witnesses, namely, PW-1 Mukesh Lohar, PW-2 Leelagar Singh Nishad and PW-6 Sajan Singh, is reliable and stands duly corroborated by the medical as well as documentary evidence. It is further submitted that the deceased was last seen in the company of the appellant, the appellant was seen assaulting and dragging the deceased immediately before the incident, and the blood-stained clothes seized at the instance of the appellant were found to contain human blood as per the FSL report. The medical evidence also establishes that the deceased sustained homicidal injuries consistent with the prosecution case. Therefore, there is ample evidence on record to establish that it was the appellant who committed the murder of his wife. The learned trial Court has rightly appreciated the evidence available on record and 6 passed the impugned judgment of conviction and sentence, which warrants no interference by this Court. 10 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11 The first question for consideration would be, whether the death of deceased Sushila @ Fotki was homicidal in nature? 12 The trial Court, after appreciating the oral as well as documentary evidence available on record, particularly relying upon the testimony of Dr. Deepak Singh Raj (PW-10), who conducted the post-mortem examination, has come to the conclusion that the deceased Sushila @ Fotki sustained multiple external injuries, including lacerated wounds on the head and extensive abrasions over different parts of her body. On internal examination, swelling of the frontal lobe and a blood clot over the left temporal aspect of the brain were found. The doctor categorically opined that the head injuries were caused by a hard and blunt object, the abrasions were caused by forceful dragging and repeated impact against a hard surface, the cause of death was coma resulting from head injury and the death was homicidal in nature. The medical evidence further rules out the possibility of the injuries having been caused by a simple fall under the influence of alcohol. The testimony of Dr. Deepak Singh Raj (PW-10) stands duly corroborated by the evidence of Sajan Singh (PW-6), the inquest proceedings and other documentary evidence available on record, which establish that the deceased sustained the fatal injuries on the night of the incident and was found dead at the place of occurrence. As such, we are of the considered opinion that the finding recorded by the trial Court that the 7 death of deceased Sushila @ Fotki was homicidal in nature is a finding of fact based on the evidence available on record. It is neither perverse nor contrary to the record. We hereby affirm the said finding. 13 Now, the next question for consideration would be whether the appellant herein is the perpetrator of the crime in question, which the learned trial Court has answered in the affirmative by relying upon the testimony of Mukesh Lohar (PW-1), Leelagar Singh Nishad (PW-2), Sajan Singh (PW-6), the medical evidence of Dr. Deepak Singh Raj (PW-10) and the other circumstances proved by the prosecution. Though the memorandum and seizure witnesses, namely, Vishnu Prasad (PW-3) and Suresh Manjhwar (PW-8), did not fully support the prosecution case, the evidence of the aforesaid witnesses clearly establishes that the appellant and the deceased were last seen together on the night of the incident, the appellant was seen assaulting and dragging the deceased immediately before the occurrence, the deceased was found dead at the place of occurrence on the following morning and the blood-stained clothes seized from the appellant were found to contain human blood. These circumstances were found by the learned trial Court to be sufficient to hold that it was the appellant who caused the homicidal death of the deceased. 14 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 8 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.” 15 The seizure of the blood-stained shirt and shorts from the appellant pursuant to his memorandum statement and the FSL report confirming the presence of human blood on the seized clothes further corroborate the prosecution case. The medical opinion of Dr. Deepak Singh Raj (PW-10), that the injuries sustained by the deceased were caused by a hard and blunt object and by forceful dragging, also lends assurance to the ocular and circumstantial evidence led by the prosecution. As such, the learned trial Court has rightly held that it was the appellant who caused the homicidal death of the deceased. Accordingly, we hereby affirm the said finding. 16 The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to 9 Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant? 17 The Supreme Court in the matter of Sukhbir Singh v. State of Haryana 1 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.” 18 The 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 1 (2002) 3 SCC 327 2 (2009) 15 SCC 635 10 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; (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 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, 11 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.” 19 Likewise, in the matter of State v. Sanjeev Nanda, 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 act of his is likely to cause death. 20 Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 3 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 3 (2017) 3 SCC 247 12 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 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 4 (2017) 3 SCC 2472024:CGHC:9062 DB 11 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 13 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”. 21 In the matter of Arjun (supra), the Hon'ble Supreme Court has held that if there is intention and not 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. 22 Further, the Hon'ble Supreme Court in the matter of Rambir v. State (NCT of Delhi) 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.” 23 According to the medical evidence, the deceased had sustained multiple external injuries, including lacerated wounds on the head and 14 chin and extensive abrasions on different parts of her body. On internal examination, swelling of the frontal lobe and a blood clot over the left temporal aspect of the brain were found, which ultimately caused her death due to coma resulting from head injury. The evidence on record further establishes that immediately before the incident, while returning from the weekly market after consuming liquor, a quarrel suddenly arose between the appellant and the deceased when she asked the appellant to carry the articles purchased from the market. There is nothing on record to indicate that the appellant had any premeditation to commit the murder of the deceased. The evidence of the prosecution witnesses shows that the incident occurred on the spur of the moment following the quarrel between the husband and wife after both had consumed liquor. Though the deceased sustained multiple injuries, the circumstances of the case indicate that the occurrence took place during a sudden fight in the heat of passion without premeditation. Thus, the act of the appellant would fall within Exception 4 to Section 300 of the IPC and it cannot be held that the appellant intended to cause the death of the deceased. However, having regard to the nature of the injuries caused on the vital part of the body and the manner in which the assault was committed, it can safely be held that the appellant had the knowledge that his act was likely to cause death. Therefore, we are of the considered view that the act of the appellant would fall under Section 304 Part II of the IPC instead of Section 302 of the IPC. 24 Accordingly, the conviction of the appellant under Section 302 of I.P.C. is set aside, however, he is convicted under Section 304 Part-II of I.P.C. and sentenced for the period already undergone by him. 15 25 The appellant is reported to be in jail since 15.06.2019. He shall be released forthwith, if not required in any other case. 26 The criminal appeal filed by the appellant is partly allowed to the extent indicated herein above. 27 Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Fagun @ Fagu Manjhwar is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 28 The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok