District Gourela Pendra Marwahi, Chhattisgarh v. State Of Chhattisgarh Through The District Magistrate, District Gourela Pendra M
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.06.19 10:38:17 +0530 2025:CGHC:25201-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 964 of 2021 Kunj Bihari S/o Ramlal Sen Aged About 50 Years R/o Girari, Goutiyan Para, Police Station Pendra, District Gourela Pendra Marwahi, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through The District Magistrate, District Gourela Pendra Marwahi, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. M.P.S. Bhatia, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Bibhu Datta Guru, Judge Judgment on board Per Ramesh Sinha, C.J. 18.06.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 18.08.2021, passed by the learned Additional Sessions Judge, Pendra Road, District- Bilaspur (C.G.) in Sessions Trial No.08/2020, whereby the appellant-accused 2 has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine, to further undergo additional rigorous imprisonment for 15 days. 2. Case of the prosecution, in brief, is that the deceased Pushpa Sen was the wife of accused Kunjbihari Sen. The accused and his wife had taken a loan from L&T Finance New Bus Stand, Pendra from Kangal Bank. On the incident date 06.03.2020 at 08:00 am, the agent Deep Sahu came to his house to collect the money. The deceased took out Rs. 1500/- and gave it to the accused. At that time, Kamlesh Soni and Durga Prasad of the village were also standing there. Deep Sahu took the money and went away. After that, the accused started arguing with his wife saying that she had paid Rs 200/- less in the installment. In anger, he picked up a shovel lying there and hit his wife on the head, causing injury due to which she fell on the ground. She was taken to Pendra Hospital for treatment but she died in the hospital. 3. By going to Community Health Centre, Pendra itself, as per the information given by deceased's son, Sandeep Sen, rural complaint
Facts
of (Ex.P-01) was registered, on the basis of which First Information Report of (Ex.P-15) was registered against the accused in Police Station Pendra, which has been confirmed by Investigation Officer C.P. Sonwani (PW-5) in his statement. Investigation Officer C.P. Sonwani (PW-5), after informing the witnesses about Ex.P-03, prepared the Panchnama of the dead body of the deceased and 3 prepared Map Panchayatnama (Ex.P-08), in which it has been mentioned that the death of the deceased was caused by hitting her with a shovel and then killing her. 4. Application (Ex.P-10A) was prepared for conducting the postmortem of the deceased and it was sent to the Community Health Center, Pendra. The postmortem proceedings of which were conducted by Dr. H.K. Tanwar (PW-4). 5. Dr. H.K. Tanwar (PW-4) stated that on 06.03.2020, constable Bhuneshwar Kurre of Pendra police station brought the dead body of the deceased Pushpa Devi before him for postmortem. While conducting the postmortem, he found following injureis:- 1). The deceased's sari blouse, purple sweater, pink petticoat were all stained with blood, the head was soaked in blood, there was a wound on the head and blood in the nose and mouth. 2). There was a wound of 5 x 1.5 cm on the parietooccipital surface of the skull up to the depth of the bone. There was a torn wound. 3). Her left parietal and occipital bone were seen broken into many pieces. There was injury in the brain and blood was clotted. 4). The membrane in her chest and ribs were soaked with blood. The membrane, intestinal membrane, mouth, oesophagus and pharynx were soaked with blood. According to him, the death of the deceased was due to the injury on the head and the brain rupture due to fracture of the bone in many parts and the deceased went into coma. The nature of 4 death was homicidal. 6. After complete investigation of the case, the charge-sheet against the accused was presented in the court of Chief Judicial Magistrate, Gaurela Pendra Marwahi, Chhattisgarh, from where on 17.11.2020 the case was transferred to the court of learned Additional Sessions Judge, Pendra Road, District- Bilaspur (C.G.) for trial. 7. When the charges were framed, read out and explained to the accused, he denied the crime. In the statement given under Section 313 of the Code of Criminal Procedure, the accused stated that he is innocent and has been falsely implicated. No defence evidence has been presented in the case on behalf of the accused. 8. In order to bring home the offence, the prosecution examined as many as 06 witnesses and exhibited 22 documents. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 18.08.2021, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed.
Legal Reasoning
“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 : (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 4 (2017) 3 SCC 247 14 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), 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. 27. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) (ii) (iii) There must be a sudden fight; There was no premeditation; The act was committed in a heat of passion; and The offender had not taken any undue advantage (iv) or acted in a cruel or unusual manner.” 5 (2019) 6 SCC 122 15 28. Reverting to the facts of the present case and in light of principles of law laid down by their Lordships of the Supreme Court in the above- stated judgments (supra), it is quite vivid that as per evidence of witnesses Sandeep Sen (PW-1), Kamlesh (PW-2) and Durga Prasad Sen (PW-3), on 06.03.2020 at 08:00 am, the agent Deep Sahu came to appellant’s house to collect the money as the accused and his wife had taken a loan from L&T Finance New Bus Stand, Pendra from Kangal Bank. The deceased took out Rs. 1500/- and gave it to the accused. At that time, Kamlesh Soni and Durga Prasad of the village were also standing there. Deep Sahu took the money and went away. After that, the accused started arguing with his wife saying that she had paid Rs 200/- less in the installment. Out of that anger and in heat of passion, accused picked up a shovel lying there and hit his wife on the head, causing injury due to which she fell on the ground. Thereafter, she was taken to Pendra Hospital for treatment but she died in the hospital. There was no premeditation on the part of the appellant to cause death of deceased and quarrel took place between the appellant & the deceased with regard to installment money that appellant gave the deceased to keep with her. The appellant did not have any intention to cause death of deceased, but by causing such injuries, he must have had the knowledge that such injuries inflicted by him would likely to cause death of deceased, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfied the four necessary ingredients 16 of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 29. Considering the above-stated facts, also considering the evidence of Sandeep Sen (PW-1) son of the deceased, Kamlesh (PW-2) and Durga Prasad Sen (PW-3), also considering the evidence of Dr. H.K. Tanwar (PW-4), nature of injuries caused by the appellant to the deceased, postmortem report (Ex.P-10) and the fact that the appellant is in jail since 06.03.2020, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-II of the IPC. 30. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo RI for 7 years. 31. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 32. The criminal appeal is partly allowed to the extent indicated herein- above. 33. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellants are undergoing the jail term, to serve the same on the Appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble 17 Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet
Arguments
10. Mr. M.P.S. Bhatia, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellant is said to have caused injuries to his wife (deceased) in spur of moment. There was no 5 motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellant is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 11. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer for the respondent/State supports the impugned judgment and submits that it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 13. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. H. K. Tanwar (PW-4), has come to the conclusion that the death of the deceased was due to the injury on the head and the brain rupture due to fracture of the bone in many parts and the deceased went into coma. After hearing learned counsel for the parties and after 6 considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that cause of death of the deceased was due to the injury on the head and the brain rupture due to fracture of the bone in many parts and nature is death is homicidal is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 14. Now, the question for consideration would be whether the accused- appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr. H. K. Tanwar (PW-4). The trial Court in its judgment has recorded the finding that the the evidence of Dr. H. K. Tanwar (PW-4) shows that the cause of death of the deceased has been attributed to injury on the head and the brain rupture due to fracture of the bone. The doctor has opined that the death of the deceased Pushpa Sen was caused due to the injury inflicted on her head, which ruptured her brain and broke the bones of the head into several parts. Considering all the above facts, it is proved that death of deceased Pushpa Sen was homicidal in nature. 15. Sandeep Sen (PW-1) has clearly stated that the incident took place at 7-8 am and he was sleeping in the house, he got up on hearing the sound, went to see and found his mother lying in the courtyard, she was covered in blood, his father had a shovel in his hand. His uncle Kamlesh dialed 112, the police came and took his mother and father away. At the hospital, the doctor told that his mother had died. 7 His father told his mother that she had died. He had given Rs. 1600/- to keep but started arguing saying that he has given more money and due to that argument he committed the murder. His mother was murdered by his father. 16. Kamlesh (PW-2) (eye witness) says that the incident took place on 06.03.2020 at 08:00 am in front of the house of the accused. At the time of the incident, he was standing in front of the house of the accused. All of them have taken a loan by forming a group, in which, they pay an installment of Rs 1700/- per month and the accused also pays an installment of Rs 1700/-. That day the company man Deep Sahu had come. The accused went inside the house and brought Rs 1500/- and gave it to Deep Sahu, Rs 200/- was less, then the accused went inside the house abusing his wife, a shovel was kept there. With the handle of the shovel, the accused hit his wife on the hand, his wife started screaming, at that time the deceased was planting trees, then the accused hit her from behind with a shovel on the side of her head. Both the sons of the accused who were sleeping inside the house got up and came out. The witness asked the accused why he hit her, he said that he did the right thing. A lot of blood was oozing from the head of the deceased, there was a deep wound, they called 112 and took her to the hospital, where the doctor declared her dead. 17. Durga Prasad Sen (PW-3) has also stated that he was in front of the accused's house at the time of the incident. The incident took place on 06.03.2020 at 08:00 am. He also supported the statement of 8 witness Kamlesh (PW-2) and stated that he had taken a loan from L&T Finance Company whose monthly installment was Rs 1700/- and an agent named Deep Sahu had come to collect the same money. The accused brought money from his wife and gave Rs 1500/- to Deep Sahu, the agent said that Rs 200/- is less and he will return the money, keep it together. Then the accused told his wife that he had given her Rs. 1700, where is Rs. 200, the wife said that it has been spent on household work, saying this she went inside the house. Both of them started arguing, he and Kamlesh both were outside the house, the argument continued for ten minutes. The courtyard of the house was visible from the road. Kamlesh told that the accused was beating his wife. Then a voice was heard, then Kamlesh said that see he killed her with a shovel. The deceased's wife was lying soaked in blood and the accused was standing there with a shovel. Then the accused's elder son came out and asked why he killed his mother, then the accused started running towards him to beat him in anger, then he intervened. After calling 112, the accused's wife was taken to the hospital where after 10-15 minutes during treatment, the doctor said that she died. 18. Sub-Inspector C.P. Sonwani (PW-05) has stated that during the investigation, he had taken the accused into custody and recorded his memorandum statement (Ex.P-05) in which the accused has stated that he has left the shovel with which he had hit in the courtyard and said that he will go and recover it. When he produced the bamboo handle shovel from the courtyard of the house which had blood and mud on it and the shirt and full pant worn by the 9 accused which had blood stains on it, they were seized and seizure sheet (Ex.P-06) was prepared. He prepared an application (Ex.P-11) for examination of the said shovel and sent it to the Community Health Center, Pendra which was examined by Dr. H.K. Tanwar (PW-4). Red blood stains were found in the said shovel which was handed over to the constable for chemical examination and he gave his opinion regarding the injury caused to the deceased by the said shovel. The investigating officer prepared an application (Ex.P-20) through the Superintendent of Police and sent the said shovel to the Regional Forensic Science Laboratory. According to the report of Ex.P-22, after examination in the office of Regional Forensic Science Laboratory, Bilaspur, it was found that human blood was found in the shovel. 19. Thus, human blood has been found in the shovel seized from the crime scene. Medical witness Dr. H.K. Tanwar (PW-4) has stated that the deceased was injured on the head by the shovel and the accused was found with the deceased after committing the crime with the said shovel was standing, in relation to which witnesses Sandip Sen (PW-1), Kamlesh (PW-2) and Durga Prasad Sen (PW- 3), all three have given statements and both the witnesses Kamlesh and Durga Prasad Sen have stated that the accused committed the crime by hitting his wife with a shovel. 20. In this case, it is clearly evident that there was a dispute between the accused and his wife over the issue of shortage of installment amount from L&T Finance which was given by the accused to his 10 wife, in relation to which witnesses PW-1, PW-2 and PW-3, all three have given statements. 21. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the 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 contended by learned counsel for the appellant ? 22. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years 1 (2002) 3 SCC 327 11 and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 23. 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 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 2 (2009) 15 SCC 635 12 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, 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 v. Sanjeev Nanda3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the 3 (2012) 8 SCC 450 13 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. 25. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-