Korba, Chhattisgarh v. State Of Chhattisgarh Through The Station House Officer, Police Station Pasan, District : Korba
Case Details
2025:CGHC:13831-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2148 of 2023 Samaru S/o Shri Jagnarayan Aged About 20 Years R/o Rampur, Dhamdhamapara, Police Station Pasan, District : Korba, Chhattisgarh --- Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Pasan, District : Korba, Chhattisgarh --- Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Rishi Rahul Soni, Advocate For Respondent/State --------------------------------------------------------------------------------------------------------- : Shri SS Baghel, Dy GA Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Ravindra Kumar Agrawal, J. Per 22.03.2025 1. Present appeal has been filed by the appellant under Section 374(2) of the CrPC against the impugned judgment of conviction and order of sentence dated 21.09.2023 passed by the learned 2nd Additional Session Judge, Katghora, District-Korba, in Sessions Case-19 of 2023, whereby the appellant has been convicted and sentenced in the following manner: Conviction Under Section 302 of IPC Sentence RI for life and fine of Rs.500/- in default of payment of fine amount, additional RI for one month Cra 2148 of 2023 2 2. Brief facts of the case are that on 10.09.2022 at about 8 am, PW4-Shivcharan Singh lodged merg intimation Ex.P3 to the Police with effect that on 09.09.2022, husband of the deceased- Man Kunwar had gone to his relatives house at village Lakhami. In the night at about 3 am, the person in the vicinity PW11-Duaas Singh Gond called him by saying that the present appellant had brought a lame lady to his house. When he along with other persons of the vicinity went there, he saw the appellant present near the body of the deceased, who was in drunken condition, and the appellant exhorting that if anybody come there, he will also kill them. The appellant dragged the said lady towards the house of Kripal Singh, and thereafter, fled away from the place. The said lady was identified as the wife of PW1-Ramayan, and when they went to the house of Ramayan, his house was found locked from outside, and hues and cries of the children were coming from inside the house. Blood was also spreading there, and they broke open the lock and took out the children from the house. The children have informed that in the night the appellant came into the house and stayed with their mother. On the report of PW4-
Facts
Shivcharan Singh, FIR Ex.P4 was registered against the appellant for the offence under Section 302 of the IPC. Inquest of the dead-body of the deceased Ex.P5 was prepared in presence of the witnesses, and the dead-body was sent for its postmortem to the Primary Health Center Pasan, where PW13- Dr Sandeep Kanwar conducted the postmortem of the dead-body of the deceased, and gave report Ex.P2. While Cra 2148 of 2023 3 conducting postmortem of the dead-body of the deceased, the doctor has found the following injuries on her body: 1) Lacerated Wound vertex region of head (top of head) 3 inch in size in length, 1.5 inch in depth and 2 cm in width 2) Fracture skull bone, large hemotoma present mid brain. Mid brain separated 2 part. Damage of brain cells and fracture in left frontal head 1 inch length x 1cm width x 1.5 cm depth 3) Lacerated wound in nose 1 inch in length x ½ inch in width x 1 cm in depth 3. After conducting the postmortem of dead-body of the deceased, doctor has found fracture on the skull bone, and opined that cause of death is severe hemorrhagic shock and neurogenic shock due to head injury by forcefully attack on head by any sharp, hard and heavy object. Nature of death is homicidal. 4. Blood stained soil and plain soil, one Black nicker and underwear of the appellant, one blouse, sari, and petticoat of the deceased were seized from the spot vide seizure memo Ex.P9. Spot map Ex.P6 was prepared by the Police, and Ex.P19 was prepared by the Patwari. Appellant was arrested on 10.09.2022, and his memorandum statement Ex.P7 was recorded. Based on his memorandum statement, one Spade, and one T shirt have been seized from the appellant vide seizure memo Ex.P8. The seized weapon Spade was sent for its query report to the Cra 2148 of 2023 4 doctor and his report is Ex.P16. In the said report, the doctor opined that the lacerated injury, and fracture mentioned in the postmortem report are possible by the said weapon, and the weapon was sent for its chemical examination for confirmation of blood on it. Clothes of the deceased were sent for query report to the doctor, and by the query report Ex.P17, said clothes were also sent for its chemical examination. Likewise, the nicker and underwear of the appellant were also sent for their chemical examination. The blood stained soil, and plain soil, clothes of the appellant, as well as the deceased and the Spade seized from the appellant were sent for their chemical examination to the Regional FSL Bilaspur, from where report Ex.P26 was received, and according to the FSL report, except the plain soil, blood has been found on all other articles, and on the nicker, and underwear of the appellant, clothes of the deceased, Spade seized from the appellant, and T shirt of the appellant were found to be stained with human blood. 5. 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 for the offence punishable under Section 302 of the IPC before the learned Judicial Magistrate First Class, Katghora, district-Korba, from where the case was committed to the Court of learned 2nd Additional Session Judge, Katghora, for its trial. 6. The learned trial Court has framed charge against the appellant for the offence under Section 302 of the IPC. He denied the charge and claimed trial. Cra 2148 of 2023 5 7. In order to prove the charge against the appellant, prosecution has examined as many as 15 witnesses, statement of the appellant under Section 313 of the CrPC has 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. 8. 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 by the appellant. 9.
Legal Reasoning
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 1 (2002) 3 SCC 327 Cra 2148 of 2023 12 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.” 23. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case 2 (2009) 15 SCC 635 Cra 2148 of 2023 13 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 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 Cra 2148 of 2023 14 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 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. 3 (2012) 8 SCC 450 Cra 2148 of 2023 15 25. The Hon’ble Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. 4 (2017) 3 SCC 247 Cra 2148 of 2023 16 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 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 Cra 2148 of 2023 17 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 intention, 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 5 (2019) 6 SCC 122 Cra 2148 of 2023 18 bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: A plain reading of Exception 4 to Section 300 IPC “16. 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.” 28. According to the postmortem report Ex.P2, doctor has found fracture on the skull bone, and opined that cause of death is severe hemorrhagic shock and neurogenic shock due to head injury by forcefully attack on head by any sharp, hard and heavy object. Nature of death is homicidal. Appellant was also in drunken condition at the time of incident. Such conduct of the appellant, show that the appellant did not had any intention to cause murder of the deceased, though in a heat of passion, he would have assaulted the deceased. It is also not the case of the prosecution that the appellant came armed with any deadly weapon to cause injuries to the deceased. 29. Reverting to the facts of the present case, it is quite vivid that on the date of incident, appellant and the deceased were having liquor and eating chicken in the house of the deceased, which comes from the evidence of PW2 and PW3, who are the children of the deceased. In such intoxicated condition under the influence of liquor, quarrel took place between them, and the appellant assaulted the deceased by Spade, which was lying there. Prior to the incident, when the appellant and Cra 2148 of 2023 19 another lady Tengavayin (Sumitra) had gone there to the house of the deceased, they had the chicken and consumed liquor. Thereafter, the the incident took place. It cannot be said that the appellant went there with any preparation or pre-meditation to commit murder of the deceased. They only went there to enjoy the chicken and liquor, and only after eating chicken, and consuming liquor, quarrel took place between them, and appellant assaulted the 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 satisfies the four necessary ingredients of Exception 4 to Section 300 IPC. Had the appellant intended to cause murder of the deceased, he would have given more blows with the Spade. As such, it could be safely said that the appellant did not had the intention to kill the deceased. 30.
Arguments
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. There are inconsistencies in the evidence of prosecution witnesses, and the eyewitnesses are not reliable as they become interested witnesses. He would further submit that even if the evidence available on record be taken as it is, the offence of the appellant, if any, does not travel beyond the scope of Section 304 of the IPC, as the appellant was not having any intention or knowledge of the offence and the incident was occurred in heat of passion. Therefore, if the involvement of the appellant is found proved in causing injuries to the deceased, his conviction may be altered to one under Section 304 Part-I or Part-II of the IPC, and the period of sentence may be reduced accordingly. Cra 2148 of 2023 6 10. On the other hand, learned counsel for the State opposes, and would submit that the prosecution has proved its case beyond reasonable doubt. But for minor omissions, or contradictions the evidence of prosecution witnesses are sufficient to held guilt of the appellant for commission of murder of the deceased. Case of the prosecution is based on evidence of eyewitnesses PW2- Mangal Singh, and PW3- Shiv Sharan Singh, who are the sons of the deceased. Further, the deceased was present on the spot, and his conduct itself shows his involvement in the offence in question. In the FSL report, clothes of the appellant, as well as Spade seized from him were found to be stained with human blood. All these evidences are unerringly pointed towards guilt of the appellant, which have rightly been considered by the learned trial Court. The number of injuries found on the body of the deceased show the intention of the appellant to commit murder of the deceased, that too by Spade. Therefore, act of the appellant duly comes under the definition of “murder”, and the learned trial Court has rightly convicted and sentenced him, which needs no interference. 11. We have heard learned counsel for the parties, and perused the record of the case. 12. So far as the homicidal death of deceased- Man Kunwar is concerned, the prosecution has led evidence of PW13- Dr Sandeep Kanwar, who conducted the postmortem of the dead-body of the deceased. He stated in his evidence that on 10.09.2022, dead-body of Cra 2148 of 2023 7 the deceased was brought before him for its postmortem. During the postmortem, he noticed injuries on her head and fracture of her skull bone. Hematoma was also found on mid of brain, and he opined that cause of death is severe hemorrhagic shock and neurogenic shock due to head injury by forcefully attack on head by any sharp, hard and heavy object. Nature of death is homicidal. In his cross-examination, the defense has asked on the point that the injuries found on the body of the deceased may be received by any sharp object like broken piece of glass, or sharp edged iron tin sheet but the doctor has denied the suggestion that the injuries found on the body of the deceased could not have been caused by any of the aforesaid objects. Nothing specific in his cross-examination has elicited, so that the nature of death of the deceased may be disbelieved that the deceased died due to the injuries and her death is not homicidal. 13. Further, homicidal death of the deceased was supported by the evidence of PW2- Mangal Singh, and PW3-Shiv Sharan Singh, children of the deceased, who stated in their evidence that on the date of incident, appellant came to their house, and assaulted their mother on her head, and thereafter, appellant dragged her by holding her hairs and took towards lane. By the assault made by the appellant, their mother died. Both of these witnesses are sons of the deceased, and their presence on the spot is quite natural. 14. Further, the death of the deceased has been caused due to the injuries caused by the appellant has been proved by the witnesses to the Cra 2148 of 2023 8 inquest, who are PW6- Ram Baran Singh Gond, PW7- Ram Ratan Singh Gond, and PW8- Bhukkul Singh Gond, who stated in their evidence that when they went to the house of Ramayan, they saw the dead-body of the deceased having injuries on her head, she has already died, and was in naked condition. Thus, homicidal death of the deceased has been found proved by the learned trial Court, and this court is also in agreement with the finding recorded by the learned trial Court that death of the deceased is homicidal in nature. 15. So far as involvement of the appellants in crime in question is concerned, we have carefully examined the evidence available on record, particularly, we again examined evidence of PW2 and PW3, who are children of the deceased, and eyewitnesses to the incident. 16. PW2- Mangal Singh, son of the deceased stated in his evidence that he knew the appellant. On the date of incident, they were in their house; appellant came to his house, and confined him along with his two brothers in a room. Her mother was sleeping on the verandah, and in the night she started shouting and calling his father, then from the hole of the roof, he saw that appellant assaulting his mother by a hammer, he assaulted on her head, and thereafter, he dragged her by holding her hairs and took her towards lane. After that, he left her and fled away from the place. When they raised their voice, people of the vicinity Duaas, Rambaran, and Up-Sarpanch of the village-Karmatiya came there, Duaas opened the door and then they disclosed the entire incident to them. At Cra 2148 of 2023 9 the time of incident, appellant and one Tengwayin (Sumitra) has got prepared liquor from his mother, to have that liquor, they came there, and consumed the liquor. Thereafter, his mother was being murdered by the appellant. In his cross-examination, he strongly denied the suggestion given by the defense that he has not seen the incident. Rather, he firmly said that he saw the incident from the hole of the roof, and supported the prosecution case that it is the appellant, who caused injuries to his mother. 17. PW3- Shiv Sharan Singh, who is also son of the deceased, who too has stated in his evidence that on the date of incident, when they were in their house, appellant, and another lady putipakhayin came to his house with chicken curry and on that day, appellant and Tengwayin also came there. They all, including his mother, eat the chicken curry and consumed liquor. Thereafter, they went for sleep. In the night, they were confined in the room, and the door was locked from outside. In the morning they saw that their mother was lying in front of the house of his neighbor having injuries on her head. She was in naked condition at that time. When the leading question was asked from this witness, he too have supported the prosecution case that he saw the incident from the hole of the roof, and the appellant assaulted his mother, and dragged her towards lane. Though he admitted in his cross-examination that he did not see the actual assault, and came to know about the same later on, but at the relevant point of time, presence of the appellant in his house along with his mother is proved by this witness. Cra 2148 of 2023 10 18. Another witness PW4-Shivcharan Singh has stated in his evidence that on the date of incident, the persons of the vicinity Ramsingh, Duaas, Krishna, and Jagnarayan woke him up, and informed about the incident, and when they were going towards the house of the deceased, on the way, appellant threatened them by exhorting that if anyone comes to him, he will kill him also. Thereafter, he dragged the dead-body of the deceased towards the house of Kripal, and entered into his house, and subsequently, he fled away from there. The dead-body was in naked condition at that time, and the villagers have identified that she was Man Kunwar, injuries were seen on her head. In the morning at about 4 am, when they went to the house of the deceased, they saw that the house of the deceased was locked from outside, and the children were sleeping inside the room, and they took them out after removing the lock, and they informed about the incident. In his cross-examination, though he stated that he did not see the actual assault made by the appellant upon the deceased. But he saw that the appellant was dragging the dead-body of the deceased, and at that time she already died, and in injured condition, having injuries on her head. Nothing could be elicited from the cross-examination of this witness to discredit his evidence that the appellant is not the perpetrator of the crime. 19. PW5-Ram Singh Gond is also the witness to the fact that on the date of incident appellant took the dead-body of the deceased to his Courtyard, and thereafter, he took her to the house of Kripal. He also Cra 2148 of 2023 11 saw the dead-body, which was in naked condition, having injuries on her head, and in the next morning, children of the decreased were taken out from their room, after removing the lock. Nothing specific has come in his cross-examination to disbelieve his evidence. 20. From the evidence of all these evidences, it is duly been proved by the prosecution that it is the appellant, who caused the injuries on her head by the Spade, by which she died on the spot. Further, human blood has been found on the clothes of the appellant, and Spade seized from him, for which he has not given any explanation in his 313 CrPC statement, which is an additional link towards his guilt. 21. The aforesaid findings bring 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 Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of
Decision
In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 31. Accordingly, 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. The fine imposed upon the appellant by the learned trial Court is maintained. 32. As the appellant is stated to be in jail since 10.09.2022, he shall serve out the remaining sentence as awarded by this Court. Cra 2148 of 2023 20 33. The criminal appeal is partly allowed to the extent indicated herein-above. 34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellant is undergoing their 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 the 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