North Bastar, Kanker (C.G.) v. State Of Chhattisgarh Through S.H.O. P.S. Bhanupratppur, District
Case Details
1 2025:CGHC:26725-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2258 of 2023 1 - Sarju Ram Uikey S/o Dhansuram Aged About 46 Years R/o Pechhekatta, Mirchalpara, P.S. Bhanupratppur, District- North Bastar, Kanker (C.G.) MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.06.24 10:54:15 +0530 2 - Saganbatti Bai W/o Sarju Ram Uikey Aged About 44 Years R/o Pechhekatta, Mirchalpara, P.S. Bhanupratppur, District- North Bastar, Kanker (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through S.H.O. P.S. Bhanupratppur, District- North Bastar Kanker (C.G.) ... Respondent(s) For Appellant(s) : Mr. Ravindra Sharma, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, C.J. 23.06.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of the CrPC is directed against the impugned judgment of 2 conviction and order of sentence dated 30.10.2023 passed by the learned Additional Sessions Judge, Bhanupratppur, District- North Bastar Kanker (C.G.) in Sessions Trial No. 20/2022, whereby, both the appellants-accused have been convicted for offence punishable as under:- Conviction under Section Sentence (Rigorous Fine In default of (each) payment of imprisonment) fine add. R.I. (each) Section 302/34 of Life imprisonment Rs. 1000/- 02 the IPC months Section 323/34 of 1 year Rs.200/- 01 the IPC month Both the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 26.02.2022 at 07:35 am, the complainant Kartal Singh Usendi appeared at Bhanupratappur police station and informed that his grand- daughters Sanbati and Panchbati lived in the house of his neighbor Ghasi Ram Uike, who was living there. At night, accused Sarju Ram and his wife Sanganbati drove them away with the intention of coming to Ghasi Ram's house and take possession of the house. Then both of them called his father Hirau Ram Usendi to convince him and took him to their house. At the same time, the accused beat his father Hirau Ram Usendi in the chest, back and head with a wooden stick of Kusum tree and killed him. On the
Facts
said information of the complainant, FIR No. 19/2022 was 3 registered in Bhanupratappur police station under section 174 of the Indian Penal Code. Under this, FIR No. 51/2022, Section 302/34 IPC was registered against the accused and the case was taken into investigation. 3. After taking the case into investigation, proceedings by the police station Bhanupratappur and completing all the necessary formalities and investigation work during the investigation of the case, prima facie the accused were found to have intentionally murdered Hiru Ram Usendi as well as threatened to kill the complainant Kartal Singh and beat him with a bamboo stick and caused injuries. Hence, the offences under section 506, 323/34 IPC were added along with section 302 IPC and a charge-sheet was prepared under the said sections and presented for trial in the Court of Judicial Magistrate First Class Bhanupratappur, which was registered as Criminal Case No. 617/2022. 4. On the basis of the charge-sheet presented by the Court in the case, a charge-sheet was prepared against the accused under Sections 302/34, 506-B, 323/34 IPC and was read out and explained to them. The accused denied the alleged crime and in their statement, while expressing their innocence, said that they were falsely implicated and expressed their desire to present evidence in their defence, but despite having the opportunity to present evidence in defence, they did not present any evidence in their defence. 5. In support of the case on behalf of the prosecution, total 11 4 witnesses have been produced and as documentary evidence in the case by the prosecution, memorandum statement of accused Sarjuram (Ex.P.-01), seizure memo of safflower wood (Ex.P.-02), seizure memo of blood stained soil and plain soil (Ex.P.-03), death intimation (Ex.P.-04), First Information Report (Ex.P.-05), spot map (Ex.P.-06), seizure memo of bamboo stick (Ex.P.-07), arrest memo of accused Sarjuram (Ex.P.-08), Map-Panchayatnama (Ex.P.-10), Patwari's site map (Ex.P.-11), Panchnama (Ex.P.-12), report of Patwari preparing site Map and Panchnama and sent to the Tehsildar (Ex.P.-13), examination report of applicant Kartal Singh Usendi (Ex.P.-14), examination report of accused Sarjuram and accused Saganbati (Ex.P.-15) and (Ex.P.-16), examination form (Ex.P.-17) and (Ex.P.-18), postmortem application (Ex.P.-19), information regarding arrest of accused Sarjuram (Ex.P.-20), duty certificate (Ex.P.-21) have been marked as exhibits in evidence. 6. Similarly, report (Ex.P.-22) sent by the prosecution to the Tehsildar for preparing the Patwari Nazri-Naksha, report (Ex.P.-23) sent to CHC Bhanupratappur for curie regarding the injury caused to the deceased by the seized wooden unicorn, seizure letter (Ex.P.-24) of the deceased's T-shirt, report (Ex.P.-25) sent to CHC Bhanupratappur for curie of the deceased's T-shirt, report regarding getting the seized articles chemically tested (Ex.P.-26), acknowledgement receipt (Ex.P.-27), chemical test report (Ex.P.- 28), post mortem report (Ex.P.-29) and curie report of the seized 5 wooden rhino and T-shirt of the deceased (Ex.P.-30) and (Ex.P.- 31) have been marked as exhibits in evidence. 7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.10.2023, convicted the appellants for offence under Sections 302/34 and 323/34 of the IPC and sentenced them 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 7 (2012) 8 SCC 450 8 (2017) 3 SCC 247 20 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 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”. 30. 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 21 304 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. 31. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)9 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.” 32. 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 child witnesses Ku. Panchbatti (PW-03) and Sanbatti (PW-04), who are also the eye witness of the incident, the incident took place in the month of February last year. On the date of the incident, at 10:00 pm, they sleeping in the house when the accused came to the house and shouted at them to open the door, then both of them opened the door. After opening the door, her maternal uncle and maternal aunt threw them out of the house, saying get out of the house. After that, both of them went to the house of her maternal grandfather, deceased Hirau Ram, who lives in the 9 (2019) 6 SCC 122 22 neighbourhood and then he brought PW-3 and PW-4 to their house, at that time the accused had locked the door of the house and were inside. Her maternal grandfather Hirau Ram opened the door and asked the accused why they were not allowing the children to sleep in the house, then her maternal uncle accused Sarju Ram hit the deceased Hirau Ram on the head with the burning brazier made of Kusum wood lit in the house, due to which, her maternal grandfather Hirau Ram fell down right there and died. Thereafter, when both the sisters were leaving from there, the accused Saganbatti held their hands and pulled them inside, telling them not to tell anyone about the incident. The appellant Sarjhu Ram Uikey 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 Sarjhu Ram Uikey herein completely satisfied the four necessary ingredients 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. 33. Considering the above-stated facts, also considering the evidence of Ku. Panchbatti (PW-3) Sanbatti (PW-4), Kartal Singh Usendi (PW- 1), Tej Verma (PW-7) investigating officer, also considering the evidence of Dr. S.S. Nag (PW-10), nature of injuries caused by the 23 appellant Sarju Ram Uikey to the deceased, postmortem report (Ex.P-29) and the fact that the appellants are in jail since 26.02.2022, it would meet the end of justice that if the conviction of the appellant- Sarju Ram Uikey under Section 302/34 of the IPC is altered/converted to Section 304 Part-II of the IPC. Accordingly, conviction of the appellant- Sanju Ram Uikey under Section 302/34 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo R.I. for 7 years. However, his conviction and sentence under Section 323/34 of the IPC are hereby maintained. 34. So far as appellant- Saganbatti Bai is concerned, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt under Section 302/34 of the IPC as there are no incriminating evidence against her to implicate her in the crime in question. Accordingly, her conviction and sentence under Section 302/34 are hereby set aside. However, her conviction and sentence under Section 323/34 of the IPC are hereby maintained. 35.
Arguments
8. Mr. Ravindra Sharma, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302 and 323 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. There was no motive to commit murder of deceased. Moreover, two eyewitnesses namely, Ku. Panchbatti (PW-3) and Sanbatti (PW-4) are child witnesses, hence, their evidence is not a reliable one and the conviction of the appellants by the trial Court is liable to be set aside on this ground alone. He further submits that single injury was caused over the vital part i.e. head of deceased and other injuries were on non-vital parts. Lastly, on the question of sentence, he submits that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to deceased in spur of moment. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused 6 injuries to the deceased, which caused his death. Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants 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. Further, as the appellants are in jail since 26.02.2022 and have completed more than 3 years of jail sentence, therefore, considering the period they have already undergone, they be awarded the sentence of the period already undergone by them. Hence, the present appeal deserves to be allowed in full or in part. 9. 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 appellants conviction under Sections 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. 10. 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. 11. The first question for consideration would be, whether death of deceased Hirau Ram Usendi was homicidal in nature ? 12. In this regard, investigating officer Tej Verma (PW-7) has deposed 7 that while he was posted as police station in-charge at police station bhanupratappur, on 26.02.2022, when the informant / complainant kartal singh usendi appeared at the police station and informed about the death of his father hirau ram usendi, he registered FIR No.19/22 under section 174 of the IPC and FIR No. 19/22 under section 302/34 of the IPC. After filing the report, on the same date, he had prepared the Panchnama of the dead body of deceased Hirau Ram by giving notice (Ex.P.-09) to the witnesses under Section 175 Cr.P.C. and prepared the map of the dead body (Panchnama) (Ex.P.-10). The complainant Kartal Singh Usendi (PW-1) and Ratan Singh Uike (PW-2) have also supported the Panchnama (Ex.P-09) and (Ex.P.-10) done by the investigating officer. He further deposed that during the investigation, he had gone to conduct the body panchanama proceedings on 26.02.2022 itself. After that, application (Ex.P.-19) was prepared for conducting PM of the body of deceased Hirau Ram Usendi and sent to CHC Bhanupratappur. Medical witness (Dr. S.S. Nag) (PW-10), who examined the body of deceased Hirau Ram Usendi, has also supported the above evidence of the investigator. 13. Dr. S.S. Nag (PW-10), Medical witness deposed that told he is posted as Medical Officer in CHC Bhanupratappur since 2006. On 26.02.2022 at 12:10 pm, when the body of deceased Hirau Ram Usendi was brought for examination by the constable of 8 Bhanupratappur police station, the body was examined by him. During the post-mortem examination of the deceased Hirau Ram Usendi he found the following :- External testing :- 1. During the external examination of the body of deceased Hirau Ram Usendi, the body of the deceased was in a state of unconsciousness. His mouth and eyes were closed. His body was stiff. The deceased was wearing a pink coloured T-shirt and blue coloured chadda (shorts) on which blood stains were visible. Blood stains were visible on the face and head of the deceased. Blood was seen oozing out of the nose, mouth and ears. 2. The deceased had scratch marks on his chest. There were scratch marks on the upper part of the back of the head and on the right temple. Internal testing :- 01- The deceased's right temple and occipital bone (bone at the back of the head) were broken. The right arm was fractured. There was a fracture in the bone above the right eye in the front of the head. A wound near the right ear, the size of which was 1x0.5 cm. There was a scratch mark behind the deceased's right shoulder and a trauma line was above the hip on the left side. 9 02- The deceased's chest was filled with blood. His ribs were broken. The bone between the ribs (sternum) was broken. The third, fourth and fifth ribs on the right side were broken. There was a blood clot in the throat and windpipe. The right lung was ruptured, the size of which was 1.5x0.5 cm. 03- Both chambers of the heart were empty. There were blood clots in the oesophagus. There was food in the stomach. There was half-digested food in the small intestine. There was stool in the large intestine. The right lobe of the liver was ruptured, the size of which was 2x0.5 cm. Spleen, kidney were pale. Urinary bladder was empty. Internal and external genitals were normal. 04- The injuries found on the body of the deceased appeared to have been caused by hard and blunt instruments. The injuries sustained by the deceased were before his death, which was 17 to 22 hours before the time of post-mortem. The postmortem report given by medical witness Dr. S.S. Nag (PW-10) is Ex.P.-29, according to which, the deceased Hirau Ram Usendi died due to rupture of vital organs and excessive bleeding. The nature of which was homicidal. 14. Thus, from the above evidence, it is found that according to the Inquest Information Report (Ex.P-04) and First Information Report (Ex.P-05), the incident occurred between 10:00 pm on 25/02/2022 and 02:00 pm on 26.02.2022. Thereafter, on 26.02.2022, on the 10 information given by the complainant Kartal Singh at the police station Bhanupratappur, Inquest No.19/2022 and First Information Report (Ex.P-05) were registered, the Panchnama proceedings of the dead body of the deceased were completed and the post- mortem was conducted at 12.10 pm on the same date, the medical witness has supported the issuance of post-mortem report (Ex.P-29) after examining the dead body of the deceased. This proves that the death of the deceased Hiru Ram Usendi was other than a natural death and the nature of his death was homicidal. 15. In the present case, Sanbatti (PW-04) and Panchbatti (PW-03) are real sisters and their age is 16 years and 13 years respectively, being minors, they are eyewitnesses of the incident. Out of which, witness Sanbatti (PW-04) has stated in the main examination that she knows the accused and the deceased Hirau Ram. The accused are her maternal uncle and maternal aunt and the deceased Hirau Ram was her maternal grandfather. The incident took place in the month of February last year. On the date of the incident, at 10:00 pm, she was sleeping in the house with her younger sister Panchbati, then the accused came to the house and shouted at them to open the door, then both of them opened the door. After opening the door, her maternal uncle and maternal aunt started chasing them to beat them up and threw them out of the house, saying get out of the house. After that, both of them went to the house of her maternal grandfather Hirau Ram, who 11 lives in the neighbourhood, and told him that the accused beat them up and threw them out of the house. 16. Sanbatti (PW-04) further stated in her main examination that on her telling the above things, her maternal grandfather Hirau Ram brought her to her house, at that time the accused had locked the door of the house and were inside. Her maternal grandfather Hirau Ram opened the door and asked the accused why they were not allowing the children to sleep in the house, then her maternal uncle accused Sarju Ram had lit a brazier in the house, he hit her maternal grandfather Hirau Ram on the head with the same burning brazier made of Kusum wood, due to which, her maternal grandfather Hirau Ram fell down right there. At that time, her maternal aunt accused Saganbatti also hit her maternal grandfather. Thereafter, when both the sisters were leaving from there, the accused Saganbatti held their hands and pulled them inside, telling them not to tell anyone about the incident. Then, both of them freed their hands and went to Hiru Ram's son, Kartal Singh, and told him about the incident. 17. Witness Sanbatti PW-04 has also stated in the examination-in- chief that on her advice, her maternal uncle Kartal Singh had come with her to her house to see Hirau Ram, at that time Hirau Ram was lying on the ground and he was dead. When her maternal uncle Kartal Singh was trying to lift Hirau Ram from the ground in her presence, then her maternal uncle Sarju Ram hit 12 Kartal Singh by throwing a stick. After that, they went to her maternal grandfather Ratan Singh who lived in the neighbourhood with Kartal Singh and told him about the incident, then other people of the village also came to their house with them and saw, then her maternal grandfather Hirau Ram was dead. After that her maternal uncle Kartal Singh and the people of the village went to Ratan Singh's house. After some time, her maternal uncle accused Sarju Ram also came to Ratan Singh's house, then her maternal uncle Kartal Singh and the people of the village caught hold of accused Sarju Ram and tied his hands and legs. Later the village sarpanch and the Kotwar also came, to whom they told about the incident, then on their informing the police came to investigate the incident spot in the morning, at the same time the police interrogated him about the incident and took his statement. The statement to the above effect has also been made by Panchbatti (PW-3), younger sister of witness Sanbatti. 18. The Supreme Court in the matter of State of Uttar Pradesh v. Naresh and others1 has held that the evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted and observed in paragraph 27 as under:- “27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the 1 (2011) 4 SCC 324 13 actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab2, Balraje v. State of Maharashtra3 and Abdul Sayeed v. State of M.P.4) 19. The complainant Kartal Singh Usendi (PW-01) has also deposed that in the morning the Sarpanch went to the police station with the people and informed them about the incident as per Ex.P-04 and on the basis of the said information the First Information Report of the incident was registered in the police station as per Ex.P-05. Independent witnesses Ratan Singh (PW-2) and Mehtar Singh (PW-11) have also stated that on the night of the incident Kartal Singh came to their house with Sanbatti and Panchbatti and informed them about the incident and on visiting the spot with other people of the village they saw Hiru Ram lying dead on the ground under the cot and accused Sarju Ram sitting near the door. Similarly, it has been supported that they along with Rahul and Khilesh of the village caught the accused and tied his hands and feet with a rope and informed the Kotwar and Sarpanch of the 2 3 4 (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107 (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211 (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262 14 village about the incident and after they informed the police station about the incident, when the police came for investigation in the morning, the accused Sarju Ram was handed over to them. 20. Investigating officer Tej Verma (PW-7) further stated in the main examination that on 26.10.2022 itself, in the presence of witnesses, he had recorded the memorandum statement of accused Sarju Ram as per Ex.P.-01 when he told that he and his wife had killed Hirau Ram with a wooden stick (Geda) and had hidden the wooden stick in the shade of the house and on the basis of his memorandum, when the wooden stick was taken out from the shade of the house and presented, it was seized in front of witnesses as per seizure memo (Ex.P.-02). Similarly, he had seized the blood-soaked soil and plain soil from the ground near the body of deceased Hirau Ram Usendi at the incident spot in the presence of witnesses as per seizure memo (Ex.P.-03). The evidence of the complainant Kartal Singh Usendi (PW-1) and Ratan Singh (PW-2) also supports the above actions of the Investigating Officer. 21. Investigating officer Tej Verma further stated in his examination-in- chief that during the investigation, constable Manoj Shori, after examining the dead body of the deceased, preserved it by the doctor and given the pink coloured blood-stained T-shirt of the deceased to him and produced it at the police station, which he seized in front of witnesses as per seizure memo (Ex.P-24). 15 During the investigation he had given report (Ex.P.-23) for query regarding the injuries on head, chest and back of deceased Hiru Ram caused by the seized Kusum wood and report (Ex.P.-25) for query of the blood stains on the seized T-shirt of the deceased to CHC Bhanu Pratappur. Medical witness Dr. S.S. Nag (PW-10) also on receipt of a report for query by the police of Bhanupratappur police station regarding the injuries found on the chest, back and head of deceased Hiru Ram being caused by the seized Kusum wood wood, advised that the injury to the chest, back and head of the deceased caused by the said wood and to get his death caused by it and to get the marks on the wood examined by FSL for a clear opinion In this regard it is stated that query report of Ex.P-30 was given. 22. The investigating officer of the case, Tej Verma (PW-7), further stated in the main examination that during the investigation, on 17.03.2022, he had given a written complaint (Ex.P.-25) to the Joint Director, Regional Forensic Science Laboratory, Jagdalpur through the Superintendent of Police, Kanker, for getting the seized items chemically tested in the case and the chemical test report received from Jagdalpur. During the investigation, he had recorded the statements of the witnesses as per their instructions and on completion of the investigation, he had submitted the charge-sheet in the Court for further action. 23. By examining the chemical test report (Ex.P.-28) attached to the 16 case, it is clear that the blood stains/plain soil seized from the crime scene have been tested by marking Exhibit "A and B", Exhibit "C" on the wooden stick seized from accused Sarju Ram and Exhibit "D" on the deceased's T-shirt. According to which, on finding blood on Exhibit A, C, D and testing the type of blood, it has been opined that the wooden stick seized from accused Sarju Ram, Exhibit "C" and the T-shirt of the deceased, Exhibit "D" contain human blood. However, in the case, the blood group of the human blood found on the said exhibits could not be ascertained. 24. Thus, from the above analysis of evidence, it is proved that on the night of the incident, in furtherance of common intention, the accused beat Hiru Ram Usendi with a wooden stick made of kusum wood in the house of Ghasi Ram Uike, at the place of incident, as a result of which he died. 25. The aforesaid finding brings us to the next question for consideration, whether the case of the appellants 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 appellants ? 26. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana5 has observed as under:- “21. Keeping in view the facts and circumstances of the 5 (2002) 3 SCC 327 17 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.” 27. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana6 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 : 6 (2009) 15 SCC 635 18 (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. 19 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.” 28. Likewise, in the matter of State v. Sanjeev Nanda7, 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 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. 29. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh8 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
Decision
For the foregoing reasons, Criminal Appeal No.2258/2023 filed on behalf of appellants- Sarju Ram Uikey and Sangabatti Bai is partly allowed to the extent indicated hereinabove. 36. The appellant- Saganbatti Bai is in jail since 26.02.2022 and has completed the sentence of more than 3 years, she be released forthwith if not required in any other case. 37. Keeping in view of the provisions of Section 437-A CrPC (now 24 Section 481 of BNSS), the appellant- Saganbatti Bai is directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure to the satisfaction of the Court concerned with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 38. The appellant- Sarju Ram Uikey is in jail since 26.02.2022, he shall serve out his sentence as modified by this Court. 39. 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 Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 40. 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) Judge Chief Justice (Ramesh Sinha) Manpreet