Chattisgarh High Court
Darshan vs State Of Chhattisgarh on 7 April, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1629 of 2015
Darshan s/o Gurwaru, Aged about 33 years, R/o
Balbhadrapur, P.S. Chakdharnagar, Tahsil and
Distt. Raigarh, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the Station House
Officer, Police Station Chakradharnagar, Distt.
Raigarh, Chhattisgarh.
Respondent
For Appellant : Mr. Vikas Ku. Pandey, Advocate
For State : Mr. Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
07/04/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
is directed against the impugned judgment of
conviction and order of sentence dated 15/06/2012
passed by learned Sessions Judge, Raigarh in
Sessions Trial No. 118/2010 whereby the
appellant/accused has been convicted for offence
punishable under Section 302 of IPC and has been
sentenced to life imprisonment and fine of Rs.
5,000/ and in default of payment of fine
additional R.I. for one year.
2. The case of the prosecution, in brief, is that on
10/08/2010 at about 01:00 PM, the appellant
murdered one Dileshwar Rathiya in his own house
with the help of axe by assaulting him and
causing grievous injuries and thereby, committed
the aforesaid offence.
3. Further case of the prosecution, in brief, is
that on 10/08/2010 (on the day of Hareli
festival) at about 01:00 PM, Sukhlal (P.W.2) and
Indal (P.W.4) were already in the house of the
appellant when they also called Dileshwar
Rathiya, who also came to the house of the
appellant, after having lunch at his home wearing
a lungi. When he came to the house of the
appellant, he was firstly served liqour and
thereafter, the appellant went inside on the
pretext of bringing some snacks, but he returned
with an axe and assaulted Dileshwar Rathiya over
his chest on account of which he succumbed to
death and the appellant, after leaving the said
axe in the courtyard of his house absconded along
with his family from the spot. Police received
the said information through phone call and after
reaching the spot, Punimati (P.W.1), wife of
deceased Dileshwar Rathiya, narrated the incident
and on that basis, dehati merg intimation was
registered (Ex. P/14) and dehati First
Information Report (Ex. P/13) was lodged against
the appellant herein. Thereafter, on the basis of
dehati merg intimation and dehati First
Information Report, numberi merg intimation was
registered (Ex. P/18) and First Information
Report (Ex. P/17) was lodged against the
appellant for offence punishable under Section
302 of IPC. After summoning the witnesses,
inquest report (Ex. P/1) was prepared and the
body of deceased Dileshwar Rathiya was sent for
postmortem to District Hospital, Raigarh wherein
Dr. Prakash Kumar Chitwani (P.W.7) conducted the
postmortem and submitted his report (Ex. P/7).
From the spot, bloodstained as well as plain
soil and bloodstained axe were seized. Blood
stained gamcha was also seized and it was sent
for chemical examination (but no report has been
brought on record). Statements of the witnesses
were recorded and the appellant was arrested.
After due investigation, the appellant/accused
was chargesheeted for offence punishable under
Section 302 of IPC which was registered and
committed to the Court of Sessions, Raigarh for
hearing and disposal in accordance with law. The
appellant/accused abjured his guilt and entered
into defence.
4. In order to bring home the offence, prosecution
examined as many as 10 witnesses and brought into
record 19 documents. Statement of the
appellant/accused was recorded under Section 313
of CrPC wherein he denied guilt, and he exhibited
four documents in support of his case.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, convicted the
appellant/accused for offence punishable under
Section 302 of IPC on the basis of testimonies of
Sukhlal (P.W.2) and Indal (P.W.4) and sentenced
the appellant/accused for the aforesaid period
against which this appeal has been preferred by
him.
6. Mr. Vikas Kumar Pandey, learned counsel for the
appellant/accused, would make the following
submissions :
(i) Indal (P.W.4), who is said to be eye
witness, has not supported the case of the
prosecution and he has clearly stated in
paragraph 4 of his statement that he has not seen
the appellant/accused assaulting deceased
Dileshwar Rathiya and therefore, learned trial
Court is absolutely unjustified in convicting the
appellant/accused for the aforesaid offence on
the basis of the testimony of Sukhlal (P.W.2)
alone.
(ii) The bloodstained axe was seized from the
courtyard of the appellant/accused vide Ex. P/4,
but no FSL report has been brought on record by
the prosecution to prove that the murder of
deceased Dileshwar Rathiya has indeed been
committed by the appellant herein.
He would alternatively submit that only one axe
blow has been caused by the appellant/accused
over the chest of the deceased, as such, the
present case would be covered with Exception IV
of Section 300 of IPC and since the
appellant/accused did not have any intention to
kill the deceased, the present case would fall
within Section 304 Part II of IPC, as such, the
appeal be allowed in toto by setting aside the
impugned judgment convicting the appellant for
offence under Section 302 of IPC.
7. Per contra, Mr. Soumya Rai, learned State
counsel, would submit that learned trial Court is
absolutely justified in convicting the appellant
for offence punishable under Section 302 of IPC,
as such, the instant appeal deserves to be
dismissed.
8. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. The first question for consideration is whether
the death of deceased Dileshwar Rathiya was
homicidal in nature ?
10. Learned trial Court has recorded the finding that
the death of deceased Dileshwar Rathiya was
indeed homicidal in nature relying upon the
medical evidence of postmortem report (Ex. P/7)
wherein Dr. Prakash Kumar Chitwani (P.W.7), who
has conducted the postmortem of deceased
Dileshwar Rathiya, has opined that cause of death
is shock due to huge chopped penetrating wound in
the chest of the deceased which led to claricle
massive haemorrhage and collection of clot in
thoracic cavity leading to shock and death. He
has further opined that the death of deceased is
homicidal in nature. After going through the
record and after hearing learned counsel for the
parties particularly taking view of the nature of
the injury suffered by the deceased Dileshwar
Rathiya, we are inclined to agree with the
finding recorded by learned Sessions Judge that
the death of deceased Dileshwar Rathiya was
homicidal in nature. The said finding is hereby
affirmed more so considering that the fact that
death of deceased Dileshwar Rathiya is homicidal
in nature has not been seriously disputed by
learned counsel for the appellant.
11. The next question for consideration is whether
the death of deceased Dileshwar Rathiya was
caused by the appellant/accused herein ?
12. Sukhlal (P.W.2) is the eyewitness who was also
present at the house of the appellant at the time
of the incident along with Indal (P.W.4) and he
has clearly supported the case of the prosecution
that he has seen the incident as on the day of
Hareli festival (local festival), he, Indal
(P.W.4) and the appellant were already at the
house of the appellant and they were under the
influence of alcohol. When deceased Dileshwar
Rathiya came to the house of the appellant, he
was also served liqour and meanwhile, the
appellant went inside the house on the pretext of
bringing some snacks, but he came back holding an
axe and caused one axe blow over the chest of the
deceased Dileshwar Rathiya by which he suffered
grievous injury and succumbed to death. Sukhlal
(P.W.2) has also been subjected to cross
examination to some extent but he remained
consistent with his version that he has seen the
appellant/accused assaulting the deceased and
nothing has been said to disbelieve the testimony
of Sukhlal (P.W.2). He has further claimed that
relations between the appellant and the deceased
were cordial, but he has admitted that the
appellant as well as the deceased, both were
under the influence of alcohol.
13. Indal (P.W.4) was also present at the house of
the appellant along with Sukhlal (P.W.2), but he
has not supported the case of the prosecution. In
paragraph 5 of his statement, he has admitted
that he has not seen the appellant assaulting the
deceased but he has also admitted that when he
went in the room where appellant, Sukhlal (P.W.
2) and deceased Dileshwar Rathiya were present,
he saw the appellant holding the axe in his hands
and deceased Dileshwar Rathiya had alread
suffered grievous injury over his chest.
14. As such, though Indal (P.W.4) has not fully
supported the case of the prosecution, but it is
quite established that the appellant assaulted
the deceased and caused grievous injury over his
chest with an axe on account of which deceased
Dileshwar Rathiya succumbed to death. Moreover,
Dr. Prakash Kumar Chitwani (P.W.7), who has
conducted postmortem of deceased Dileshwar
Rathiya, has also stated in the postmortem report
(Ex. P/7) that a choped elepticle incised wound
in right clavicle penetrating though thoraic
cavity was found on the chest of the deceased and
it can be caused by a sharp heavy weapon. Sukhlal
(P.W.2), despite having been crossexamined
thoroughly, has remained consistent and
maintained that he has seen the appellant
assaulting the deceased Dileshwar Rathiya with an
axe. Thus, it is established that the death of
deceased Dileshwar Rathiya was indeed caused by
the appellant/accused herein.
15. Now, coming to the submission made by learned
counsel for the appellant that the
appellant/accused did not have the intention of
causing death of deceased Dileshwar Rathiya, as
such, learned trial Court is absolutely
unjustified in convicting him for offence
punishable under Section 302 of IPC. He has
relied upon the decision rendered by the Supreme
Court in the matter of Stalin v. State
represented by the Inspector of Police1 wherein
it has been held that there is no hardandfast
rule, that in a case of single injury, Section
302 of IPC would not be attracted and it depends
upon the facts and circumstances of each case. It
has further been held that the nature of injury,
the part of the body where it is caused, the
weapon used in causing such injury are the
indicators of the fact whether the accused caused
the death of the deceased with an intention of
causing death or not. Paragraph 7.1.2 of the
judgment states as under :
"7.1.2. In Dhirajbhai Gorakhbhai Nayak v.
State of Gujarat2, this Court while
discussing the ingredients of Exception 4 of
Section 300 IPC, held thus : (SCC pp. 327
28, para 11)
"11. The fourth exception of Section 300
IPC covers acts done in a sudden fight.
The said Exception deals with a case of
prosecution (sic provocation) not covered
by the first exception, after which its
place would have been more appropriate.
The Exception is founded upon the same
1 (2020) 9 SCC 524
2 (2003) 9 SCC 322
principle, for in both there is absence
of premeditation. But, while in the case
of Exception 1 there is total deprivation
of selfcontrol, in case of reason and
urges them to deeds which they would not
otherwise do. There is provocation in
Exception 4 as in Exception 1, but the
injury done is not the direct consequence
of that provocation. In fact, Exception 4
deals with cases in which notwithstanding
that a blow may have been struck, or some
provocation given in the origin of the
dispute or in whatever way the quarrel
may have originated, yet the subsequent
conduct of both parties puts them in
respect of guilt upon an equal footing. A
"sudden fight" implies mutual provocation
and blows on each side. For if it were
so, the Exception more appropriately
applicable would be Exception 1. There is
no previous deliberation or determination
to fight. A fight suddenly takes place,
for which both parties are more or less
to be blamed. It may be that one of them
starts it, but of the other had not
aggravated it by his own conduct it would
not have taken the serious turn it did.
There is then mutual provocation and
aggravation, and it is difficult to
apportion the share of blame which
attaches to each fighter. The help of
Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in
sudden fight, (c) without th offenders
having taken undue advantage or acted in
a cruel or unusual manner, and (d) the
fight msut have been with the person
killed. To bring a case within Exception
4 all the ingredients 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 IPC. 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 and more persons whether with
or without weapons. It is not possible to
enunciate any general rules as to what
shall be deemed to be a sudden quarrel.
It is a question of fact and whether a
quarrel if 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 a cruel or unusual
manner. The expression "undue advantage"
as used in the provision means "unfair
advantage"."
16. The question for consideration is whether the
appellant/accused is guilty of offence under
Section 302 of IPC or his case would fall under
any of the Exceptions of Section 300 of IPC ?
17. The Supreme Court in the matter of Arjun v. State
of Chhattisgarh3 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 the 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
3 (2017) 3 SCC 147
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".
18. In the matter of Arjun (supra), the Supreme Court
has held that when and if there is intent and
knowledge, the same would be case of Section 304
PartI 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
PartII IPC. It has been further held that
injuries/incised wound caused on head i.e. right
parietal region and right temporal region and
also occipital region, of deceased, indicate that
appellants had intention and knowledge to cause
the injuries and thus it would be a case falling
under Section 304 PartI of IPC.
19. Reverting to the facts of the present case in
light of the aforesaid decision rendered by the
Supreme Court in Arjun (supra) and particularly
considering the fact that a single injury was
caused by the appellant to the deceased over his
chest and in light of the statement of Sukhlal
(P.W.2) who has seen the incident right from the
beginning, it is established on record that on
the day of local festival Hariyali, the appellant
and two eyewitnesses namely Sukhlal (P.W.2) and
Indal (P.W.4), all of them were in influence of
alcohol and after calling the deceased to the
house of the appellant, they served liqour to the
deceased as well and thereafter, the appellant
went inside the house on the pretext of bringing
some snacks but came back holding an axe and
caused one axe blow over the chest of the
deceased. According to the postmortem report, the
following injury was suffered by the deceased :
" A choped elepticle incised wound interior
to middle 1/3 of R clavicle, 4 cm in
length, penetrated through thoraic cavity
with fracture clavicle in middle 1/3."
As per Exception 4 of Section 300 of IPC,
culpable homicide is not murder if it is
committed without premeditation in a sudden fight
in the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage
or acted in a cruel or unusual manner. In the
present case, at the place of the incident i.e.
appellant's house, all of the people present i.e.
the appellant himself, Sukhlal (P.W.2) as well
as Indal (P.W.4) were under influence of alcohol
and when the appellant came to the house of the
appellant, he was also served liqour. Moreover,
there was no dispute either civil or criminal
pending between the appellant and the deceased as
stated by eyewitness Sukhlal (P.W.2) in his
statement before the Court and both had cordial
relations. Therefore, considering the facts and
circumstances of the present case, culpable
homicide cannot be said to murder within the
definition of Section 300 of IPC. The facts and
circumstances of the case and the manner in which
the incident occurred on the day of the local
festival (Hariyali), we are of the considered
opinion that the appellant's case would not fall
within Section 302 of IPC and it is covered with
Exception 4 of Section 300 of IPC.
20. The last question for consideration is whether
the present case would fall under Part I or Part
II of Section 304 of IPC ?
21. Considering the totality of the case and more
particularly considering that the appellant
caused a single axe blow and inflicted injury on
the chest of the appellant, it can be presumed
that the appellant knew that causing such an
injury was likely to cause death, therefore, the
present case would fall within Section 304 Part
II of IPC.
22. In result, the conviction of the appellant for
offence under Section 302 of IPC is converted to
Section 304 Part II of IPC. Since the appellant
is in jail since 12/08/2010 (more than 11 years),
we hereby award the sentence already undergone.
The appellant be released from jail forthwith if
not required in any other case.
23. Accordingly, this criminal appeal is allowed to
the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
