Chattisgarh High Court
Manoj Dahriya vs State Of Chhattisgarh on 11 March, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:12052-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1618 of 2019
Manoj Dahriya S/o Late Shri Mandas Dahriya Aged About 30 Years R/o
Village Rasota, P.S. Palari District Balodabazar Chhattisgarh
... Appellant
In Jail
versus
State Of Chhattisgarh Through Police Station Punjipathra District
Raigarh Chhattisgarh.
... Respondent
For Appellant : Mrs. Renu Kochar, Advocate.
For Respondent : Mr. Ankur Kashyap, Dy. Govt. Advocate.
Hon'ble Smt. Justice Rajani Dubey, &
Hon'ble Shri Justice Sachin Singh Rajput, JJ
Judgment On Board
(11th March, 2025)
Per Rajani Dubey, J
The appellant in this appeal is challenging the legality and
validity of the judgment of conviction and order of sentence dated
31.7.2019 passed by 5th Additional Sessions Judge, Raigarh in ST
No.43/2018 convicting the appellant under Section 302 of IPC and
sentencing him to undergo imprisonment for life, pay a fine of
Rs.1000/- and in default thereof to suffer additional RI for one year.
02. Case of the prosecution, in brief, is that complainant Parvatiya
Bai Kujur lodged a report on 16.1.2018 at Police Station-Punjipathra,
Distt. Raigarh to the effect that today at around 6 pm she went to
attend the call of nature near her house and while returning she
peeped into the house of accused Manoj Dahariya by slightly opening
the front gate and found Lata Dahariya lying dead there with head
injury from which blood was oozing and one brick was lying on the
place of occurrence. Seeing this, she immediately informed Ranjan
Kumar Mahto as also the plant staff. Based on this report, offence
under Section 302 of IPC was registered against the
accused/appellant.
03. During investigation, inquest over the dead body was conducted
vide Ex.P/2; plain and bloodstained soil were seized from the place of
occurrence vide Ex.P/4; spot map Ex.P/5 was prepared; clothes and
ornaments of the deceased worn at the time of incident were seized
vide Ex.P/8 and statements of the witnesses were recorded.
Postmortem of the deceased was conducted on 18.1.2018 by PW-10
Dr. Prakash Kumar Chetwani vide Ex.P/10 and in his opinion, the
cause of death was head injury resulting in neurogenic shock and the
death appears to be homicidal in nature but needs to correlate with
circumstantial evidence. As per FSL report (Ex.P/17), human blood
was found on the brick and clothes of the deceased, however, its group
could not be determined. After completing usual investigation, charge
sheet under Section 302 of IPC was filed against the accused followed
by framing of charge accordingly by learned trial Court which was
abjured by him and he prayed for trial.
04. In order to substantiate its case the prosecution examined 12
witnesses. Statement of the accused was recorded under Section 313
of CrPC wherein he denied all the incriminating circumstances
appearing against him in the prosecution case, pleaded innocence and
false implication.
05. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the appellant as mentioned above. Hence
this appeal.
06. Learned counsel for the appellants submits that the impugned
judgment is bad in law, perverse, erroneous and liable to be set aside.
The prosecution has failed to attribute any motive to the appellant for
commission of this heinous offence. Learned trial Court ought to have
seen that PW-2 Parvatiya Bai, PW-3 Neha Kujur, PW-4 Dhyan Kumar,
PW-5 Raju Kumar Gupta and PW-6 Sachin Kumar are not reliable
witnesses as they are interested and partisan witnesses. From the
evidence of PW-3 Neha Kujur it is clear that initially she did not state
anything against the appellant despite being asked repeatedly but after
lunch break when she was again asked by the prosecution whether
she saw the appellant assaulting the deceased with brick and informed
about the same to her grand-mother, she nodded in affirmative. Thus,
she being a tutored witness, learned trial Court rightly did not rely upon
her evidence. On the date of incident when the police reached the
spot, PW-1 to PW-6 were though present there but did not disclose the
police anything about the incident and their statements were recorded
after one day which creates doubt on veracity of their statements.
She further submits that the prosecution has also failed to offer
any explanation as to why copy of FIR was sent to the Magistrate
belatedly. Medical evidence also does not support the prosecution
case. Even FSL report is also not conclusive because though human
blood was found on the seized articles but its group could not be
determined. She submits that the appellant was not at all present at the
place of occurrence when the crime was committed. The entire case is
based on circumstantial evidence but the prosecution has utterly failed
to prove a complete chain of circumstances which could unerringly
point towards guilt of the appellant. Being so, the impugned judgment
is liable to be set aside and the appellant be acquitted of the charge by
giving him benefit of doubt.
Alternatively she submits that looking to the facts and
circumstances of the case, the fact that the incident took place all of a
sudden in the heat of passion upon a sudden quarrel without any
premeditation, the nature of injury suffered by the deceased; the
weapon of offence and the manner in which assault was made where
the appellant did not act cruelly, at the most the appellant can be held
guilty under Section 304 Part-I of IPC and therefore, his conviction may
be modified accordingly.
Reliance has been placed on the judgment dated 5.4.2022 of
this Court in CRA No.428/2014 in the matter of Shivprasad @ Jhelsai
Vs. State of CG and judgment dated 15.7.2024 in CRA
No.1299/2018 in the case of Bhagwan Singh Maravi Vs. State of CG.
07. On the other hand, learned counsel for the State supporting the
impugned judgment submits that the learned trial Court having regard
to the overall evidence on record, oral and documentary, has rightly
convicted and sentenced the appellant by the impugned judgment
which calls for no interference by this Court. Hence the appeal being
without any substance is liable to be dismissed.
08. Heard learned counsel for the parties and perused the material
available on record.
09. It is clear from the record of learned trial Court that the appellant
was charged under Section 302 of IPC for committing murder of his
wife Lata Dahariya on 16.1.2018 by assaulting her with bricks on her
head. In order to substantiate its case the prosecution examined 12
witnesses and after appreciation of oral and documentary evidence on
record, learned trial Court convicted the appellant under section 302 of
IPC and sentenced as mentioned above.
10. PW-12 Vinod Katlam, Inspector, states that on 16.1.2018
complainant Parvatiya Bai Kujur informed that the accused/appellant
Manoj Dahariya was beating his wife Lata Dahariya and also assaulted
her with brick as a result of which she started bleeding and died. On
this, he registered merg intimation No.02/18 and issued notice to the
panch witnesses vide Ex.P/3 and prepared inquest memo Ex.P/2. He
admits his signature on these documents from D to D part. He states
that he sent the dead body for postmortem through Constable 430
Santram Kenwat and the application for postmortem is Ex.P/9 which
bears his signature from A to A and B to B part.
11. PW-10 Dr. Prakash Kumar Chetwani conducted postmortem on
the body of the deceased on 18.1.2018 and found the following injuries
on her body:
"Both ear bleed, oral bleed present, right ear teared cut
through including ear cartilage near to ear pin piercing.
One 3 cm long LW at right parietal region of scalp skull
depth, one 9 cm LW at right parietal region of scalp, bone
depth with fractured skull beneath seen. One interrupted
ligature mark over neck only in anterior and right lateral
aspect with prominent in right side oof neck 6 mm width, 3
cm length. One impact bruise over right side of face and
upper neck (9 x 15 cm2) with abrasion lateral to right eye 1
x 2 cm2 and posterior to right ear 5 1/2 x 2 cm2. One
triangular shape bruise lateral to left eye, height 5 cm base
2 cm. Abrasion above left eye 3 x 2 1/2 cm 2 with skull
compressed at left side of forehead."
It is mentioned in the postmortem report that all these injuries are
antemortem in nature, grievous, caused by impact with hard and blunt
object with heavy force. In his opinion, the cause of death is head
injuries resulting in neurogenic shock followed by death. The doctor
opined that the mode of death seems to be homicidal in nature but
needs to correlate with circumstantial evidence. The autopsy surgeon
also examined the brick seized from the spot and opined that injuries
sustained by the deceased on her head could be caused by this brick
vide Ex.P/12. In cross-examination he denied the suggestion that such
injuries could be caused in accidental case. However, he admitted that
apart from this brick, the injuries suffered by the deceased could be
caused by any other solid and heavy object.
12. Considering the nature of injuries and the evidence of the
autopsy surgeon (PW-10) it stands proved beyond all reasonable doubt
that deceased Lata Dahariya died due to head injuries and her death
was homicidal in nature.
13. Now we have to examine whether death of Lata Dahariya was
caused by the appellant?
14. PW-1 Santoshi, PW-2 Parvatiya Bai, PW-4 Dhyan Kumar, PW-5
Raju Kumar Gupta, PW-6 Sachin Kumar, PW-7 Rikhiram Sahu and
PW-8 Satyaveer Singh, all are hearsay witnesses who state that upon
coming to know about murder of Lata dahariya from some other
person, they reached the spot and found her lying dead in pool of
blood.
15. PW-3 Neha Kujur, a child witness, was found to be a tutored
witness by the learned trial Court because for the first time when she
appeared before the Court and asked as to whether she knows Neeraj,
she did not utter anything and gave answer in negative through
gestures. When she was asked as to whether she knows the accused,
again she answers in negative by moving her head. Despite being
repeatedly asked by the prosecution whether she saw the appellant
assaulting the deceased with brick and informed about the same to her
grand-mother, she neither said anything nor did give answer through
gestures. However, after some time when she appeared before the
learned trial Court and the same question was put to her, she nodded
in affirmative.
Looking to the statement and conduct of child witness Neha
Kujur, the said finding of learned trial Court that she is tutored and
unreliable witness, is just and proper.
16. PW-2 Parvatiya who informed the police about death of Lata
Dahariya states that at about 6 pm she went out near the room for
attending the call of nature and while returning she peeped into the
room of the accused and saw that wife of the accused was lying on the
floor, she was bleeding and one brick was lying near her. She states
that her grand-daughter Neha informed her that father of Neeraj has
killed his mother and warned her not to go there. She states that she
lodged report of Ex.P/1.
17. PW-12 Vinod Katlam also states that as per information given by
Parvatiya Bai, he registered the FIR (Ex.P/2).
18. PW-6 Sachin Kumar states that on being informed by Dhyan
Kumar that the accused having killed his wife has fled when he along
with Satveer went to the house of the accused, they saw deceased
Lata lying in the room with head injury bleeding and a piece of brick
and mobile were also lying there.
19. PW-7 Rikhiram Sahu, father of the deceased, states that the
accused used to beat his daughter Lata Dahariya and she had
reported this matter to the police. He states that he was informed by
the police over phone that the accused having killed his daughter has
fled with one of his children.
20. Learned trial Court observed that the appellant was arrested
after two days of the incident on 18.1.2018 at 11:00 hours. None of the
witnesses saw the appellant at his house at the time of incident. the
appellant was out of his house with his son for two days after murder of
his wife. He failed to explain as to where he had gone and for what
reason he moved away with his child. This unusual conduct of the
appellant also goes against him and is suggestive of the fact that in
order to save himself from the punishment for committing murder of his
wife he absconded from the spot with his son.
21. Learned trial Court also found that although child witness Neha
Kujur has not supported the prosecution case but as per statements of
other witnesses and conduct of the appellant, it stands proved beyond
reasonable doubt that it is the appellant who assaulted his wife Lata
Dahariya with brick on her head and thus caused her death and
thereafter absconded from the spot with his son.
22. The next question which arises for consideration is whether the
act of the appellant makes him liable for conviction under Section 302
of IPC or is covered with any of the exceptions to Section 300 of IPC?
23. This Court in the matter of Shivprasad @ Jhelsai (supra)
observed in paras 22 & 23 of its judgment as under:
"22. The Supreme Court in the matter of Arjun v. State of
Chhattisgarh, (2017) 3 SCC 147 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 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 provisions means "unfair advantage".
23. 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 Part-I 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 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 Part-I of IPC."
24. In light of above decisions, if we examine the facts and evidence
emerging in the present case, it is quite vivid that the appellant and the
deceased were living together with their children; there used to be
quarrel between them; on the date of incident also due to some quarrel
between the appellant and the deceased all of a sudden, the appellant
got furious and without there being any premeditation on his part
assaulted the deceased with a brick on her head and fled from there
with his son. The nature and extent of injury sustained by the deceased
do not show that the appellant acted in an unusual or cruel manner
while assaulting her. It is clear that no deadly weapon was used by the
appellant in making assault. As per postmortem report, cause of death
is head injury resulting in neurogenic shock followed by death. Thus,
looking to the manner in which the incident took place and the
appellant assaulted the deceased with brick on her vital part head with
such a force that led to her instantaneous death, it can safely be
inferred that while making such assault that appellant had intention of
causing such bodily injury to her which would result in her death. Being
so, the act of the appellant makes him liable for conviction under
Section 304 Part-I of IPC and sentence of 10 years' RI with fine of
Rs.1000/- thereunder would serve the ends of justice.
25. In the result, the appeal is allowed in part. Conviction of the
appellant under Section 302 of IPC is altered to Section 304 Part-I of
IPC and he is sentenced to undergo RI for 10 years, pay a fine of
Rs.1000/- and in default thereof to suffer additional RI for one year. The
fine amount already deposited shall be adjusted accordingly. He is
reported to be in jail since 18.1.2018, therefore, no order regarding his
arrest, surrender etc. is required to be passed and he is entitled for set
off of the detention period already undergone by him under Section 468
of Bharatiya Nagarik Suraksha Sanhita, 2023.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
