Chattisgarh High Court
Sahil Kumar Banjare vs State Of Chhattisgarh on 1 May, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:19889-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1549 of 2021
1 - Sahil Kumar Banjare S/o Bhagwan Das Banjare Aged About 18 Years R/o
Village Louda, Satnami Para, Ward No. 15, Police Station Pathariya, District-
Mungeli, Chhattisgarh, District : Mungeli, Chhattisgarh
2 - Sikandar Banjare S/o Bhagwan Das Banjare Aged About 26 Years R/o
Village Louda, Satnami Para, Ward No. 15, Police Station Pathariya, District-
Mungeli, Chhattisgarh, District : Mungeli, Chhattisgarh ... Appellant(s)
versus
1 - State Of Chhattisgarh Through- Police Station Pathariya, District- Mungeli,
Chhattisgarh, District : Mungeli, Chhattisgarh
...Respondent(s)
For appellants : Mr. Dheerendra Pandey, Advocate.
For Respondent/State : Mr. Swajeet Ubeja, P.L.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Arvind Kumar Verma Judge
Judgment on Board
Per Arvind Kumar Verma, Judge
01.05.2025
1. Heard Mr. Dheerendra Pandey, learned counsel for the appellants.
Also heard Mr. Swajeet Ubeja, learned Panel Lawyer, appearing for the
2
respondent/State.
2. This criminal appeal filed by the appellants/accused under Section
374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is
directed against the impugned judgment of conviction and order of
sentence dated 08.10.2021, passed by Court of learned Sessions Judge,
Mungeli District Mungeli (C.G.) in Sessions Case No. 13/2020, whereby
the appellants have been convicted and sentenced as under:-
Conviction under Section Sentence
Section 449 of the Indian Rigorous imprisonment (for short,
Penal Code (for short, 'IPC') 'R.I.') for life (for all the appellants)
and fine of Rs. 2,000/-, in default of
payment of fine, 01 year additional
R.I. to each appellants
Section 302/34 of the Indian Rigorous imprisonment (for short,
Penal Code (for short, 'IPC') 'R.I.') for life (for all the appellants)
and fine of Rs. 2,000/-, in default of
payment of fine, 01 year additional
R.I. to each appellants
3. Case of the prosecution, in brief, is that the complainant Bacche Lal
(PW-1) made complaint at Police Station Pathariya against the appellants
that on 22.12.2019 at about 07:00 P.M. both the accused persons entered
in his house and on a dispute of money, they committed murder of his
elder son Jwala Tondon, and also beaten his family members.
4. After the said complaint was lodged, Merg intimation was recorded
vide Ex.P1 and the case was registered at the Police Station Pathariya,
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District Mungeli as First Information Report (FIR) vide Ex.P/02. A spot
map (Ex.P/04) was prepared by the Patwari. The accused was taken into
custody vide Ex.P/ 24 & 25, and Property seizure memo vide Ex.P/11. A
crime details form was prepared by the Police vide Ex.P/5. The seized
property was sent to the State Forensic Laboratory for examination and
the report was received vide Ex.P/29.
5. Dead body of the deceased was sent for postmortem to CHC
Pathariya District Mungeli (C.G.), where Dr. A. R. Banjare (PW-5)
conducted postmortem over the body of the deceased vide Ex.P/30 and
found following injuries:-
Injuries:
1. Lacerated wound right side epigastrium in size of 2 cm
x 1cm
2. Lacerated wound right side below right axillary region
in size of 2cm x 1cm x 3cm
3. Lacerated wound right abdominal lumbar region 2cm
x 1cm x 3cm.
All the above injuries were antemortem (before death).
Dr. A R. Banjare (PW-5) opined that all the injuries were ante-
mortem in nature caused by sharp and hard object. It has been opined by
the Doctor that the cause of death due to excessive haemorrhage and
shock as a result of injury and the death was homicidal in nature. The
death of the deceased occurred within 12-18 hours of the examination.
6. After due investigation, the Police filed charge-sheet against the
appellants before the trial Court. The trial Court has framed charges
against the appellants for the offences punishable under Section 449, 302
4
r/w Section 34, 323 r/w Section 34 (two time), 324 r/w Section 34 of IPC
and proceeded on trial. The appellants abjured the guilt and entered into
defence stating that he has not committed any offence and he has been
falsely implicated.
7. In order to bring home the offence, the prosecution examined as
many as 11 witnesses and exhibited 39 documents. The
appellants/accused examined none in their defence.
8. The trial Court upon appreciation of oral and documentary evidence
available on record, by its judgment dated 08.10.2021, convicted the
accused/appellants for the offence punishable under Sections 449 and
302/34 of the IPC and sentenced them as aforementioned, against which,
this criminal appeal has been filed.
9. Learned counsel for the appellants submits that the learned trial
Court is absolutely unjustified in convicting the appellants for the offence
punishable under Sections 449 and 302 of the IPC, as the prosecution
has failed to prove the offence beyond reasonable doubt. He further
submits that if the case of the prosecution is accepted on the face of it,
then also the appellants is said to have caused injuries to deceased on
the spur of the moment because the deceased himself came to the
appellants and talked to them and thereafter altercation between them
has been commenced. 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
injuries to the deceased, which caused his death. Therefore, the case of
the present appellants falls within the purview of Exception 4 to Section
5
300 of the 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 the offence punishable 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, the appellant No. 2 is in jail since 30.12.2019 and
he has completed near about 05 years and 4 months and the appellant
No. 1 is on bail since 14.06.2023, therefore, considering the period he had
already undergone, he be awarded the sentence of the period already
undergone by them. Hence, the present appeal deserves to be allowed in
full or in part.
10. Per contra, learned State counsel supported the impugned
judgment of conviction and order of sentence and submits that the
prosecution has proved the offence beyond reasonable doubt by leading
evidence of clinching nature. He further submits that Usha Tandon (PW-
2) and Shefali Tandon (PW-3), who are the eyewitnesses of the incident,
have stated that they saw that the accused assaulted the deceased by
knif, due to which the deceased died, therefore, in view of the statements
of the prosecution witnesses coupled with other material available on
record, the learned trial Court has rightly convicted the appellants for
offence under Sections 449 and 302/34 of the IPC. It has been contended
that appellants has committed heinous crime of murder and in such
circumstances, it is not the case where conviction of the appellants for
offence under Section 302 of IPC requires to be altered to Section 304
Part-I or Part-II of IPC. Thus, the present appeal deserves to be
dismissed.
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11. We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and also went
through the records with utmost circumspection.
12. The first question for consideration would be, whether death of
deceased was homicidal in nature ?
13. The trial Court after appreciating oral and documentary evidence
available on record particularly relying upon the statement of Dr. A. R.
Banjare (PW-05), who conducted postmortem had opined that death of
the deceased was caused due to the impact of a blunt and hard object on
the head. The injuries were antemortem in nature. The Doctor ultimately
opined through his report the nature of death to be homicidal. After
hearing learned counsel for the parties and after considering the
submissions, we are of the considered opinion that the finding recorded
by the trial Court that death of deceased was homicidal in nature is the
finding of fact based on evidence available on record. It is neither
perverse nor contrary to record. We hereby affirm that finding.
14. Now, the next question for consideration would be whether the
accused/appellants herein is the perpetrator of the crime in question,
which the learned trial Court has recorded in affirmative by relying upon
the testimony of Dr. A. R. Banjare (PW-5), who conducted postmortem
has opined that death of the deceased was caused due to the impact of a
blunt and hard object on the head and the cause of death due to
excessive haemorrhage and shock as a result of injury. The injuries were
antemortem in nature. The Doctor ultimately opined through his report the
nature of death to be homicidal and the testimonies of Usha Tandon (PW-
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2) and Shefali Tandon (PW-3), who are the eyewitnesses of the incident
and they clearly deposed in their statement that on the date of incident
they saw the accused assaulted the deceased due to which the deceased
died. Thus, on the basis of testimonies of Dr. A.R. Banjare (PW-05), Usha
Tandon (PW-2) and Shefali Tandon (PW-3), it is clear that it is the
appellants herein who on the fateful date and time has caused grievous
injuries to the deceased, due to which he died. As such, the learned trial
Court has rightly held that it is the appellants/accused who has caused
injuries over the body of the deceased and caused his death. Accordingly,
we hereby affirm the said finding.
15. 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 ?
16. The cause of death assigned in the postmortem report of the
deceased as already noticed are ‘cardiac arrest and respiratory failure
caused by a head injury’. It is a trite law that “culpable homicide” is a
genus and “murder” is its species and all “murders” are “culpable
homicides, but all “culpable homicides are not “murders” as held by the
Hon’ble Supreme Court in the matter of Rampal Singh v. State of Uttar
Pradesh1. The intention of the accused must be judged not in the light of
actual circumstances, but in the light of what is supposed to be the
circumstances.
1 (2012) 8 SCC 289
8
17. The Hon’ble Supreme Court in the case of Basdev v. State of
Pepsu2 has made the following observations :
“Of course, we have to distinguish between motive,
intention and knowledge. Motive is something which
prompts a man to form an intention and knowledge is
an awareness of the consequences of the act. In many
cases intention and knowledge merge into each other
and mean the same thing more or less and intention
can be presumed from knowledge. The demarcating
line between knowledge and intention is no doubt thin
but it is not difficult to perceive that they connote
different things. Even in some English decisions, the
three ideas are used interchangeably and this has led
to a certain amount of confusion.”
18. It requires to be borne in mind that the test suggested in the
aforesaid decision and the fact that the legislature has used two different
terminologies, ‘intent’ and ‘knowledge’ and separate punishments are
provided for an act committed with an intent to cause bodily injury which is
likely to cause death and for an act committed with a knowledge that his
act is likely to cause death without intent to cause such bodily injury as is
likely to cause death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in
equal terms. They are not different things. Knowledge would be one of the
circumstances to be taken into consideration while determining or
inferring the requisite intent. Where the evidence would not disclose that
there was any intention to cause death of the deceased but it was clear
that the accused had knowledge that his acts were likely to cause death,
the accused can be held guilty under second part of Section 304 of the
IPC. It is in this background that the expression used in Indian Penal
2 AIR 1956 SC 488
9
Code namely “intention” and “knowledge” has to be seen as there being a
thin line of distinction between these two expressions. The act to
constitute murder, if in given facts and circumstances, would disclose that
the ingredients of Section 300 are not satisfied and such act is one of
extreme recklessness, it would not attract the said Section. In order to
bring a case within Part 3 of Section 300 of the IPC, it must be proved that
there was an intention to inflict that particular bodily injury which in the
ordinary course of nature was sufficient to cause death. In other words,
that the injury found to be present was the injury that was intended to be
inflicted.
19. The Hon’ble Supreme Court in the matter of Sukhbir Singh v.
State of Haryana3 has observed as under:-
“21. Keeping in view the facts and circumstances of
the case, we are of the opinion that in the absence of
the existence of common object Sukhbir Singh is
proved to have committed the offence of culpable
homicide without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and did not
act in a cruel or unusual manner and his case is
covered by Exception 4 of Section 300 IPC which is
punishable under Section 304 (Part I) IPC. The
finding of the courts below holding the aforesaid
appellants 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 shall3 (2002) 3 SCC 327
10undergo further rigorous imprisonment for one year.”
20. The Hon’ble Supreme Court in the matter of Gurmukh Singh v.
State of Haryana4 has laid down certain factors which are to be taken
into consideration before awarding appropriate sentence to the accused
with reference to Section 302 or Section 304 Part II of the IPC, which
state as under :-
“23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case
has to be seen fro its special perspective. The
relevant factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the
spur of the moment;
(c) The intention/knowledge of the accused while
inflicting the blow or injury;
(d) Whether the death ensued instantaneously or
the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the
accused;
(g) Whether the injury was caused without
premeditation in a sudden fight;
(h) The nature and size of weapon used for
inflicting the injury and the force with which the
blow was inflicted;
(i) The criminal background and adverse history
of the accused;
4 (2009) 15 SCC 635
11
(j) Whether the injury inflicted was not sufficient in
the ordinary course of nature to cause death but
the death was because of shock;
(k) Number of other criminal cases pending
against the accused;
(l) Incident occurred within the family members or
close relations;
(m) The conduct and behaviour of the accused
after the incident.
Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure
that he/she gets proper medical treatment ?
These are some of the factors which can be
taken into consideration while granting an
appropriate sentence to the accused.
24. The list of circumstances enumerated above is
only illustrative and not exhaustive. In our considered
view, proper and appropriate sentence to the accused
is the bounded obligation and duty of the court. The
endeavour of the court must be to ensure that the
accused receives appropriate sentence, in other
words, sentence should be according to the gravity of
the offence. These are some of the relevant factors
which are required to be kept in view while convicting
and sentencing the accused.”
21. Likewise, in the matter of State v. Sanjeev Nanda5, 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
5 (2012) 8 SCC 450
12
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.
22. Further, the Supreme Court in the matter of Arjun v. State of
Chhattisgarh6 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. 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.”
6 (2017) 3 SCC 247
13
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”.
23. In the matter of Arjun (supra), the Supreme Court has held that if
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there is intent and knowledge, the same would be case of Section 304
Part-I of the IPC and if it is only a case of knowledge and not the intention
to cause murder and bodily injury, then same would be a case of Section
304 Part-II of the IPC.
24. Further, the Supreme Court in the matter of Rambir v. State (NCT
of Delhi)7 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) 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."
25. The Hon’ble Supreme Court in a recent judgment in the case of
Anbazhagan v. The State represented by the Inspector of Police in
Criminal Appeal No. 2043 of 2023 disposed off on 20.07.2023 has
defined the context of the true test to be adopted to find out the intention
or knowledge of the accused in doing the act as under:
“60. Few important principles of law discernible from
the aforesaid discussion may be summed up thus:
7 (2019) 6 SCC 122
15(1) When the court is confronted with the
question, what offence the accused could be said
to have committed, the true test is to find out the
intention or knowledge of the accused in doing
the act. If the intention or knowledge was such as
is described in Clauses (1) to (4) of Section 300
of the IPC, the act will be murder even though
only a single injury was caused. To illustrate: ‘A’ is
bound hand and foot. ‘B’ comes and placing his
revolver against the head of ‘A’, shoots ‘A’ in his
head killing him instantaneously. Here, there will
be no difficulty in holding that the intention of ‘B’ in
shooting ‘A’ was to kill him, though only single
injury was caused. The case would, therefore, be
of murder falling within Clause (1) of Section 300
of the IPC. Taking another instance, ‘B’ sneaks
into the bed room of his enemy ‘A’ while the latter
is asleep on his bed. Taking aim at the left chest
of ‘A’, ‘B’ forcibly plunges a sword in the left chest
of ‘A’ and runs away. ‘A’ dies shortly thereafter.
The injury to ‘A’ was found to be sufficient in
ordinary course of nature to cause death. There
may be no difficulty in holding that ‘B’ intentionally
inflicted the particular injury found to be caused
and that the said injury was objectively sufficient
in the ordinary course of nature to cause death.
This would bring the act of ‘B’ within Clause (3) of
Section 300 of the IPC and render him guilty of
the offence of murder although only single injury
was caused.
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of
Section 300 of the IPC, the act of the accused
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which would otherwise be murder, will be taken
out of the purview of murder, if the accused’s
case attracts any one of the five exceptions
enumerated in that section. In the event of the
case falling within any of those exceptions, the
offence would be culpable homicide not
amounting to murder, falling within Part 1 of
Section 304 of the IPC, if the case of the accused
is such as to fall within Clauses (1) to (3) of
Section 300 of the IPC. It would be offence under
Part II of Section 304 if the case is such as to fall
within Clause (4) of Section 300 of the IPC.
Again, the intention or knowledge of the accused
may be such that only 2nd or 3rd part of Section
299 of the IPC, may be attracted but not any of
the clauses of Section 300 of the IPC. In that
situation also, the offence would be culpable
homicide not amounting to murder under Section
304 of the IPC. It would be an offence under Part
I of that section, if the case fall within 2nd part of
Section 299, while it would be an offence under
Part II of Section 304 if the case fall within 3rd
part of Section 299 of the IPC.
(3) To put it in other words, if the act of an
accused person falls within the first two clauses of
cases of culpable homicide as described in
Section 299 of the IPC it is punishable under the
first part of Section 304. If, however, it falls within
the third clause, it is punishable under the second
part of Section 304. In effect, therefore, the first
part of this section would apply when there is
‘guilty intention,’ whereas the second part would
apply when there is no such intention, but there is
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‘guilty knowledge’.
(4) Even if single injury is inflicted, if that
particular injury was intended, and objectively that
injury was sufficient in the ordinary course of
nature to cause death, the requirements of
Clause 3rdly to Section 300 of the IPC, are
fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the
following classes of cases : (i) when the case falls
under one or the other of the clauses of Section
300, but it is covered by one of the exceptions to
that Section, (ii) when the injury caused is not of
the higher degree of likelihood which is covered
by the expression ‘sufficient in the ordinary
course of nature to cause death’ but is of a lower
degree of likelihood which is generally spoken of
as an injury ‘likely to cause death’ and the case
does not fall under Clause (2) of Section 300 of
the IPC, (iii) when the act is done with the
knowledge that death is likely to ensue but
without intention to cause death or an injury likely
to cause death.
To put it more succinctly, the difference between
the two parts of Section 304 of the IPC is that
under the first part, the crime of murder is first
established and the accused is then given the
benefit of one of the exceptions to Section 300 of
the IPC, while under the second part, the crime of
murder is never established at all. Therefore, for
the purpose of holding an accused guilty of the
offence punishable under the second part of
Section 304 of the IPC, the accused need not
18
bring his case within one of the exceptions to
Section 300 of the IPC.
(6) The word ‘likely’ means probably and it is
distinguished from more ‘possibly’. When
chances of happening are even or greater than its
not happening, we may say that the thing will
‘probably happen’. In reaching the conclusion, the
court has to place itself in the situation of the
accused and then judge whether the accused had
the knowledge that by the act he was likely to
cause death.
(7) The distinction between culpable homicide
(Section 299 of the IPC) and murder (Section 300
of the IPC) has always to be carefully borne in
mind while dealing with a charge under Section
302 of the IPC. Under the category of unlawful
homicides, both, the cases of culpable homicide
amounting to murder and those not amounting to
murder would fall. Culpable homicide is not
murder when the case is brought within the five
exceptions to Section 300 of the IPC. But, even
though none of the said five exceptions are
pleaded or prima facie established on the
evidence on record, the prosecution must still be
required under the law to bring the case under
any of the four clauses of Section 300 of the IPC
to sustain the charge of murder. If the prosecution
fails to discharge this onus in establishing any
one of the four clauses of Section 300 of the IPC,
namely, 1stly to 4thly, the charge of murder would
not be made out and the case may be one of
culpable homicide not amounting to murder as
described under Section 299 of the IPC.
19
(8) The court must address itself to the question
of mens rea. If Clause thirdly of Section 300 is to
be applied, the assailant must intend the
particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct
evidence. Inevitably, it is a matter of inference to
be drawn from the proved circumstances of the
case. The court must necessarily have regard to
the nature of the weapon used, part of the body
injured, extent of the injury, degree of force used
in causing the injury, the manner of attack, the
circumstances preceding and attendant on the
attack.
(9) Intention to kill is not the only intention that
makes a culpable homicide a murder. The
intention to cause injury or injuries sufficient in the
ordinary cause of nature to cause death also
makes a culpable homicide a murder if death has
actually been caused and intention to cause such
injury or injuries is to be inferred from the act or
acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused
results in the death of the victim, no inference, as
a general principle, can be drawn that the
accused did not have the intention to cause the
death or that particular injury which resulted in the
death of the victim. Whether an accused had the
required guilty intention or not, is a question of
fact which has to be determined on the facts of
each case.
(11) Where the prosecution proves that the
accused had the intention to cause death of any
20
person or to cause bodily injury to him and the
intended injury is sufficient in the ordinary course
of nature to cause death, then, even if he inflicts a
single injury which results in the death of the
victim, the offence squarely falls under Clause
thirdly of Section 300 of the IPC unless one of the
exceptions applies.
(12) In determining the question, whether an
accused had guilty intention or guilty knowledge
in a case where only a single injury is inflicted by
him and that injury is sufficient in the ordinary
course of nature to cause death, the fact that the
act is done without premeditation in a sudden
fight or quarrel, or that the circumstances justify
that the injury was accidental or unintentional, or
that he only intended a simple injury, would lead
to the inference of guilty knowledge, and the
offence would be one under Section 304 Part II of
the IPC.”
26. In the present case, (PW-02) Usha Tandon who is the wife of
deceased Jwala and is the eyewitness stated that on the date of incident,
her husband Jwala came back from the market and asked her to make
tea. She states that at that time both the accused came to her house, then
she asked the accused to have tea. She states that the accused said that
they will not drink tea, they will kill Jwala. She states that she went to the
kitchen to make tea thinking that they were joking, then Sikandar started
abusing, then she came from the kitchen and she saw that accused
Sikandar was pressing her husband’s throat with both hands, then she
tried to free him, at the same time accused Sahil pushed her hard, then
she fell on the ground. The accused Sahil held both the hands of her
21
husband from behind and the accused Sikandar stabbed her husband in
the heard, back and other places with a knife. She states that on hearing
her scream, Inderjeet and Bacche Lal came.
27. Likewise Shefali Tandon (PW-3), has narrated the same version
and she corroborated the statement of PW-02) Usha Tandon and stated
that at the time of incident, the accused Sikandar brought the knife from
the kitchen and when she tried to hold the hand of Sikandar and he
pushed her and because of which she got injured from the knife. During
their cross-examination, the statements of the witnesses remain
unbroken, and there are no inconsistency in their statements that would
make them unreliable.
28. Dr. A. R. Banjare (PW-5) who has conducted the postmortem of the
deceased vide (Ex.P-30). After the postmortem, he found the injuries as
stated in paragraph 05 of this appeal and he opined that the death of the
deceased was caused due to the impact of a blunt and hard object on the
head and also due to excessive haemorrhage and shock as a result of
injury and the death was homicidal in nature
29. Reverting to the facts of the present case, in light of principles of law
laid down by their Lordships of the Hon’ble Supreme Court in the above-
stated judgments (supra), it is quite vivid that as per evidence of (PW-02)
Usha Tandon and Shefali Tandon (PW-3), it is evident that on the date of
incident, the accused/appellants stated abusing with deceased and on
account of money dispute and on account of sudden fight the accused
assaulted the deceased with the help of knife. There was no
premeditation on the part of the appellants to cause death of deceased as
22
the Sikandar went to kitchen and brought the knife from which he stabbed
the deceased. The appellants did not had any intention to cause death of
deceased, but by causing such injuries, he must had the knowledge that
such injuries inflicted by them 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 appellants herein completely satisfies 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 appellants had not taken any
undue advantage or acted in a cruel or unusual manner.
30. So far as conviction of the appellant No. 2 Sikandar Banjare is
concerned, considering the above-stated facts, also considering the
evidence of witnesses and taking into consideration that appellant No. 2
Sikandar Banjare is in jail since 30.12.2019, the conviction of the
appellants No. 2 under Section 302/34 of the IPC can be
altered/converted to Section 304 Part-I of the IPC. Accordingly, conviction
and sentence of the appellant No. 2 under Section 302/34 of the IPC is
set aside, however, appellant No. 2 Sikandar Banjare is convicted
under Section 304 Part-I and 449 of the IPC and sentenced to undergo
rigorous imprisonment for 10 years in each offence. The appellants No. 2
is in jail and he shall served out the sentence as modified above.
31. So far as conviction of appellant No. 1 Sahil Kumar Banjare is
concerned. From perusal of the evidence of prosecution witnesses, it
reflects that the entire assault is attributed to appellant No. 2 Sikandar
Banjare and name of appellant No. 1 Sahil Kumar Banjare has
subsequently been inculpated and his name do not find place in the FIR
23
and Merg. The death was due to stab injury and the entire allegation of
stab injury is on appellant No. 2 Sikandar Banjare and on the statement of
Usha Tandan (PW-2) and Shefali Tandan (PW-3), the appellant No. 1 has
been subsequently convicted. Looking to the role played by the appellant
No. 1 that he was not knowledge of act committed by the appellant No. 2
and also considering the fact that he has not made any assault or
participated in the said crime and no any witnesses examined before the
trial Court has stated against him in respect of assault made by him, we
are of the considered view that the prosecution has not proved its case
beyond reasonable shadow of doubt against the appellant No. 1 for the
offence punishable under Section 302/34 and 449 of IPC. Therefore, the
appellant No. 1- Sahil Kumar Banjare is liable to be and is hereby
acquitted of the charges framed against him under Section 302/34 and
449 of IPC by the court of Sessions Judge Mungeli, District Mungeli
(C.G.) in Sessions Case No. 13/2020.
32. In the result, as regards criminal appeal in respect of the appellant
No. 2 Sikandar Banjare is partly allowed and as regards criminal appeal
in respect of the appellant No. 1 Sahil Kumar Banjare is allowed.
33. The appellant No. 1- Sahil Kumar Banjare is reported to be on bail.
His bail bonds shall remain operative for a period of 6 months in view of
Section 437A of CrPC (now Section 481 of the Bhartiya Nagarik
Suraksha Sanhita, 2023).
34. The criminal appeal is allowed in part to the extent indicated
herein-above.
35. Registry is directed to send a certified copy of this judgment along
24
with the original record of the case to the trial court concerned forthwith for
necessary information and compliance and also send a copy of this
judgment to the concerned Superintendent of Jail where the appellants is
undergoing his jail sentence to serve the same on the appellants 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, if so
advised, with the assistance of High Court Legal Services Committee or
the Supreme Court Legal Services Committee.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Jyoti
Digitally
signed by
JYOTI JHA
Date:
2025.05.03
11:00:05
+0530
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