Laxman Rathiya Vs State of Chhattisgarh

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2025:CGHC:28093-DB

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Digitally signed by ANURADHA ANURADHA TIWARI TIWARI Date: 2025.06.27 10:29:38 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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CRA No. 131 of 2022

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Laxman Rathiya S/o Amrit Lal Rathiya Aged About 26 Years R/o Village Hati, Nawadih Para, Police Station Chhal, Tahsil Dharamjaigarh, District- Raigarh (C.G.)

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... Appellant

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Versus

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State of Chhattisgarh Through- Police of Police Station Chhal, DistrictRaigarh (C.G.)

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... Respondent

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(Cause-title taken	from Case Information System)
For Appellant :	Mr. Rishi Rahul Soni, Advocate
For Respondent-State :	Mr. Sakib Ahmed, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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26.06.2025

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1. Heard Mr. Rishi Rahul Soni, learned counsel for the appellant as well as Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State.

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2. The criminal appeal has been listed for hearing on I.A. No.02, application for urgent hearing as the appellant is in jail since 28.04.2020.

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3. For the reasons assigned in the application (I.A. No.02), the same is allowed. As the appellant is in jail since 28.04.2020, we proceed to hear the appeal finally.

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4. This criminal appeal filed by the appellant/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 03.01.2022 passed by the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.) in Sessions Trial No.47 of 2020, by which the appellant has been convicted for the offence punishable under Sections 449/34 and 302/34 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for two months as well as imprisonment for life and fine of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for two months and it was further directed to run both the sentences concurrently.

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5. Case of the prosecution, in brief, is that on 28.04.2020, the wife of the deceased Lakhan Lal Rathiya, namely Kamla Bai Rathia, gave an information to the effect that she was living in the village Hati Navadih Para along with her family and doing the work of farming. Her brotherin-law namely Late Amrit Lal Rathiya's had two sons. Accused Laxman Rathiya and the juvenile Kishore Santu Rathiya alias Sanat Rathiya, both were lived separately as well as the land has not been divided. Accused Laxman Rathiya and the juvenile together have sold part of

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their land to someone, for which they were harassing their uncle, i.e. deceased Lakhan Rathiya prior to 4-5 days for registration of the land. The deceased used to state that the sale money has not been paid, as such the registration will not be done.

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6. It is further case of the prosecution that on 27.04.2020, at about 10.00 PM, when complainant Kamla Bai Rathiya (PW-1) was preparing to sleep after feeding her husband and both the children, at that time, the accused and the juvenile in conflict with law, broke the shackles of the door of the house, entered into the house and started quarreling with them holding that the land has not been registered. Accused Laxman Rathiya was carrying an iron axe for cutting wood. When the complainant refused to fight, the juvenile tied a cloth in her mouth and the accused assaulted Lakhan Rathiya near the neck and cheek with the help of an axe, due to which Lakhan Rathiya died. She got scared after seeing the incident, in the morning she told the incident to her neighbour Moti Ram Rathiya (PW-2) and Sarpanch Shyam Sundar Rathiya (PW-4). Thereafter, she went to the Police Station for lodging the report and such as, merg intimation was recorded vide Ex.P/1, based upon which, First Information Report (Ex.P/2) was lodged against the appellant as well as his younger brother (juvenile in conflict with law) for the offence punishable under Sections 449, 302, 34 of IPC. During the investigation, crime details form was prepared vide Ex.P/3, notice under Section 160 of Cr.P.C. was given vide Ex.P/4, Panchnama was prepared vide Ex.P/5 and inquest report was prepared vide Ex.P/6.

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Blood stained and plain soil was seized vide Ex.P/7. Memorandum statement of the appellant was taken vide Ex.P/8, based upon which, the axe (tool for cutting wood) used in the incident was seized vide Ex.P/9. The dead body of the deceased was sent for postmortem examination, which was conducted by Dr. S.K. Paikra (PW-7), who opined that the cause of death seems to be due to cardio-respiratory failure resulted by excessive hemorrhage from neck injury and the death was homicidal in nature and gave its report vide Ex.P/21. The seized article was sent for its chemical examination to Regional Forensic Science Laboratory, Bilaspur and according to the FSL report (Ex.P/20), the blood was found on the seized axe.

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7. After completion of the investigation, it was found that the accused, in collusion with Sanat Ram alias Santu Rathia (a juvenile in conflict with law), murdered the deceased on 24.04.2020 at around 10:00 PM over the issue of land registration. Thereafter, statements of the witnesses were recorded and the charge-sheet against the juvenile in conflict with law was presented in the Juvenile Justice Board, Raigarh and the charge-sheet against the present accused was presented in the concerned Court of Judicial Magistrate First Class, Dharamjaigarh, from where the case was committed to the Court of Sessions and the same was transferred to the Court of Additional Sessions Judge, Gharghoda, District Raipur for trial and for hearing and disposal in accordance with law. Statement of the appellant was also recorded under Section 313 of Cr.P.C., in which, h e denied the circumstances appearing against him in

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the evidence brought on record by the prosecution, pleaded innocence and false implication.

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8. After appreciating the facts and circumstances of the case, t he trial Court has framed charges against the accused-appellant for the offence punishable under Sections 449/34 and 302/ 3 4 of the IPC and proceeded on trial.

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9. In order to bring home the offence, the prosecution examined as many as 9 witnesses as PW-1 to PW-9 and exhibited 22 documents as Ex.P/1 to Ex.P/22. In order to prove the defence, appellant has neither examined any witness nor exhibited any document.

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10. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 03.01.2022 convicted the accused-appellant for the offence punishable under Sections 449/34 and 302/34 of the IPC and sentenced him as as mentioned in the fourth paragraph of this judgment. Hence this criminal appeal has been filed.

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11. Mr. Rishi Rahul Soni, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Sections 449/34 and 302/34 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that appellant along with his real brother (juvenile in conflict with law) have entered the house of his uncle and they have forcing the deceased to execute the sale deed of the

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land so that they may pay the amount of Rs.60,000/-. It has been contended that the case of the prosecution is based on eyewitness account and sole eyewitness to the incident i.e. Kamla Bai (PW-1) who is wife of deceased has deposed in her evidence that the appellant has inserted some cloth in her mouth and his younger brother has assaulted the deceased with the help of axe and the appellant has not assaulted the deceased. It has been further contended that there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, brother of the appellant caused injuries to the deceased, who was juvenile in conflict with law and he has been acquitted by the Juvenile Justice Board. It has been argued that the appellant has not assaulted any single blow to the deceased and he is only inserted the cloth in the mouth of wife of deceased, therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant 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, as appellant is in jail since 28.04.2020 and he has completed near about 05 years and 02 months, and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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12. Per contra, Mr. Sakib Ahmed, learned Panel Lawyer, 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 admittedly, the appellant along with his real brother have entered into the house of his uncle and with a motive to execute the sale deed of the land in their favour, juvenile in conflict with law assaulted the deceased five times and the appellant is helping him in the commission of crime as he has inserted some cloth in the mouth of wife of the deceased. It has been contended that in view of the material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 449/34 and 302/34 of the IPC and it is not the case where conviction of the appellant 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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13. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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14. The first question for consideration would be, whether death of deceased- Lakhan Rathiya was homicidal in nature ?

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15. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statements of wife of the deceased namely, Kamla Bai (PW-1), who is eyewitness to the

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incident as well as Dr. S.K. Paikra (PW-07), who conducted postmortem, stated that the reason of death is cardio-respiratory failure resulted by excessive hemorrhage from neck injury and and the nature of death was 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 Lakhan Rathiya 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.

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16. Now, the next question for consideration would be whether the accused/appellant 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. S.K. Paikra (PW-7), who conducted postmortem had opined that the cause of death is cardio-respiratory failure resulted by excessive hemorrhage from neck injury and nature of death was homicidal. The Doctor ultimately opined through his report the nature of death to be homicidal. Thus, on the basis of testimony of Dr. S.K. Paikra (PW-7), it is clear that it is the deceased has suffered grievous injuries to the deceased, due to which he died. As such, the learned trial Court has rightly held that it is the appellant/accused along with his real brother have caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding.

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17. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within

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Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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18. The cause of death assigned in the postmortem report of the deceased as already noticed are ‘shock as a result of external and internal hemorrhage caused by trauma on head’. 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.

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19. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu² has made the following observations :

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“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

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1 (2012) 8 SCC 289

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2 AIR 1956 SC 488

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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.”

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20. 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 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

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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.

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21. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana³ has observed as under:-

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“ 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 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. ”

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22. The Supreme Court in the matter of Gurmukh Singh v. State of

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3 (2002) 3 SCC 327

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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 :-

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“ 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 :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse

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4 (2009) 15 SCC 635

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history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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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. ”

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23. 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 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.

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24. 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 :-

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“ 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)

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“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

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5 (2012) 8 SCC 450

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6 (2017) 3 SCC 247

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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.”

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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)

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“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

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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 ”.

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25. 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 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.

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26. 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,

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which reads as under:

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“ 16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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(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. ”

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27. 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 of 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:

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“60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:

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(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

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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.

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(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 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

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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.

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(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 ‘guilty knowledge’.

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(4) Even if single injury is inflicted, if that

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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.

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(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.

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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

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Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

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(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.

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(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

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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.

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(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.

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(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.

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(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

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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.

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(11) Where the prosecution proves that the accused had the intention to cause death of any 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.

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(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.”

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28. The most important eyewitness of the case is the wife of the deceased namely, Kamla Bai (PW-1), who saw the incident and

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deposed in her evidence that on the date of incident, appellant along with his real brother (juvenile in conflict with law) came into her house and quarreled with her husband regarding execution/registration of the sale deed of the land, which was not divided. The same was resisted by her, at that time, appellant has inserted some cloth (Lungi) in her mouth, due to which, she could not screem. She further deposed that juvenile in conflict with law has assaulted her husband with the help of axe and gave five blows upon his body. Thereafter, both the appellant and juvenile in conflict with law ran away from the spot. She also deposed that due to the injuries suffered by her husband, he died on the spot.

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29. Conviction of the accused-appellant is mainly based on the evidence of Dr. S.K. Paikra (PW-7), who has conducted postmortem on the body of deceased, vide Ex.P/21 and he found following injuries on the dead body of the deceased:-

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“The dead body was of a person of normal height. There was a half-moon shaped cut wound above the right shoulder of the dead body of 5 x 3 x 2 cm and there was a cut wound on the outer jugular edge of the right side of the neck of 1.5 x 0.5 x 2 cm.

¶137

On examination of the skull and spinal cord, he found that the brain and spinal cord were healthy. Skull, skull, cervix, membranes.

¶138

The membranes, ribs, soft tissue, lungs,

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25

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larynx, windpipe, right lung, left lung, perineum, peristalsis were healthy. The right chamber of the heart was filled with blood and the left chamber was empty.

¶141

The abdominal membrane, intestinal membrane, mouth, esophagus and pharynx were healthy. The stomach and its contents contained food material. The small intestine contained halfdigested food and the large intestine contained feces. The liver, spleen and kidney were pale. The urinary bladder was empty. The internal and external genitals were healthy.

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Opinion-

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The deceased died due to cardio-respiratory failure caused by excessive bleeding. The deceased died within 24 hours of the examination and the deceased's death was caused by injuries sustained before death which were of homicidal nature.”

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30. According to Dr. S.K. Paikra (PW-10), the cause of death of deceased is hypovolumic shock due to cardio-respiratory failure resulted by excessive hemorrhage from neck injury and nature of death was homicidal.

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31. Reverting to the facts of the present case, in light of principles of

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26

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law laid down by their Lordships of the Supreme Court in the abovestated judgments, it is quite vivid that on the date of incident, the appellant along with his real brother entered into the house of his uncle and on the dispute regarding registration of sale deed of the lands, which was not divided, the real brother (juvenile in conflict with law) assaulted his uncle with the help of axe and the only allegation against the appellant is that he is inserting some cloth like Lungi in the mouth of wife of deceased, so that she could not screen. It is apparent that the appellant has not assaulted any single blow to the deceased, due to which he died, but there was an intention to murder him along with his real brother, which is also evident from the evidence of Kamla Bai Rathiya (PW-1), as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e.

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“ (i) there must be a sudden fight;

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(ii) there was no premeditation;

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(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.”

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32. Considering the above-stated facts, also considering the evidence of eye-witness Kamla Bai (PW-1) and taking into consideration that at present appellant- Laxman Rathiya is aged about 26 years and he is in

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jail since 28.04.2020 and he has completed near about 05 years and 02 months, the conviction of the appellant under Section 302/34 of the IPC can be altered/converted to Section 304 Part-II of the IPC.

¶154

33. Insofar as the conviction of the appellant under Section 449/34 of the IPC is concerned, it is evident that the deceased is uncle of the appellant and he along with his real brother has entered into the house of his uncle and forcing him to execute the sale deed, so that they have paid the amount of loan of Rs.60,000/- to some other person as well as the fact that his real brother (juvenile in conflict with law) has caused injuries to the deceased and the allegation against the appellant that he is only inserting some cloth (Lungi) in the mouth of the wife of the deceased so that she could not scream, as such, the offence under Section 449 of the IPC which deals with house-trespass in order to commit an offence punishable with death, is liable to be set aside.

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34. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 07 years. The fine sentence imposed by the trial Court shall remain intact. The appellant is stated to be in jail since 28.04.2020 being the date of arrest. He is directed to serve out the sentence as modified above.

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35. The criminal appeal is allowed in part to the extent indicated hereinabove.

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36. Registry is directed to send a certified copy of this judgment along

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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 appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Anu

Laxman Rathiya v. State of Chhattisgarh

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Laxman Rathiya v. State of Chhattisgarh

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