Partly allowed

Dharam Prasad Jolhe And Ors. v. State Of Chhattisgarh

Chhattisgarh HC11 Nov 2025CRA/421/2015

Case brief

AI extract

What is this about?

High Court allowed the criminal appeal partly, modifying the conviction from murder (Section 302 IPC) to voluntarily causing hurt (Section 324 IPC) based on sudden fight and simple injuries, acquitting appellants of murder charges as conviction was unsustainable. Sentence reduced to time already undergone.

What did the court decide?

Appellants acquitted of Section 302/149 IPC; convicted under Section 324/34 IPC; sentenced to period already undergone.

Dharam Prasad Jolhe And Ors. Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2025)

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VISHAKHA BEOHAR

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Digitally signed by VISHAKHA BEOHAR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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AFR

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CRA No. 421 of 2015

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Judgment Reserved on 16.10.2025 Judgment Delivered on 12.11.2025

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1 - Dharam Prasad Jolhe S/o Chiniram Jolhe Aged About 30 Years R/o Village Nachanpali, Police Station Kosir, Tah. Sarangarh, Civil And Rev. District Raigarh Chhattisgarh.

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2 - Sangeeta @ Jeet Bai W/o Dharam Prasad Jolhe Aged About 28 Years R/o Village Nachanpali, Police Station Kosir, Tah. Sarangarh, Civil And Rev. District Raigarh Chhattisgarh.

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3 - Checker Bai D/o Chiniram Jolhe Aged About 19 Years R/o Village Nachanpali, Police Station Kosir, Tah. Sarangarh, Civil And Rev. District Raigarh Chhattisgarh.

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4 - Chiniram Jolhe S/o Lakhanlal Jolhe Aged About 59 Years R/o Village Nachanpali, Police Station Kosir, Tah. Sarangarh, Civil And Rev. District Raigarh Chhattisgarh.

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5 - Kaushilya Bai W/o Chiniram Jolhe Aged About 55 Years R/o Village Nachanpali, Police Station Kosir, Tah. Sarangarh, Civil And Rev. District Raigarh Chhattisgarh.

... Appellants

versus

1 - State Of Chhattisgarh S/o Through Police Station Kosir, Civil And Rev. District Raigarh Chhattisgarh.

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... Respondent

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(Cause Title Taken From Case Information System)

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For Appellants : Mrs. Savita Tiwari, Advocate. For State : Mr. Ankur Kashyap, Deputy Government Advocate. For Objector : Ms. Sharmila Singhai, Senior Advocate along with Mr. Hrishabh Deo Shukla, Advocate.

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Hon'ble Justice Smt. Rajani Dubey &

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Hon'ble Justice Shri Amitendra Kishore Prasad CAV Judgment

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Amitendra Kishore Prasad, J.

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This criminal appeal preferred by the appellants herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 18.02.2015 passed in Sessions Trial No.78/2014 by the Sessions Judge, Raigarh, C.G., by which the appellants stand convicted & sentenced as under:-

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Conviction	Sentence
Under Section 148 of Indian Penal Code (for short, ‘IPC’)	Rigorous Imprisonment for two years and fine of Rs.500/- each, in default of payment of fine amount to undergo additional rigorous imprisonment for two

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	years to each appellant
Under Section 302 read with Section 149 of IPC	Imprisonment for life and fine amount of Rs.5,000/- each and in default of payment of fine to undergo additional rigorous imprisonment for one year to each appellant

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(Both sentences were directed to run concurrently)

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Case of the prosecution, in brief, is that on 30.01.2013, at about 6:00 p.m., in village Nachanpali, within the jurisdiction of Police Station Kosir, District Raigarh, the deceased – Vijay Bahadur Koshle was brutally assaulted and murdered by the accused persons in furtherance of their common intention and as members of an unlawful assembly. The incident was reported by the complainant (PW-1) Kamal Kishore Koshle, a resident of the same village and a relative of the deceased. According to the complainant, the deceased- Vijay Bahadur Koshle had been in a love relationship with accused/appellant No.3 – Checker Bai for about four years. When the family of the deceased approached the family of accused Checker Bai with a marriage proposal, they refused to marry her to the deceased. Due to this refusal, a grudge developed in the minds of Checker Bai’s family members against the deceased. On the date of the incident, at about 5:45 p.m., the complainant, along with Bhuneshwar, Ajay, and others, was sitting near a well in front of the house of Mangalchand Koshle. At that time, the accused persons were sitting together in front of the courtyard of Mohan Jolhe and Sammeram. Around

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6:00 p.m., the deceased Vijay Bahadur Koshle came walking through the village street. As soon as he reached near their house, accused/appellant No.4 – Chiniram Jolhe and appellant No.1 – Dharam Prasad Jolhe shouted, “Catch that man and kill him.” Acting on their exhortation, all the accused persons surrounded the deceased and dragged him into the courtyard of their house. When the complainant and other witnesses rushed to rescue the deceased, appellant No.4 – Chiniram Jolhe and appellant No.2 – Sangeeta @ Jeet Bai armed with sticks, blocked the entrance gate and prevented anyone from entering the courtyard. The witnesses saw the accused persons mercilessly assaulting the deceased. It is alleged that appellant No.3 – Checker Bai armed with a tangia (sharp-edged weapon), dealt repeated blows on the head, neck, back, and other vital parts of the deceased’s body. Appellant No.1 – Dharam Prasad Jolhe and Drona also assaulted him with sticks, while appellant No.5 – Kaushalya Bai joined them in beating the deceased with a lathi. Co-accused Satish Kumar Jolhe kicked the deceased while he was lying on the ground. The assault continued until the deceased collapsed and succumbed to his injuries on the spot. The assailants thereafter fled from the place of occurrence. On the basis of the written report (Ex. P-1) lodged by the complainantKamal Kishore Koshle at Police Station Kosir, FIR (Ex. P-2) was registered against the accused persons. Thereafter, merg intimation was recorded vide Ex. P-3, inquest proceedings were

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conducted vide Ex. P-30, and the dead body of the deceased was sent for postmortem examination. PW-6 Dr. M.K. Manhar conducted the postmortem examination and gave his report vide Ex. P-27. According to Dr. M.K. Manhar, the cause of death of the deceased was haemorrhagic shock due to excessive blood loss, and the nature of death was homicidal in nature.

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During investigation, spot map was prepared vide Ex.P-6. Accused persons/appellants were taken into custody vide Exs.P20 to P-24. After that, memorandum statements of accused persons were recorded vide Exs.P-8 to P-11, pursuant to which, blood stained shirt of accused-Chiniram and one wooden club were seized vide Exs.P-12 & P-14. One wooden club was seized from the possession of the accused- Kaushalya Bai vide Ex.P-13. Blood stained clothes of accused-Chekar Bai and one blood stained tangia were seized vide Exs.P-15 & P-17. Vide Exs.P-16 & P-19, lungi and vest of accused-Dharamprasad and one wooden club were seized. Vide Ex.P-18, one wooden club was seized from the accused- Jeet Bai @ Sangeeta. Vide Ex.P-34, clothes of deceased-Vijay Bhadur were seized. Seized articles were sent to FSL for chemical examination, which confirmed the presence of human blood on some of the seized weapons. It was also revealed during investigation that co-accused- Satish Kumar alias Jugal Kishore Jolhe was a juvenile and that Drona Jolhe, another juvenile, had absconded. Accordingly, a separate

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supplementary charge-sheet was filed against them before the Juvenile Justice Board, Raigarh.

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After completion of investigation, the appellants were chargesheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellants/accused persons abjured their guilt and entered into defence by stating that they have not committed the offence.

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The prosecution in order to bring home the offence, examined as many as 8 witnesses in support of its case and exhibited 36 documents Exs.P-1 to P-36. However, the appellants in support of their defence have examined two witnesses i.e. DW-1 Bharatlal and DW-2 Rathram and exhibited two documents i.e. D-1 & D-2.

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The trial Court, after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellants as mentioned in the opening paragraph of this judgment against which they have preferred the instant appeal under Section 374(2) of the CrPC.

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Learned counsel for the appellants would submit that the learned Trial Court has erred in convicting and sentencing the appellants for the aforesaid offences, as the prosecution failed to establish the charges beyond reasonable doubt. She would further submit that the prosecution story is exaggerated and inconsistent with the medical evidence. She would further contend that the deceased

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had sustained incised wounds on the forehead, neck, right temporal region and left knee along with contusions on both hands and thighs. The cause of death was attributed to excessive bleeding from these wounds, which were opined by the doctor to be simple in nature. She would also submit that a sudden fight had occurred between the parties, during which the deceased was the aggressor. The deceased had allegedly entered the house of appellant No.3 – Checkar Bai against her will and insisted on marrying her. In the ensuing scuffle, appellant No.3 – Checkar Bai, who was only 19 years old, snatched the tangia from the deceased and struck him in self-defence and in the heat of passion, without premeditation. Hence, it is contended that her act falls within the right of private defence and she had no intention to cause death. As regards the other appellants, it is submitted that they only tried to intervene and, in the process, caused simple injuries using lathis or by fists and hands. There was no common object or pre-concerted plan to commit murder. Therefore, the conviction of the appellants under Section 302 read with Section 149 IPC is unwarranted and deserves to be set aside or altered to a lesser offence.

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On the other hand, learned State Counsel as well as counsel for the Objector would support the impugned judgment and submit that the trial Court, after a thorough and proper appreciation of the oral and documentary evidence on record, has rightly held the appellants guilty. They would further argue that the evidence of

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the eye-witnesses, supported by the medical and forensic reports, clearly establishes that all the accused persons had jointly assaulted the deceased and caused his death while being members of an unlawful assembly. They would also contend that the conduct of the accused persons, their presence at the spot, the nature of weapons used, and the concerted manner of assault clearly indicate that they shared a common object to cause the death of Vijay Bahadur Koshle. Therefore, the conviction and sentence recorded by the learned trial Court call for no interference and deserve to be affirmed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question for consideration is whether the death of the deceased was homicidal in nature.

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The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-27) proved by PW-6 Dr. M.K. Manhar, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the next question is whether the appellants are the authors of the crime in question.

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PW-1 Kamal Kishore Kosal is the complainant. He has stated in his deposition that the tangia blow was inflicted by appellant No.3 – Checkar Bai to deceased. He has further stated that there was a marriage proposal between the deceased and appellant No.3- Checkar Bai, which was declined by her family. There is no evidence to suggest that the appellants took any undue advantage or acted with premeditation or intention to cause death.

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PW-2 Bhuvneshwar Prasad is a witness to the memorandum and seizure. He has stated in his deposition that appellant No.3- Checkar Bai, in her memorandum, has categorically stated that she assaulted the deceased with a tangia , while the other accused persons assaulted him with lathis and wooden clubs. During cross-examination, this witness did not make any statement adverse to the prosecution case.

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PW-3 Bheem Bahadur Kosle, the brother of the deceased, has stated that the deceased- Vijay Bahadur had a one-sided love affair with appellant No.3- Checkar Bai. He has further stated that a meeting was convened in the village, during which a fine was imposed upon the family members of the deceased- Vijay Bahadur. He has also stated that a marriage proposal had been made between the deceased- Vijay Bahadur and appellant No.3Checkar Bai, however, the proposal did not materialize.

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PW-6 Dr. M.K. Manhar, who conducted the post-mortem examination found ten injuries over the body of the deceased, five incised wounds i.e. cut wound on the left and right side of the forehead measuring 3 x 1 cm and 2 x 1 cm; cut wounds on both sides of the neck, measuring 3 x 1 cm and 4 x 1 cm and cut wound on the right temple measuring 4 x 1 cm, 3 x 1 cm, 4 x 1 cm, 2 x 1 cm and 6 x 1 cm and the rest were contusions. In the post-mortem report (Ex. P/27), all the injuries were opined to be simple in nature and the cause of death was excessive bleeding.

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From a careful scrutiny of the evidence, it is apparent that the deceased was intent on marrying appellant No.3- Checkar Bai and when his proposal was refused, he forcibly entered her house and attempted to catch hold of her. During the altercation, appellant No.3- Checkar Bai snatched the tangia from him and, in the heat of the moment, inflicted injuries. The other family members, in an attempt to protect her, also assaulted the deceased. The incident occurred suddenly, without premeditation, and there is no evidence of intention to kill. The medical evidence corroborates this by confirming that all injuries were simple. Although the plea of private defence cannot be fully accepted for want of corroborative evidence, but the circumstances suggest that the appellants did not act with deliberate intent to cause death. Therefore, the conviction under Section 302/149 IPC cannot be sustained.

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The Hon’ble Supreme Court in the matter of Mihir Gope and others vs State of Jharkhand reported in (2021) 2 SCC 726 has held in paras 14 to 18 which read as under:-

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“14. It would be apparent from the evidence of the medical practitioners that there was only one injury on Anil’s head whereas on Jatu’s head, there is a probability that he suffered two injuries. But the injuries on Jatu's head cannot be said to have been caused by either axe or tangi, which are sharp edged weapons. Even if we proceed on the basis that both axe and tangi have blunt sides and such blunt sides were used to strike, that very fact cannot establish involvement of both Mihir and Prabhat in been caused by either axe or tangi, which are sharp establish involvement of both Mihir and Prabhat in striking Anil and Jatu. Thus, we do not think the trial court and the High Court had rightly concluded on involvement of Mihir and Prabhat in assault of Anil and Jatu so as to implicate them for murder under Section 302 read with Section 34 of the Code. The eyewitnesses' accounts, as we have already observed shows element of exaggeration and inconsistency in implicating both Mihir and Prabhat for their strikes on Jatu. There is apparent inconsistency in the eyewitnesses account in describing the assaults by these two appellants on Anil and Jatu. PW 2 has attributed assault on both Anil and Jatu to Manohar and all his sons. This is a very

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generalised description. PW 3 has stated that Manohar, Mihir and Prabhat (collectively referring to them with the pronoun "they") had assaulted Jatu. PW 4's evidence on assault against Anil and Jatu is not specific, but general. PW 5 has stated that Mihir had assaulted Anil and Jatu, apart from Manohar's strikes. PW 7's deposition is that both Mihir and Manohar struck Jatu. PW 11 attributes strike by Mihir on Jatu but he has not implicated Prabhat in any form of assault on Anil or Jatu. Thus, if we compare the number of injuries on Anil and Jatu as it transpires from the evidence of medical practitioners, which is three at the most, they do not match with the number of strikes made by Manohar, Mihir and Prabhat, as stated on oath by these witnesses. In our opinion, we cannot rely on the account of assault given by these witnesses to the extent they relate to strikes by Mihir and Prabhat. Barring PW 12, the account of the incident narrated by the other eyewitnesses tends to be based on overall impression of the strikes rather than factual narration of events. We consider it safer to rely on the evidence of PW 12, who has given specific and trustworthy account of the individual assaults. We do not think the prosecution has been / able to prove beyond reasonable doubt involvement of these two appellants, Mihir and Prabhat in delivering the blows to Anil and Jatu.

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15. We also find that though there were assaults by Manohar, Mihir and Prabhat, the prosecution has failed to establish on the basis of evidence that these two appellants shared common intention with Manohar. Their strikes on the victims can be segregated from those made by Manohar, as it transpires 9 from evidence. Neither Mihir nor Prabhat could be held to have been involved in assault on Anil and Jatu, which forms the basis of conviction of the appellants under Section 302 of the Code.

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16. Relying on a decision of a coordinate Bench, Manoj Kumar v. State of H.P. (2018) 7 SCC 327 : (2018) 3 SCC (Cri) 33, it was urged on behalf of the appellants that the offence of the appellants h could be brought within Exception 4 to Section 300 of the Code and Part II of Section 304 thereof, could be applied to the appellants. But having regard to what we have held, the ratio of that decision does not apply in the facts of this case.

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17. We, accordingly, set aside the judgment of conviction of Mihir and Prabhat under Section 302 read with Section 34 of the Code and the order of sentence under the aforesaid provisions is also set aside. As we find from evidence of the medical professionals that injuries on Kasi Ram and Premchand were simple in nature, the judgment of the High Court on their conviction and sentence under Section 325 of the Code is also set aside. We also set aside the conviction and sentence of

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these two appellants under Section 307 of the Code. We hold so primarily on the basis of deposition depositions of the three medical experts, PW 13 (Dr Shishir Kumar Singh Munda), PW 14 (Dr Dhananjay Rajak) and PW 15 (Dr Narendra Kumar Das). Opinion of PW 13, who examined Premchand and Kasi Ram, found both their injuries to be simple, formed of lacerated wound. In examining Premchand, PW 14's opinion as regards nature of injury was the same. It was simple injury. Premchand's CT scan, as explained by PW 15, did not show any evidence of intracerebral haemorrhage or fracture. He also found such injury to be simple. Considering the weapons of assault Mihir and Prabhat were meant to have had used in inflicting such injuries, and the nature of injuries they caused on Kasi Ram and Premchand, we do not think the two appellants had the intention or knowledge that their acts could d have had caused death of Kasi Ram or Premchand. We also do not find any evidence of commission of offence under Section 341 of the Code. None of the eyewitnesses has stated in course of their examination that Mihir or Prabhat had wrongfully confined them. The appellants are accordingly acquitted of charges under all the aforesaid provisions.

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18. In our opinion, however, there is sufficient evidence against Mihir and Prabhat of voluntarily causing hurt by the instruments we have referred to. We have discussed the

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evidence based on which we come to this conclusion. We hold both the appellants guilty of committing offence under Section 324 of the Code. We impose sentence of three years' rigorous imprisonment on both Mihir and Prabhat for committing offence under the aforesaid provision.”

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Also, the Hon’ble Supreme Court in the matter of Khuman Singh and others vs. State of Madhya Pradesh reported in AIR 2005 SC 1281 has held as under:-

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“10. Keeping these principles in mind and applying them to the facts of this case we find that the occurrence took place suddenly. There was no premeditation on the part of the appellants and quarrel really arose from a trivial issue. The parties had danced all night and nothing untoward had happened except this small incident. Thereafter they proceeded towards their respective villages. It is not the case of the prosecution that the appellants were armed with deadly weapons. Some of them were carrying lathis, as are usually carried by the tribals in that part of the State, and had not made any special preparation for the assault. Some others had just picked up stones when the deceased was overpowered, and assaulted him. It is, no doubt, true that they assaulted the deceased in such a manner that the deceased suffered several fractures, but the injury which caused

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the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental. We therefore, hold that Section 300 'thirdly'. IPC is not attracted, and it cannot be said that the appellants intended to cause any injury to the liver which perhaps proved fatal. There is no evidence to suggest that any of the other injuries suffered by him was sufficient to cause death in ordinary course of nature.

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11. The question then is under which provision of the IPC the appellants should be punished. Counsel for the State submits that even if the case does not fall under Section 300 'thirdly", IPC it would certainly fall under Section 304, Part II. IPC. Even if we say that the appellants had no intention to cause death they certainly knew that such bodily injury was likely to cause death. He, therefore, submits that even if the appellants may not be found guilty of culpable homicide amounting to murder, they are certainly guilty of culpable homicide not amounting to murder punishable under Section 304, Part II, IPC.”

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Likewise, this Court in the matter of Devkumar Alias Deva

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Vishwakarma vs State of Chhattisgarh reported in ILR 2019 Chhhattisgarh 956 has held in para 19 to 21 which read as under:-

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“19.In the present case, though all the eyewitnesses including the injured (PW-4) have stated in the Court that while knife injury was being caused by juvenile accused Mona on the chest of deceased Manish, both the other accused persons i.e. Deva (the appellant herein) and Sonu (co- accused) were holding the deceased but none of them have stated so in their statements recorded under Section 161 of Cr.P.C. The FIR was lodged promptly just about half an hour of the incident by PW1 Rajendra Kumar wherein also he has not stated that the appellant was holding the deceased at time of assault being made by juvenile accused. PW-13 GP Pathak, Investigating Officer, who re- corded the diary statements of the witnesses has admitted the fact that none of the witnesses had ever stated that the appellant and other coaccused Sonu were holding the deceased when he was being assaulted by juvenile accused with knife. The omission of this material fact right from the lodging of FIR till recording of diary statements of the eyewitnesses, including mother of the deceased, and disclosure of the same for the first time in the Court, raises a serious doubt on the case of the prosecution in respect of involvement of the appellant in commission of murder of the de ceased. This apart, PW-1 Rajendra Kumar, in para-9 of his evidence has stated that the appellant and co-accused did not take part in commission of marpeet and the

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co-accused Sonu was also holding the deceased like them with a view to pacifying the dispute.

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20. Thus, if the act of the accused/appellant is seen in light of provisions of Section 34 of IPC, it there is nothing on record to suggest that the appellant was sharing common intention with other accused persons. As already discussed above, the incident occurred all of a sudden when the accused persons including the appellant were consuming liquor and the same was objected to by house, returned with knife and inflicted injury on the chest of the deceased. As such, it cannot be PW-1 and then by deceased Manish and thereafter, juvenile accused Mona Shukla went back to his said that the accused persons had a pre-arranged plan to commit murder of the deceased and with that common intention they were consuming liquor near the shop of PW-1, were waiting for arrival of the deceased and then one of them went to his house, came back with knife and caused fatal blow to the deceased resulting in his death. Rather from the evidence it appears that on objection being raised by the deceased, juvenile accused Mona Shukla being under the influence of liquor got so furious that at the very moment he intended to kill Manish (deceased) and with that intention having can, by no stretch of imagination, be said to be sharing common

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intention of committing murder of with other co-accused to be set aside.

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21. As regards conviction of appellant Dev Kumar under Section 324/34 of IPC, as per the evi- dence of injured Anil Kumar Dhruv (PW-4) and eye-witness Prateek Dubey (PW5), it is evident that the appellant only caused injury to PW-4 with knife and medical evidence also lends due support to the evidence of eye-witnesses according to which corresponding injuries were noticed on the per- son of PW-4 which were simple in nature. Thus, considering the evidence of the eye-witnesses coupled with the medical evidence, his conviction under Section 324/34 of IPC being based on proper appreciation of the evidence on record, is hereby affirmed.”

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Also, this Court in the matter of Chhattoo Ram vs. State of Chhattisgarh reported in ILR 2016 Chhhattisgarh 1928 has held as under:-

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“10. It is further established that the Appellant at no point of time was having any intention, knowledge or a plan to attack the deceased. It only happened after the deceased had come to the field of the Appellant and took a fight with him and in the course of the fight both parties assaulted each other resulting in injuries to both of them. There was also no pre-meditation but a sudden fight in the heat of passion on

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sudden quarrel that the de ceased took up the Appellant. It also appears that the deceased first assaulted the Appellant with a lathi and later the Appellant snatched the lathi from the hands of the deceased and assaulted the deceased which later on unfortunately proved to be fatal.

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11. When we see the nature of assault caused and compare it with Section 324, IPC, it would clearly reveal that the act committed by the Appellant has all the ingredients of Section 324, IPC. The "intention to murder" is a different from that of "intention to cause hurt". The only requirement to constitute the offence is voluntarily causing injury and the nature of injuries must be simple in nature.

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12. Further, in the instrument used by its very nature should be such that could reason- ably predicate that by its use as a weapon death would not be probable. That being the true import of the word 'likely' used in the Section. Lathi which is said to have been used for assault could not be said to be by its very nature an instrument likely to cause death within the purview of Section 324, IPC.

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13. Thus, for the foregoing reasons, it can be safely concluded that the conviction of the Appellant got offence under Section 302, IPC is not justified. But, in the given factual background of the case and the injuries

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inflicted by the Appellant on the person of the deceased, the conviction of the Appellant deserves to be converted from Section 302, IPC to one under Section 324, IPC. The Appellant has already remained in jail for a period of more than three years, hence the sentence of the Appellant stands modified for the period already undergone.”

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Further, this Court in the matter of Radheshyam, Shiv

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Acharya and another vs. State of Madhya Pradesh reported in ILR 2016 Chhhattisgarh 751 has held as under:-

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“20.The Supreme Court in the case of Khuman Singh v. State of Madhya Pradesh. reported in (2005) 9 SCC714: AIR 2005 SC 1281 in somewhat similar circumstances where there was no premeditation on the part of the appellant and the quarrel arose from a trivial issue and further that though there were fractures on the body yet the death was caused because of the rib bone puncturing the liver had converted the conviction of the appellant therein under Section 302 to one that under Section 304 Part-II of IPC. Similar view has also been taken by the Division Bench of this Court in Criminal Appeal No. 682 of 2000 decided on 12-1-2015 relying upon the same judgment of the Supreme Court in the case of Khuman Singh, AIR 2005 SC 1281 (supra).

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21. From the given facts and circumstances of the case and also following the

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judgments cited hereinabove we are of the opinion that the conviction of the appellants in the instant case under Section 302, IPC is not proper and justified and instead, they are found guilty of the offence under Section 304 Part-II of IPC. Accordingly, the appellants are held guilty for the offence under Section 304 Part II/34 of IPC and are convicted under the said Sections.”

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Applying the ratio of the aforesaid judgments and in view of the medical and ocular evidence, this Court is of the considered opinion that the offence proved against the appellants would squarely fall under Section 324 read with Section 149 IPC. In light of the foregoing discussion, it is evident that the incident occurred suddenly and in the course of a mutual scuffle. The deceased was the initial aggressor, having entered the house of the appellants, and the assault that followed was without premeditation. The injuries inflicted were simple in nature, and there is nothing on record to suggest any intention or motive to cause death. Accordingly, the conviction of the appellants under Section 302/149 IPC is unsustainable and is hereby modified to a conviction under Section 324/149 IPC.

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As regards the sentence, considering the facts and circumstances of the case and further taking into account that the applicants have no criminal antecedents, that they remained in jail from 30.01.2013 to 18.04.2016, i.e., for more than three years, and that they have been facing the lis since January 2013, this

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Court is of the view that the ends of justice would be met if they are sentenced to the period already undergone by them.

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In the result, the appeal is allowed in part. While acquitting the appellants of the charge under Section 302 read with Section 149 of the IPC, they are held guilty under Section 324 read with Section 34 of the IPC and are sentenced to the period already undergone by them. However, the fine amount with default stipulation imposed by the Trial Court shall remain intact. Further, the conviction and sentence imposed by the Trial Court for the offence under Section 148 of the IPC, directed to run concurrently, are hereby maintained, being well merited.

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The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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Registry is directed to transmit the lower Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance.

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Sd/- Sd/-

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(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Vishakha

Dharam Prasad Jolhe And Ors. v. State Of Chhattisgarh

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Dharam Prasad Jolhe And Ors. v. State Of Chhattisgarh

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Rameshwar Sahu and Anr. Vs State Of Chhattisgarh

Smt. Yogeshwari Gupta Vs Vijay Kumar Gupta