Chattisgarh High Court
Ram Prasad Pando vs State Of Chhattisgarh on 6 March, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2025:CGHC:11195
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1245 of 2023
➢ Ram Prasad Pando S/o Late Sharma Pando Aged About 42 Years
Resident of Village Koluha, Police Station- Chandni, Biharpur, District-
Surajpur Chhattisgarh
... Appellant
versus
➢ State of Chhattisgarh through Police Station-Patna, District Koriya,
Chhattisgarh
... Respondent
For Appellant : Ms. Binu Sharma, Advocate
For Respondent/State : Mr. Amit Verma, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice
Judgment on Board
06/03/2025
1. Though, today the present appeal is listed for hearing on I.A. No.01/2023, which is an application under Section 389 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the age of the appellant and his period of detention, the appeal is heard finally.
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2. Accordingly, I.A. No. 01/2023 stands disposed of.
3. This criminal appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 19.04.2023 passed by learned Additional Sessions Judge, Baikunthpur, District- Koriya (CG) in Sessions Case No. 151/2021, whereby the appellant/accused has been convicted and sentenced in the following manner:
CONVICTION SENTENCE
U/s 304 Part-I of Indian Rigorous Imprisonment for 10 years with
Penal Code. fine of ₹ 100/-, in default of payment of
fine 15 days additional R.I.
4. Case of the prosecution, in brief, is that that the deceased Sumitra Pando was the wife of the accused, both were residents of village Koluha, Chandni Biharpur, used to work as a nomad, had also come to village Hathwar many times before for work. On the date of incident, 11/07/2021, the deceased and the accused came to the house of Phoolmat Bai, the accused asked Phoolmat Bai for liquor to drink, to which she denied, then the deceased started quarreling with accused appellant over her money. Phoolmat Bai stopped both of them from fighting, but the accused did not listen and started fighting while threatening to kill his wife, Phoolmat Bai was left the place, locked the door of her house and started going to work. When she came back, she saw Sumitra Pando lying on the ground, bleeding from her nose. The accused had fled. She informed her neighbours about the incident. The police was informed and the police arrived at the spot. As per the 3 / 15 information given by Smt. Phoolmat Bai, a merg intimation 54/2021 was registered and crime number 195/2021 under section 302 IPC was registered against the accused in Patna police station. Panchnama of the dead body of the deceased was done in front of witnesses. Map Panchayatnama Ex.P.-2 was prepared. The dead body was examined by Dr. Rajesh Kumar. In the post-mortem report, he found the death of the deceased to be of homicide nature. The accused was arrested and arrest panchnama Ex.P.-19 was prepared.
5. After complete investigation in the case, charge sheet was filed against the accused under Section 302 IPC in the court of Judicial Magistrate First Class, Baikunthpur, from where, on 29/11/2021, the case was referred to the Hon'ble Sessions Judge, Korea, Baikunthpur. Learned trial Court framed charges against the appellant under Section 302 of IPC which was denied by the appellant and he prayed for trial of his case.
6. Statement of accused person was also recorded under Section 313 of Cr.P.C. in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication and he has not examined any witness in his defence.
7. In order to bring home the offence, the prosecution examined following witnesses.
Sr. Name of prosecution witness(es) Prosecution
No. witness No.
1. Krishn Kumar PW-1
2. Rishi Rai Singh PW-2
3. Sumitra Paikra PW-3
4. Govind Singh PW-4
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5. Rambade Pando PW-5
6. Phoolmat Bai PW-6
7. Heera say PW-7
8. Dr. Rajesh Kumar PW-8
9. Patwari- Deep Sikha Say PW-9
10. Investigation Officer Inspector Sourabh Kumar PW-10
Dwivedi
8. Besides the ocular evidence, prosecution has also exhibited following documents.
Sr. No. Document(s) Ext. No.
1. property seizure sheet Exhibit P-1
2. map panchayatnama Exhibit P-2
3. notice letter for appearing in map Exhibit P-3
panchayatnama (death investigation)
4. police statement of Krishna Kumar Paikra Exhibit P-4
5. sight map Exhibit P-5
6. police statement of Rishi Rai Singh Exhibit P-6
7. police statement of Govind Singh Exhibit P-8
8. police statement of Ram Bade Pando Exhibit P-9
9. postmortem report Exhibit P.-10
10. application for postmortem Exhibit P-10A
11. rural death intimation Exhibit P.-10B
12. sight map Exhibit P.-11
13. preparation of sight map by Patwari Exhibit P-11A
14. rural discharge Exhibit P-12
15. letter sent to Joint Director Regional Forensic Exhibit P-12A Science Laboratory Ambikapur
16. Receipt acknowledgment Exhibit P-13A
17. Police statement of Phoolmat Bai Exhibit P-13
18. Police statement of Heera Sai Pando Exhibit P-14A
19. FSL report Exhibit P-14
20. Marg Intimation Exhibit P-15
21. First Information Report Exhibit P-16 5 / 15
22. Information regarding registration of crime Exhibit P.-17
23. Duty Certificate Exhibit P.-18
24. Arrest Panchnama Exhibit P.-19
25. Information of Arrest Exhibit P.-20
9. The learned Additional Sessions Judge, Baikunthpur, District- Koriya after appreciating oral and documentary evidence available on record vide impugned judgment dated 19.04.2023 has acquitted the appellant from the charge under Section 302 of IPC and convicted and sentenced the appellant under Section 304 Part I of IPC. Being aggrieved by the said judgment, the instant appeal under Section 374 (2) of CrPC has been preferred by the appellant.
10. Assailing the impugned judgment of conviction and order of sentence passed by the learned trial Court, learned counsel for the appellant submits that finding recorded by the learned trial Court is baseless, perverse, erroneous and contrary to the materiel evidence available on record. Learned trial Court failed to appreciate the oral and documentary evidence placed before it in its proper perspective. There are material contradictions and omissions in the diary and Court statement of the witnesses which cannot be made basis for conviction of the appellant. Prosecution has not adduced any cogent and reliable evidence to prove the guilt of the appellant. He submits that that the prosecution has failed to establish the guilt of the Appellant beyond a reasonable doubt, as required under criminal jurisprudence. Learned trial Court erred in convicting the Appellant under Section 304 Part I IPC despite the absence of clear and cogent evidence proving the presence of intention or knowledge required to sustain such a conviction. The trial 6 / 15 Court failed to consider material inconsistencies and contradictions in the statements of prosecution witnesses, which raise serious doubts about the veracity of the prosecution case. Learned Trial Court has not properly considered the absence of motive, which is a crucial factor in cases of culpable homicide not amounting to murder. The sentence imposed upon the Appellant is unduly harsh and disproportionate to the facts and circumstances of the case. The Appellant is entitled to the benefit of exception under Section 300 IPC, which has not been considered by the Learned Trial Court while passing the impugned judgment. The case at best falls within Section 304 Part II IPC, considering the circumstances and lack of premeditation. The impugned judgment is otherwise unsustainable in law and is liable to be set aside on grounds of misapplication of law and misappreciation of evidence. This failure amounts to a legal oversight that demands correction by this Hon'ble Court.
11. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the nature and gravity of offence, age of the victim, who was his wife, on the date of incident, and conduct of the appellant, the punishment imposed upon him is proportionate to the act committed and therefore appeal deserves to be dismissed.
12. I have heard learned counsel for the parties and also perused the records of the trial Court including the impugned judgment.
13. The question for consideration would be whether the accused-appellant is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative on the basis of testimony and evidence 7 / 15 brought, it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries strangulating his wife (deceased), due to which she died. As such, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the person of the deceased wife and caused her death. Accordingly, I hereby affirm the said finding.
14. The aforesaid finding brings up to the next question for consideration, whether the case of the appellant 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 appellant?
15. In the present case, Post-mortem of the deceased was conducted on 12/07/2021 by Dr. Rajesh Kumar (PW-8) According to him, the death of the deceased was due to respiratory arrest due to strangulation which happened within 12 to 48 hours of postmortem. The nature of death was homicide. He has given Ex.P.-12 report in this regard. In the cross- examination, he has denied that the thumb mark on the neck of the deceased could have come due to moving the dead body after death. Thus, from the statement of the medical witness Dr. Rajesh Kumar (PW-
8) and the post-mortem report given by him (Ex.P.-10) it is clear that the death of the deceased was due to obstruction of breathing due to strangulation. Thus, the death of the deceased is of the nature of criminal homicide.
16. Now it has to be seen in the case whether the accused has caused the death of his wife. There is no eyewitness in this regard. The case against the accused is based on circumstantial evidence. Regarding 8 / 15 circumstantial evidence, the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Dr. Ravindra Prasad Mital1 enunciated the essential elements for circumstantial evidence, according to which for circumstantial evidence -
1- The circumstances from which the conclusion is drawn should be fully proved.
2- It should be conclusive in nature.
3- All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence.
4- It should to a moral certainty exclude the possibility of guilt of any person other than accused.
17. Regarding circumstantial evidence, reference was made by the Hon'ble Supreme Court in the judgment in Sharad Birdichand Sharda v. State of Maharashtra, (1984) 4 SCC 116 has held that -
1- The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on only other hypothesis except that the accused is guilt
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be Proved and
5. there must be a chain of evidence.
18. If the evidence in the case is considered on the touchstone of the above precedent, then in this regard important witness in the case Phoolmat Bai (PW-6) found deceased Sumitra dead in her courtyard. She says that the deceased is the wife of the accused. The accused was asking for money from his wife, she does not know why he was asking for money. Thereafter she went to sow saplings. When she came and saw, 1 1992 (3) SCC 300 9 / 15 the deceased was made to sleep in her courtyard, the accused was not there, the deceased had died. She told the above things when the police came. Rural Death Intimation Ex.P.-10B and Rural Nalasi Ex.P.- 12 were recorded by the police, which have her signature.
19. This witness was declared hostile by the prosecution and on being asked leading questions, she admitted that both the accused and the deceased used to go out and work. On the date of the incident, the accused had asked his wife for alcohol was asking for money. The fact that the accused was beating his wife has been denied. The quarrel escalated so she went to the field to work, at that time the accused threw his wife on the ground and was sitting on her and holding her neck. In the cross-examination, it has been admitted that as the incident happened in an open shade, anybody could have come. On the date of incident there was a minor altercation between the accused and his wife. It is also admitted that after listening to the minor argument she went to her work. When she returned from work, there was a crowd of people at the incident spot.
20. The deceased and the accused were seen together before the incident.
The deceased and the accused were husband and wife. Both had come together to the house of witness Phoolmat (PW-6). On the day of the incident, there was a quarrel between the deceased and the accused. Phoolmat had even forbidden them from fighting. When Phoolmat returned home from the field, the deceased was found dead in the courtyard. The accused had fled leaving his dead wife behind. It does not reflect his normal conduct, rather his running away from there after the incident shows his subsequent conduct under Section 8 of the Indian Evidence Act and the dispute between the deceased and the 10 / 15 accused before the death shows his previous conduct. Just before the incident, the accused and the deceased were seen together. In such a situation, there are sufficient grounds to draw a presumption against the accused under Section 106 of the Indian Evidence Act and the accused has not given any explanation in this regard. In such a situation, it is proved that the accused himself has caused the death of his wife.
21. It is now to be seen in the case whether the criminal homicide committed by the accused on his wife falls in the category of murder.
22. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 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 2 (2009) 15 SCC 635 11 / 15 the accused;
(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."
23. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh3 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
"20. To invoke this Exception 4, the requirements that 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 is it 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 3 (2017) 3 SCC 247 12 / 15 sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) "9. .... '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provisions means "unfair advantage".
24. 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 13 / 15 304 Part-II of the IPC.
25. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)4 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."
26. Upon close scrutiny of the evidence of prosecutrix the Court concurs with the findings of the trial court regarding the involvement of the appellant in the incident. The evidence presented, including witness testimonies and medical reports, establishes the appellant's culpability under Section 304 Part I IPC beyond a reasonable doubt. The appellant had knowledge that his act was likely to cause death, even if there was no intention to do so. Moreover, nothing has been elicited by the defence as to why the appellant has been falsely implicated in the crime and thus the stand of false implication taken by the accused/appellant is also not worth acceptance.
27. The argument that the Trial Court ignored material contradictions in witness statements is without merit. Minor inconsistencies, if any, do not affect the core of the prosecution's case, which remains unimpeachable. The evidence adduced by the prosecution is clear and consistent, and 4 (2019) 6 SCC 122 14 / 15 the statements of witnesses, when read holistically, do not create any reasonable doubt regarding the Appellant's involvement. Furthermore, the contradictions pointed out by the defense are trivial in nature and do not affect the reliability of the prosecution's case as a whole. Thus, conviction of the accused/appellant under Section 304 Part I of IPC suffers from no illegality and the same is hereby maintained.
28. As regards the quantum of sentence, I find no reason to interfere with the punishment imposed by the Trial Court. The sentence awarded is neither excessive nor disproportionate, considering the gravity of the offense and the circumstances under which it was committed. The nature of the assault, the degree of force used, and the resultant fatal injuries leave no doubt that the punishment is appropriate. The sentencing order reflects due consideration of all mitigating and aggravating circumstances, and no special circumstances have been brought forth to justify any leniency in the sentence imposed. The punishment serves both a deterrent and retributive purpose, ensuring justice for the victim while upholding the rule of law.
29. In view of the foregoing discussion, I find no infirmity in the judgment and order of conviction passed by the Learned Trial Court. The evidence, both oral and documentary, has been duly appreciated, and no error, either in law or in fact, has been demonstrated that would warrant interference by this Court. The findings of the Trial Court are well-reasoned, based on credible evidence, and in accordance with established legal principles. Therefore, the appeal is devoid of merit and is accordingly dismissed.
30. Registry is directed to send a copy of this judgment to the concerned 15 / 15 Superintendent of Jail where the appellant is undergoing his jail term, 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 with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.
- Sd/-
(Ramesh Sinha)
Chief Justice
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