Koriya, Chhattisgarh v. State of Chhattisgarh Through
Case Details
1 2025:CGHC:2430-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 305 of 2021 1 - Shivshankar Prajapati S/o Premlal Prajapati Aged About 30 Years Caste- Kumhar, R/o Village- Jamthan, P.S. Janakpur, District- Koriya, Chhattisgarh. 2 - Premlal Prajapati S/o Late Darbari Prajapati Aged About 65 Years Caste- Kumhar, R/o Village- Jamthan, P.S. Janakpur, District- Koriya, Chhattisgarh. versus State of Chhattisgarh Through- S.H.O. Police Station- Janakpur, District- Koriya, Chhattisgarh. (Cause Title taken from Case Information System) ... Respondent ... Appellant For Appellant For Respondent/State : Mr. Shashank Thakur, Dy. Advocate General For Objector : Mr. Anuroop Panda, Advocate : Mr. Pushkar Sinha, Advocate Hon'ble Shri Ramesh Sinha, Shri Ravindra Kumar Agrawal Chief Justice , Judge Hon'ble Judgment on Board Per Ramesh Sinha , Chief Justice 15 . 01 .202 5 ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.01.20 15:42:17 +0530 1. This criminal appeal filed by the appellants/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 30.01.2021 passed by the Special Judge (S.C./S.T. Prevention of Atrocities Act) Baikunthpur, District – Koriya (C.G.) in Special (Atrocity) Case No. 60 of 2017, 2 whereby the appellants/accused have been convicted and sentenced with a direction to run all the sentences concurrently in the following manner :- CONVICTION U/s 302/34 of IPC SENTENCE RI for life and fine of Rs.2,000/-, in default U/s 307/34 of IPC U/s 449 of IPC U/s 427/34 of IPC of payment of fine, additional RI for six months. RI for 10 years and fine of Rs.2,000/-, in default of payment of fine, additional RI for six months. RI for 10 years and fine of Rs.2,000/-, in default of payment of fine, additional RI for six months. RI for 01 year and fine of Rs.2,000/-, in default of payment of fine, additional RI U/s 3(2)(v) of the for six months. RI for life and fine of Rs.2,000/-, in default Atrocities Act of payment of fine, additional RI for six months. 2. The prosecution story, in brief, is that on 20.10.2017 at about 3.00 pm, Kamalu Dholia, son-in-law of Mayaram alias Bareliha, was standing near Mayaram's house in village Jamthan. At the same time, accused Shivshankar and Shivlal came and asked why are you standing there, due to this, an argument started between Kamalu Dholia and the above two accused, then Mayaram said why are you abusing his son-in-law, after which Mayaram came inside his house. Then accused Shivshankar and Shivlal entered Mayaram's house and started beating Mayaram with a stick, then went to their house. After some time, the three accused came and 3 Shivshankar had a sword in his hand, accused Premlal had a stick, accused Premlal broke the wooden door by kicking and entered the house with accused Shivshankar. At that time accused Shivlal was standing outside the house. Complainant Phoolbai was holding her son Vinay Prasad in her lap. At that time accused Shivshankar with the intention of killing Vinay Prasad hit him with a sword on his head due to which Vinay Prasad suffered serious head injury and died on the spot. Then accused Shivshankar hit Mayaram with a sword near his neck, then he lowered his head due to which he suffered injury near his ear, finger of his left hand and near the shoulder of his right hand. At that time accused Shivlal was saying from outside the house that kill them. This incident was also witnessed by complainant Phoolbai's mother-in-law Lalita and neighbor Bharat Dhimar, who were present on the spot. Knowing that complainant Phoolbai, Mayaram and deceased Vinay Prasad are members of Satnami (Scheduled Caste), the accused committed the above crime with them and then fled from there. On receiving information of the incident, Inspector T.S. Paikara reached the incident spot, village Jamthan and on the basis of information given by complainant Phoolbai, registered a case number 0/2017 (Ex.P-1) under sections 302, 452, 323 read with 34 IPC against the accused and also registered a death information (Ex.P-2) regarding the death of Vinay Prasad on 0/2017. 3. Investigating Officer/Inspector T.S.Paikara, during the 4 investigation prepared the spot map of the incident site as per Ex.P-3 and after summoning the witnesses vide Ex.P-20, inquest over the dead body of deceased Vinay Prasad was prepared vide Ex.P-21 and thereafter, the dead body was sent for postmortem to Community Health Centre, Janakpur, District Koriya vide Ex.P-28, wherein, Dr. Rajiv Kumar Raman (PW-13) has conducted postmortem over the dead body of the deceased Vinay Prasad and found a lacerated wound present from center of both eyebrow (in between) forehead towards junction of both parietal and occipital bone size around 12 cm x 2 cm x 3 cm with bleeding and fracture of skull bone present and opined that cause of death is due to head injury and duration of death within 12 hrs and is homicidal in nature. Dead body of the deceased was handed over to his father Ramrup (PW-3) vide Ex.P10. 4. During the course of investigation, spot map of the incident site was prepared by concerned Patwari vide Ex.P-4, two wooden planks have been seized at the instance of complainant Phoolbai (PW-1) vide Ex.P-5, Nuksani panchnama was prepared vide Ex.P-6. Blood stained soil and pain soil found at the scene of the incident, one bamboo stick, one broken bamboo stick, blood stained clothes of Phoolbai and one pair accused Shivlal's slippers were seized vide Ex.P22. Memorandum statement of accused Shivshanker has been recorded vide Ex.P-7 and at his instance one sword containing blood stain over it has been seized vide Ex.P-8. Photograhs of deceased Vinay Prasad (Exs.P-12 & 5 13) and injured Mayaram (Exs. P-14 & 15) have been seized vide Ex.P-11. Blood soaked towel has been recovered from injured Mayaram vide Ex.P16 and one Caste-Certificate of father of deceased Ramrup (Ex.P-18) has been recovered vide Ex.P17. Statements of witness Bharat Prasad was recorded vide Ex.P-9 and statement of witness Sheshmani Dhimar was recorded vide Ex.P-23. Search Panchnama of the hosue of accused Premlal Prajapati was prepared vide Ex.P-24. Maya Ram was medically examined as per Ex.P-29. Inspector T.S Pakra went back to the police station, Janakur and registered merg intimation vide vide
Legal Reasoning
Ex.P-33 and First Information Report under Crime No. 103/2017 was registered against the accused/appellants including one of the co-accused Shivlal vide Ex.P-34. All the three accused have been arrested vide Exs.P-36 to 38 and information of their has been given to their family members vide Ex./P-39. Seized articles were sent for FSL to Regional Forensic Science Laboratory, Janakpur through Superintendent of Police vide Ex.P-41 and receipt of the same has been obtained vide Ex.P-42. 5. After completion of investigation, charge sheet was presented before the Court of Special Judge (S.C./S.T. Prevention of Atrocities Act) Baikunthpur, District – Koriya (C.G.) against the accused under sections 302, 452, 323, 324, 427, 307, 450 read with 34 IPC, 25, 27 Arms Act and section 3(2) (v) of the Atrocity Act. 6. When the charge sheet under sections 449, 302, 307, 323, 34, 6 427 IPC, section 3 (2) (v) of Atrocity Act and section 25 (1) (1-a), 27 of Arms Act was read out and explained to accused Shiv Shankar and sections 449, 302/34, 307/34, 323, 427 IPC and section 3 (2) (v) of Atrocity Act was read out and explained to accused Shivlal and Premlal by my former presiding officer, the accused denied the crime. In the defence, it was said that first Maya Ram had hit accused Shivlal and when Maya Ram tried to hit him again, the woman (Phoolbai) brought the child (Vinay Prasad) and as such, he got hurt. No evidence was produced in the defence. 7. In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 47 documents i.e. Exs. P-1 to P-47. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.01.2021, though acquitted the co-accused Shivlal, but had convicted and sentenced the accused/appellants for offence as aforementioned, against which, this criminal appeal has been filed. 8.
Legal Reasoning
Mr. Pushkar Sinha, learned counsel for the appellants argued that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302/34 of the IPC as there was no reason or any motive has been proved by the prosecution to do such type of crime. He further argued that there was sudden quarrel took place between the accused / appellants and the injured Mayaram on account of interrupting the argument which 7 had started between Kamalu Dholia, son-in-law of injured Mayaram and accused Shivshankar and Shivlal, first Maya Ram had hit accused Shivlal with wooden plank over his head due to which he received lacerated wound of 6 cm long x ½ cm x ½ cm with fine edge on right side just 2 cm near middle skull from upper part of forehead to right parietal region of skull, his medical report is marked as Ex.D-5 and being his real brother, accused Shivshankar got annoyed and on a heat of passion, he came with sword and accused Premlal, being father of accused Shivlal, came with bamboo stick to take revenge of Shivlal from Mayaram and when accused Shivshaker tried to hit Maya Ram with a sword, Phoolbai (daughter-in-law of Maya Ram) came to intervene along with his child Vinay Prasad (aged about 1½ years on her lap) and during the said scuffle, Vinay Prasad received a single blow over his head due to which he succumbed, there was no motive or intention on the part of the appellants to cause death of the deceased. Therefore, the case of the appellants fall within the purview of Exception 4 to Section 300 of the IPC and the act of the appellants is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellants for the offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part- II) of the IPC. 9. On the other hand, Mr. Shashank Thakur, learned Deputy Advocate General, appearing for the respondent/State supports 8 the impugned judgment and submits that it is not a case where the appellants’ conviction under Section 302/34 of the IPC can be altered/converted under Section 304 Part-I or Part-II of the IPC and as such, the instant criminal appeal deserves to be dismissed. 10. Mr. Anuroop Panda, learned counsel appearing for the Objector also supports the impugned judgment and submits that the accused / appellants had caused death of the child aged about 1½ years, who was also a member of scheduled caste, and as such the learned trial Court has rightly convicted and sentenced the appellants as aforementioned, in which no interference is warranted. 11. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 12. The first question for consideration would be whether the deceased died under unnatural circumstances ? 13. The medical witness Dr. Rajiv Kumar Raman (PW-13), who has conducted the postmortem of the dead body of deceased, has stated that he has conducted postmortem over the dead body of the deceased on 20.10.2017 vide Ex.P-31 and found that the dead body had a severed head injury from between the eyebrows to the back of the head at the joint of the parietal and occipital bones, measuring 12cm x 2 cm x 3 cm. The injury was bloody and 9 the skull bones were broken. This witness has also expressed the opinion that cause of death is due to head injury and duration of death was within 12 hrs and is homicidal in nature. No substantial question has been raised by the defence in the cross-examination not being of murderous nature. Thus, there is no reason to disbelieve the testimony of the prosecution witness Dr. Rajiv Kumar Raman (PW-13). Hence, the trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Rajiv Kumar Raman (PW-13) and PM report (Ex.P-31) has come to the conclusion that cause of death is due to head injury and the deceased died under unnatural circumstances. 14. After hearing learned counsel for the parties and after considering the submissions advanced by them, we are of the considered opinion that the finding recorded by the trial Court that the deceased Vinay Pradad died under unnatural circumstances is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 15. Now, the question for consideration would be whether the accused-appellants herein are the perpetrator of the crime in question ? 16. Prosecution witness Phool Bai (PW-1), who is the mother of the deceased, stated in her statement that deceased Vinay Prasad was her son. This incident happened on 20th of last Kartik month 10 at 2.00 pm. At that time she was in her house. She was painting the courtyard. At that time accused Shivshankar and Shivlal came near the door of our house. After the arrival of accused Shivshankar and Shivlal, Kamalu, son-in-law of her elder father- in-law, came near the door of her house. Atal Chowk is near the door of her house. There, accused Shivshankar and Shivlal told Kamalu, son-in-law of her elder father-in-law, to give money for drinking liquor. Then her father-in-law Mayaram said that who is talking to his son-in-law. Then accused Shivshankar and Shivlal entered their house and beat her father-in-law Mayaram with a stick and went away. After that accused Shivshankar, Shivlal and their father Ramlal came near her house. Accused Shivshankar was holding a sword in his hand. Ramlal broke the door of her house and was saying that murder and leave. All the three accused entered her house. At that time she was holding her son Vinay Prasad in her lap. The accused Shivshankar had hit her son Vinay Prasad with a sword, due to which her son Vinay Prasad's nose was cut from the nose to the forehead and head (nose, forehead and head were cut due to the injury), due to which her son Vinay Prasad died. This witness further stated that after killing her son Vinay Prasad, the accused also attacked her father-in-law Mayaram with a sword, due to which her father-in- law suffered injuries on his left arm and right ear. Her father-in-law became unconscious due to the assault by the accused. Her father-in-law was hit with a sword by the accused Shivshankar. 11 The accused left their house after assaulting her son Vinay Prasad and her father-in-law Mayaram. Thereafter, an ambulance was called from Janakpur, in which her father-in-law was taken to Janakpur Hospital for treatment and her son Vinay Prasad was also taken to Janakpur Hospital in an ambulance. Her son Vinay Prasad's nose, forehead and head were completely cut due to the injury, which were stitched in the hospital. In her cross- examination, this witness has denied the suggestion of the defence that Shivshankar did not come to her house with a sword and he did not hit her son Vinay with the sword. She also denied that her father-in-law, Mayaram, tried to hit accused Shivlal with a sword for the second time, at that time she ran to intervene, then her child was hit by Mayaram's sword. 17. The second witness examined by the prosecution is Bharat Prasad (PW-2). He has stated that incident happened on the second day of last Diwali (Diwali of the year 2017), on the day of Pariva. The incident happened at about 3:00 pm, he was at his home at that time. There is Atal Chowk in front of the house of the complainant Phoolbai, there he heard the sound of conversation between Maya Ram and the accused Shivlal, then he came out of the house, the argument between them escalated, at that time Harilal was there with his cart. Harilal stopped Maya Ram and Shivlal from fighting and said don't fight, go to your respective homes. Thereafter Harilal closed his cart and went to his home. This witnesses further stated that after Harilal closed the cart and 12 left, Mayaram's wife left her house and went to the place where the dispute was going on and told her husband Mayaram to stop fighting and go home. Then Mayaram told his wife not to talk to him and got ready to beat his wife. After that Mayaram's wife went from there to call someone, he don't know where she went. Mayaram was telling the accused Shivlal that he is abusing his son-in-law. Then, accused Shivlal held Mayaram's leg and said, Uncle, I have not abused your son-in-law, why are you abusing me? Meanwhile, Mayaram kicked Shivlal's motorcycle and the motorcycle fell down. Then accused Shivlal said to Mayaram, why did he kick his vehicle? After that, Mayaram hit accused Shivlal with a bullock's peg. Then accused Shivlal said to Mayaram, Uncle, why are you hitting me unnecessarily? Don't hurt me otherwise it will be wrong. After this, Mayaram started abusing accused Shivlal with bad words. After that, Shivlal went away from there four feet away. After that, Mayaram went inside his house. After that, Mayaram came out of the house and hit accused Shivlal on the head with some iron object whose length was one hand, due to which blood started flowing from Shivlal's head and blood got stained on the shirt he was wearing. After that, Shivlal went towards his house. He also stated that he understood that the fight has calmed down. After that his friends took him for a picnic to Gajmongra Baba Mandir where there is a river too. He don't know what happened after that. He did not see the accused beating anyone. He do not know whether the police went to the 13 scene for investigation or not. The police called him to Janakpur police station and he went there. The police asked him at Janakpur police station what he knew about the incident. He told the police the same things that he has told before the Court today. At this juncture, this witness was declared as hostile witness and on pointed query being asked by the prosecution, he denied all the questions. 18. Another prosecution witness, Ramrup (PW-3), father of the deceased, has stated that accused Shivshankar, Shivlal and Premlal are residents of our village Jamthan. He belong to Dholia caste. Dholia caste comes under the category of scheduled caste. The accused belong to Kumhar caste, which comes under non- scheduled caste/tribe category. The accused and they are residents of the same village and knew each other well before the incident. He further stated that the incident took place on 20th of the year 2017, the said day was the second day of Diwali i.e. Pariva day. That day he had gone for a picnic near Gajmogra forest near the village, then around 2.00-3.00 in the afternoon Savitri of the village called him and told that there was a fight in his house, then he came back to his house from the picnic. When he came home, his wife Phoolbai told him that Shivshankar, Shivlal and Premlal of the village had come to the house and killed their son Vinay Prasad with a sword, their son Vinay Prasad was about one and a half years old. When he came home, he saw that his wife was sitting with his son Vinay Prasad in her lap and 14 Vinay Prasad was dead, Vinay Prasad's head was cut in the middle, blood was oozing out. He also stated that the accused had also beaten his father Mayaram with a sword and sticks. His father had injuries in his ear, arm and the mace in his hand, from which blood was oozing out. This witness is a hearsay witness, as such, he was declared as a hostile witness. 19. Another prosecution witness is Mayaram Dholia (PW-4), who is an injured eye witnesses. He has stated that incident took place on the second day of Diwali last year, i.e. on the day of Pariva. Around 1.30-2.00 pm, he was sitting outside his house after bathing. At the same time, accused Shivshankar and Shivlal came near his house on their motorcycle and dropped their motorcycle in the street. Accused Shivlal told him to lift his motorcycle. Then he said that they have dropped the motorcycle, so they themselves lift it, why should he lift it. At the same time, his son-in- law Kamalu came there. Then accused Shivlal said to him, "Madarchodh (mother-fucker) give him 50 rupees to drink liquor." Then he told the accused to go home and after that he went inside his house. When he went inside the house, both accused Shivlal and Shivshankar broke the peg of the bullock cart standing there and entered inside his house and accused Shivshankar hit him on the head with the peg that he was holding in his hand. Then to protect himself, he bent his head down, then the blow with the peg by accused Shivshankar did not hit him but hit his brother accused Shivlal on the head, due to which Shivlal's head 15 started bleeding, thereafter accused Shivshankar left his house and went to his house and after some time he came back to his house with a sword. His father/accused Premlal also came with him and Shivlal also came to his house with them. 20. This witness further stated that Bharat Dhimar of his own village was there, he told them to close the door of the house. Shivshankar's people are coming with swords, then his daughter- in-law Phoolbai closed the door of the house, at the same time Mahendra Dhimar was also saying to close the door. The accused hit the closed door of their house with swords, due to which wooden door got cut, accused Premlal pulled the other door with his hand, due to which the door opened and accused Premlal fell there, who was saying in the fallen state that kill that motherfucker Dholia and finish him off, murder him. All the three accused entered their house. At that time, accused Shivshankar was holding a sword in his hand, accused Shivlal and Premlal were holding sticks. His daughter-in-law Phoolbai was sitting with her child Vinay Prasad in her lap. She told the accused to leave from there and not fight. At that time, accused Shivshankar hit daughter-in-law Phoollbai's child Vinay Prasad on the head with the sword in his hand. Vinay Prasad's head was cut from the middle to the nose and he died. When his daughter-in-law went out of the door, accused Shivshankar hit him with the sword, which hit the finger of his left hand and his finger was cut. Accused Shivshankar hit him again with the sword, which hit his 16 left ear, which hurt his ear. When he entered from the courtyard of his house, all the three accused entered his house and slammed him down. Accused Shivshankar hit him with the sword, which hurt his right arm near the shoulder. The accused Shivshankar attacked him with a sword on his neck, but he leaned back, due to which the sword hit his arm near his shoulder. In his cross- examination, this witness has denied all the suggestions put by the defence. 21. Considering the aforesaid submissions of the prosecution witnesses and facts and circumstances of the case, we are of the considered opinion that the learned trial Court has rightly held that it is the accused / appellants, who have caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 22. The aforesaid finding brings us to the next question for consideration, whether the case of the appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 23. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the 1 (2002) 3 SCC 327 17 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.” 24. 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 2 (2009) 15 SCC 635 18 the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (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 19 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.” 25. Likewise, in the matter of State v. Sanjeev Nanda3, 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. 26. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 20 premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. 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 21 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. “undue The expression advantage” as used in the provisions means “unfair advantage”. 27. 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. 28. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 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.” 5 (2019) 6 SCC 122 29. Reverting to the facts of the present case in light of principles of 22 law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that the incident took on the second day of Diwali on which date, there was a festival going on in the village and there were some hot talk took place between accused Shivshankar and accused Shivlal with Kamalu Dholia, son-in-law of injured Mayaram on account of demanding money for liquor and when injured Mayaram came to intervene, sudden quarrel took place between injured Mayaram and accused Shivshankar and Shivlal. As per evidence of Bharat Prasad (PW-2), who was present there, first Mayaram had hit accused Shivlal with wooden plank over and then Mayaram went inside in house. Thereafter, injured Shivlal being real brother of accused Shivshankar, he got annoyed and on a heat of passion, he came with sword and accused Premlal, being father of accused Shivlal, came with bamboo stick to take revenge of Shivlal from Mayaram and when accused Shivshaker tried to hit Mayaram with a sword, Phoolbai (daughter-in-law of Mayaram) came to intervene along with his child Vinay Prasad (aged about 1½ years on her lap) and during the said scuffle, Vinay Prasad received a single blow over his head due to which he succumbed and Mayaram also received certain injuries on his person there was no motive or intention on the part of the appellants to cause death of the deceased. There was no motive or premeditation on the part of the appellants to cause death of deceased Vinay 23 Prasad. The appellants do not have any intention to cause death of deceased, but by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of the deceased, as such, their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 30. Learned trial Court has also convicted the accused/appellants under Section 3(2)(v) of the Atrocities Act and sentenced them for life imprisonment and to pay fine of Rs.2,000/-, in default of payment of fine, additional RI for six months. But, considering the fact that in the instant case, the Caste Certificate (Ex.P-18) has not been duly certified, though twice request has been made to Tahsildar, Bharatpur for certification of the said Caste Certificate vide memo dated 25.11.2017 and 06.12.2017 (Exs. P-44 & 45) and also a memo was sent to the SDM Office, Bharatpur regarding verification of the seal and signature on the caste certificate and for information about the issuer, but the same has not been replied by them and the learned trial Court, only on the basis of not disputing the caste of the deceased by the accused persons, has convicted and sentenced them as aforementioned. 24 Hence, without any certification or verification, it has not been proved that the victim or deceased belong to Scheduled Caste community, as such, we are of the considered opinion that the learned trial Court has committed grave illegality in convicting and sentencing the accused /appellants under Section 3(2)(v) of the
Decision
Atrocities Act. Therefore, we set aside the said finding. 31. Considering the aforesaid facts and circumstances of the case and also taking into consideration that the appellants are in jail since 21.10.2017 and they have completed more than 07 years, the conviction of the appellants under Section 302/34 of the IPC can be altered/converted to Section 304 Part-I/34 of the IPC. 32. Accordingly, conviction of the appellants under Section 302/34 of the IPC is set aside, however, they are convicted under Section 304 Part-I / 34 of the IPC and sentenced to undergo rigorous imprisonment for 10 years. Conviction and sentence awarded by the trial Court under Sections 307/34, 449 and 427/34 of IPC to the accused / appellants are hereby affirmed. 33. The criminal appeal is partly allowed to the extent indicated hereinabove. It is stated that the appellants are in jail, they shall serve out the remaining sentence as modified by this Court. 34. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve 25 the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra