Nafr High Court
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2025:CGHC:44204-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 664 of 2019 Judgment Reserved on 06.08.2025 Judgment Delivered on 01.09.2025 1 - Tikeshwar @ Tikesh Yadav, S/o Shri Ram Anuj Yadav, aged about 26 Years Occupation Labourer, 2 - Bhagwat Yadav, S/o Shri Ram Anuj Yadav, aged about 28 Years, Occupation Labourer, 3 - Rupesh Yadav, S/o Shri Ram Anuj Yadav, aged about 25 Years, Occupation Private Service, 4 - Parmendra Yadav, S/o Shri Ram Anuj Yadav, aged about 24 Years Occupation- Labourer, All are R/o Village Khorpa Thana Patan District Durg Chhattisgarh., ...Appellants versus 1 - State of Chhattisgarh, Through Police Station House Patan District Durg Chhattisgarh. --- Respondent For Appellants : Mr. Goutam Khetrapal, Advocate. For State : Mr. Ajay Pandey, Govt. Advocate. For Objector : Mr. Ayush Verma, Advocate. 2 Hon'ble Justice Smt. Rajani Dubey & Hon'ble Justice Shri Amitendra Kishore Prasad CAV Judgment Amitendra Kishore Prasad, J. 1. 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 02.03.2019 passed in Sessions Trial No.25/2018 by the 2nd Additional Sessions Judge, Durg, C.G., by which the appellants stand convicted & sentenced as under:- Conviction of Appellant No.1 Sentence Tikeshwar @ Tikesh Under Section 302 of Indian Penal Code (for short, ‘IPC’) Under Section 201 read with 34 of IPC Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to undergo additional rigorous imprisonment for three months Rigorous Imprisonment for one year and fine of Rs.500/-, in default of payment of fine additional rigorous imprisonment for three months (Both sentences of appellant No.1 were directed to run concurrently) Conviction of Appellant Nos.2 Sentence Bhagwat Yadav, Appellant No.3- Rupesh Yadav, Appellant No.4- Parmendra Yadav Under Section 302 read with 34 of Imprisonment for life and 3 IPC Under Section 201 read with 34 of IPC fine of Rs.1,000/-, in default of payment of fine to undergo additional rigorous imprisonment for three months Rigorous Imprisonment for one year and fine of Rs.500/-, in default of payment of fine additional rigorous imprisonment for three months (Both sentences were directed to run concurrently) 2. Briefly stated, the case of the prosecution is that on 01.12.2017 at about 9:45 a.m., PW-4 Premchand Yadav appeared at Police Station Patan and lodged report regarding the incident. He stated that on the same day, at about 6:00 a.m., he had gone to the fields of village Khorpa to graze buffaloes along with his elder father- Johan (hereinafter called as ‘deceased’). While grazing the buffaloes near the field of one Rikhi Kose, due to previous enmity, the accused persons namely, Bhagwat, Rupesh and Parmendra caught hold of deceased and accused- Tikeshwar @ Tikesh inflicted a blow on deceased's head with a tangia lying nearby, as a result, deceased-Johan fell on the spot and succumbed to the injury. PW-4 Premchand immediately rushed home and informed his elder brother-Narsingh (PW-5). Thereafter, both of them went to the spot and found deceased lying dead in the field. On the basis of the said information, Merg Intimation No. 53/17 was registered vide Ex.P-8 and subsequently, an FIR (Ex. P-9) was lodged at Police Station Patan against the accused persons 4 Tikeshwar @ Tikesh, Bhagwat, Parmendra and Rupesh Yadav for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. During investigation, spot map was prepared vide Ex.P-12 & inquest proceedings (Ex.P-15) were conducted and dead body of the deceased was sent for postmortem examination which was conducted by PW-3 Dr. Ashish Sharma, who has proved the postmortem report Ex.P-2. According to postmortem report, cause of death of deceased was due to hemorrhage caused by severe head injury and mode of death was homicidal in nature. During investigation, appellants were taken into custody vide Exs.P-26 to 29. Memorandum statement of appellant No.1- Tikeshwar was recorded vide Ex.P- 16, pursuant to which, one blood like stained Tangiya, one blood like stained full pant and shirt were vide Ex.P-20 seized. Memorandum statement of appellant No.2 Bhagwat was recorded vide Ex.P-17, consequent to which, one blood like stained T-shirt was seized vide Ex.P-21. Memorandum statement of appellant No.3-Rupesh Yadav was recorded, pursuant to which, one blood like stained full T-shirt pink colour was seized vide Ex.P-22. Memorandum statement of appellant No.-4 Parmendra Yadav was recorded vide Ex.P-18, consequent to which, one blood like stained full T-shirt green colour was seized. Vide Ex.P-24, clothes of deceases were seized. Vide Ex.P-11, plain and blood stained soil were seized from the spot. Seized articles were sent to FSL for chemical examination and as per FSL report Ex.P-37, human 5 blood of group ‘B’ has been found on the seized articles marked as “C, D1, D-2, E, F, G, I-1, I-2, I-3 & I-4 , however, group ‘B’ blood has been specifically found on the articles marked as ‘D2, E, F, G, I-2 & I-3”. Query report has also been obtained vide Ex.P-3 where it has been mentioned that injuries found on the body of the deceased could have been caused by seized Tangiya. 3. Statements of witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, the appellants were charge-sheeted before the jurisdictional criminal Court and the
Facts
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. 4. The prosecution in order to bring home the offence, examined as many as 12 witnesses in support of its case and exhibited 38 documents Exs.P-1 to P-38. However, the appellants in support of their defence have examined none, but exhibited three documents i.e. Exs.D-1 to D-3. 5. 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. 6. Learned counsel for the appellants would submit that the 6 appellants have been wrongly convicted by the trial Court in the absence of sufficient and compelling evidence. He would further submit that the entire prosecution case rests solely on the testimony of PW-4, Premchand, who is claimed to be the sole eyewitness to the incident, however, his statement is unnatural, improbable and his conduct is inconsistent with that of a natural witness. He would also submit that PW-4 failed to make an immediate disclosure and his testimony is riddled with material contradictions. He would also submit that the prosecution has failed to establish the existence of a common intention under Section 34 of the IPC with respect to the co-accused. Therefore, it is prayed that the impugned judgment of conviction and the order of sentence be set aside and the appellants be acquitted of all charges. In the alternative, it is submitted that even if the prosecution’s case is accepted in its entirety, as per the version of PW-4 Premchand, the allegation of assault on the deceased pertains only to appellant No.1- Tikeshwar and it is not the case that appellant No.1 was armed with any weapon or had attacked the deceased in a premeditated manner. The incident arose out of a trivial issue, in the heat of the moment and without any pre-planning. Therefore, the case of appellant No.1 would fall under Exception 4 to Section 300 of the IPC. Considering that Appellant No.1 – Tikeshwar has been in custody since 01.12.2017, it is humbly prayed that his conviction be modified to 7 one under either Part I or Part II of Section 304 of the Indian Penal Code. Reliance has been placed upon the decision of Supreme Court in the matters of Rameshwar vs State of UP reported in 2022 SCC Online All 1116, Esakkimuthu vs State Represented by the Inspector of Police reported in 2025 SCC Online SC 1496, Krishna Govind Patil vs State of Maharashtra reported in 1963 SCC Online SC 29, Ramashish Yadav and others vs State of Bihar reported in (1999) 8 SCC 555 and Ramesh Singh Alias Photti vs State of A.P. reported in (2004) 11 SCC 305.
Legal Reasoning
are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the 25 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 26 or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 29. In the matter of Arjun (supra), the Hon’ble Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I of 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 IPC. 30. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi), (2019) 6 SCC 122, has laid down four ingredients which should be tested for 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.” 31. Furthermore, the Hon’ble Supreme Court, in the matter of Chunni Bai Vs. State of Chhattisgarh in AIR 2025 SSC 2370, has held as under:- 27 “17. Once homicide is proved being committed by the Appellant, the next consideration will be whether such homicide was "culpable homicide" within the meaning of Section 299 Indian Penal Code. If it is found to be "culpable homicide", further consideration will be whether it is "culpable homicide not amounting to murder" which is punishable Under Section 304 Indian Penal Code or "murder" as defined Under Section 300 Indian Penal Code, punishable Under Section 302 Indian Penal Code, under which the Appellant has been convicted and punished by the Trial Court which was upheld by the High Court. 18. The difference between "murder" and "culpable homicide not amounting to murder" has been succinctly explained by this Court in State of A.P. v. Rayavarapu Punnayya, MANU/SC/0180/1976 : 1976:INSC:221 : (1976) 4 SCC 382 in the following words: 1 2 . In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as 28 "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 1 9 . The difference was further elucidated in Rampal Singh v. State of U.P., MANU/SC/0589/2012 : 2012:INSC:302 : (2012) 8 SCC 289 in the following words: 1 8 . This Court in Vineet Kumar Chauhan v. State of U.P. [ MANU/SC/0366/2008 : 2007:INSC:1302 : (2007) 14 SCC 660: (2009) 1 SCC (Cri) 915] noticed that academic distinction between "murder" and "culpable homicide not amounting to murder" had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [ MANU/SC/0180/1976 : 1976:INSC:221 : (1976) 4 SCC 382: 1976 SCC (Cri) 659] where it was observed as under: (Vineet Kumar case [ MANU/SC/0366/2008 : 2007:INSC:1302 : (2007) 14 SCC 660: (2009) 1 SCC (Cri) 915], SCC pp. 665- 66, para 16) 1 6 . ... that the safest way of approach to the interpretation and application of Sections 299 and 300 Indian Penal Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 Indian Penal 29 Code and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab [ MANU/SC/0041/1958 : 1958:INSC:18 : AIR 1958 SC 465: 1958 Cri L J 818] and Rajwant Singh v. State of Kerala [ MANU/SC/0086/1966 : 1966:INSC:111 : AIR 1966 SC 1874: 1966 Cri L J 1509], speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the Accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the Accused and the death, leads to the second stage for considering whether that act of the Accused amounts to 'culpable homicide' as defined in Section 299. ... If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the First or the Second Part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to 30 murder', punishable under the First Part of Section 304 Indian Penal Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative. 20 . This Court in the aforesaid case of Rampal Singh (supra) further explained the difference between these two offences from the perspective of the punitive provisions of Sections 302 and 304 Indian Penal Code by grading the offences in three categories as follows: 21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the 31 maximum sentence only extends to imprisonment for 10 years. The first Clause of Section 304 includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second Clause deals only with the cases in which the Accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor [ MANU/LA/0328/1930 : AIR 1931 Lah 63]1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.) 21.From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to "murder" or "culpable homicide not amounting to murder" is the presence or absence of intention of the offender. If the "intention" to cause death or to cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act "without any excuse" for incurring the risk of causing death or such injury, comes out aloud and clear in the case, it would be most appropriate to categorise it as a case of "murder" Under Section 300 Indian Penal Code in which event, penal provision of Section 302 Indian Penal Code would be attracted. On the other hand, if the "intention" in causing the death or to causing 32 such bodily injury is not so clear, the case will fall under the less stringent category of "culpable homicide not amounting to murder" as punishable Under Section 304 Indian Penal Code. 22. In the case at hand, it can be said to have been proved beyond reasonable doubt that the Appellant had caused the death of her two children and thus committed culpable homicide. The evidence on record clearly shows that the Appellant had caused the death of her children by hitting them with an iron crowbar on their heads. The crucial question however is, whether she had the intention to cause death of her children or had the intention to cause such bodily injury which was likely to cause death or whether she had the conscious knowledge that it was imminently dangerous that in all probability, it would cause death, or such bodily injury as is likely to cause death and committed the act without any excuse for incurring the risk of causing death or such injury? 23. When a person performs an act, he is attributed with the intention to cause the natural consequences that follows from the act performed. There may be situations when the person makes the intention for performing an act known clearly by oral declaration or otherwise. However, it can be illusive when intention is not clearly spelt out or discernible, and the same has to be gathered from the 33 surrounding facts and circumstances and the acts of the Accused. 24. In the present case, once the factum of homicide being committed by the Appellant is proved beyond reasonable doubt and considering the nature of the injuries received by the minor victims at the hands of the Appellants with iron crowbar on the basis of the medical and other evidence brought on record, it can be stated that the intention to commit homicide can certainly be inferred as had been done by the Trial Court and the High Court. However, we have certain reservations about such a conclusion being drawn by the courts below in respect of proof of "intention" or the conscious knowledge of what she was doing in the light of the peculiar facts and circumstances obtaining in the case. In our opinion, it cannot be conclusively held in the present case that the intention of the Appellant or conscious knowledge of what she was doing, a component of mens rea, has been established beyond reasonable doubt. 25. It is well settled that in any criminal case, the burden of proof is on the prosecution to prove the case beyond reasonable doubt in order to secure conviction of the Accused, that is to say that no reasonable doubt can be said to have arisen in the judicial mind of the court after appreciating the evidence presented, and the outcome reached by the prosecution is the only possible outcome in the given facts and circumstances of the case. 34 This legal position is necessary for both the ingredients of "actus reus" and "mens rea", though "mens rea" can sometimes be inferred from the nature of "actus reus", and as far as "mens rea" is concerned, intention or guilty knowledge is certainly the most important facet. 59. Under the circumstances, applying the practical tests elucidated in State of A.P. v. Rayavarapu Punnayya (supra) and Rampal Singh v. State of U.P. (supra) it can be said that the present case falls within the third category of "culpable homicide of the third degree" as the act was committed by the Appellant without the intention of causing death, and the said culpable homicide would be covered under Part II of Section 304 Indian Penal Code. 60. Accordingly, we convert the conviction of the Appellant under Part II of Section 304 Indian Penal Code from that of Section 302 Indian Penal Code under which she was initially convicted and sentenced by the Trial Court which was upheld by the High Court.” 32. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Hon’ble Supreme Court, it is quite vivid that on the date of incident, quarrel took place between the appellant No.1 and deceased and in that event, out of anger, appellant No.1 gave a blow on the vital part of deceased i.e. head with tangiya leading to his death, as such, there was no premeditation on the part of the appellant No.1 to cause the death of the deceased, on sudden quarrel erupted between them 35 and out of sudden anger and in heat of passion, the appellant No.1 assaulted the deceased by tangiya, by which, the deceased suffered injuries and died. As such, the appellant No.1 must have had the intent and knowledge that his act would likely to cause the death of the deceased.
Arguments
7. On the other hand, learned counsel for the State/respondent, as well as Objector, while supporting the judgment of conviction and order of sentence passed by the trial Court, would submit that the findings recorded are well-reasoned and based on the cogent and reliable evidence brought on record. They would further submit that PW-4 Premchand, eye-witness to the incident, has clearly and consistently narrated the incident in his deposition and his testimony has withstood the test of cross-examination. Merely because he is a solitary eyewitness does not render his testimony unreliable, especially when it inspires confidence and is corroborated by other surrounding circumstances. He would also submit that the involvement of the co-accused has been properly established through the collective participation in the crime, and the trial Court has rightly invoked Section 34 of the IPC to attribute common intention. The appellants were present at the scene, acted in furtherance of a common object, and their participation 8 cannot be seen in isolation. Therefore, it is prayed that the appeal be dismissed as being devoid of merit and the judgment of the trial Court be upheld in its entirety. 8. 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. 9. The first question for consideration would be, whether the death of the deceased was homicidal in nature? 10. 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-2) proved by PW-3 Dr. Ashish Sharma, 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. 11. Now, the question would be whether the appellants are the authors of the crime in question? 12. Admittedly, the present case rests solely on the statement of PW-4, Premchand, who is claimed to be the sole eyewitness to the incident. In this statement, PW-4 Premchand has stated that on the date of the incident, at about 5:00 a.m., he had gone with deceased-Johan to graze buffaloes near the field of Rikhi Kose. At that time, the accused persons, namely Bhagwat, Tikeshwar, Rupesh, Ram Anuj, and Parmendra, came there and accused 9 Tikeshwar assaulted his grandfather/deceased- Johan from behind with a tangia twice, while the other four accused persons caught hold of him and pushed him down. Thereafter, accused- Tikeshwar again assaulted the deceased with tangia several times, as a result of which, he succumbed to the injuries on the spot. This witness was subjected to cross-examination and in cross-examination, he admitted that police came to know about the incident only after he went to the police station and gave the information and prior to this, they had no knowledge of the occurrence. He further admitted that Exhibit P/10 (site map) shows barbed wire between points A and A1. Initially, he denied the suggestion that he had not informed the police or Patwari about how the accused persons transported the deceased’s body from point A to A1. However, he later admitted that he told the police the dead body was taken directly from point A to A1. He further admitted that it would ordinarily not be possible for four adult men to carry a body across due to the barbed wire fence. He explained that the fence consisted of four lines of barbed wire from bottom to top, and by pressing the lower wire down and lifting the upper one, the body was passed through the gap in between. He further admitted that due to the presence of the barbed wire, the dead body could only be taken from point A to A1 by making a detour. He also admitted that during the preparation of the spot map, he did not inform the police or Patwari about the direction in which the accused had fled. Later, he claimed he had 10 told them that the accused had escaped on foot. He stated that police officers Verma and Banjare had prepared the spot map, although their names are not mentioned in Exhibit P/10. He also admitted that upon witnessing the assault on the deceased, he neither attempted to call for help, nor raised any alarm, nor made any effort to intervene. He denied the suggestion that there were no bloodstains between the place of assault and the barbed wire, from where the dead body was allegedly transported to the field of K.K. Sharma. 13. PW-11 R.P. Yadav, the Investigating Officer, contradicted several aspects of PW-4’s testimony. He admitted that as per the site map (Ex.P/10), the distance between the place of occurrence (point A) and the place where the body was found (point A1) was 77 feet, and no bloodstains were found along that path. He confirmed the existence of a barbed wire fence between these two points and admitted that if the body had been carried across the wire, it would be natural to expect bloodstains on the ground. However, none were found. This omission casts serious doubt on the prosecution’s version, making it improbable that the deceased, allegedly assaulted multiple times with a tangiya, was carried such a distance without leaving a trail of blood. The absence of bloodstains between points A and A1 is a significant infirmity in the prosecution's case, which must benefit the accused. He also admitted that the postmortem application (Ex.P/2) does not contain any mention of the accused persons having restrained or 11 held the deceased. He also admitted that during the course of the investigation, no person other than PW-4 Premchand Yadav claimed to have witnessed the incident. He further admitted that no witness informed him of having seen the deceased and PW-4 Premchand Yadav together prior to the incident or on the date of occurrence. He also admitted that none of the witnesses stated having seen the four accused either proceeding to or returning from the place of the incident on the date of occurrence. He also admitted that PW-4 Premchand did not state in his statement that at the place of incident, four lines of barbed wire were laid from bottom to top, out of which, one wire was pressed down on the boundary of the field and the wire above it was lifted, and through the middle deceased’s body was carried across the wire. He also admitted that PW-4 Premchand did not state in his statement that Accused Tikeshwar assaulted the deceased twice from behind with a tangiya and the other four accused caught him, threw him down, and pressed him, after which, accused Tikeshwar again assaulted him four to five times. He also admitted that PW-4 Premchand had only told him that he was grazing buffaloes nearby, saw the assault, and returned home at 7:30 a.m. to inform his elder brother Narsingh/PW-5. 14. Besides the above, PW-5 Narsingh admitted during his cross-examination that he did not see the accused persons assaulting the deceased with a tangiya, nor did he witness them concealing the deceased’s body. He further acknowledged that no 12 report had been lodged at the police station alleging any prior rivalry with the accused persons. Additionally, he admitted that no complaint or report had ever been made concerning any dispute or enmity between the accused persons and the deceased. Furthermore, PW-6 Jagmohan also stated that he did not witness the incident and has no knowledge of how it actually occurred. 15. The Hon’ble Supreme Court in the matter of Rameshwar (supra) relying on its own judgment, in the matter of Bhimapa Chandapa Hosamani vs State of Karnataka, (2006) 11 SCC 323 held in para 26 which reads as under:- “26. In Bhimapa Chandapa Hosamani (supra), the apex court reiterated the law in the following words:- This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness." 16. Likewise, in the matter of Esakkimuth (supra), the Supreme 13 Court has held in para 17 which reads as under:- “17. It has also been submitted that the evidence of the intereste4d witnesses should be subjected to careful scrutiny and accepted with caution, and hence, PW-1 and PW-2’s statements should not be relied on unless duly corroborated by other witnesses. Reliance has been placed on the case of Hari Obula Reddy vs. State of Andhra Pradesh, (1981) 3 SCC 675 for the above argument.” 17. When the present case is examined in light of aforesaid decisions of the Hon’ble Supreme Court coupled with the above evidence, it is quite vivid that there are material contradictions and omissions in the statement of PW-4 Premchand and his statement does not corroborate with the statement of PW-11 R.P. Yadav, Investigating Officer and other evidence available on record with respect to alleged incident. Though, PW-4 Premchand claims to have witnessed the assault, but admits that he did not intervene or immediately inform the police. His presence at the spot is not mentioned in the earliest version of the FIR. Further, material omissions exist between his police statement under Section 161 Cr.P.C. and his deposition in Court. For instance, in Court, he stated that all accused were armed, whereas this is absent in his earlier statement. Therefore, considering these contradictions and his (PW-4) unnatural conduct, this Court finds it unsafe to rely on PW-4’s testimony to implicate all accused. Furthermore, there is no 14 evidence on record to show that due to previous enmity between the parties, the incident occurred. 18. As regards common intention under Section 34 of the Indian Penal Code, the prosecution must establish a prior meeting of minds or a pre-arranged plan to invoke the provisions of Section 34 IPC. In the matter of Krishna Govind Patil (supra), the Hon’ble Supreme Court has held in para 6 which reads as under:- “6……..When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the prearranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 302, read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of Section 34 on different situations” 19. Likewise, in the matter of Ramshish Yadav (supra), the Hon’ble Supreme Court has held in para 3 which reads as under:- 15 “3………….The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Ramanand Yadav cannot be held guilty of the charge under Sections 302/34 IPC but accused Samundar Yadav and Sheo Layak Yadav did commit the offence under Sections 302/34, having assaulted deceased Tapeshwar on his head by means of gandasa on account of which Tapeshwar died. The accused Ram Pravesh Yadav and Ramanand Yadav are, therefore, acquitted of the charges levelled against them and they be set at liberty forthwith…...” 20. Similarly, in the matter of Ezajhussain Sabdarhussain and Anr (supra), the Hon’ble Supreme Court has held in paras 20, 22 & 24 which read as under:- 16 “20. The complaint on which the FIR was registered at the instance of complainant Shamimbanù (PW 1), wife of the deceased Mohammad Shakil was at 2.00 p.m., apart from the presence of Accused 1 Iftekharhussain Sabdarhussain & Accused 2 Shefakathussain Sabdarhussain, the names of Accused 3 and 4 (present appellants) were also added, but no overt act has been attributed to the present appellants and their presence could be recorded with an allegation that both of them caught hold of the deceased Mohammad Shakil having common intention in facilitating the other accused persons to stab the deceased Mohammad Shakil by knife and gupti who have been convicted with the present appellant- accused under Section 302 read with Section 34 IPC. 22.Other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present appellant-acc t-accused actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form pre- arranged plan. It is true that it can be developed at the spur of the moment but there must be pre- arrangement and premeditated concert which is the requirement of law for applicability under Section 34 IPC and from the case of the prosecution, the mere fact that appellant- accused caught hold of deceased Mohammad 17 Shakil facilitating the other accused persons to come with a knife and gupti d and give blows, it cannot be said that the appellant-accused shared common intention with the other accused persons keeping note of the fact that in the complaint which was in the first instance registered for the alleged incident by Accused 1 Iftekharhussain Sabdarhussain, he only recorded the presence of Accused 2 Shefakathussain Sabdarhussain but the time when the complaint was registered at the instance of the present offence by Shamimbanu (PW 1) e at 2.00 p.m., the present appellant- accused were also intentionally implicated. Certainly it creates a doubt of their false implication and their presence from the prosecution evidence on record appears to be clouded with suspicion and in our considered view, the present appellants cannot be held guilty of the offence under Section 302 with the aid of Section 34 IPC. 24. However, in the instant case, there was no pre-arrangement of mind and altercation took place between Accused 1 Iftekharhussain Sabdarhussain with the deceased Mohammad Shakil who was accompanied with Accused 2 Shefakathussain Sabdarhussain and family members of the deceased and in furtherance thereof, Accused 1 Iftekharhussain Sabdarhussain and Accused 2 Shefakathussain Sabdarhussain brought a knife and gupti and stabbed the deceased. No presumption can be 18 drawn of common intention by implicating the appellant-accused under Section 34 IPC..” 21. Further, in the matter of Ramesh Singh (supra), the Hon’ble Supreme Court has held in para 12 which reads as under:- “12.To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant 19 circumstances of the case. The inference can be g gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696)” 22. Reverting to the facts and circumstances of the present case in light of the aforementioned decisions of the Hon’ble Supreme Court, it is evident that there is no material on record to establish the existence of a premeditated plan or prior meeting of minds among the accused persons. The incident appears to have transpired suddenly and without prior concert. The participation of the co-accused persons (Appellant Nos. 2 to 4) has not been established beyond reasonable doubt. 23. Accordingly, the conviction of Appellant Nos. 2 to 4 under Section 302 and 201 read with Section 34 of the Indian Penal Code is 20 found to be unsustainable in law. Consequently, the impugned judgment of conviction and order of sentence passed against Appellant Nos. 2 to 4 are hereby set aside and they are acquitted of all the charges leveled against them 24. So far as the conviction of Appellant No. 1 – Tikeshwar is concerned, the medical evidence of Dr. Ashish Sharma, as reflected in the post-mortem report (Ex. P-2), indicates that the deceased sustained a fatal head injury caused by a tangiya blow. This injury resulted in grievous harm, ultimately leading to the death of the deceased. PW-4 Premchand has also specifically attributed this fatal injury to Appellant No. 1 – Tikeshwar. Furthermore, pursuant to the memorandum statement of appellant No.1- Tikeshwar, tangiya was seized, on which, human blood has been found. In view of the same, this Court is of the considered opinion that the trial Court rightly held that it was Appellant No. 1 who inflicted the injuries that led to the death of the deceased. 25. Now, the question would be whether the case of the appellant No.1- Tikeshwar would fall under Exception 4 to Section 300 of IPC and, as such, his conviction can be altered either to Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant? 26. In order to consider whether the case of the appellant No.1- Tikeshwar is covered under Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the 21 Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 wherein it has been observed as under : “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir 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.” 27. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, 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, which states as under : 22 “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 for 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 with 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 23 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.” 28. Further, the Hon’ble Supreme Court in the matter of Arjun v. State of Chhattisgarh , (2017) 3 SCC 247 , has elaborately dealt 24 with the issue and observed in paragraphs 20 and 21, which reads as under:- “20. To invoke this Exception 4, the requirements that
Decision
33. In view of the above, we are of the considered opinion that the case of Appellant No. 1 – Tikeshwar @ Tikesh falls within the ambit of Exception 4 to Section 300 of the Indian Penal Code. Accordingly, his conviction under Section 302 IPC is altered to one under Section 304 Part I of IPC, and he is sentenced to undergo rigorous imprisonment for a period of ten years in place of life imprisonment. However, the sentence of fine imposed upon him and the default stipulations shall remain unaltered. Furthermore, the conviction and sentence of Appellant No. 1 under Section 201 IPC are hereby affirmed, being well-founded and supported by the evidence on record. 34. In the result, the appeal, so far as it relates to Appellant Nos. 2 to 4, is allowed and they are acquitted of the charges under Sections 302 and 201 read with Section 34 of the Indian Penal Code. Appellant No.2 to 4 are reported to be on bail, therefore, their bail bonds shall remain in force for a period of six months from today in view of provision of Section 437-A of Cr.P.C. However, the appeal, insofar as it relates to Appellant No. 1, is allowed in part, to the extent indicated hereinabove. 36 35. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action. 36. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant No. 1- Tikeshwar @ Tikesh Yadav is undergoing his jail term, to serve the same on the appellant No.1 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/- (Rajani Dubey) Judge Vishakha Sd/- (Amitendra Kishore Prasad) Judge