Nafr High Court
Case Details
Digitally signed by RAMAKANT NIRALA 1 2025:CGHC:19027-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.894 of 2019 Judgment reserved on : 19.03.2025 Judgment delivered on : 28.04.2025 1 - Pawan Gond S/o Sahdev Gond Aged About 19 Years R/o Rajiv Nagar, Thana- Basantpur, District- Rajnandgaon, Chhattisgarh 2 - Ravishankar Netam S/o Prahalad Netam Aged About 21 Years R/o Rajiv Nagar, Thana- Basantpur, District- Rajnandgaon, Chhattisgarh 3 - Dau Sahu S/o Late Jagdish Sahu Aged About 18 Years R/o Rajiv Nagar, Thana- Basantpur, District- Rajnandgaon, Chhattisgarh 4 - Rahul Korram S/o Shriram Korram Aged About 19 Years R/o Rajiv Nagar, Thana- Basantpur, District- Rajnandgaon, Chhattisgarh versus Appellant 1 - State Of Chhattisgarh Through Station House Officer, Police Station- Gandai, District- Rajnandgaon, Chhattisgarh Respondent For Appellants : Mr. Rishi Rahul Soni, Advocate for appellant No.1, Mr. N. K. Malaviya, Advocate for appellant Nos.2 & 4 and Ms. Veethika Choubey, Advocate for appellant No.3 For Respondent : Ms. M. Asha, PL Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput 2 C A V Judgment Per Rajani Dubey J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 07.08.2018 passed by the learned 2nd Additional Session Judge, Rajnandgaon in ST No.42/2017, whereby the appellants have been convicted and sentenced in the following manner:- Conviction Sentence Section 147 of IPC RI for 3 months Section 148 of IPC RI for 6 months Section 302 read with Section 149 of IPC Section 307 read with Section 149 of IPC Life imprisonment and fine of Rs.500/-. In default of payment of fine amount, additional RI for 6 months. RI for 10 years and fine of Rs.200/-. In default of payment of fine amount, additional RI for 3 months. All the sentences shall run concurrently. 2. The prosecution case, in brief, is that the complainant Shatruhan Sahu lodged a merg intimation that on 13.03.2017 his son Shiva had gone for celebrating holi after taking meal and at about 2:45 pm, daughter of neighbor Jitendra Yadav informed him that boys of the villagers are assaulting Shiva and Sandeep by stone, iron pipe etc, then he immediately went to the place of occurrence along with his wife Sarita Sahu and brother Bharat Sahu, then he saw that the accused Pawan Gond threw stone on his son Shiva’s face and the appellant Dau Sahu was assaulting on the head of Sandeep by iron 3 road. The other co-accused persons Ravishankar Netam and Rahul Korram were assaulting Shiva and Sandeep by hand, fist etc and when his brother Bharat cried over them, then they flew away. Upon the report of the complainant, a case was registered against the appellants. After investigation, the charge sheet was submitted before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellants and sentenced them, as mentioned in para 1 of the judgment. 3.
Legal Reasoning
Learned counsels for the appellants jointly submit that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. The learned Trial Court has convicted the appellants only on the basis of circumstantial evidences, which were full of conjectures and surmises. none of independent witnesses have supported the prosecution case. The Learned Trial Court has also ignored the material contradictions, omissions, statements of the prosecutions witnesses and also wrongly appreciated the defence taken by the appellants. Alternatively Learned counsels for the appellants submit that even if the prosecution case is accepted as it is, then also no offence under Section 302 is made out against the appellants and only offence under Section 304 Part-II of IPC can be made out against the appellants. There is no direct circumstantial evidence to convict the 4 appellants. They further submit that the case of the appellants would fall within exception 4 to Section 300 of IPC, therefore, their conviction under Section 302 of IPC may be altered either to part-I or Part-II of Section 304 of IPC, therefore, the appeal be allowed in part. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Harbeer Singh vs Sheeshpal and others, reported in (2016) 16 SCC 418 and Khema @ Khem Chandra etc vs State of Uttar Pradesh, reported in 2022 Live Law SC 689 and the judgment passed by this Court dated 28.11.2022 in CRA No.1157/2021 in between Budhwar Singh @ Bhursa Baiga vs State of Chhattisgarh. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the oral and documentary evidence available on record and rightly convicted the present appellants for the aforesaid offences. She would further submit that it is not the case which is covered under exception 4 to Section 300 of IPC, hence this appeal is without any merit and is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. The first question for consideration is that whether the death of the deceased Shiva Sahu was homicidal in nature or not? 7. Yakub Menon (PW-25) stated in his statement that he was posted as In-charge at Police Station City Kotwali, Rajnandgaon on 5 13.03.2017. He lodged FIR (Ex-P/33) as per information of complainant Shatruhan Sahu and he registered Crime No.90/2017 under Sections 147, 148, 149, 307 & 302 of IPC and he also recorded merg intimation bearing No.12/2017 as per information of Shatruhan Sahu regarding the death of Shiva Sahu, which is Ex-P/1 and he issued notice (Ex-P/2) for inquest memo and before witnesses, he prepared inquest memo (Ex-P/3). He wrote application for postmortem (Ex-P/19-A). Dr. J. N. Hussaini (PW-20) conducted postmortem of deceased Shiva and he discussed the injuries sustained by the deceased as under:- “शव परी(cid:6)्ቌण के(cid:10) दौ(cid:12)री(cid:13)न बा(cid:13)्ቨ परी(cid:6)्ቌण परी निनम्न चो(cid:20)टे(cid:10) प(cid:13)यी(cid:6) गयी(cid:6) - 1. नि(cid:24)फ्यी(cid:26)ज केन्टे(cid:26) जन ओवरी दौ(cid:13)(cid:30)यी(cid:10) क्ले(cid:10)व(cid:6)केले हቂኍ(cid:6) के(cid:10) भा(cid:13)ग ेሰ% था(cid:13)। 2. केन्टे(cid:26) ज्(cid:24) अቜኔ(cid:10)जन दौ(cid:13)(cid:30)यी(cid:10) के(cid:30) धे(cid:10) परी सा(cid:13)ेሰन(cid:10) के- ओरी जिजसाके(cid:13) आके(cid:13)री 1 सा(cid:10)ेሰ(cid:6) ग0ण(cid:13) 03 सा(cid:10).ेሰ(cid:6). था(cid:13)। 3. अቜኔ(cid:10)जन दौ(cid:13)(cid:30)यी(cid:10) प1री परी निेሰनि(cid:24)यीले(cid:6) जिजसाके(cid:13) आके(cid:13)री 1 सा(cid:10).ेሰ(cid:6). ग0ण(cid:13) 0.5 सा(cid:10).ेሰ(cid:6) औरी वह ले(cid:13)ले री(cid:30)ग के(cid:13) था(cid:13)। 4. केन्टे(cid:26) ज्(cid:24) अቇኔ(cid:10)जन दौ(cid:13)(cid:30)यी(cid:10) ग(cid:13)ले परी ज(cid:13)इग(cid:20)ेሰ(cid:13) भा(cid:13)ग ेሰ% जिजसाके(cid:13) आके(cid:13)री । सा(cid:10)ेሰ(cid:6). ग0ण(cid:13) 0.5 सा(cid:10).ेሰ(cid:6). था(cid:13)। 5. केन्टे(cid:26) जन प(cid:26)री(cid:6) न(cid:13)के परी निवके5 ती(cid:6) के(cid:10) सा(cid:13)था औरी उसाके(cid:10) निवच्छे(cid:10)दौन परी फै1 क्चोरी दौ(cid:13)(cid:30)यी(cid:10) ज(cid:13)इग(cid:20)ेሰ(cid:10)निटेके आके; औरी न(cid:10)जले बा(cid:20)न के(cid:13) फै1 क्चोरी था(cid:13)। 6. खो(cid:20)प(cid:24)(cid:6) के(cid:10) उपरी के- चोेሰ़ቡ(cid:6) ेሰ% केन्टे(cid:26) जन सा(cid:26)जन के(cid:10) रूप ेሰ% आቍኌक्साप(cid:6)टेले भा(cid:13)ग ेሰ% था(cid:13)। आ(cid:30) तीरिरीके परी(cid:6)्ቌण- शव परी(cid:6)्ቌण के(cid:10) दौ(cid:12)री(cid:13)न आ(cid:30) तीरिरीके परी(cid:6)्ቌण परी निनम्न चो(cid:20)टे(cid:10) प(cid:13)यी(cid:6) गयी(cid:6) - 1. खो(cid:20)प़ቡ(cid:6) के(cid:10) चोेሰ़ቡ(cid:6) के(cid:10) न(cid:6)चो(cid:10) दौ(cid:13)(cid:30)यी(cid:10) आनिवसाप(cid:6)टेले भा(cid:13)ग ेሰ% निहेሰ(cid:10)टे(cid:20)ेሰ(cid:13) एव(cid:30) बा(cid:13)(cid:30)यी(cid:10) फै(cid:30) टेले भा(cid:13)ग ेሰ% निहेሰ(cid:10)टे(cid:20)ेሰ(cid:13) के(cid:13) एके निनश(cid:13)न प(cid:13)यी(cid:13) औरी के1 के अननि(cid:24)स्प्ले(cid:10)स्(cid:24) फै1 क्चोरी दौ(cid:13)(cid:30)यी(cid:10) फै(cid:30) टेले ह(cid:24)D (cid:24)(cid:6) सा(cid:10) ले(cid:10)केरी ए(cid:30)टे(cid:10)रिरीयीरी के(cid:10) न(cid:6)यीले फै(cid:20)सा(cid:13) तीके जिजसाके- ले(cid:30)बा(cid:13)ई 7.5 सा(cid:10).ेሰ(cid:6).था(cid:6)। 2. के1 के अननि(cid:24)स्प्ले(cid:10)स्(cid:24) फै1 क्चोरी आቍኌक्साप(cid:6)टेले भा(cid:13)ग ेሰ% जिजसाके- ले(cid:30)बा(cid:13)ई 6 सा(cid:10). ेሰ(cid:6) 6 था(cid:6)। 3. ेሰቍኌस्तीष्के के(cid:10) बा(cid:10)सा के(cid:10) भा(cid:13)ग ेሰ% प(cid:26)ण;रूप सा(cid:10) जिसारी(cid:10)वलेरी के(cid:30) टे(cid:26) जन औरी सा(cid:13)था ेሰ% आቍኌक्साप(cid:6)टेले प(cid:20)ले भा(cid:13)ग ेሰ% भा(cid:6) जिसारी(cid:10)वलेरी के(cid:30) टे(cid:26) जन साबाअके; न(cid:13)इ(cid:24) री्ሹ ᮌᯘ(cid:13)व के(cid:10) रूप ेሰ% था(cid:13)। 4. दौ(cid:13)(cid:30)यी(cid:6) क्ले(cid:10)व(cid:6)केले हቂኍ(cid:6) के(cid:13) फै1 क्चोरी प(cid:13)यी(cid:13) गयी(cid:13)। 5. ेሰ5तीके के(cid:10) प(cid:10)टे ेሰ% 100 एेሰएले के- ेሰ(cid:13)ቔኋ(cid:13) ेሰ% प(cid:6)ले(cid:10) री(cid:30)ग के(cid:13) ्ቖव्यी जिजसासा(cid:10) सा़ቡ(cid:10) हLयी(cid:10) फैले ज1सा(cid:10) बादौ(cid:26)बा आ रीह(cid:6) था(cid:6)। 2. शव परी(cid:6)्ቌण के(cid:10) दौ(cid:12)री(cid:13)न ेሰ(cid:10)री(cid:10) ቛኋ(cid:13)री(cid:13) एके सा(cid:6)ले बा(cid:30)दौ बा(cid:20)तीले ेሰ% ेሰ5तीके के(cid:13) री्ሹ साेሰ(cid:26)ह ज(cid:13)नन(cid:10) ह(cid:10)ती0, एके सा(cid:6)लेबा(cid:30)दौ बा(cid:20)तीले ेሰ% ेሰ5तीके के(cid:10) खो(cid:26)न ेሰ% सा0खो(cid:13)यी(cid:13) हLआ केप(cid:13)सा के(cid:13) फै(cid:13)यी(cid:13), री्ሹ साेሰ(cid:26)ह ज(cid:13)नन(cid:10) ह(cid:10)ती0 औरी एके सा(cid:6)लेबा(cid:30)दौ बा(cid:20)तीले ेሰ% ेሰ5तीके के(cid:10) री्ሹ ेሰ% एल्के(cid:20)हले ह1 अथाव(cid:13) नहO, ज(cid:13)नन(cid:10) ह(cid:10)ती0 री(cid:13)सा(cid:13)यीनिनके परी(cid:6)्ቌण के(cid:10) जिलेयी(cid:10) निPजव; केरी शव परी(cid:6)्ቌण पश्चो(cid:13)ती आरी्ቌके के(cid:20) साRप(cid:13) गयी(cid:13)। 3. शव परी(cid:6)्ቌण के(cid:10) दौ(cid:12)री(cid:13)न ेሰ5तीके के(cid:10) शरी(cid:6)री परी प(cid:13)यी(cid:6) गयी(cid:6) साभा(cid:6) बा(cid:13)्ቨ एव(cid:30) भा(cid:6)तीरी(cid:6) चो(cid:20)टे(cid:10) ेሰ5त्यी0 प(cid:26)व; के- था(cid:6)। 4. ेሰ5तीके के- ेሰ5त्यी0 शव परी(cid:6)्ቌण सा(cid:10) लेगभाग 18 घं(cid:30)टे(cid:10) प(cid:26)व; परी 24 घं(cid:30)टे(cid:10) सा(cid:10) केेሰ के(cid:10) दौ(cid:12)री(cid:13)न हLयी(cid:6) था(cid:6)।" As per his report, the cause of death was ‘due to head injuries (unnatural)’ and he gave his report (Ex-P/19). In the cross- examination, he stated that he found 100 ml yellow liquid in stomach of deceased, in which alcoholic smell was found. He admitted that it is true that at once, entire injuries cannot be sustained. He also admitted that 2 to 4 injuries may come by falling or dashing. He denied this suggestion that Injury No.5 can come by falling or dashing. In the cross-examination, nothing came out to negate his medical report. The learned Trial Court also found that the death was homicidal in nature. Thus looking to the statement of Dr. J. N. Hussaini (PW-20) and postmortem report (Ex-P/10), we are of this opinion that the finding recorded by the learned Trial Court with regard to the death of the deceased Shiva Sahu being homicidal in 7 nature is neither perverse nor contrary to the record, hence we hereby affirm the said finding. 8. The next question would be that whether all the appellants have attempted to commit murder of Sandeep Gharde or not? 9. Sandeep Harde (PW-5) stated that on the date of incident, he was sitting with Shiva, at that time, 8 accused persons came and used filthy language against him, thereafter he, Raghdu Naidu and Sunny Yadav pacified the matter. After sometimes, when Shiva started going, then from behind some noise was heard, when he ran there then he saw that the accused persons were assaulting him by hand and fist. Dau assaulted him by iron pipe from behind, as such he fell down and got fainted. 10. Dr. Y. K. Tiwari (PW-23), Assistant Professor at Medical College, Rajnandgaon stated that on 21.03.2017, he examined Sandeep and found 3 injuries on his body vide Ex-P/32. He found injuries as under:- स्वा(cid:3)ቝኚय परी(cid:8)्ቌण करीने(cid:13) परी आहत क(cid:17) ቝኌ(cid:19)तित गं(cid:22)भी(cid:8)री अ्(cid:26)चे(cid:13)तने(cid:3) अवा(cid:19)(cid:3) ेሰ(cid:29) “ (cid:22)ह ह! शरी(cid:3)ब क(cid:17) गं(cid:22)् आ रीह(cid:8) थी(cid:8) औरी उसक(cid:13) शरी(cid:8)री परी कई कटे(cid:13)- थी(cid:8) एवा(cid:22) ेሰ फटे(cid:13) घा(cid:3)वा क(cid:13) तिनेश(cid:3)ने थी(cid:13) जो! तिनेम्ने ्ቚक(cid:3)री ह.- 1. दौ(cid:13)(cid:30)यी(cid:10) ग(cid:13)ले (ज(cid:13)इले(cid:20)ेሰ(cid:10)निटेके ए(cid:30)गले) जिजसाके(cid:13) सा(cid:13)ईज एके इ(cid:30)चो ग0ण(cid:13) आधे(cid:13) इ(cid:30)चो ग0ण(cid:13) आधे(cid:13) इ(cid:30)चो था(cid:13)। 2. जिसारी परी दौ(cid:20) केटे(cid:10)-फैटे(cid:10) घं(cid:13)व 'जिजसाके(cid:13) आके(cid:13)री ती(cid:6)न इ(cid:30)चो ग0ण(cid:13) एके इ(cid:30)चो ग0ण(cid:13) प(cid:12)न इ(cid:30)चो था(cid:13) तीथा(cid:13) यीह जिसारी के(cid:10) निपछेले(cid:10) निहस्सा(cid:10) परी था(cid:13)। 3. यीह दौ(cid:26)सारी(cid:10) चो(cid:20)टे सा(cid:10) एके इ(cid:30)चो प(cid:6)छे(cid:10) था(cid:13) जिजसाके(cid:13) आके(cid:13)री एके इ(cid:30)चो ग0ण(cid:13) आधे(cid:13) इ(cid:30)चो ग0ण(cid:13) आधे(cid:13) इ(cid:30)चो था(cid:13)। साभा(cid:6) घं(cid:13)वU सा(cid:10) खो(cid:26)न रिरीसा रीह(cid:13) था(cid:13)।” 8 He admitted injured to male surgical ward and advised for x- ray. He gave his report (Ex-P/32). 11. Dr. Sanjeev Gupta (PW-26) medical officer, medical college, Raipur stated that the injured Sandeep was referred to Medical College, Rajnandgaon on 13.03.2017 and in CT scan, one injury was found and blood clot was found and also fracture was found. The bed head ticket is Ex-P/48 and he admitted his signatures on A to A part. Dr. Sanjeev Gupta (PW-26) also admitted in his cross-examination that about injured’s injuries, no opinion was sought from him. Dr. Y. K. Tiwari (PW-23) admitted in cross-examination that it is true that the injured was in drunken condition and if he falls on blunt and hard object more than once, then the injuries sustained by the injured may come. 12. Looking to the statements of both the doctors and discharge ticket of injured Sandeep (Ex-P/48), it is clear that he was admitted in the hospital on 13.03.2017 and he was discharged from hospital on 21.03.2017. As per CT scan report, fracture was found on his head and head is a vital part, but both the doctors did not explain nature of injuries. Dr. Y. K. Tiwari also stated that no opinion was sought from him regarding the nature of injuries, but it is clear that Sandeep sustained fracture on his head. Both the doctors have not stated that whether these injuries are dangerous to life or not and had the injured not been given treatment on time, he would have died, but it is clear that Sandeep sustained grievous injuries, which were 9 caused by deadly weapon, as such it is proved that on the date of incident, Sandeep sustained grievous injuries caused by hard and blunt object used as a deadly weapon. 13. Now we have to consider that whether all the accused/appellants created an unlawful assembly and gathered more than 5 in number and committed murder of Shiva and caused grievous injuries to Sandeep or not? 14. The learned Trial Court found that all the accused persons committed balwa and are guilty of rioting being armed with deadly weapon or anything which is used as a weapon of offence likely to cause death. 15. The complainant PW-1 Shatruhan Sahu stated that one girl Guddi came and informed him that Shiva Bhai was murdered, then he along with his wife went to the spot immediately and saw that his son Shiva and Sandeep were lying down, at that time two boys came across him while saying that Dau and Pawan have assaulted and murdered in vain, thereafter he immediately took his son to the hospital. 16. Yuvraj (PW-3), a child witness, stated that on the day of Holi, when they were playing holi, then they heard some noise, upon which he went near septic lane, then he saw that the accused persons were fleeing. He saw them from behind by committing murder of Shiva. The prosecution declared him hostile and cross-examined him. He denied his statement which was given before the Police that the boy 10 who was wearing blue clothes had assaulted Shiva by bolder stone and one boy who was like stammerer assaulted Sandeep by tap pipe. He stated that he cannot tell as to how the Police recorded this statement. In para 6 of his cross-examination, he admitted that who are the people who committed murder he does not know. He also stated that he has not seen anybody committing maarpeet. 17. Ku. Malti Yadav (PW-4) stated that on the date of holi, she had gone to call Mahaprasad on her mother’s saying, where she told that Shiva is lying down near septic tank but she does not know as to why he was lying down, upon which parents of Shiva came there and saw Shiva lying down. 18. Dulari Bai (PW-7), Basantin Bai (PW-8) and Baishakhin Sahu (PW- 9) have not supported the case of the prosecution and turned hostile, but they denied all suggestions of the prosecution. Asha Gharde (PW-12) stated that Jyoti Sahu had informed her that some boys are committing maarpeet with Sandeep, then she went there, where she saw that Sandeep was standing near the house of Jyoti and Shiva was lying down near septic tank, thereafter Sandeep was taken to the hospital. She also stated that the boys who were fleeing away were the accused persons. 19. All the witnesses stated that either they reached on the spot after the incident or they have seen the accused persons running away. Therefore the statement of injured Sandeep is very much important. Sandeep (PW-5) stated in para 4 of his examination-in-chief as under:- 11 ेሰ/ दौ1ड़त(cid:13)- दौ1डत(cid:13) ब(cid:3)ड़(cid:3) स(cid:13) तिनेकला(cid:3) त! दौ(cid:13)खा(cid:3) तिक आरी!प(cid:8)गंण “4. शिलाए दौ1ड़(cid:3) त! 4-5 शिशवा(cid:3) क! ेሰ(cid:3)री रीह(cid:13) थी(cid:13)। ेሰ/ शिशवा(cid:3) क! बचे(cid:3)ने(cid:13) क(cid:13) घा स(cid:13) स(cid:13) ला!गं ेሰ(cid:13)री(cid:13) तरीफ आय(cid:13) औरी ेሰ झे(cid:13) भी(cid:8) ह(cid:3)थी ेሰ क्क(cid:13) औरी ला(cid:3)त- ेሰ(cid:3)रीने(cid:13) लागं(cid:13) पवाने ने(cid:13) शिशवा(cid:3) क(cid:13) ह(cid:3)थी क! प(cid:8)छे(cid:13) ेሰ!ड़(cid:3) - तथी(cid:3) दौ(cid:3)उ ने(cid:13) वाह; परी नेला क(cid:13) ला!ह(cid:13) क(cid:13) प(cid:3)ईप क! उखा(cid:3)ड़(cid:3) औरी शिशवा(cid:3) क(cid:13) ेሰ ह ेሰ(cid:29) ेሰ(cid:3)री(cid:3)। जिजोसस(cid:13) शिशवा(cid:3) ने(cid:8)चे(cid:13) तिगंरी गंय(cid:3) थी(cid:3)। पवाने ने(cid:13) ब!्ቓरी प्री उठा(cid:3)य(cid:3) शिसरी परी ेሰ(cid:3)री दिदौय(cid:3)। ेሰ/ यह दौ(cid:13)खाकरी अपने(cid:8) जो(cid:3)ने औरी शिशवा(cid:3) क(cid:13) शिलाए भी(cid:3)गं गंय(cid:3)। तिफरी दौ(cid:3)उ ने(cid:13) ला!ह(cid:13) क(cid:13) प(cid:3)ईप स(cid:13) दौ1ड(cid:3)करी बचे(cid:3)ने(cid:13) क(cid:13) ेሰ झे(cid:13) ेሰ(cid:3)री(cid:3) त! ेሰ/ ने(cid:8)चे(cid:13) तिगंरी गंय(cid:3) थी(cid:3) औरी ब(cid:13)ह!श गंय(cid:3) थी(cid:3)।" In the cross-examination, he admitted that it is true that police had recorded his statement after one month of the incident, but he self stated that he was in hospital thats why he was not able to speak. 20. Learned counsel for the appellants have argued that the police also recorded statement of injured Sandeep as dying declaration, but in this statement, Sandeep did not disclose name of any accused persons, therefore, the statement of Sandeep (PW-5) is not reliable. He remained silent for a long time and his statement was recorded after 34 days of the incident and no reasonable explanation has been given for delay in this regard. It is also clear that as per prosecution, incident took place on 13.03.2016, but the MLC of PW- 5 was conducted on 21.03.2016 as such it creates serious doubt on the story of the prosecution, but it is clear from the statement of Dr. Sanjeev Gupta (PW-26) that Sandeep was referred by Medical college, Rajnandgaon on 13.03.2017 to Raipur Medical College and as per bed head ticket (Ex-P/48), it is clear that Sandeep was admitted in Medical College, Raipur from 13.03.2017 to 21.03.2017 and as per this ticket history given by the patient attendant, on 13.03.2017 at about 1 pm patient was taken to Medical College, 12 Rajnandgaon for primary treatment and thereafter was referred to Medical College, Raipiur, as such it is clear that on same day when Sandeep sustained injuries on 13.03.2017, he was examined by doctor at Rajnandgaon Medical College and thereafter he was referred to Raipur Medical College and he was admitted on same day to Medical College, Raipur and after treatment he was discharged on 21.03.2017. Shatruhan Sahu (PW-1), father of Shiva Sahu, lodged merg intimation (Ex-P/1) and Police Incharge Yakub Menon (PW-25) stated that he lodged merg intimation No.12/2017 (Ex-P/1) as per information of Shatruhan Sahu. The date and time of report is mentioned as 13.03.2017 at 15 O’clock. It is mentioned in the said merg intimation that one girl came out to the complainant and told that his son Shiva was being assaulted by stone and pipe by village boys, upon he along with his wife went to the spot, where he saw that accused threw stone on the face of Shiva, whereas accused Dau was assaulting Sandeep on his head by iron tap pipe and other accused persons were assaulting Shiva and Sandeep by hand, fist etc. Thus, it is clear from this merg intimation that the name of all the accused persons were disclosed by the complainant from the very beginning. It is also clear from the statement of other eye witnesses that through they have not supported the prosecution case but the injured Sandeep clearly stated against all the accused persons and it is also clear from the record that he was admitted in hospital for a long time. In para 9, PW-5 Sandeep self stated that he was in hospital thats why he was not able to speak. He sustained 13 injuries in the same incident and as per merg intimation, presence of all accused persons was recorded as per information of the eye witnesses so it is clear that all the accused persons were present at the time of incident and they assaulted Shiva and Sandeep. The learned Trial Court has also found that presence of all the accused persons has been proved by the prosecution beyond reasonable doubt. As per statement of Sandeep, it is also proved beyond reasonable doubt that all the accused persons are members of unlawful assembly and they are guilty of rioting with deadly weapon and it is also proved beyond reasonable doubt that they assaulted the deceased Shiva and Sandeep with stone and iron pipe. 21. During the course of argument, learned counsel for the appellants have also argued that appellants have not used any deadly weapon and as per statement of injured Sandeep himself, they used stone and pipe of tape. The incident took place on the day of holi on a trivial issue and as per doctors’ report, the deceased and the injured were in drunken condition, as such the offence against the appellants would fall within Section 4 of Section 300 of IPC, therefore, their conviction under Section 302 be altered either to part I or Part-II of Section 304 of IPC. 22. The Hon’ble Supreme Court in the matter of Arjun vs State of Chhattisgarh, reported in (2017) 3 SCC 247, has held that when and if there is a 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 14 not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of IPC. 23. This Court held in Budhwar Singh (supra) in paras 18 & 19 as under:- “18. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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 IPC. 19. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) 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.” 24. In the present case also, it is clear that on the date of incident, there was holi festival and the deceased and the injured Sandeep consumed liquor and there was sudden fight between them and the appellants. It is also clear that the act of the appellants was committed in heat of passion and as per statement of Sandeep, the accused persons used stone and tap pipe by digging it at the very moment and assaulted the deceased, but looking to the injuries sustained by the deceased Shiva it is clear that it is the case when 15 there is intention and knowledge both, as such act of the appellants would cause the death of the deceased, therefore, their conviction for offence punishable under Section 302 read with Section 149 of IPC is altered to Section 304 Part-I of IPC and they are sentenced to RI for 10 years. Likewise, looking to the injuries sustained by injured Sandeep, their conviction under Section 307 read with Section 149 of IPC is altered into Section 326 of IPC and they are sentenced to RI for 10 years. It is proved beyond reasonable doubt that all the accused persons were member of unlawful assembly and they committed rioting armed with iron pipe and stone, as such they are guilty of rioting and accordingly their conviction under Section 147 and 148 of IPC is affirmed. 25. Consequently the appeal is partly allowed. The impugned judgment of conviction and order of sentence is modified to the extent indicated herein-above. The appellants are convicted under Sections 147, 148, 304 Part-I read with Section 149 and Section 326 read with Section 149 of IPC and the sentence awarded by the learned Trial Court under Sections 147 & 148 of IPC are affirmed, but they are sentenced to RI for 10 years and RI for 10 years, respectively for the offence under Section 304 Part-I read with Section 149 and Section 326 read with Section 149 of IPC. All the sentences shall run concurrently. 26. The appellants are in jail since 14.03.2017, as such after setting off the period of detention undergone by the appellants against 16 the sentence of imprisonment, the remaining jail sentence shall be served by the appellants. 27. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Rajani Dubey Judge Nirala Sd/- Sachin Singh Rajput Judge