1 2025:CGHC:24123-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 965 of 2023 Aadesh Bansod S/o Late Ramdas Bansod, Aged About 44 Years R/o Naya Aamapara, Durg, Police Station Mohan Nagar, District : Durg, Chhattisgarh --- Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Mohan Nagar, Durg, District : Durg, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Amiyakant Tiwari, Advocate For Respondent/State : Mr. Sakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 16/06/2025 1. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.06.20 16:15:25 +0530 2 judgment of conviction in sentence dated 31.03.2023 passed by learned Sessions Judge, Durg, in Sessions Case No. 129 of 2020, whereby the appellant has been convicted for the offence under Section 302 of IPC and sentenced rigorous imprisonment for life with fine of Rs. 5000/-, in default of payment of fine, additional R.I. for 05 months. 2. The brief facts of the case are that, on 21.09.2020, the complainant Smt. Shalini Wahne/PW-2 lodged a report to the police with the allegation that on 20.09.2020, at about 10:30 PM, she had gone for a sleep in her room. At about 12:45 in the night, she woke up after hearing the noise from the other room and came out from her room and saw her brother Aadesh Bansod (appellant) and her mother Shantabai/PW-3. Her brother Aadesh informed her that he killed his wife Sujata and fled away from the house. When she had gone to the room of the appellant, she saw the deceased in injured condition and blood was spread up on the wall, bedsheets and pillow. She along with her daughter and other family members took the deceased to the Durg hospital, from where she was referred to Raipur. There was a dispute with respect to talking with another person in mobile phone of the deceased, and the appellant has assaulted her on her head. On the report of the Shalini Wahne/PW-2, the police have registered the FIR (exhibit P-1) under Section 307 of IPC against the appellant. During the treatment, the deceased died on 21.09.2020 at DKS Hospital, Raipur and merg intimation (exhibit P-19) was 3 given to Gole Bazar Police, Raipur. The inquest (exhibit P-9) was prepared in presence of the witnesses by Gole Bazar Police, Raipur and the dead body of the deceased Sujata Bansod was sent for its postmortem to Dr. B.R. Ambedkar Hospital, Raipur, where PW-17/Dr. Utkarsh Tripathi conducted the postmortem of the dead body of the deceased and found lacerated wound of 8 cm x 7 cm x brain parenchymal deep horizontally present with contused margins in right side of head over frontal, parietal and temporal regions, with underlying comminuted depressed fracture of 8 cm x 8 cm extending over fronto-parieto-temporal parts of bone with brain matter pouting out from the space between fractured bones and torn meninges of temporal region and opined that the provisional cause of death is head injury and the manner of death is homicide. The postmortem report is exhibit P-37. The merg intimation was transferred to Mohan Nagar Police Station, Durg, which is exhibit P-27 and then the Mohan Nagar Police Station, Durg called the MLC report of the deceased from Govt. Hospital, Durg. PW-16/Dr. R.K. Nayak, who had treated the deceased at Govt. Hospital, Durg gave the MLC report (exhibit P- 28A) who found defused swelling on right parietal region and lacerated wound on right parietal region, bone deep on the head of the deceased. 3. Spot map (exhibit P-2) was prepared by the police and Exhibit P- 3 was prepared by the Patwari. The spot panchnama (exhibit P-4) was also prepared by the police. The pillow cover, one bed-sheet, 4 piece of bed-sheet, the blood-stained scratches from the wall have been seized from the spot vide seizure memo (exhibit P-5). The medical treatment papers of the deceased (exhibit P-36) have also been seized by the police from Govt. Hospital, Durg and the medical treatment papers (exhibit P-39 and P-39A) have been seized by the police from DKS Super specialty Hospital, Raipur. The appellant was arrested on 26.09.2020 and his memorandum statement (exhibit P-17) was recorded and based on his memorandum statement, one hammer, one Bermuda have been seized from the appellant vide seizure memo (exhibit P-18). The hammer was sent for its query report to the doctor, who gave his query report (exhibit P-38) and opined that the injuries mentioned in the postmortem report are possible by iron and wooden hammer. For confirmation of presence of human blood, the sent weapon was sent for its chemical examination to FSL. In the FSL report (exhibit P-40), human blood was found on pillow cover, bed-sheet, the scratches from the wall, hammer, Bermuda, another bed-sheet, clothes of the deceased and cotton piece and further in the scratches from the wall (article -D), Bermuda of the appellant (article -G), bed-sheet seized from the spot (article H-1), petticoat of the deceased (article H-3) and cotton piece (article -I) are found to be stained with ‘B’ group of human blood. 4. Statement of the witnesses under Section 161 of CRPC have been recorded. The videography and photography of the spot was also done and after completion of usual investigation, charge 5 sheet was filed before the learned Judicial Magistrate First Class, Durg for the offence under Sections 307, 302 of IPC. The case was committed to the Court of learned Sessions Judge, Durg for its trial. 5. The learned trial Court has framed charge against the appellant for the offence under Section 302 of IPC. He denied the charge and claimed trial. 6. In order to prove the charge against the appellant, the prosecution has examined as many as 18 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. He further submitted that two days prior to the date of incident, he had gone to his relative’s house at village Khukdi, tahsil Tiroda, Gondia (Maharashtra), from where the police have arrested him. One defence witness Mahesh Shivcharan Borkar/DW-1 has been examined by the appellant. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence, this appeal. 8. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of 6 prosecution witnesses, which cannot be made basis to convict him in the offence in question. There is no eyewitness to the incident and only on suspicion the allegations have been leveled against the present appellant. The place from where dead body is found is a room of common use by other family members and other inmates of the house are also there at the time of alleged incident. Since there was a heated verbal exchange between the appellant and the deceased before the incident, the family members have suspected that he committed his murder by assaulting by a hammer. In absence of any proof by the prosecution that the appellant had the occasion to commit murder of the deceased by assaulting by a hammer, the burden under Section 106 of the Indian Evidence Act cannot be shifted upon him to explain the fact within his knowledge. The case of the prosecution is based on circumstantial evidence and the chain of circumstances are not complete. Hence, the appellant cannot be convicted and is entitled for acquittal. In alternative, he would submit that there was allegation of frequent quarrel between the appellant and the deceased and due to sudden heated exchange of words between them on a spur of moment, he assaulted the deceased by hammer only once and has not repeated the blow. There was no premeditation to commit her murder and therefore, the offence of the appellant, if any, does not travel beyond the scope of Section 304 of IPC and therefore, by altering the conviction of the appellant from Section 302 of IPC to Section 304 7 of IPC, his undergone period may be considered to be sufficient sentence for the alleged offence. 9. On the other hand, learned counsel for the State opposes and has submitted that from the evidence of the PW-2/Smt. Shalini Wahne (sister of the appellant), Smt. Shantabai (mother of the appellant), it is proved that the appellant was there in the house on the alleged date of incident and after committing murder of the deceased, he fled away from the spot. The dead body of the deceased is found inside the room of the appellant in injured condition and therefore the burden is upon the appellant to explain, as to how and in what circumstance the deceased was found in injured condition inside his room. He would further submit that the bald defence of Alibi has not been proved by the defence. Further, from the FSL report (exhibit P-40), ‘B’ group of human blood was found on the Bermuda seized from the appellant, the blood scratches from the wall of the room of the appellant, bed-sheet, petticoat of the deceased, which further connect the appellant with the offence in question. On his memorandum, hammer has been seized, which the weapon of offence and blood has been found in the hammer also, therefore, there are sufficient evidence against the appellant to convict him for the commission of murder of his wife, and the learned trial Court has rightly appreciated the evidence available on record and convicted him under Section 302 of IPC, which needs no interference. 8 10. We have heard learned counsel for the parties and the perused of the record of the case. 11. The homicidal death of the deceased has been proved by the evidence of Dr. R.K. Nayak/PW-16, who treated the deceased at Durg hospital, Dr. Lavlesh Rathore/PW-18, who treated the deceased at DKS Hospital, Raipur and Dr. Utkarsh Tripathi/PW- 17, who conducted the postmortem of the dead body of the deceased Sujata Bansod. Dr. R.K. Nayak/PW-16 has stated in his evidence that on 22.10.2020, the injured Sujata Bansod was brought before him for her medical treatment and he found defused swelling and lacerated wound on the right parietal region of head of the injured and gave his report (exhibit P-28A). He referred for radiologist opinion. Dr. Lavlesh Rathore/PW-18 has stated in his evidence that on 21.09.2020, the injured Sujata Bansod was admitted to DKS Super Specialty Hospital, Raipur. She was unconscious at the time when she admitted in the hospital. He found depressed fracture on the fronto-temporo- parietal region of the deceased and brain tissues coming out from the injury and despite her treatment, she died on 21.09.2020 at about 8:30 AM. He gave merg intimation (exhibit P-39) to the police and proved her bed head ticket (exhibit P-39A). 12. Dr. Utkarsh Tripathi/PW-17, who conducted the postmortem of the dead body of the deceased, has stated in his evidence that on 22.09.2020, he conducted the postmortem of the dead body of the deceased Sujata Bansod and found lacerated wound on 9 frontal, parietal and temporal region of the head, brain matter was coming out from the injury. Old scar of stitched wound of 20 cm is present over midline chest vertically and opined that the cause of death is head injury and the manner of death is homicide. He proved the postmortem report (exhibit P-37) and further proved the query report (exhibit P-38), in which he opined that the injury found on the head of the deceased are possible by the said iron hammer. In cross-examination, nothing could be extracted by the defence in his cross-examination to disbelieve his evidence. 13. Further, from the evidence of Nitin Kishore Kathane/PW-1, Smt. Shalini Wahne/PW-2, Smt. Shantabai/PW-3, Rajesh Bansod/PW- 4, the injuries found on the body of the deceased have been proved and she died due to the injuries, therefore, the findings recorded by the learned trial Court that the death of the deceased is homicidal in nature is based on proper appreciation of evidence available on record, which is neither perverse nor contrary to the record. 14. So far as the involvement of the appellant in the offence in question are concerned, we again examined the evidence available on record. 15. From the FIR lodged by the Smt. Shalini Wahne/PW-2, it reveals that the appellant was present on the spot on the alleged date of incident and the named report has been lodged by PW-2. She is the sister of the appellant and during recording of her evidence, 10 she turned hostile and denied the presence of the appellant on the spot. She stated in her evidence that on the date of incident at about 12:45 AM, she woke up after hearing the shout of her mother Shantabai and she had gone to the room of the deceased, she found her in injured condition. She along with her family members took her to hospital. She admitted that she lodged the report to the police (exhibit P-1). When she declared hostile, she denied that the appellant was present with the deceased in the room and voluntarily stated that he had gone outside of the house 2-3 days prior to the date of incident. She also denied by lodging of the FIR (exhibit P-1) and her police statement (exhibit P-6). In cross-examination, she described the details of the access in her house. 16. Smt. Shantabai/PW-2, who is the mother of the appellant, has stated in her evidence that, on the date of incident the deceased was sleeping in her room and she was sleeping in another room. On the date of incident, her son was not in the house. At about 12:45 in the night, she heard the noise and when she and her daughter Shalini had gone to the room of the deceased Sujata, they found her in injured condition and the back door in the room was opened. She too has turned hostile and denied the involvement of the appellant in the offence. She too has stated that 2-3 days prior to the date of incident her son had gone outside of the house. 11 17. These two witnesses were present in the house of the deceased as well as the appellant. In the FIR (exhibit P-1), the PW-2 has specifically mentioned that when she came out from the room, she saw the appellant and her mother Smt. Shantabai/PW-3 standing outside the room of the appellant and then, the appellant informed her that he assaulted his wife Sujata and fled away from the house. Both these witnesses, who are the sister and mother of the appellant have not stated anything, as to where the appellant had gone 2-3 days prior to the date of incident. If the appellant had gone for 2-3 days, he would have definitely informed his mother or his sister about the place, where he had gone and if he has not informed about the place and has not returned for 2-3 days, what steps they have taken for his search, are pointing towards the fact that these witnesses are won over by the appellant as they are the sister and mother of the appellant. 18. The plea of Alibi has not been proved by the appellant as per its requirement. Though the appellant has examined one defence witness (Mahesh Shivcharan Borkar/DW-1), who is the cousin brother of the appellant, and stated that from 19.09.2020 up to 22.09.2020, the appellant was with him in his house at village Sukdi, district Gondia. Except his oral evidence, there is no any documentary evidence of railway or bus ticket that he had gone to village Sukdi. Further, there is no evidence that immediately after the incident i.e. in the morning of 21.09.2020, the appellant was 12 being informed about the incident as his wife has been murdered. From the evidence of DW-1, it appears that he was being informed on 22.09.2020 from any person from Durg. He has not stated that he was being informed by his sister or mother and even there is no evidence of his sister or mother that they have informed the appellant about death of his wife. 19. Nitin Kishore Kathane/PW-1 has stated in his evidence that after the incident, the appellant was absconding and he has not appeared in the last rites of the deceased. It is quite and unnatural conduct of the appellant that he remain absconding after commission of the murder, which also goes against him. 20. Therefore, the appellant has failed to prove the plea of Alibi and failed to discharge his burden to prove. 21. In the matter of “Kalu @ Laxminarayan v. State of Madhya Pradesh” 2019 (10) SCC 211, the Hon'ble Supreme Court has held in para 11 to 16 that:- “11. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor after bringing her down but did not bother to inform anyone living near 13 him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW 3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313, Cr.P.C. 12. The occurrence had taken place in the rural environment in the middle of the month of October when it gets dark early. Normally in a rural environment people return home after dusk and life begins early with dawn. It is strange that the appellant did not return home the whole night and was taken into custody on 21.10.1994. 13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. In Hanumant and 14 Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343, it was observed “ 10. …..It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused….” 14. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, this Court observed: “23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of 15 proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar 16 “38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: ‘11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge.” 15. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following 17 observations are considered relevant in the facts of the present case: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when 18 any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is 19 no duty at all on an accused to offer any explanation. xxxxxxxx 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore 20 leaves no doubt for the conclusion of his being the assailant of the deceased.” 22. In the case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, states as under: "106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him. 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is 21 not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". 23. In the case of Nagendra Sah v. the State of Bihar (2021) 10 SCC 725 the Hon’ble Supreme Court in Para 23 has held as under: “23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances.” 24. From the aforesaid evidence and the law laid down by the Hon'ble Supreme Court, and also in view of the FSL report, the involvement of the appellant in the crime in question has been proved by the prosecution, which has rightly been considered by the learned trial Court. 22 25. The next question for consideration is, whether the case of the appellant is covered within Exception-4 to Section 300 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 submitted by the learned counsel for the appellant ? 26. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana, 2002 (3) SCC 327 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 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 23 one year.” 27. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana, 2009 (15) SCC 635, 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 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; 24 (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 view, proper and appropriate 25 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. Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8) SCC 450, the Hon’ble Supreme Court has 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. 29. Further, the Hon’ble Supreme Court in the matter of Arjun Vs. State of Chhattisgarh, 2017 (3) SCC 247, 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) 26 348], 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 proposition of law that under what circumstances Exception 4 to Section 300 IPC 27 can be invoked if death is caused, it has been explained as under : “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 28 must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 30. 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. 31. Further, the Hon’ble Supreme Court in the matter of Rambir Vs. State (NCT of Delhi), 2019 (6) SCC 122, has laid down four ingredients 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) he 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.” 29 32. Reverting to the facts of present case, it is quite vivid that there was a frequent quarrel between the appellant and the deceased on the issue of talking in the mobile phone and on the date of incident also, there was a noise came out from the room and then the appellant gave a hammer blow on the head of the deceased. From the disclosure statement of the appellant (exhibit P-17), it also reveals that there was a quarrel between the appellant and the deceased on the date of incident and on the heat of passion, he assaulted the deceased by a hammer. As the appellant was not acted in a cruel or unusual manner, the appellant did not have any intention to cause death of the deceased Sujata Bansod, but by causing such injury, he must have had the knowledge that such injury inflicted by him would likely to cause death of the deceased and as such his case would fall within the purview of exception (4) of Section 300 of the IPC as the act of the appellant satisfies the ingredients of exception (4) to Section 300 of IPC. 33. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid cases and considering the evidence available on record, the ends of justice would meet, if the conviction of the appellant under Section 302 of IPC is altered/converted to one under Section 304 Part-I of the IPC. 34. Accordingly, the appeal is allowed to the extent that the conviction of the appellant under Section 302 of IPC is set-aside. However, he is convicted under Section 304 Part-I of the IPC and 30 sentenced to undergo R.I. for 10 years with fine of Rs. 5000/-, in default of payment of fine, further R.I. for 05 months. 35. The appellant is reported to be in jail since 26.09.2020. He shall undergo the remaining sentence as modified by this Court. He is entitled for set off of his undergone period during the trial as well as this appeal. 36. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 37. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved