1 2026:CGHC:5128-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 565 of 2016 1 - Kawal Ram And Another S/o Manmohan Nagesiya Aged About 40 Years R/o Village Sarudhab, Police Station Bagicha, District Jashpur, Chhattisgarh. 2 - Fulmet Bai W/o Kawal Ram Nagesiya Aged About 40 Years R/o Village Sarudhab, Police Station Bagicha, District Jashpur, Chhattisgarh. ... Appellant(s) versus The State Of Chhattisgarh Through Station House Office, Police Station Bagicha, District Jashpur, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Aman Kesharwani, Advocate For Respondent(s) : Mr. Soumya Rai, Dy. G.A. Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Bibhu Datta Guru, Judge Judgment on board Per Ramesh Sinha, C.J. 30.01.2026 1. In compliance to the Court’s order dated 16.01.2026, today the matter was listed for appearance of the accused / appellants MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2026.01.31 11:00:07 +0530 2 before this Court. Accused are present and are identified by their counsel. 2. However, considering the fact that the matter pertains to the year 2015, with the consent of the parties, this Court proceeds to hear the matter finally. 3. This criminal appeal filed by the appellants-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 18.12.2015, passed by the learned Additional Sessions Judge (F.T.C.), Jashpur, District- Jashpur (C.G.) in Sessions Trial No. 45/2015, whereby the appellants-accused have been convicted as under: Conviction under Section Sentences (to both the appellants) Section 302/34 of the IPC For life imprisonment and fine of Rs.500/-, in default of payment of fine 3 months R.I. Section 323/34 of the IPC R.I. for 3 months and fine of Rs.200/-, in default of payment of fine 1 month R.I. Both the sentences have been directed to run concurrently. 4. The prosecution case, in brief, is that on 12.12.2014, the complainant Suresh Ram was returning from the fields along with Ratan Ram, Amrit Ram and Bodhan Ram. At the same time, Phulmet Bai had gone to a hand pump to fetch water. While returning with a pot of water, she allegedly poured water on the complainant Suresh Ram, which led to a verbal altercation and 3 exchange of abuses. Thereafter, Phulmet Bai’s husband Kawal Ram, her son Mukesh Ram and Manmohan Ram joined in, abused the complainant and assaulted him with sticks. When the complainant’s elder brother Baleshwar Ram intervened to rescue him, the accused persons namely Kawal Ram, Phulmet Bai, Mukesh Ram and Manmohan Ram allegedly assaulted Baleshwar Ram with sticks, causing a head injury due to which he fell unconscious. He was taken home, where he later succumbed to the injuries. The complainant Suresh Ram also sustained injuries in the incident. 5. The complainant Suresh Ram lodged a report on 13.12.2014 at Police Station- Bagicha, on the basis of which Merg Intimation No. 104/14 was registered and Inquest proceedings were initiated. Simultaneously, Crime No. 223/14 was registered under Sections 302/34 IPC against Kawal Ram, Mukesh Ram, Phulmet Bai and Manmohan Ram, and FIR Ex.P.11 was recorded. During investigation, the Investigating Officer inspected the spot, conducted the inquest proceedings, prepared the inquest report Ex.P.2, seized blood-stained and plain soil vide seizure memo Ex.P.7, and prepared the spot map Ex.P.6. 6. The dead body of deceased Baleshwar Ram was sent for postmortem examination to CHC Bagicha, whereby Dr. Mithlesh Minj (PW-13), Medical Officer conducted the postmortem examination of the dead body of deceased Baleshwar Ram and 4 stated that upon external and internal examination of the dead body, the following injuries were found: (i) A V-shaped fracture on the left side of the head, situated in the middle region, measuring about 12 cm in length, with depression of the fractured bone inwards. (ii) A lacerated wound on the left parietal region of the head, measuring 5 × 1.5 cm up to bone depth, with the presence of blood clots. (iii) A bruise on the left side of the face extending from the nose up to below the ear, measuring about 10 × 5 cm, bluish in colour. On internal examination, he found a fracture of the left parietal bone. The parietal portion of the brain was torn measuring about 1 × 0.3 × 0.2 cm, with a blood clot of about 10 × 8 cm at the site of injury. Other vital organs including membranes, lungs, heart, liver, spleen and kidneys were found congested. He opined that the cause of death was internal head injury, and the death was homicidal in nature. The postmortem report (Ex.P.12) was obtained. 7. On 13.12.2014, accused Mukesh Ram was taken into custody and, pursuant to his memorandum statement (Ex.P-8), a wooden stick was seized vide seizure memo (Ex.P-1). The seized articles, including blood-stained soil, wooden stick and clothing of the 5 deceased, were sent for forensic examination, and the FSL report (Ex.P-24) was received. During investigation, statements of witnesses were recorded, medical examination of injured Suresh Ram was conducted, and a query report regarding the weapon was obtained. 8. Upon completion of investigation, since accused Mukesh Ram was found to be a juvenile, a supplementary charge-sheet was filed against him before the Juvenile Justice Board, while a charge-sheet against the remaining accused persons was filed before the Judicial Magistrate First Class, Bagicha, and the case was thereafter committed to the Sessions Court, Jashpur. 9. Charges under Sections 302/34 and 323/34 IPC were framed against the accused, to which they pleaded not guilty and claimed to be falsely implicated. The prosecution examined 18 witnesses and exhibited documents including FIR, inquest report, postmortem report, seizure memos, site plans, FSL report and other relevant documents. The accused did not adduce any defence evidence. 10. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 18.12.2015, convicted the appellants for offences under Sections 302/34 and 323/34 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been filed. 11. Mr. Aman Kesharwani, learned counsel appearing for the 6 appellant submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 and 323 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted as it is, then also the appellants are said to have caused injuries to the deceased in spur of moment. There was no motive or intention on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellants caused injuries to the deceased, which caused his death. Learned counsel for the appellants urged that: (a) there was no premeditation; (b) the incident ensued during a sudden domestic quarrel; (c) intention to cause death is absent; at best knowledge can be imputed. Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants for offence under Section 302 and 323 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 12. On the other hand, learned State counsels for the respondent/State supports the impugned judgment and submits that the appellants have caused murder of deceased by deadly attacking him with stick due to which, he succumbed to his 7 injuries, therefore, the learned trial Court has rightly convicted the appellants under Section 302 and 323 of the IPC and it is not a case where the appellants conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II IPC and as such, the instant criminal appeal deserves to be dismissed. 13. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 14. The first question for consideration would be whether the deceased died under unnatural circumstances ? 15. From the perusal of the postmortem report (Ex.P.12) and the testimony of Dr. Mithlesh Minj (PW-13), it is evident that the deceased Baleshwar Ram sustained multiple ante-mortem injuries on the head and face, including a depressed fracture of the left parietal bone and lacerated wounds causing internal damage to the brain. The medical expert has categorically opined that the cause of death was internal head injury, that the injuries were sufficient in the ordinary course of nature to cause death, and that the death was homicidal in nature. 16. Further, the nature, location and severity of the injuries, particularly the depressed skull fracture and brain tear, rule out the possibility of natural or accidental death. The injuries were caused by a heavy blunt object, as stated by the doctor, and could 8 not have been self-inflicted. The doctor has also clarified that although the deceased might have been able to walk or talk for some time after sustaining the injuries, the fatal consequences of such head injuries may manifest later. 17. In view of the consistent and unchallenged medical evidence, supported by the postmortem (Ex.P-12) report and the opinion of the medical expert, it stands conclusively proved that the deceased Baleshwar Ram did not die a natural death but died under unnatural and homicidal circumstances. 18. Now, the question for consideration would be whether the accused/appellants in furtherance of common intention commit murder by inflicting fatal injuries with sticks and batons with the intention of killing Baleshwar? 19. In this regard, Investigating Officer – Gambhir Sonwani (PW-16) deposed that upon inspection of the spot situated in front of the house of Sundari Bai, human blood was found on the ground. Blood-stained soil and plain soil were seized vide seizure memo (Ex.P-7) in the presence of witnesses. The seizure proceedings were corroborated by Devkeshwar (PW-9) and Ramsai (PW-18). The witness further stated that two stones weighing approximately one kilogram each were found lying at the spot and bore blood stains. A spot map (Ex.P-6) was prepared, wherein the place of occurrence was marked as ‘A’, situated about five steps from Sundari Bai’s house, while the house of the deceased Baleshwar 9 was shown at point ‘E’. The witness stated that the deceased had walked approximately 450 steps from the place of occurrence to his house after the incident. 20. In cross-examination, this witness admitted that he did not notice any blood stains on the path from the spot to the house of the deceased and also conceded that the positions of Kawal Ram and Phoolmet Bai were not specifically shown in the spot map. This testimony indicates that although an assault had occurred at the spot, the deceased was physically capable of walking and speaking thereafter, suggesting that the injuries did not cause immediate fatal incapacitation. 21. Patwari Amit Kumar Chauhan (PW-8), this witness confirmed that the spot map (Ex.P-4) was prepared on the basis of the statements of witnesses after visiting the place of occurrence. He further deposed that during interrogation, the juvenile Mukesh stated that he had taken a wooden stick from a pile of firewood lying in front of Sundari Bai’s house and had struck Suresh and Baleshwar. On the memorandum of Mukesh, a wooden stick was seized from the same location. The memorandum and seizure proceedings were proved through Ex.P-8 and Ex.P-9 and corroborated by Devkeshwar (PW-9) and Ramsai (PW-18). 22. Medical Expert – Dr. Mithlesh Minj (PW-13) deposed that the wooden stick sent for examination could have caused the injuries found on the deceased. He opined that the death was possible 10 due to head injury. However, in cross-examination, the witness admitted that no blood stains were found on the stick and also clarified that in head injuries, symptoms may develop gradually, and a person may remain conscious, mobile and able to speak for some time after sustaining such injuries. 23. This medical evidence supports the conclusion that the injuries, though serious, did not immediately cause death, and that the deceased retained consciousness for a considerable period. 24. Suresh Ram (PW-14), injured witness of the case carries due evidentiary value, as his presence at the place of occurrence stands proved by the injuries sustained by him. According to this witness, the incident originated from a sudden altercation near the house of Ratan when accused Fulment Bai was returning from the hand pump. He deposed that accused Kawalram first slapped him, thereafter Fulmet Bai struck him on the head with a stick, and subsequently Mukesh assaulted him with a stick, causing him to fall down. He stated that when his brother Baleshwar came to intervene and lift him, Mukesh again assaulted Baleshwar on the head with a stick and stone. However, in cross-examination, this witness admitted that due to the injuries sustained, he became semi-conscious and that darkness had set in at the time of occurrence. He further admitted that after the incident both he and Baleshwar returned home on their own. 25. The evidence of Suresh Ram further reveals that the assault was 11 not pre-planned, nor was it specifically aimed at the deceased from the inception. The deceased Baleshwar entered the scene only later while attempting to intervene in a quarrel that had already begun. This aspect of his testimony significantly dilutes the allegation of common intention to commit murder, as the incident unfolded suddenly and escalated spontaneously. 26. Thus, while the statement of Suresh Ram proves the presence of the accused and the occurrence of assault, it does not conclusively establish that the accused shared a prior meeting of minds or intention to cause the death of Baleshwar. At best, it indicates knowledge that such an act could result in serious injury. 27. Rajnath (PW-7), independent witness stated that on the date of the incident, at about 6:00 p.m., he noticed a quarrel taking place in the courtyard of Sundari Bai’s house. He categorically stated that he saw Mukesh first assault Suresh with a stick and thereafter strike Baleshwar on the head with a stick, causing him to fall down. He further stated that at the time of the incident, accused Kawalram and Fulmet Bai were present at the spot. 28. Significantly, this witness has attributed the actual blow on the head of Baleshwar only to Mukesh, the juvenile offender. He did not ascribe any specific overt act of assault on the deceased to accused Kawal Ram or Fulmet Bai. His statement remained materially unshaken in cross-examination, and even the defence suggestions accepted that Mukesh was the person who assaulted 12 both Suresh and Baleshwar. 29. The testimony of this independent witness is of considerable importance, as it narrows down the role of the accused and weakens the prosecution case regarding a shared intention to commit murder. Mere presence at the spot, in the absence of a specific overt act or prior concert, cannot by itself establish common intention under Section 34 IPC for the offence of murder. 30. Amrit Ram (PW-3), independent witness stated that he did not witness the actual assault. However, he deposed that shortly thereafter, Baleshwar came to his house with a head injury and bleeding and told him that Kawalram, his wife, and his son had beaten him. This witness thus proves that the deceased was conscious, ambulatory, and capable of narration after the incident. 31. In cross-examination, this witness admitted that Baleshwar did not mention the name of accused Manmohan and also admitted that it was not completely dark at that time. The fact that the deceased could walk to the house of this witness and narrate the incident reinforces the medical opinion that the injuries did not cause instantaneous death. 32. While this statement lends support to the prosecution case regarding the occurrence of assault, it does not establish the mental element of intention to kill, particularly when read in conjunction with the sudden nature of the incident and absence of repeated or brutal assault. 13 33. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 34. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana1 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the 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 1 (2002) 3 SCC 327 14 further rigorous imprisonment for one year.” 35. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; 2 (2009) 15 SCC 635 15 (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 36. Likewise, in the matter of State v. Sanjeev Nanda3, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under 3 (2012) 8 SCC 450 16 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. 37. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no 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 4 (2017) 3 SCC 247 17 law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 38. 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. 18 39. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)5 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 40. The distinction between intention and knowledge in the context of Section 299 and Section 300 IPC is crucial in determining the culpability of the appellant. Intention denotes a conscious desire to bring about a particular result, whereas knowledge implies awareness that a particular consequence is likely to ensue. In the present case, while the appellant's actions were undoubtedly culpable, the circumstances suggest that he did not intend to cause the death of his wife. However, it is evident that he knew that his actions were likely to cause harm. 41. Reverting to the facts of the present case, the following facts are salient: (i) The incident occurred suddenly on the spur of the moment, arising out of a trivial dispute near the hand pump, without any prior enmity or premeditation 5 (2019) 6 SCC 122 19 between the parties. (ii) The deceased Baleshwar was not the initial target of the assault and became involved only when he intervened to rescue his brother Suresh. (iii) The weapon used was an ordinary wooden stick and stones available at the spot and not a deadly weapon carried with prior preparation. (iv) The deceased did not die at the spot. Rather, he walked back to his house, spoke to his wife and brother, and succumbed to the injuries after some time, which is consistent with the medical opinion regarding delayed manifestation of head injuries. (v) The evidence of independent witness Rajnath (PW-7) attributes the actual blow on the head of the deceased to Mukesh, the juvenile offender, and does not attribute any specific overt act of assault on the deceased to accused Kawalram and Fulmet Bai. (vi) There is no evidence to suggest that the accused took undue advantage or acted in a cruel or unusual manner, such as inflicting repeated blows after the deceased had fallen or preventing medical aid. 42. From the aforesaid circumstances, it is evident that the essential ingredients of Exception 4 to Section 300 IPC are fully satisfied. The occurrence was the result of a sudden fight, there was no premeditation, the act was committed in the heat of passion, and the accused did not take undue advantage or act in a cruel or unusual manner. 43. Though the medical evidence establishes that the injuries 20 sustained by the deceased were sufficient in the ordinary course of nature to cause death, the surrounding circumstances do not justify an inference that the accused shared the intention to cause the death of Baleshwar. The evidence, at the highest, establishes that the accused had the knowledge that such an act was likely to cause death. 44. The distinction between “intention” and “knowledge”, as elucidated by the Supreme Court in several decisions, squarely applies to the present case. The prosecution has failed to prove beyond reasonable doubt that the accused intended to cause the death of the deceased or intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. However, it stands proved that the act was done with the knowledge that it was likely to cause death. 45. In view of the principles laid down in the judgment relied upon above, this Court is of the considered opinion that the conviction of the appellants under Section 302 read with Section 34 IPC cannot be sustained. The record satisfies the Chronological four- part test: (i) sudden quarrel; (ii) no premeditation; (iii) heat of passion; (iv) no evidence of undue advantage or cruelty. Thus, Exception 4 is attracted; the offence cannot be murder. 46. Considering the entire evidence on record, both oral and documentary, this Court finds that the death of deceased Baleshwar Ram was undoubtedly unnatural and homicidal in 21 nature, as is conclusively established by the postmortem report (Ex.P-12) and the categorical testimony of Dr. Mithlesh Minj (PW- 13), who found multiple ante-mortem head and facial injuries including a depressed fracture of the parietal bone and internal brain damage, sufficient in the ordinary course of nature to cause death. However, upon a careful scrutiny of the prosecution evidence relating to the manner of occurrence, it emerges that the incident was not pre-planned or pre-meditated but arose suddenly out of a trivial altercation near the hand pump. The injured witness Suresh Ram (PW-14), whose presence at the spot is beyond dispute owing to the injuries sustained by him, has clearly deposed that the quarrel initially erupted between him and the accused, and that the deceased Baleshwar entered the scene only later while attempting to intervene and rescue him. His testimony further reveals that after sustaining injuries both he and the deceased returned home on their own, indicating that the injuries did not result in immediate fatal incapacitation. This aspect finds corroboration from the medical evidence which clarifies that the effects of head injuries may manifest after some lapse of time. The independent witness Rajnath (PW-7) has specifically attributed the actual blow on the head of the deceased to Mukesh, the juvenile offender, and though he confirms the presence of accused Kawalram and Fulmet Bai at the spot, he does not ascribe any specific overt act of assault on the deceased to them. The evidence of independent witness Amrit Ram (PW-3) 22 further establishes that the deceased was conscious, ambulatory and capable of narration after the incident, as he walked to his house and disclosed the occurrence, which again militates against an inference of a deliberate or calculated act of murder. The weapon used was an ordinary wooden stick and stones available at the spot, and there is no evidence of repeated or brutal assault, nor of the accused having taken undue advantage or acted in a cruel or unusual manner. The cumulative effect of the evidence thus shows that while the accused were participants in the occurrence and had knowledge that a forceful blow on the head could likely result in death, the prosecution has failed to prove beyond reasonable doubt that they shared a common intention to cause the death of Baleshwar. 47. The incident squarely satisfies all the ingredients of Exception 4 to Section 300 IPC, namely, that it occurred in a sudden fight, without premeditation, in the heat of passion, and without the assailants taking undue advantage. Therefore, the offence committed by the appellants does not fall within the ambit of murder under Section 302 IPC, but constitutes culpable homicide not amounting to murder punishable under Section 304 Part-II IPC, as the act was committed with knowledge of its likely consequences but without intention to cause death. 48. Accordingly, the conviction of the appellants under Section 302/34 IPC is altered to one under Section 304 Part-II IPC. So far as 23 their conviction and sentence under Section 323/34 of the IPC is concerned, they are hereby maintained. It is stated at the Bar that the appellants have served more than 6 years of jail sentence and as such, we deem it appropriate to sentence the appellants for the offence under Section 304-II to the period already undergone by them. 49. The criminal appeal is partly allowed to the extent indicated herein-above. 50. The appellants are reported to be on bail. They need not surrender, however, keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), their bail bonds are not discharged at this stage and shall remain effective for a period of six months from today. 51. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet