1 2026:CGHC:22785-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 925 of 2021 1 - Aman Lahre, S/o Shiv Kumar Lahre (Wrongly Mentioned As Lehre In The Impugned Order), Aged About 22 Years R/o Village Kurda, Champa, Police Station Champa, District Janjgir Champa Chhattisgarh. 2 - Virendra Kumar Ratre, S/o Shyamlal Ratre (Wrongly Mentioned As Lehre In The Impugned Order), Aged About 20 Years R/o Village Kurda, Champa, Police Station Champa, District Janjgir Champa Chhattisgarh. 3 - Kaleshwer, S/o Ashok Bhargaw, Aged About 23 Years R/o Village Kurda, Champa, Police Station Champa, District Janjgir Champa Chhattisgarh. --- Appellants Versus 1 - State of Chhattisgarh, Through - Station House Officer, Police Station Champa, District Janjgir Champa Chhattisgarh. --- Respondent(s) CRA No. 1071 of 2021 1 - Prafful @ Pappu Jatwar S/o Mohanlal Jatwar Aged About 22 Years R/o Village Kurda Champa Police Station Champa District- Janjgir-Champa (C.G.) ---Appellant Versus 1 - State of Chhattisgarh Through- District Magistrate Janjgir-Champa (C.G.) --- Respondent(s) CRA No. 1044 of 2021 1 - Ravi Kumar Bhargaw S/o Manharan Bhargaw Aged About 23 Years R/o Kurda, Champa, P.S. Champa, District Janjgir-Champa (Chhattisgarh) ---Appellant Versus INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.05.18 18:44:35 +0530 2 1 - State of Chhattisgarh Through Police Station Champa, District Janjgir- Champa (Chhattisgarh). --- Respondent(s) CRA No. 1131 of 2021 1 - Rileshwer @ Sittu S/o Santram Kumar Khande Aged About 20 Years R/o Kurda, Champa, Police Station Champa District Janjgir Champa Chhattisgarh. ---Appellant Versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Champa, District Janjgir Champa Chhattisgarh. --- Respondent(s) (Cause-title taken from Case Information System) For Appellants : Shri Abhishek Sinha, Sr. Advocate, Shri Awadh Tripathi, Shri Gautam Khetrapal, Shri Qmrul Aziz, Shri Ghanshyam Patel and Shri Rishi Rahul Soni, Advocates. For State : Shri Ashish Shukla, Additional Advocate General. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 14.05.2026 Per, Ramesh Sinha, CJ. 1 Though the matters were listed for orders on application for suspension of sentence and grant of bail to appellants-Aman Lahre & Kaleshwar (in CRA No. 925 of 2021) while remaining appellants are on bail, however, with the consent of the parties, all these appeals are being heard and decided together by this common judgment as all the appeals arise out of same crime number, same sessions trial and by a common judgment. 3 2 All the appeals have been filed by the appellants against the impugned judgment of conviction and order of sentence dated 14.07.2021 passed by Additional Sessions Judge, Janjgir, District Janjgir Champa, in Sessions Trial No.17 of 2020 whereby all the appellants have been convicted for the offences under Sections 302 read with Section 149 and Section 148 of IPC and sentenced in the following manner: Conviction Sentence Section 302 read with 149 of IPC : RI for Life and fine of Rs.20,000/-, in default of payment of fine amount , additional SI for one year. Section 148 of IPC : RI for one year with fine of Rs.1,000/-, in default of payment of fine amount, additional SI for one month. 3 Brief facts of the case are that, the complainant Pintu @ Jamuna Prasad Yadav, PW-1 lodged a report to the police on 28.10.2019 that at about 6:30 PM when he along with Ashutosh Dewangan were standing near Betel shop of Amarnath, six persons persons came in three two wheeler vehicles from Hanuman Dhara side and went ahead after abusing them. Ashutosh protested and they chased them by their motorcycle. Those six persons met near Gamla shop at Kurda road and when they asked as to why they abused them, all the accused persons started assaulting them by wooden and bamboo clubs. Two persons out of them were assaulting them by hand and fist and belt. One was assaulted by stone. By the assault made by the accused persons, Ashutosh received head injury and fell down on the spot despite that they were continue assaulting them by kick and fist. When he intervened, he too was assaulted by one of the accused and due to 4 fear he ran away from the spot. After sometime, when he came back, he saw Ashutosh lying in unconscious condition. FIR Ex.P/1 was registered by the police against six named accused persons. Injured Ashutosh were sent to Govt. Hospital Champa where he was declared brought dead. Merg intimation Ex.P/8 was sent by the Doctor to Champa Police through memo Ex.P/7. Inquest of the dead body of the deceased was prepared and the dead body of deceased was sent for its postmortem to Govt. Hospital Champa where PW-11, Dr. Brijmohan Lal Jagriti, conducted postmortem of the dead body and gave his report Ex.P/30. During his postmortem, the doctor noticed one lacerated wound over occipital region bone deed and occipital bone were found fractured, both eyelid swallowed, lacerated wound in right forehead, bleeding present from nose, abrasion found over left forearm and contusion over left side of chest. On internal examination, fracture of occipital bone was found and brain matter contused. The doctor has opined that caused of death is due to head injury and also multiple injury in body as a result of cardio respiratory failure. The nature can be homicidal and injuries were caused by hard and blunt object. Spot map Ex.P/2 was prepared by the police whereas P/5 by Patwari. Two broken pieces of bamboo club, stone, bloodstained and plain soil were seized from the spot vide seizure memo Ex.P/20. The accused persons Aman Lahre, Virendra Kumar Ratre, Ravi Kumar Bhargaw and Kaleshwar Bhargaw were arrested on 29.10.2019 and the accused Rileshwhar Khande @ Sittu and Prafull @ Pappu Jatwar were arrested on 31.10.2019 and their memorandum statement P/9 (Aman 5 Lahre), P/11 (Ravi @ Chhotu Bhargaw), P/14 (Kaleshwar), P/16 (Prafull Jatwar) and P/18 (Rileshwar Khande) have been recorded. Based on their memorandum statement, one bamboo club was seized from accused Aman Lahre Ex.P/10 and his clothes have been seized vide seizure memo Ex.P/11A. From the accused Ravi Kumar Bhargaw one TVS Jupiter Scooty was seized vide Ex.P/13. From accused Kaleshwar one wooden club was sized vide Ex.P/15. From the accused Prafull Jatwar one leather belt and one TVS Victor motorcycle was seized vide Ex.P/17. From the accused Rileshwar Khande one TVS Victor motorcycle was sized vide Ex.P/19. The bamboo and wooden clubs seized from accused persons and the stone seized from spot were sent for its query report to the doctor who gave his report Ex.P/31 and opined that injuries found on the body of deceased could have been caused by the said weapons. For confirmation of blood, the doctor referred for its chemical examination. The accused persons were also put to Test Identification Parade (in short, TIP) which was conducted by the Executive Magistrate, PW-12, Dr. Ram Vijay Sharma, on 01.11.2019 at Tehsil office Champa. The complainant Pintu Yadav identified two accused persons Prafull Jatwar and Sittu Khande and TIP memo Ex.P/30 was prepared. The Executive Magistrate PW-12, also conducted TIP of accused persons Ravi Bhargaw, Kaleshwar, Aman Lahre and Virendra Kumar Ratre on 29.10.2019 at Tehsil office Champa and the complainant Pintu Yadav has also identified the accused persons and TIP memo Ex.P/34 was prepared. The clothes of deceased, broken pieces of bamboo club seized from spot, stone seized from spot, bloodstained and plain soil and the clothes of accused Aman Lahre, wooden club seized from 6 Kaleshwar and bamboo club sized from accused Aman Lahre were sent for its chemical examination to Regional FSL Bilaspur from where the FSL report Ex.P/35 was received, according to which, except the soil, blood was found on all the articles and human blood was found on shirt of the deceased, bamboo clubs and stone seized from the spot and bamboo club seized from accused Aman Lahre. The stone seized from spot, Article-E, and the bamboo club seized from accused Aman Lahre were found to be stained with “O” Group of human blood. 4 The statement under Section 161 CrPC of witnesses were recorded. After completion of usual investigation, charge sheet was filed against six accused persons for the offence under Sections 302, 147,148 and 149 of IPC before the Judicial Magistrate First Class Champa. The case was committed to the Court of Sessions Judge Janjgir Champa from where it has been transferred to the trial Court for its trial. 5 The trial Court has framed charge against the appellants for the offence under Sections 148, 302 read with Section 149 IPC. The appellants abjured their guilt and claimed trial. 6 In order to establish the charge against the appellants, the prosecution has examined as many as 13 witnesses. Statement under Section 313 CrPC of the appellants have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they are innocent and falsely implicated in the offence. 7 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellants and sentenced them as mentioned in the opening para of this judgment. Hence these appeals. 7 8 Shri Awadh Tripathi, learned counsel for the appellant- Prafful @ Pappu Jatwar, in CRA No.1071 of 2021 would submit that the deceased was under influence of liquor and chased the accused persons to teach them lesson for about 1 KM and exhorted the appellant. When they protested, the complainant himself started stone pelting upon the accused persons. In their protest, scuffling ensued between the deceased and accused persons and under the influence of liquor, he fell down on the ground where stones were lying and he received injury. There is material omissions and contradictions in the evidence of PW-1, Pintu Yadav, with respect to role of present appellant in offence in question. The appellant was neither carrying any weapon nor having any intention to assault anyone. Even he was not having any motive to commit murder of the deceased. It is only for the reason that he was with the other accused persons, his name was implicated as accused person in the case. He would further submit that other witnesses to the incident have not duly supported the prosecution’s case and therefore the appellant Prafull @ Pappu is entitled for benefit of doubt. 9 Shri Goutam Khetrapal & Shri Rishi Rahul Soni (for appellants No.1&3) and Shri Qamrul Aziz (for appellant No.2) in CRA No.925 of 2021, would submit that the prosecution has failed to prove its case beyond reasonable doubt against the present appellants. There are material discrepancies in the evidence of witnesses and they are not consistent on the issue of involvement of present appellants in the offence in question. The so called eyewitness Pintu Yadav was an employee of deceased and he is an interested witness. His evidence is 8 full of contradiction which does not made basis to convict the appellants in offence in question. The prosecution has also failed to establish by leading cogent and scientific evidence that blood found on the clothes of the appellant Aman Lahre and wooden club seized from Kaleshwar and Aman Lahre were stained with blood and the same blood group were found on the clothes of deceased or it was the blood group of deceased. Mere presence of blood on the weapons allegedly seized from accused persons would not be sufficient to connect them with the offence in question. The incident is occurred in a heat of passion in which the complainant party was the aggressor and they chased the appellants for a considerable distance. Therefore, no offence against the present appellants are made out and they are also entitled for acquittal. In alternative, he would submit that incident is occurred in a heat of passion and on being exhortion by the complainant party themselves. No weapons were carried by the accused persons and incident started on a spur of moment. The accused persons have not taken any undue advantage. Thus, from the evidence available on record, the offence of the accused persons, if any, does not travel beyond the scope of Section 304-II of IPC. Therefore, the offence against the present appellants, if any, may be converted under Section 304-II of IPC and their sentence may be reduced for the period already undergone by them. 10 Shri Qamrul Aziz, learned counsel for the appellant-Rileshwar @ Sittu, in CRA No. 1131 of 2011, in addition to submissions made by the counsel for the other appellants, would submit that the evidence of 9 eyewitness does not inspire confidence and he is not a sterling witness which could be relied upon against the appellant for his conviction. Being interested witness, his evidence is full of omissions and contractions. No motive has been proved by the prosecution. Except omnibus and general allegation, there is no specific overt act atributed against this appellant to determine his involvement in the offence in question. Mere presence in assembly which subsequently converted into unlawful assembly cannot be held sufficient that appellant was also having common object with other accused persons to commit the offence. Unless specific role of their participation is being proved by the prosecution, which is missing in the present case, the accused cannot be convicted. TIP also suffers from various infirmity and perversity as the same has not been conducted in accordance with law and its procedure prescribed under the law. Therefore, the appellant Rileshwar @ Sittu is also entitled for benefit of doubt and acquittal. 11 Shri Abhishek Sinha, Sr. Advocate along with Shri Ghanshyam Patel, learned counsel for appellant-Ravi Kumar Bhargaw, in CRA No.1044 of 2021, would also submit that there is no clinching evidence against the appellant Ravi Kumar to implicate him in the offence in question. The evidence of PW-1 Pintu Yadav is not reliable when he specifically stated in his evidence that appellant Ravi Kumar has not participated in the incident and he was standing at some distance. There is absolutely no allegation that he too participated in the offence in question or assisted the other accused persons in commission of offence. Mere presence along with other accused persons without taking any active participation in the incident, he cannot be held liable 10 under the vicarious liability for commission of offence or common object with the other accused persons. Without considering the scope of common object in participating the commission of offence, the trial court has convicted him for the alleged offence which is also liable to be set aside. He would also submit that TIP suffers from various infirmity and illegality. Since TIP is a weak piece of evidence and has not been conducted in accordance with law, the same cannot be considered to be sufficient evidence against the appellant particularly when there is no active participation of appellant in the offence in question. Therefore, the appellant Ravi Kumar is also entitled for acquittal. 12 On the other hand, learned counsel for the State opposes the submissions made by the respective appellants and would submit that but for minor omission or contradiction, there are sufficient and overwhelming evidence against the appellants to convict them in the offence in question. The eyewitness PW-1 Pintu @ Jamuna Prasad Yadav, is the first informant who immediately lodged FIR and named the accused persons involved in the case. In his evidence, he duly supported the prosecution case that all the accused persons assaulted the deceased by wooden clubs and stone. Blood was found on the club and clothes seized from accused Aman Lahre & Kaleshwar Bhargaw for which no explanation was offered by them. All the accused persons have been duly identified in TIP conducted by the Executive Magistrate. TIP is a clinching piece of evidence with respect to their identification and involvement in offence in question. Presence of eyewitness Pintu, PW-1, on the spot is quite natural and does not 11 suffer from any infirmity. From medical evidence, the death of deceased is found to be homicidal and as per query report, the doctor opined that injuries found on the body of deceased might have been caused by the weapon of assault seized from the accused persons. Thus, the prosecution has proved the complete chain of circumstances against the accused persons including eyewitness Pintu, PW-1. Therefore, the judgment of conviction and sentence is absolutely justified and not required to be interfered with. 13 We have heard the counsel for the parties and perused the records of the case. 14 The first question arises for determination would be the nature of death of deceased as to whether his death was homicidal or not? 15 In the present case, PW-1 Pintu Yadav who is witness to the incident immediately lodged the FIR that deceased was being assaulted by the accused persons by hand & fist, kicks and stones. He received injuries and when he was taken to hospital, he was declared brought dead. Merg information Ex.P/7 and Merg report Ex.P/8 demonstrate that the deceased Ashutosh was declared dead when he was taken to hospital. 16 Dr. Brijmohan Lal Jagriti who conducted the postmortem of the dead body of the deceased have stated in his evidence that on 29.10.2019 the dead body of deceased was brought before him for its postmortem. During postmortem he found lacerated wound over occipital region of head, eyelid were swallowed, lacerated wound in right frontal forehead, bleeding from nose, abrasion over left forearm and contusion over left side of chest and his occipital bone was found fractured and brain matter contused. He opined that cause of death is 12 head injury and also multiple injury in body resulted into cardio respiratory failure. Nature can be homicidal and all injuries was caused by hard and blunt object. 17 In cross examination, though he admits that injuries found on the head of the deceased in occipital region can also be caused by falling on hard and rough surface, however, he voluntarily stated that other injuries found on the body of the deceased cannot be caused by falling on hard and rough surface. The injuries found on the occipital region of the deceased appears to be caused by hard and blunt object and internal bleeding was also caused due to head injury. 18 From the evidence of the doctor, the prosecution is able to prove that deceased died due to homicidal death by the injuries found on his body, in which we do not find and infirmity or perversity. 19 So far as involvement of appellants in crime in question are concerned, we again examine the evidence of eyewitness Pintu PW-1. 20 He stated in his evidence that on 28.10.2019 at about 6:30 PM he along with deceased were standing near betel shop at Kurda Road Champa. At that time, all the accused persons came in 3 two wheeler and they were hurling abuses with filthy language upon them and went ahead. When he discussed with Ashutosh as to why they have abused them, they decided to ask them the reason and when they chased the accused persons and asked for the reason of abuse, some altercation took place between them and the accused persons started assaulting them by Danda. Accused Ravi Kumar was standing at a certain distance. When he received injuries on his leg by Danda, he too make distance from the place of incident. All the accused persons were 13 assaulting the deceased Ashutosh by Danda, stone and belt. After assaulting him, the accused persons fled away. The deceased receive injuries and blood was coming out from his body. He informed his brother Raju Sai by mobile phone and then his brother and other persons came there and took Ashutosh to Hospital where he was declared brought dead. He immediately lodged report which is Ex.P/1 and he identified the accused persons in TIP which is Ex.P/3 & 4. In cross examination, he admits that he was working with Ashutosh and earing his livelihood. Ashutosh was having criminal antecedent and also remained in jail for certain period. He (Pintu) was also having criminal antecedent of rape case. He admits that on the date of incident the deceased consumed liquor. Before the incident he was not acquainted with the accused persons. He saw them first time when alteration started. In his police statement Ex.P/1 he made statement about abusing them by the accused persons, they chased them and just before the incident there were hot verbal exchange between them and if it is not there, he could not tell the reason. He admits that the accused persons went ahead and then they chased them. Ashutosh was driving motorcycle and he was pillion rider. He further admits that when they reached to the accused persons, they were not armed with any Lathi, Danda or stone. At the time of incident he tried to take help of bye passers but no one helped them. He did not make effort to call the persons of vicinity, but he himself watching the incident from some distance. He was not medically examined by the police. He further admits that when he identified the house of accused first time, that accused disclosed about the houses of other accused persons. He 14 further admits that if Ashutosh would not have chased the accused persons, there would be no quarrel between them. When he received one Lathi blow, he kept away from the incident. 21 From the evidenced of this witness, there is no specific role described by this witnesses in his evidence and an omnibus allegation have been made that they assaulted the deceased by hand and fist, kicks, stone and Belt, however, there is specific evidence against accused Ravi Kumar that he did not participate in the accident of Marpeet and standing at some distance. 22 From the evidence of this witnesses it transpires that he was not acquainted with the accused persons previously and he saw them only on the date of incident. When he was not acquainted with accused persons then how the name of accused persons came to know has not been explained by him particularly when the FIR has been lodged by him on the same day at about 21:40 Hours. It also comes that the deceased Ashutosh and he himself were having criminal antecedents. Therefore, involvement of all the accused persons requires to be scrutinized in view of other corroborative evidence available on record. 23 PW-2, Raj Kumar Ratre, is the resident of nearby place where the incident occurred. Though she states that she heard the noise of quarrel, but she did not come out from her house. She turned hostile and not supported the case of prosecution. 24 PW-3, Amarnath Bareth, the owner of betel shop, have stated in his evidence that on the date of incident Pintu and Ashutosh came to his shop and were smoking. From Hanuman Dhara side, the accused persons came there in 2-3 motorcycles and went ahead after abusing 15 the deceased and Pintu. Thereafter, Pintu and Ashutosh chased them. After half an hour he came to know that that Ashutosh was being assaulted by which he died. This witness is not an eyewitness to the incident, but witnessed only to the extent that accused persons abused the deceased and Pintu due to which they chased the accused persons. He admits in his cross examination that nearby his betel shop a liquor shop is there. From the evidence of this witness, it has also not been established that who actively participated in the offence of assaulting deceased; whether all the accused persons assaulted or few of them made assault upon the deceased have also not been proved. 25 PW-4, Bhushan Kumar Markam is the Patwari who prepared the spot map Ex.P/5. 26 PW-6, Lalchand Dewangan is the person who made phone call to Dial 112 after seeing the deceased lying injured condition near new college road. When the friends of Ashutosh Dewangan came there, they took him to NKS Hospital Champa where he was declared brought dead. Later on he came to know that Pappu, Ravi and others assaulted the deceased by Lathi, Danda hand and fist. In cross examination, he admits that he did not personally know the deceased Ashutosh, but he is the person of his own community. He himself has not lodged any report to the police. He disclosed the name of accused Ravi in his police statement Ex.D/3 and if it is not there, he does not know the reason. 27 PW-7, Shashikant Singh is the witness to memorandum and seizure made from the accused persons. He proved the memorandum 16 statement of Aman Lahre, Ex.P/9 and seizure of Danda made from him vide seizure memo Ex.P/10. Police has also seized bloodstained and plain soil and stone form spot vide Ex.P/11. He also proved the memorandum of accused Ravi, Ex.P/12 and seizure of his Scooty Ex.P/13, memorandum of accused Kaleshwar Ex.P/14 and seizure of Lathi Ex.P/15, memorandum of Prafull Ex.P/16 and seizure of Belt Ex.P/17, memorandum of Rileshwar Ex.P/18 and seizure of motorcycle Ex.P/19, and also the seizure of clothes of the deceased Ex.P/21. In cross examination, he states that on the next day of incident he came to know about the incident and his friend Mohit informed him that police called him. When the went to police station, he signed the documents. In further cross examination, he admits that on the date when incident took place, he went to police station and at the same night the police arrested some of the accused persons and took them to police station. 28 From the evidence of this witness, memorandum statement of accused Aman Lahre and Kaleshwar and seizure of Lathi from them have been proved by the prosecution. Though the memorandum of Prafull and seizure of Belt from him has also been proved, however, seizure of lathi from accused Aman Lahre and Kaleshwar could be relevant here for the reason that injuries found on the body of the deceased clearly indicate that it was caused by hard and blunt object and the Belt injury was not found on the body of deceased. Therefore, seizure of Lathi from accused Aman Lahre and Kaleshwar are corroborative and relevant in the case with the other evidence available on record. 17 29 PW-10, Rishi Dewangan, is the witness to TIP Ex.P/3 & 4. He stated in his evidence that on 29.10.2019 he identified the accused Ravi Bhargaw, Kaleshwar Bhargaw, Aman Kumar Lahre and Virendra Kumar Ratre during the TIP conducted by the Tehsildar and on 01.11.2019 he identified two other accuser persons Prafull Jatwar and Sittu Khande who were identified by Pintu Yadav in his presence. 30 In cross examination, he admits that no written notice was served upon him for TIP. On instance of one Ajay Sharma, he went there for TIP and at the time when he identified the accused persons he came to know that deceased was being murdered. He was not acquainted either with the witnesses or with the accused persons. He admits that he does not know the persons who were mixed with the accused persons. He has not identified any of the accused persons and he signed the documents on the instance of persons who were present there. When he reached for identification parade, the police persons and accused were already there. 31 From the evidence of this witness, he does not remain firm in TIP which was conducted by the Tehsildar. Though, in examination in chief he said that he identified the persons, however, in cross examination he clearly stated that he has not identified any of the accused persons and signed the documents on the instance of persons present there. Police was also present at the time of TIP. 32 PW-12, Dr. Ram Vijay Sharma, is the Tehsildar, who conducted the TIP on 29.10.2019 and 01.11.2019. On 29.10.2019 he conducted TIP of four accused persons Ravi Bhargaw, Kaleshwar Bhargaw, Aman Kumar Lahre and Virendra Kumar Ratre at Tehsil office Champa in 18 which the complainant Pintu Yadav duly identified the accused persons and TIP memo Ex.P/3 was prepared. On 01.11.2019 two other accuser persons Prafull Jatwar and Sittu Khande were identified by the complainant Pintu Yadav and TIP memo Ex.P/4 was prepared. He further states that due to inadvertence the date of 29.10.2019 is mentioned in TIP, however the correct date is 30.10.2019. In cross examination he admits that he did not personally know the witnesses of TIP Ex.P/3&4 and police persons had called them. He admits that the entries in the TIP format was made by his subordinate employee and he only signed it. The police have taken the accused persons for TIP separately at the interval of 2-3 minutes each. This witness have not stated anything about the persons who were mixed with the accused persons at the time of TIP, their sequence, their physic and other relevant procedure for conducting TIP. Further, he himself has not prepared the TIP memo, but only signed it. 33 From the entire evidence of this witness, the TIP cannot be said to be free from any doubt or it was conducted without any fault in procedure. When the necessary ingredients are missing conducing TIP, it cannot be relied upon against the accused persons to identify as assailants to the deceased. 34 PW-13, Rajesh Choudhary is the investigating officer who deposed with respect to the part of investigation which he conducted being procedural witness. However, in his cross examination, he stated that during the investigation he came to know that the accused persons belong to village Kurda. He admits that during investigation, he too came to know that the incident was occurred on a spur of moment and 19 it was not pre planned. He admits in his cross examination that there is no mention about the fact that a particular accused assaulted by a particular weapon of offence to the deceased. He explained the discrepancy of the name of the accused Kaleshwar and Kamleshwar and stated that both names are of the same person and the complainant implicated the same person Kaleshwar. 35 From the FSL report Ex.P/35, human blood was found on the shirt of the deceased Article-A, piece of bamboo club seized from spot, Article- C &D, Stone seized from spot Article-E and bamboo club seized on the instance of accused Aman Lahre. The stone Article-E and bamboo club seized on the instance of accused Aman Lahre were found to be stained with “O” group of human blood. Further, in the clothes of the accused Aman Lahre and wood club seized from accused Kaleshwar Article-I were found to be stained with blood. This incriminating piece of evidence against the accused Aman Lahre and Kaleshar have not been explained in their 313 CrPC statement as to how blood was found on the articles seized from them. When these two accused persons also named in the FIR, blood has been found on the Articles seized from them, the seizure of Articles from them have been proved by the seizure witness and there is no explanation about presence of blood on the articles seized from them, it can be said that the prosecution has established involvement of these two appellants in the offence of question that they have assaulted the deceased by Danda and Stone. 36 Looking to the injuries found on the body of deceased, as has been described by the doctor who conducted the postmortem, that the 20 deceased received injuries by hard and blunt object, and in query report, Ex.P/31 also the doctor opined that injuries found on the body of deceased could have been caused by Danda and Stone, which further corroborates the allegation against these accused persons Aman Lahre and Kaleshwar. Therefore, in view of the nature of evidence available on record, and the evidence of PW-1 Pintu @ Januman Prasad Yadav, can be relied upon only with respect to accused Aman Lahre and Kaleshwar that they assaulted the deceased by Danda and Stone when the deceased chased the accused persons and raised quarrel with them. 37 From the evidence of Pintu, PW-1, the involvement of accused Ravi has been specifically denied, who clearly stated that Ravi has not participated in the offence and he was standing away from the quarrel and thus, except the accused Aman Lahre and Kaleshwar, the other accused persons namely Virendra Kumar Ratre, Ravi Kumar Bhargaw, Rileshwar @ Sittu and Prafull @ Pappu Jatwar are entitled for benefit of doubt and by giving them benefit of doubt, they are acquitted from the alleged offences of Sections 302/149 and 148 IPC and this court held that accused Aman Kumar Lahre and Kaleshwar are the perpetrator of crime in question by which the deceased Ashutosh died. 38 The other question involved in the present case is as to what offence the accused persons Aman Kumar Lahre and Kaleshwar have committed. 39 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 21 murder and their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants? 40 The Supreme Court in the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 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 inding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 41 The Supreme Court in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II 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 light; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; 22 (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 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.” 42 Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450, Their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 43 Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh, (2017) 3 SCC 247, has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 23 “20. To invoke this Exception 4, the requirements that are to be fulilled 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 ight; (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 it 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 beneit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden light; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the light 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”. 44 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 24 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. 45 Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi), (2019) 6 SCC 122, has laid down four ingredients which should be tested 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 light; (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.” 46 According to postmortem report, Ex.P/30, only one injury was found in the occipital region including fracture of occipital bone and one injury was found on right forehead. Bleeding from nose and eyelid were swallowed and abrasion found over left forearm and contusion over left side of chest. From the evidence of eyewitness as well as other witnesses, when the accused persons were not known to the deceased as well as eyewitness and the incident was occurred in a heat of passion and spur of moment when the accused persons went ahead and the deceased and eyewitness chased them. Eyewitness PW-1, have admitted in his evidence that if they would not have chased the accused persons, the incident could not have been occurred. He also admits that deceased was in drunken stage of liquor and during postmortem, the doctor also noticed presence of Alcohol in the intestine of deceased which clearly reflected from the postmortem report Ex.P/30. When the accused persons were not armed with any deadly weapon, the incident occurred in a heat of passion and one 25 injury is found in the occipital region of the deceased including fracture and one lacerated wound in forehead, it cannot be said the accused persons were having any intention to kill the deceased. The quarrel arose without there being any premeditation on the part of the accused Aman Lahre and Kaleshwar to cause death of the deceased. The act of the accused Aman Lahre and Kaleshwar would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants Aman Lahre and Kaleshwar herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellants had not taken any undue advantage or acted in a cruel or unusual manner. Had the appellants Aman Lahre and Kaleshwar intended to cause murder of Ashutosh, they would have given more severe blows with the lathi and stone. As such, it could be safely said that the appellants Aman Lahre and Kaleshwar did not have any intention to kill the deceased. 47 In view of the above discussion, we hold that it would meet the ends of justice if the conviction of the appellants Aman Lahre and Kaleshwar under Section 302 of the IPC is altered/converted to Section 304 Part- II of the IPC. 48 Accordingly, conviction of the appellants Aman Lahre and Kaleshwar under Section 302 of the IPC is set aside, however, they are convicted under Section 304 Part-II of the IPC and sentenced to the period already undergone by them. 26 49 As a fall out, by giving the benefit of doubt, the appeals filed by the persons/appellants-Virendra Kumar Ratre (CRA No.925 of 2021), Ravi Kumar Bhargaw (CRA NO.1044 of 2021) Rileshwar @ Sittu (CRA No.1131 of 2021) and Prafull @ Pappu Jatwar (CRA No.1071 of 2021) are allowed and they are acquitted from all the offences. The judgment of conviction and sentence against the aforesaid four appellants are set aside. 50 The conviction of appellants Aman Lahre and Kaleshwar (in CRA No.925 of 2021) for the offence under Section 302/149 and 148 IPC are set aside and instead thereof, these two appellants Aman Lahre and Kaleshwar, are convicted for the offence under Section 304-II IPC. The appellants Aman Lahre and Kaleshwar are reported to be in jail since 29.10.2019 and thereby they have already served more than 6 and ½ years of jail sentence, they are being sentenced for the period already undergone by them. 51 Since both these appellants Aman Lahre and Kaleshwar are in jail, they shall be released forthwith, if not required in any other case. 52 Keeping in view the provisions of Section 481 of BNSS, the appellants Aman Lahre and Kamleshwar are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in BNSS of sum of Rs. 25,000/- each with one reliable surety in the like amount before the Court concerned, which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 27 53 The appellants Virendra Kumar Ratre, Ravi Kumar Bhargaw, Rileshwar @ Sittu and Prafull @ Pappu Jatwar are reported to be on bail. Their bail bond shall continue for a further period of six months as provided under Section 481 of BNSS, 2023. 54 Accordingly, CRA No.925 of 2021 is partly allowed and CRA Nos. 1044 of 2021, 1071 of 2021 and 1131 of 2021 are allowed. 55 The trial Court records alongwith copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder