1 2026:CGHC:26543-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 733 of 2023 Jagdish Singh Thakur S/o Jayendre Singh Aged About 29 Years R/o Mureyapara Narayanpur, P.S. And District Narayanpur (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through Police Station Narayanpur, District Narayanpur (C.G.) ... Respondent(s) For Appellant(s) : Mr. Sanjay Kumar Yadav, Advocate For Respondent(s) : Mr. Ashish Shukla, Add. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on board Per Ramesh Sinha, C.J. 30.06.2026 1. The matter has been listed today on a PUD received from the learned Special Sessions Judge (NDPS Act) Kondagaon, District- Kondagaon (C.G.) dated 16.06.2026 that the appellant after being released on bail had not appeared before the trial Court since 28.10.2025. However, as the matter pertains to the year 2023 and MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2026.07.01 11:04:37 +0530 2 counsel for the appellant is present, we proceed to hear the matter on merits. 2. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 08.02.2023, passed by the learned Sessions Judge, Kondagaon, District- Kondagaon (C.G.) in Sessions Trial No. 129/2021, whereby the appellant-accused have been convicted as under:- Conviction Sentences (to both the appellants) Section 302 of the IPC Life imprisonment and fine of Rs.100/-, in default of payment of fine, additional R.I. for 03 months. 3. The prosecution case, in brief, is that on 02.09.2021 at about 3:15 p.m., in front of the house of Deepak Mandavi at Muriapara, Narayanpur, the appellant/accused was allegedly abusing and assaulting his father, Jayendra Singh Thakur, his mother, Shanti Bai Thakur, and his sister, Yamuna Thakur. On witnessing the incident, the deceased, Ratiram Netam, intervened and questioned the accused as to why he was assaulting his parents who were maintaining him. Enraged by the objection, the accused allegedly brought a wooden stick and assaulted Ratiram Netam repeatedly, including blows on his head, causing him to fall near a drain. It is alleged that the accused continued the assault even after the deceased had fallen, resulting in fatal head injuries. 3 4. On receiving information regarding the incident, the deceased’s son, Rajesh Kumar Netam, rushed to the spot and found his father lying unconscious near the drain. The deceased was taken to the District Hospital, Narayanpur, where he was declared dead. On the basis of the merg intimation and the subsequent report lodged by Rajesh Kumar Netam, a case was registered and investigation commenced. During investigation, the inquest was conducted, spot map and seizure memos were prepared, blood- stained and plain soil were seized, the postmortem examination was conducted, statements of witnesses were recorded, and the accused was arrested. The prosecution further alleged that, pursuant to the memorandum statement of the accused, the wooden stick used in the commission of the offence was recovered and sent, along with other seized articles, for forensic examination, which reportedly detected human blood on the seized articles. 5. After completion of investigation, a charge-sheet was filed against the accused for offences punishable under Sections 294 (three counts), 323 (three counts), and 302 of the Indian Penal Code. The learned Sessions Court framed charges accordingly. During trial, the prosecution examined nine witnesses, including the alleged eyewitnesses, the doctor who conducted the postmortem examination, and the investigating officer. Upon appreciation of the oral and documentary evidence, the learned Sessions Court acquitted the accused of the offences under Sections 294 and 4 323 IPC for want of sufficient evidence, but convicted him under Section 302 IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence dated 08.02.2023 passed by the learned trial Court is contrary to law, facts and the evidence available on record and is, therefore, liable to be set aside. It is contended that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and that the learned trial Court has erred in convicting the appellant under Section 302 of the Indian Penal Code despite the absence of reliable and cogent evidence. Learned counsel further submits that there is no trustworthy direct evidence connecting the appellant with the alleged offence, the prosecution witnesses suffer from material contradictions, omissions and inconsistencies, and their testimonies do not inspire confidence. It is argued that the learned trial Court failed to properly appreciate the evidence brought on record, particularly the admissions elicited during cross-examination, and ignored material infirmities in the prosecution case. It is further submitted that the prosecution failed to prove the appellant’s presence and participation in the alleged occurrence, yet the learned trial Court recorded findings based on conjectures and surmises. According to learned counsel, the appellant has been falsely implicated, the findings recorded by the trial Court are perverse and unsustainable in law, 5 and the conviction and sentence imposed upon the appellant deserve to be quashed by extending to him the benefit of reasonable doubt. 7. On the other hand, learned State counsel for the respondent/State supports the impugned judgment and submits that the appellant has caused murder of deceased by deadly attacking him with lathi due to which, he succumbed to his injuries, therefore, the learned trial Court has rightly convicted the appellant under Section 302 of the IPC and it is not a case where the appellant’s 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. 8. 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. 9. The first question that falls for consideration before this Court is whether the prosecution has been able to establish that the death of the deceased, Ratiram Netam, was homicidal in nature. 10. In order to prove the nature and cause of death, the prosecution examined Dr. Keshavchandra Sahu (PW-6), who, at the relevant time, was posted as Medical Officer, Community Health Centre, Narayanpur. PW-6 deposed that on 03.09.2021 at about 9:50 a.m., he conducted the postmortem examination on the dead body of the deceased pursuant to the postmortem requisition 6 (Exhibit P-14) submitted by the Investigating Officer. During the external examination, PW-6 noticed that the lower part of the left ear was cut, there was bluish discolouration extending from the left side of the face to the neck measuring approximately 20 × 20 cm, a crushed injury measuring 2 × 2 × 4 cm was present over the left cheek, and swelling measuring 5 × 4 cm was found over the left temporal region near the ear. According to the witness, all the injuries were ante-mortem in nature. 11. PW-6 further deposed that on internal examination he found fracture of the parietal and temporal bones of the skull, fracture of the left maxillary bone, extensive extrameningeal blood clots and excessive bleeding. He opined that the injuries had been caused by a hard and blunt object and that the deceased had died due to hypovolemic and neurogenic shock caused by excessive haemorrhage and accumulation of blood outside the brain membrane. He further stated that the death had occurred approximately 15 to 18 hours prior to the postmortem examination. The postmortem report was proved as Exhibit P-15, bearing his signatures. PW-6 also deposed that the clothes worn by the deceased at the time of the incident were sealed and handed over to the police for forensic examination. 12. During his cross-examination, although PW-6 admitted that he had not specifically mentioned the nature of death in the opinion column of Exhibit P-15, he categorically reiterated that the injuries 7 were ante-mortem, were caused by a hard and blunt object, and that the death was unnatural. He also explained the dimensions of the injuries by stating that the swelling over the face and head had increased the affected area. Nothing substantial could be elicited in his cross-examination to discredit his medical opinion regarding either the cause or the nature of death. 13. The medical evidence furnished by PW-6 stands duly corroborated by the testimony of PW-9, Inspector Prahlad Kumar Sahu, who proved the inquest proceedings (Exhibit P-4) and the post-mortem requisition (Exhibit P-14), as well as by PW-1, Rajesh Kumar Netam, who deposed that when he reached the spot, he found his father lying in a pool of blood with a grievous head injury and thereafter shifted him to the District Hospital, where he was declared dead. 14. Thus, the ocular and documentary evidence, read in conjunction with the unimpeached medical evidence of PW-6 and the postmortem report (Exhibit P-15), conclusively establish that the deceased sustained multiple ante-mortem injuries on vital parts of the body caused by a hard and blunt object, resulting in fatal cranio-cerebral injuries. The defence has not led any evidence nor elicited any material contradiction to probabilise an accidental or natural death. 15. Accordingly, this Court has no hesitation in holding that the prosecution has proved beyond reasonable doubt that the death 8 of the deceased, Ratiram Netam, was homicidal in nature. 16. Now, the next question that arises for consideration is whether the prosecution has been able to prove, beyond reasonable doubt, that the appellant/accused was the perpetrator of the crime in question. 17. In this regard, the prosecution has primarily relied upon the ocular testimony of PW-2 i.e., Mangaluram Dhruv and PW-4 i.e., Nargo Korram, who have been projected as eyewitnesses to the occurrence. Besides them, the prosecution has examined PW-1 Rajesh Kumar Netam, the son of the deceased, PW-5 Chaini Bai, the wife of the deceased, the medical witness PW-6 Dr. Keshavchandra Sahu, and the Investigating Officer PW-9 Inspector Prahlad Kumar Sahu, to establish the complicity of the appellant. 18. Mangaluram Dhruv (PW-2) deposed that on the date of the incident he was engaged in construction work along with PW-4 near the house of the appellant. According to him, he saw the appellant quarrelling with and assaulting his parents and sister. When the deceased objected to the conduct of the appellant and questioned him as to why he was assaulting his parents, the appellant brought a wooden stick and struck the deceased from behind. After receiving the blow, the deceased attempted to run but fell near the drain in front of the house of Deepak Mandavi. (PW-2) further stated that the appellant followed the deceased 9 and again assaulted him with the stick, causing serious injuries to his head. 19. Though PW-2 was declared hostile by the prosecution, he admitted the material portions of his police statement during his examination by the Public Prosecutor. His testimony, insofar as it implicates the appellant in the assault upon the deceased, has remained substantially consistent. During cross-examination, certain admissions were elicited to the effect that he had not gone near the drain and that he did not witness every stage of the occurrence. However, the learned trial Court has rightly observed that these admissions appear to have been made by an uneducated rustic witness who did not fully appreciate the suggestions put to him during cross-examination. Significantly, nothing has been brought on record to discredit his categorical assertion that he had seen the appellant assault the deceased with a wooden stick. It is well settled that the testimony of a hostile witness is not to be discarded in toto and the Court can rely upon such portion of his evidence which inspires confidence and finds corroboration from other evidence on record. 20. The testimony of PW-2 finds substantial corroboration from the evidence of PW-4 Nargo Korram, another eyewitness to the occurrence. PW-4 deposed that on the date of the incident, the appellant was abusing and quarrelling with his parents and sister. Hearing their cries, he and PW-2 proceeded towards the spot. He 10 categorically stated that after the appellant’s parents and sister ran away, the appellant struck the deceased on the back of his head with a wooden stick. The deceased fell down, got up and attempted to flee but again fell near the drain, whereupon the appellant followed him and assaulted him again with the stick, resulting in his death. 21. In his cross-examination, PW-4 admitted that he and PW-2 were working at a distance of about 60-70 metres from the appellant’s house and that while the appellant was quarrelling with his family members it was not clearly visible who was assaulting whom. However, this admission relates only to the earlier quarrel between the appellant and his family members and not to the assault upon the deceased. PW-4 specifically denied the suggestion that he had not witnessed the appellant assaulting the deceased. No material contradiction or omission could be elicited in his cross-examination so as to render his testimony unreliable. His evidence materially corroborates the version of PW-2 regarding the manner of assault and the identity of the assailant. 22. The evidence of Rajesh Kumar Netam (PW-1), though not that of an eyewitness, also lends assurance to the prosecution case. PW-1 stated that while he was at work, he received a telephone call from the appellant’s father informing him that the appellant had assaulted his father. On reaching the place of occurrence, he found the deceased lying near the drain with a grievous head 11 injury. The deceased was immediately taken to the District Hospital, Narayanpur, where he was declared dead. PW-1 thereafter lodged the merg intimation and the First Information Report, which were proved as Exhibit P-1 and Exhibit P-2, respectively. His testimony establishes the prompt reporting of the occurrence and excludes any possibility of false implication after deliberation. 23. Similarly, Chaini Bai (PW-5), the wife of the deceased, is also not an eyewitness. She deposed that she reached the place of occurrence after being informed by the neighbours and found the deceased lying near the drain with bleeding injuries on his head. Though her evidence is hearsay regarding the actual assault, it corroborates the prosecution case regarding the condition of the deceased immediately after the incident and the place where he was found. 24. The ocular account furnished by PW-2 and PW-4 stands fully corroborated by the medical evidence of PW-6 Dr. Keshavchandra Sahu, who proved the postmortem report (Exhibit P-15). The doctor found multiple ante-mortem injuries, including fractures of the parietal and temporal bones and other grievous injuries to the head and face caused by a hard and blunt object. The nature, seat and extent of the injuries are wholly consistent with the eyewitness account that the appellant repeatedly assaulted the deceased with a wooden stick, particularly on the head. 12 25. The investigation carried out by Inspector Prahlad Kumar Sahu (PW-9) also supports the prosecution version to the extent that the FIR (Exhibit P-2), inquest proceedings (Exhibit P-4), spot map (Exhibit P-6), Patwari map (Exhibit P-7), seizure memos (Exhibits P-10 and P-21), postmortem requisition (Exhibit P-14) and other contemporaneous documents were prepared during investigation. Although the prosecution has relied upon the memorandum statement (Exhibit P-9) and seizure of the wooden stick (Exhibit P-11), the learned trial Court itself has found that the recovery could not be said to have been proved beyond reasonable doubt as the independent witnesses did not support the prosecution. Consequently, this Court also does not place reliance upon the alleged recovery of the weapon. However, the failure to prove the recovery does not, by itself, demolish the otherwise cogent ocular evidence of the eyewitnesses, which receives complete corroboration from the medical evidence. 26. The defence has contended that there are material contradictions and omissions in the testimonies of the prosecution witnesses. On an overall evaluation of the evidence, this Court finds that the alleged discrepancies are minor in nature and relate to peripheral aspects of the occurrence. They do not affect the core prosecution case that it was the appellant who assaulted the deceased with a wooden stick after the latter intervened in the quarrel between the appellant and his family members. It is a settled principle of criminal jurisprudence that minor 13 inconsistencies, embellishments or omissions, which do not go to the root of the prosecution case, are liable to be ignored and, in fact, often lend assurance to the truthfulness of the witnesses by demonstrating that their evidence is not a rehearsed version. 27. Accordingly, upon an independent re-appreciation of the entire evidence on record, this Court is satisfied that the prosecution has succeeded in proving beyond reasonable doubt that the appellant was the perpetrator of the crime in question and was the person who inflicted the fatal injuries upon the deceased, Ratiram Netam. The finding recorded by the learned trial Court on the identity and complicity of the appellant, therefore, warrants no interference 28. The aforesaid finding brings us to the next question for consideration, whether the case of the appellants 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? 29. 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 1 (2002) 3 SCC 327 14 upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 30. 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; 2 (2009) 15 SCC 635 15 (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; (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.” 16 31. 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 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. 32. 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 3 (2012) 8 SCC 450 4 (2017) 3 SCC 247 17 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 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 18 advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 33. 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. 34. 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.” 35. 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 5 (2019) 6 SCC 122 19 present case, while the appellant’s actions were undoubtedly culpable, the circumstances suggest that he did not intend to cause the death of the deceased. However, it is evident that he knew that his actions were likely to cause harm. 36. Reverting to the facts of the present case, it is evident from the testimony of PW-2 Mangaluram Dhruv and PW-4 Nargo Korram that the occurrence was not a premeditated one. The evidence on record establishes that immediately prior to the incident, the appellant was quarrelling with his parents and sister. The deceased, Ratiram Netam, intervened and questioned the appellant as to why he was assaulting his parents. It was only thereafter that the appellant picked up a wooden stick lying nearby and assaulted the deceased. There is no material on record to indicate any previous enmity or motive between the appellant and the deceased. The genesis of the occurrence was a sudden quarrel arising out of the intervention made by the deceased, and the incident unfolded on the spur of the moment without any prior planning or premeditation. 37. It is equally significant that the weapon used in the commission of the offence was an ordinary wooden stick and not a deadly weapon carried by the appellant in anticipation of the occurrence. The evidence does not suggest that the appellant had come to the spot with the intention of eliminating the deceased. Rather, the assault was the outcome of a sudden outburst of anger during the 20 course of the altercation. Though the appellant assaulted the deceased with the stick, the circumstances of the case do not indicate that he acted after any deliberation or with a pre- conceived design to cause the death of the deceased. 38. At the same time, the appellant cannot escape criminal liability merely because the occurrence took place on the spur of the moment. The evidence of PW-6 Dr. Keshavchandra Sahu, duly supported by the postmortem report (Exhibit P-15), clearly establishes that the appellant inflicted forceful blows with a hard and blunt object on the head of the deceased, resulting in fatal cranio-cerebral injuries. Any reasonable person would have the knowledge that striking an elderly person on a vital part like the head with a wooden stick is likely to cause death. Therefore, although the requisite intention to commit murder cannot safely be attributed to the appellant, he certainly possessed the knowledge contemplated under Section 299 IPC that his act was likely to cause death. 39. Upon an overall appreciation of the evidence and the attendant circumstances, this Court is satisfied that the present case satisfies the essential ingredients of Exception 4 to Section 300 IPC, namely, that the occurrence took place without premeditation, in the course of a sudden quarrel, in the heat of passion, and that the act was not the result of any prior design or motive. However, having regard to the manner in which the 21 assault was made and the weapon used, it cannot be said that the appellant intended to cause the death of the deceased or intended to inflict such bodily injury as was sufficient in the ordinary course of nature to cause death. Nevertheless, the appellant must be attributed with the knowledge that his act was likely to cause death. 40. In view of the aforesaid discussion and in the light of the principles laid down by the Supreme Court in Sukhbir Singh, Gurmukh Singh, Arjun, Sanjeev Nanda, and Rambir (supra), this Court is of the considered opinion that the conviction of the appellant under Section 302 IPC cannot be sustained. The case would appropriately fall within the ambit of Section 304 Part II IPC, as the appellant had the knowledge that his act was likely to cause death, but the prosecution has failed to establish beyond reasonable doubt that he intended to cause the death of the deceased or intended to cause such bodily injury as was likely to result in death. 41. Consequently, the conviction of the appellants under Section 302 of the Indian Penal Code cannot be sustained and is liable to be set aside. The same is modified to Section 304 Part II IPC, as the act of the appellants clearly discloses knowledge but not intention, thereby bringing the case within the said provision. 42. Considering the facts and circumstances of the case, the nature of assault, the role attributed to the appellant, and the period already 22 undergone i.e., 03 years and 05 months of jail sentence, the sentence of rigorous imprisonment for a period of five (05) years under Section 304 Part II IPC would meet the ends of justice. 43. Accordingly, the conviction of the appellant under Section 302 IPC is set aside. Instead, he is convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for five (05) years. 44. The criminal appeal is partly allowed to the extent indicated herein-above. 45. The appellant is said to be on bail. His bail bonds are cancelled and sureties discharged. He shall surrender within four weeks from today before the concerned trial Court for serving remaining sentence as awarded by this Court, failing which he shall be taken into custody by the Trial Court and sent to jail, in accordance with law. 46. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellants are undergoing the jail term, to serve the same on the Appellants informing them that they are 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. 47. Let a copy of this judgment and the original record be transmitted 23 to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet