[Cites 32, Cited by 0]
Madhya Pradesh High Court
Bundela vs The State Of Madhya Pradesh on 19 February, 2026
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 19th OF FEBRUARY, 2026
CRIMINAL APPEAL No. 7199 of 2019
BUNDELA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Dhirendra Singh Niranjan- learned Counsel for appellants.
Dr. (Ms.) Anjali Gyanani- learned Public Prosecutor for respondent- State.
JUDGMENT
Per: Justice Hirdesh
This instant criminal appeal has been filed by the appellants,
challenging the judgment of conviction and order of sentence dated
19.06.2019 passed by the Second Additional Sessions Judge, Ashok Nagar,
in Sessions Trial No.67 of 2016. By the impugned judgment, appellant No.1-
Bundela was convicted under Section 302 of IPC and sentenced to life
imprisonment with a fine of Rs. 5,000/-, and in case of default, an additional
one year of rigorous imprisonment. Similarly, appellant No.2- Gendalal was
convicted under Section 302 read with Section 34 of IPC and sentenced to
life imprisonment with a fine of Rs. 5,000/-, and in case of default, an
additional one year of rigorous imprisonment.
2. The prosecution's case, in brief, is that on 11.12.2015, complainant
Narayan Singh brought his unconscious father, Khilan Singh, to the Rajpur
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Outpost of Kachnar Police Station. He informed the police that Khilan Singh
had gone to the field in the morning to attend the call of nature, where he had
a verbal altercation with the appellants, Bundela and Gendalal, who are from
the same village. As Khilan Singh was returning home, the appellants
stopped him, and Bundela abused him. Upon objection from Khilan, Bundela
struck him on the left side of his head with a stick, causing bleeding. Khilan
fell to the ground. Gendalal also struck him on the forehead with a stick,
causing further injuries and bleeding. Khilan Singh fell unconscious, and the
appellants ran toward the field. The incident was witnessed by Narayan
Singh, Arvind Ahirwar, and Santosh Dangi. After the attack, Bundela and
Gendalal ran away.
3. On the basis of the complainant's report, Assistant Sub-Inspector
Amarchandra Sharma (PW12), posted at PS Rajpur, registered FIR vide
Crime No. 56 of 2015 under Sections 324, 323, 294, 341, 506-B, and 34 of
IPC. The FIR was later transferred to PS Kachnar, where it was registered as
Crime No. 234 of 2015 under Sections 307, 324, 294, 341, 506-B, and 34 of
IPC. After Khilan Singh succumbed to his injuries during treatment, Section
302 IPC was added to the charges.
4. The trial Court examined 18 prosecution witnesses and various
documents, including the postmortem report and FSL report, and after
completing the trial, convicted and sentenced the appellants as stated above.
5. The appellants, dissatisfied with the conviction and sentence, filed
this appeal, contending that the trial court had failed to properly evaluate the
evidence and that the contradictions in the prosecution's case make it
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doubtful. They also contended that the evidence from eyewitnesses PW-4
Narayan Singh and PW-6 Arvind Ahirwar, both of whom are related to the
deceased, is unreliable. Additionally, it was argued that the injuries sustained
by the deceased could have resulted from a fall, not an intentional attack, and
that the offense should fall under Section 304 Part II of IPC, rather than
Section 302 of IPC.
6. The learned counsel for the State, however, argued that the death of
Khilan Singh was homicidal, as confirmed by the postmortem report. The
injuries inflicted on the deceased were intentional and not accidental. The
appellants acted in furtherance of a common intention to kill the deceased, as
both struck him with sticks, causing fatal injuries. The trial Court's judgment
of conviction under Section 302 IPC was supported by the medical evidence
and the eyewitnesses.
7. Heard the learned counsel for the parties.
8. The main issues for determination in this appeal are:
(i) Whether the death of the deceased, Khilan Singh, was
homicidal in nature?
(ii) Whether the appellants, in furtherance of their common
intention, caused the death of the deceased?
(iii) Whether the acts committed by the appellants fall within
the ambit of Section 302 IPC or Section 304 Part II of IPC?
Issue (i) - Whether the death of the deceased, Khilan Singh, was
homicidal in nature?
9. PW-4 Narayan Singh, the complainant and son of deceased,
deposed in his evidence that on the date of ncident, 11.12.2015, he witnessed
accused, Bundela and Gendalal, assaulting his father, Khilan Singh, with
sticks. The accused struck the deceased on the head and forehead, which
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resulted in bleeding from those areas as well as from the nose and ears. This
witness further deposed that after the assault, his father Khilan fell
unconscious and was later taken for medical treatment, where he ultimately
died due to the injuries inflicted by the accused.
10. PW-6 Arvind Ahirwar, another eyewitness to the incident,
corroborated the complainant's account. This witness deposed in his
evidence that he saw both appellants, Bundela and Gendalal, strike Khilan
Singh on the head and forehead with sticks. He further deposed that deceased
was bleeding profusely from his forehead and nose as a result of the blows
and the injuries were serious and consistent with those caused by an assault.
11. PW-14 Gopilal Jatav deposed in his evidence that upon receiving
information from Head Constable Raghuveer Singh about the inquest, he
registered original inquest report No.21/15 under Section 174 of CrPC,
1973. This was later documented as Exhibit P25. This witness further
deposed that a Safina Form regarding the body of deceased was issued
(Exhibit P7), along with a Panchnama map (Exhibit P8) and a receipt for the
body (Exhibit P9).
12. PW-10 Nitesh Kumar Jain, Medical Officer at PHC Rajpur,
conducted a preliminary examination of deceased on 11.12.2015 at 10:30
A.M. This witness found the following injuries on the body of deceased: (i)
a lacerated wound measuring 2 x 2.5 cm around the nose, extending towards
the head; (ii) a lacerated wound measuring 3 x 1 x 0.25 cm on the nose and
upper lip; (iii) a contusion on the left temporal region measuring 3 cm in
length; and (iv) bleeding from the left ear, with no external injury observed
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on the ear itself. This witness further deposed that the general condition of
deceased was extremely poor, with a low blood pressure reading of 90/60
and a heart rate of 62. The deceased was unconscious and disoriented at the
time of examination. The injuries were determined to have been caused by a
hard, blunt object, and the time of occurrence was within six hours of the
examination. The deceased was immediately referred to District Hospital,
Ashok Nagar for further treatment.
13. PW-1 Dr. Ashok Sharma deposed in his evidence that he had
performed postmortem of the deceased on 12.12.2015 and found the
following external injuries:(i) a bruise of 0.4 cm in diameter on the forehead;
(ii) several smaller bruises on the nose, with a lacerated wound measuring
1.2 x 0.3 cm which had been surgically sutured; (iii) a lacerated wound
measuring 1.5 x 0.4 cm on the left side of the head, and a depressed fracture
on the left side of the skull measuring 2 x 5 cm extending to the eardrum and
continuing to the surface of the skull; and (iv) a lacerated wound measuring
0.3 cm in diameter on the left ear. This witness further deposed that the face
of deceased was covered with blood, his eyes and mouth were closed, and
blood was oozing from both his nose and mouth, indicating severe trauma.
The cause of death was determined to be due to the injuries sustained to the
head, including the depressed fracture and the blunt force trauma.
14. Looking at the evidence of aforesaid witnesses and the medical
evidence, it is clear that the cause of death of deceased was homicidal in
nature. There is no indication of an accidental or natural cause.
Issue (ii) - Whether the appellants, in furtherance of their common
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intention, caused the death of the deceased?
15. Learned Counsel for appellants submits that PW-4 Narayan Singh
and Arvind Ahirwar (PW-6) are related witnesses and there are material
contradictions and embellishments, therefore, their evidence are not
reliable.
16. It is well- established principle of law that evidence of a ''related
witness'' cannot be discarded on the said ground. The Hon'ble Apex Court in
the case of Rizan vs. State of Chhatisgarh reported in (2003) 2 SCC 661 has
held as under:-
''6. We shall first deal with the contention regarding interestedness
of the witnesses for furthering prosecution version. Relationship is
not a factor to affect credibility of a witness. It is more often than
not that a relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be laid if
plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether
it is cogent and credible.
7. In Dalip Singh and Ors. v. The State of Punjab , AIR (1953) SC
364 it has been laid down as under:-
"A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily a close
relation would be the last to screen the real culorit and falsely
implicate an innocent person. It is true, when feelings run high and
there is personal cause for enmity, there is a tendency to drag in an
innocent person against whom a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a
sure guarantee of truth. However, we are not attempting any
sweeping generalization. Each case must be judged on its own
facts. Our observations are only mads to combat what is so often
put forward in cases before us as a general rule of prudence. There
is no such general rule. Each case must be limited to and be
governed by its own facts.
8. The above decision has since been followed in Guli Chand and
Ors. v. State of Rajasthan, [1974] 3 SCC 698 in which Vadivelu
Thevar v. State of Madras, AIR (1957) SC 614 was also relied
upon.
9 . We may also observe that the ground that the witness being a
close relative and consequently being a partisan witness, should
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not be relied upon has no substance. This theory was repelled by
this Court as early as in Dalip Singh's case supra in which surprise
was expressed over the impression which prevailed in the minds
of the Members of the Bar that relatives were not independent
witnesses. Speaking through Vivian Bose. J. it was observed:
"We are unable to agree with the learned Judges of the High Court
that the testimony of the two eyewitnesses requires corroboration.
If the foundation for such an observation is based on the fact that
the witnesses are women and that the fate of even men hangs on
their testimony, we know of such rule. If it is grounded on the
reason that they are closely related to the deceased we are unable
to concur. This is a fallacy common to may criminal cases and one
which another Bench of this Court endeavoured to dispel in
Rameshwar v. State of Rajasthan , AIR (1957) SC 54 at p.59). We
find, however, that the unfortunately still persists, if not in the
judgments of the Courts, at any rate in the arguments of counsel."
10. Again in Masalti and Ors. v. State of U.P.. AIR (1965) SC 202
this Court observed; 202-210 para 14;
"But it would, we think, be unreasonable to contend that evidence
given by witnesses should be discarded only on the ground that it
is evidence of partisan or interested witnesses.......The mechanical
rejection of such evidence on the sole ground that it is partisan
would invariably lead to failure of justice. No hard and fast rule
can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautions in dealing with such
evidence: put the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct."
11. To the same effect is the decision in State of Punjab v. Jagir
Singh, AIR (1973) SC 2407 and Lebna v. State of Haryana, [2002]
3 SCC 76.''
17. Thus, it is clear that the evidence of a ''related witness' cannot be
discarded only on the ground of relationship. On the contrary, why a ''related
witness'' would spare the real culprit in order to falsely implicated some
innocent person? There is a difference between ''related witness'' and
''interested witness''. ''Interested witness'' is a witness who is vitally interested
in conviction of a person due to previous enmity. The ''interested witness''
has been defined by the Hon'ble Apex Court in the case of Mohd. Rojali Ali
vs. State of Assam, reported in (2019) 19 SCC 567 as under:-
''13. As regards the contention that all the eyewitnesses are close
relatives of the deceased, it is by now well-settled that a related
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witness cannot be said to be an 'interested' witness merely by
virtue of being a relative of the victim. This Court has elucidated
the difference between 'interested' and 'related' witnesses in a
plethora of cases, stating that a witness may be called interested
only when he or she derives some benefit from the result of a
litigation, which in the context of a criminal case would mean that
the witness has a direct or indirect interest in seeing the accused
punished due to prior enmity or other reasons, and thus has a
motive to falsely implicate the accused (for instance, see State of
Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar
Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati
Venkat Reddy, (2013) 15 SCC298). Recently, this difference was
reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549,
in the following terms, by referring to the threeJudge bench
decision in State of Rajasthan v. Kalki (supra):
14. "Related" is not equivalent to "interested". A witness may be
called "interested" only when he or she derives some benefit from
the result of a litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a natural one and is
the only possible eye witness in the circumstances of a case cannot
be said to be "interested"...In criminal cases, it is often the case
that the offence is witnessed by a close relative of the victim,
whose presence on the scene of the offence would be natural. The
evidence of such a witness cannot automatically be discarded by
labelling the witness as interested. Indeed, one of the earliest
statements with respect to interested witnesses in criminal cases
was made by this Court in Dalip Singh v. State of Punjab, 1954
SCR 145, wherein this Court observed:
"26. A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily, a close
relative would be the last to screen the real culprit and falsely
implicate an innocent person..."
15. In case of a related witness, the Court may not treat his or her
testimony as inherently tainted, and needs to ensure only that the
evidence is inherently reliable, probable, cogent and consistent.
We may refer to the observations of this Court in Jayabalan v.
Union Territory of Pondicherry, (2010) 1 SCC 199:
"23. We are of the considered view that in cases where the Court
is called upon to deal with the evidence of the interested
witnesses, the approach of the Court while appreciating the
evidence of such witnesses must not be pedantic. The Court must
be cautious in appreciating and accepting the evidence given by
the interested witnesses but the Court must not be suspicious of
such evidence. The primary endeavour of the Court must be to
look for consistency. The evidence of a witness cannot be ignored
or thrown out solely because it comes from the mouth of a
person who is closely related to the victim."
18. Thus, is a witness has a direct or indirect interest in seeing the
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accused punished due to prior enmity or other reasons, and has a strong
motive to falsely implicated the accused, then he would be called an
''interested witness''.
19. Narayan Singh (PW-4), in his evidence, deposed that on the
morning of the incident at about 7:30 AM, his father, Khilan Singh, went to
the field to attend the call of nature. He was at his well, which is about 200
feet from the field. He saw a verbal argument break out between his father
and the accused, Bundela and Gendalal. He intervened and calmed them
down. After his father returned home and brushed his teeth, both of them
started walking to Rajpur Police Station to report the verbal abuse. While
they were walking, the accused stopped them at a culvert. This witness
further deposed that accused Bundela hit his father on the head with a stick,
and then accused Gendalal hit him with the same stick. This caused heavy
bleeding from the nose and ears of his father. He further deposed that they
were walking, not on a motorcycle, and his nephew Arvind and neighbor
Santosh were following them.
20. Arvind Ahirwar (PW-06) deposed in his evidence that he was
following his grandfather towards the market when the attack happened. He
stated that the culvert and market are located at the same place. He saw
accused Bundela hit Khilan Singh on the left side of the head, causing him to
fall on the culvert, and he saw Gendalal hit Khilan on the forehead and nose.
During cross-examination, this witness admitted that there was an old land
dispute between the families. While he could not count the exact number of
blows, he insisted that he saw the assault. He further deposed that after the
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attack, his uncle Narayan arrived at the spot first, followed by others.
21. The fact that these two witnesses are related to the deceased is not
in dispute. The existence of such relationship by itself does not render the
evidence of these witnesses untrustworthy, and their evidence cannot be
discarded if it is reliable. On perusal of the evidence of these witnesses, it
was found that they remained intact in their cross-examination regarding the
presence of the appellants at the spot, and their presence at the spot is not
doubtful. Their evidence was also supported by medical evidence.
22. The evidence shows that both appellants acted in unison, using
sticks to strike the deceased on vital parts of his body, i.e., the head and
forehead. The nature of the attack, the weapon used (sticks), and the injuries
sustained indicate that both appellants had a common intention to cause harm
to the deceased. The evidence of PW-4 and PW-6, corroborated by the
medical evidence, supports the conclusion that the appellants, in furtherance
of their common intention, caused the injuries that led to the death of Khilan
Singh.
Issue (iii) - Whether the acts committed by the appellants fall within
the ambit of Section 302 IPC or Section 304 Part II of IPC?
23. Section 299 IPC defines "culpable homicide", Section 300 defines
"murder" carving out five Exceptions and Section 304 provides for
"punishment for culpable homicide not amounting to murder," as under:-
"299. Culpable homicide .-Whoever causes death by doing an act
with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits
the offence of culpable homicide.
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300. Murder.--Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or--
(Secondly) --If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the death
of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--Culpable
homicide is not murder if the offender, whilst deprived of the
power of self-control by grave and sudden provocation, causes the
death of the person who gave the provocation or causes the death
of any other person by mistake or accident. The above exception is
subject to the following provisos:--
(First) --That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm to
any person. (Secondly) --That the provocation is not given by
anything done in obedience to the law, or by a public servant in
the lawful exercise of the powers of such public servant.
(Thirdly) --That the provocation is not given by anything done in
the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2.--Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him
by law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards the person
whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the
provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
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suffers death or takes the risk of death with his own consent. 304.
Punishment for culpable homicide not amounting to murder.--
Whoever commits culpable homicide not amounting to murder
shall be punished with imprisonment for life, or imprisonment of
either description for a term which may extend to ten years, and
shall also be liable to fine, if the act by which the death is caused
is done with the intention of causing death, or of causing such
bodily injury as is likely to cause death, or with imprisonment of
either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it
is likely to cause death, but without any intention to cause death,
or to cause such bodily injury as is likely to cause death."
24. In the matter of Virsa Singh Vs State of Punjab A.I.R 1958 SC 465
Hon'ble Supreme Court laid down four elements to establish that an offence
is a murder under Section 300 "thirdly" as under:-
"12. To put it shortly, the prosecution must prove the following
facts before it can bring a case under s. 300, 3rdly " ; First, it must
establish, quite objectively, that a bodily injury is present ;
Secondly, the nature of the injury must be proved; These are
purely objective investigations. Thirdly, it must be proved that
there was an intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional, or that some
other kind of injury was intended. Once these three elements are
proved to be present, the enquiry proceeds further and, Fourthly, it
must be proved that the injury of the type just described made up
of the three elements set out above is sufficient to cause death in
the ordinary course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with the intention
of the offender." (Emphasis supplied by us)
25. In the matter of Anda and others vs. State of Rajasthan A.I.R. 1966
SC 148, (Four judges bench) (Paras 10, 11 and 20, 1965 SCC Online SC 46)
Hon'ble Supreme Court explained Section 300 "thirdly" and laid down the
law that the third clause views the matter from a general stand point. It
speaks of an intention to cause bodily injury which is sufficient in the
ordinary course of nature to cause death. The emphasis here is on the
sufficiency of the injury in the ordinary course of nature to cause death. The
sufficiency is the high probability of death in the ordinary way of nature and
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when this exists and death ensues and the causing of such injury is intended
the offence is murder. Sometimes the nature of the weapon used, sometimes
the part of the body on which the injury is caused, and sometimes both are
relevant. The determinant factor is the intentional injury which must be
sufficient to cause death in the ordinary course of nature. If the intended
injury cannot be said to be sufficient in the ordinary course of nature to cause
death, that is to say, the probability of death is not so high, the offence does
not fall within 'murder' but within culpable homicide not amounting to
murder or something less. The sufficiency of an intentional injury to cause
death in the ordinary way of nature is the gist of the clause irrespective of an
intention to cause death. Here again, the exceptions may bring down the
offence to culpable homicide not amounting to murder.
26. In the scheme of IPC, "culpable homicide" is the genus and
"murder" is its specie. All murder is culpable homicide but not vice-versa.
For the purpose of fixing punishment, proportionality to the gravity of
generic offence, IPC practically recognizes three degrees of culpable
homicide, firstly murder as defined in Section 300 IPC; secondly, culpable
homicide punishable under Section 304 Part I and thirdly, lowest type of
culpable homicide punishable under section 304 Part II. There is fine
difference between the two parts of Section 304 of the IPC. Under the first
part, the crime of murder is first established and the accused is then given the
benefit of one of the exceptions to Section 300 of the IPC, while under the
second part, the crime of murder is never established at all. Therefore, for the
purpose of holding an accused guilty of the offence punishable under the
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second part of Section 304 of the IPC, the accused need not bring his case
within one of the exceptions to Section 300 of the IPC.
27. Culpable Homicide Not Amounting to Murder: - Explaining the
provisions of Section 299 and Clauses secondly and thirdly of Section 300
IPC, Hon'ble Supreme Court held that in clause secondly, mens rea is the
knowledge possessed by the offender regarding particular victim being in
such a peculiar condition or state of health with internal harm caused to him
is likely to be fatal notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a person in a normal
health or condition. The intention to cause death is not the essential
requirement of clause secondly but it is only the intention of causing such
bodily injury as the offender knows to be likely to cause the death of the
person to whom harm is caused. If assailants had no knowledge about the
disease or special frailty of the victim nor an intention to cause death or
bodily injury sufficient in the ordinary course of nature to cause death the
offence will not be murder even if the injury which caused the death was
intentionally given. In Clause thirdly of Section 300 instead of the words
"likely to cause death" used of the words "sufficient in the ordinary course
of nature to cause death" shows the degree of probability of death resulting
from the intended bodily injury. It is the probability of death which
determines whether a culpable homicide is of the gravest, medium or the
lowest degree. "Bodily injury sufficient in the ordinary course of nature to
cause death" means that death will be the most probable result of the injury
having regard to the ordinary course of nature. Clause fourthly of Section
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300 is applicable where the knowledge of the offender as to the probability
of death of a person in general as distinguished from a particular person
being caused from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must be of the highest
degree of probability.
28. In the matter of Khokhan alias Khokan Vishwas vs. State of
Chhattisgarh (2021) 3 SCC 365 (Paras 9 and 12), Hon'ble Supreme Court
considered Exception 4 to Section 300 IPC and held, as under:
"9. Section 300 of the IPC is in two parts. The first part is when
culpable homicide can be said to be the murder and the second
part is the exceptions when the culpable homicide is not murder.
The relevant part of Section 300 IPC for our purpose would be
clause 4 to Section 300 and exception 4 to Section 300 IPC. As
per clause 4 to Section 300 IPC, if the person committing the act
knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the
risk of causing death or such injury, such culpable homicide can
be said to be the murder. However, as per exception 4 to Section
300, culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner. As per
explanation to exception 4 to Section 300 IPC, it is immaterial in
such cases which party offers the provocation or commits the first
assault.''
29. In the case of Dheerajbhai Gorakhbhai Nayak vs. State of Gujarat,
(2003) 9 SCC 322 (Para 11), Hon'ble Supreme Court discussed the
ingredients of Exception 4 of Section 300 IPC and held that help of
Exception 4 can be invoked if death is caused (a) without premeditation (b)
in a sudden fight (c) without the offenders having taken undue advantage or
acted in a cruel or unusual manner and (d) the fight must have been with the
person killed. Heat of passion requires that there must be no time for the
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passions to cool down.
30. In the matter of Pulicherla Nagaraju vs. State of A.P. (2006) 11
SCC 444 (Para 29), Hon'ble Supreme Court held, as under:-
"29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304 Part
II. Many petty or insignificant matters -- plucking of a fruit,
straying of cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There
may be no intention. There may be no premeditation. In fact, there
may not even be criminality. At the other end of the spectrum,
there may be cases of murder where the accused attempts to avoid
the penalty for murder by attempting to put forth a case that there
was no intention to cause death. It is for the courts to ensure that
the cases of murder punishable under Section 302, are not
converted into offences punishable under Section 304 Part I/II, or
cases of culpable homicide not amounting to murder, are treated as
murder punishable under Section 302. The intention to cause death
can be gathered generally from a combination of a few or several
of the following, among other, circumstances: (i) nature of the
weapon used; (ii) whether the weapon was carried by the accused
or was picked up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force employed in
causing injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi) whether the
incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased
was a stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused dealt a single
blow or several blows. The above list of circumstances is, of
course, not exhaustive and there may be several other special
circumstances with reference to individual cases which may throw
light on the question of intention. Be that as it may."
(Emphasis supplied
by us).
30. Thus, Part-I of Section 304 IPC is applicable if the act by
which the death is caused is done (i) with the intention of causing
death, or, (ii) with the intention of causing such bodily injury as is
likely to cause death. Part-II of Section 304 IPC is applicable if
the act causing death is done (i) with the knowledge that it is likely
to cause death, but without any intention to cause death, or (ii)
with the knowledge to cause such bodily injury as is likely to
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cause death. The word "intention" as used in Part-I is absent in
Part-II. Part-II shall be applicable where the intention as used in
Part-I is absent but the act is done unintentionally by an accused
with knowledge that his act is likely to cause death or the act is
done unintentionally to cause such bodily injury as is likely to
cause death. There is fine difference between the two parts of
Section 304 of the IPC. Under the first part, the crime of murder is
first established and the accused is then given the benefit of one of
the exceptions to Section 300 of the IPC, while under the second
part, the crime of murder is never established at all. Therefore, for
the purpose of holding an accused guilty of the offence punishable
under the second part of Section 304 of the IPC, the accused need
not bring his case within one of the exceptions to Section 300 of
the IPC. In determining the question, whether an accused had
guilty intention or guilty knowledge in a case where only a single
injury is inflicted by him and that injury is sufficient in the
ordinary course of nature to cause death, the fact that the act is
done without premeditation in a sudden fight or quarrel, or that the
circumstances justify that the injury was accidental or
unintentional, or that he only intended a simple injury, would lead
to the inference of guilty knowledge, and the offence would be
one under Section 304 Part II of the IPC.
31. Similarly, in the case of Indrasan vs. State of Uttar Pradesh,
(2009) 14 S.C.C. 532, the facts were that buffaloes belonging to the father of
the deceased were impounded and taken to the contractor but were released
subsequently and therefore there was some grudge of the accused being an
employee of the contractor against the deceased when on the next day the
accused saw the deceased he got infuriated and picked up his lathi and gave
one blow on the head of the deceased and ran away. The deceased died.
Hon'ble Supreme Court held that the lathi blow was so forceful that as a
consequence thereof the deceased died within an hour before he could be
taken to the hospital and therefore it is a case of culpable homicide not
amounting to murder but considering the nature of injuries caused on a vital
part of the body accordingly altered the conviction of the accused from
Section 302 IPC to 304 Part I IPC and sentenced for 10 years imprisonment.
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32. Similarly, in the case of Ananta Kamilia vs. State of West Bengal
(2020) 2 SCC 511 Hon'ble Supreme Court while observing that the incident
had taken place on the spur of moment and after some altercation the accused
took lathi and caused the injury on the head of the deceased resulting in his
death; held that there does not appear any intention on the part of the
accused to cause the very injury which ultimately led to the death of the
deceased and there does not appear to be any premeditation or intention to
kill the deceased. The death resulted due to injury in quarrel. Accordingly,
Hon'ble Supreme Court held that the case would fall under Exception 4 to
Section 300 IPC and converted the conviction of the accused under Section
302 IPC to Section 304 Part I and sentenced to undergo imprisonment for 10
years.
33. Further, in the matter of Jugut Ram vs. State of Chhattisgarh
(2020) 9 SCC 520, Hon'ble Supreme Court held that "a lathi is a common
item carried by a villager in this country linked to his identity" which is
capable of being used as a weapon of assault but it does not make it a
weapon of assault simplicitor and, therefore, assault on the head with a lathi
is always a question of fact in each case whether there was intention to cause
death or only knowledge that death was likely to occur. Hon'ble Supreme
Court altered conviction of the accused from Section 302 IPC to Section 304
IPC Part II IPC.
34. After a through evaluation of the evidence and the legal
provisions, discussed above, it is found that the dispute was not a pre-
planned attempt to kill Khilan Singh. The incident originated from a sudden
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and petty disagreement regarding the call of nature in the fields, which
escalated into a physical confrontation in the heat of passion. The appellants
did not go to the deceased's house to launch an attack; rather the
confrontation occurred while the parties were already abusing and moving
towards the police station. While the act committed by the appellants was
intentional, the circumstances of the case suggest that the attack was not
premeditated. The altercation arose suddenly due to a verbal disagreement,
and the injury was inflicted in the heat of the moment. There was no clear
intention to commit murder, but the appellants did act with knowledge that
their actions could lead to death.
35. Given that the attack occurred in a moment of passion and the
injuries were caused by a common weapon (stick), we find that the offense
falls under Section 304 Part II of IPC, which relates to culpable homicide not
amounting to murder. The case does not meet the criteria of murder under
Section 302 IPC, but rather, the circumstances suggest that the appellants
acted with the knowledge that the injuries inflicted were likely to cause
death.
36. The appellants are, therefore, convicted under Section 304 Part II
of IPC and sentenced to 10 years of rigorous imprisonment (RI). The
sentence of fine and the default stipulation as imposed by the trial Court (Rs.
5,000/- each, and in case of default, an additional one year of RI) shall
remain intact.
37. In view of the above findings, the criminal appeal is partly
allowed. The conviction of Appellant No. 1, Bundela, under Section 302
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IPC, and Appellant No. 2, Gendalal, under Section 302 read with Section 34
IPC, is hereby modified. The conviction is converted to Section 304 Part II
IPC, and the appellants are sentenced to undergo 10 years of rigorous
imprisonment. The sentence of fine and default stipulation shall remain as
ordered by the trial Court.
38. The period of incarceration already undergone by the appellants
shall be set off against the modified sentence. On completion of the period of
10 years of rigorous imprisonment, the appellants shall be released forthwith,
provided they have deposited the fine amount and are not required in
connection with any other offence.
39. A copy of this judgment be sent to the trial Court and the
concerned Jail Superintendent for immediate compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
