Mohammed Afsar vs State Of Chhattisgarh

Ramesh Sinha, CJ

Though the appellants/convicts have filed separate criminal appeals, however, as all the appellants/convicts have been convicted and sentenced by a common judgment, all these appeals are considered and decided together by this common judgment.

The appellants have filed these appeals under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 24.07.2021 passed in Sessions Trial No. 09/2019 by the 13th Additional Sessions Jude, Raipur, District Raipur, by which the learned Additional Sessions Judge has convicted and sentenced the appellants as under:

Conviction under Section

Sentence (Rigorous imprisonment)

Fine

In default of payment of fine additional rigorous imprisonment

506-II of the Indian Penal Code (for short, the IPC)

03 years

147 IPC

02 years

148 IPC

02 years

323 read with Section 149 IPC

01 year

324 read with Section 149 IPC (two counts)

03 years

325 read with Section 149 IPC (two counts)

03 years

Rs. 500/-

1 month

302 read with Section 149 IPC

Imprisonment for life

Rs. 1000/-

1 month

All the sentences have been directed to run concurrently.

Case of the prosecution, in short, is that the complainant-Jagadhar Nishad (PW-3) is the resident of Bhawani Nagar, Boriyakhurd, Police Station Tikrapara, Raipur. On the date of incident i.e. on 22.08.2018 at about 11:30 p.m. the complainant alongwith Kheduram (PW-1), Umesh Yadav (PW-4) and Lakhan Yadav (PW-7) were standing near their houses and talking. Near to them, Rajesh Dhiwar and some other boys of the said locality were playing ludo. At that time, Shabbu @ Shahbaz Khan, Mohammad Bashir and Mohammad Saleem Khan, who were coming on a motor-cycle from the side of RDA Colony and were going towards Santoshi Nagar. They were making some noises and uttering filthy words which was objected to by the complainant. Being infuriated by the said act, all the three accused persons after getting off of their motor cycle threatened to kill him. The accused Shabbu @ Shahbaz took out a knife and shouted that he would kill him and gave a knife blow on the neck of the complainant, however, in order to save himself, he bent down because of which he sustained knife injury under the left eye. Kheduram Yadav (PW-1), Umesh Yadav (PW-4), Lakhan Yadav (PW-7), Rajesh Dhiwar (deceased) came to rescue the complainant upon which the accused Shabbu @ Shahbaz Khan made a phone call on his mobile and called other accused Mohammad Ishan, Mohammad Afsar and Mohsin Khan. Thereafter, all the accused started assaulting them with knife, bamboo stick, bricks, hands and fists. Accused Shabbu @ Shahbaz Khan assaulted Rajesh Dhiwar, who had intervened to stop the quarrel, with a knife on his stomach who was admitted to the hospital. The further allegation against the appellants/convict is that they have also assaulted the injured Umesh, Khedu Yadav,Lakhan Yadav, and Rupa Bai by means of knife, stone, hands and fist and bamboo stick.

Dehati Nalishi (Exhibit P/6) was recorded on the complaint of Jagadhar Nishad (PW-3) on 23.08.2018 at about 00:35 hours at Medical College Hospital, Raipur bearing Crime No. 0/2018 for the offences under Section 147, 148, 149, 294, 506, 323 and 307 of the Indian Penal Code against the convict/appellant Shabbu @ Shahbaz Khan, Mohammad Saleem, Mohammad Bashir Chishti, Mohammad Ishan and Mohammad Afsar and Mohammad Mohsin Khan. On the basis of said Dehati Nalishi, the First Information Report (Exhibit P/46) bearing Crime No. 359/2018 was registered by the police of Police Station Tikrapara, District Raipur on 23.08.2018 at 02:35 hours.

During the course of treatment, the injured Rajesh Dhiwar @ Tikaram Dhiwar expired upon which a merg intimation bearing No. 0/17/2018 was recorded on the information given by one Balak Das Bharti of V.Y.Hospital, Raipur wherein it was informed that the deceased had died because of stab injuries. The deceased succumbed to the injuries on 23.08.2018 at about 01:54 a.m. Accordingly, after preparation of the inquest report (Exhibit P/3), the dead body was sent for postmortem. As it was opined in the postmortem report (Exhibit P/37), the offence under Section 302 and 25, 27 of the Arms Act were added.

During the process of investigation, MLC of the injured were conducted, spot map was prepared, blood stained soil, plain soil, pieces of bricks, the clothes of the deceased, etc. were seized. Memorandum of the accused were taken and on the basis of their memorandum, the vehicle used, mobile, knife, bamboo stick were seized. The convict/appellants were arrested regarding which information was sent to their relatives. Statement of the witnesses were recorded and the seized articles were sent to the Forensic Science Laboratory (FSL) for examination. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, which was registered as Criminal Case No. 7051/2018. The learned JMFC, Raipur, after examining the matter, committed the case to the Court of Sessions vide his order dated 31.12.2018 and the same was registered as Sessions Trial No. 09/2019.

Charges were framed by the learned trial Judge on 13.03.2019 against the convict/appellants for the offences under Section 294, 506-II, 307 read with Section 34, 147, 148, 307 read with Section 149 and Section 302 read with Section 149 of the IPC. The convict/appellants abjured the guilt and prayed for trial.

Amongst others, the prosecution has exhibited the following documents in support of its case:

·         Spot map (Exhibit P/1)

·         Summons U/s. 175 Cr.P.C. (Exhibit P/2)

·         Inquest report (Exhibit P/3)

·         Property seizure memo (Exhibit P/4)

·         Dead Body Supurdnama (Exhibit P/5)

·         Dehati Nalishi (Exhibit P/6)

·         Crime Details Form (Exhibit P/7)

·         Memorandum (Exhibit P/8 to P/10)

·         Property seizure memo (Exhibit P/11 to P/17)

·         Arrest memo (Exhibit P/18 to P/23)

·         X-ray report of Mrs. Rupa Dhiwar (Exhibit P/24)

·         X-ray report of Lakhan (Exhibit P/25)

·         Memo regarding preparation of spot map (Exhibit P/26)

·         Application for medical examination of Jagadhar Nishad and medical examination report (Exhibit P/27)

·         Treatment sheet of Jagadhar Nishad (Exhibit P/28)

·         Application for medical examination of Kheduram and Medical Examination report (Exhibit P/29)

·         Referral slip of Khedu Ram referring to Department of Neurosurgery (Exhibit P/30)

·         Application for medical examination of Umesh Yadav and medical examination report (Exhibit P/31)

·         Umesh Yadav’s referral slip to Department of Plastic Surgery (Exhibit P/32)

·         Application for medical examination of Lakhan Lal Yadav and Medical Examination Report (Exhibit P/33)

·         Lakhan Lal Yadav’s referral slip to Department of Orth. (Exhibit P/34)

·         Application for medical examination of Smt. Roopa Bai and medical examination report (Exhibit P/35)

·         Roopa Bai Dheewar’s referral slip to Dept. of Neuro Surgery (Exhibit P/36)

·         Application for postmortem and postmortem report (Exhibit P/37)

·         Memo for query of seized knife and bamboo stick (Exhibit P/38)

·         Query report (Exhibit P/39)

·         Diagram of knife (Exhibit P/40)

·         Diagram of Bamboo Stick (Exhibit P/41)

·         Property seizure memo (Exhibit P/42)

·         Vehicle Sale Agreement (Exhibit P/43)

·         Statement of Shailendra Kumar Yadav (Exhibit P/44)

·         Duty Certificate (Exhibit P/45)

·         First Information Report (Exhibit P/46)

·         Merg Intimation (Exhibit P/47 and P/48)

·         Memo for FSL report (Exhibit P/49)

·         Receipt of Exhibits (Exhibit P/50)

·         X-ray report of Lakhan, Roopa and KhedoRam (Exhibit P/51, P/52 and P/53)

·         Arrest Information (Exhibit P/54 to P/58)

In order to bring home the offence, prosecution examined as many as 23 witnesses namely, Khedu Ram Yadav (PW-1), Tilak Prasad Sahu (PW- 2), Jagadhar Nishad (PW-3), Umesh Yadav (PW-3), Umesh Yadav (PW-4), Faguwaram (PW-5), Roopa Bai (PW-6), Lakhan Yadav (PW-7), Dr. Hulesh Mandle (PW-8), Shweta Vaishnav (PW-9), Dr. Nidhi Tembhurnikar (PW-10), Dr. S.N.Manjhi (PW-11), Azmat Khan (PW-12), Shailendra Kumar Yadav (PW-13), Leela Yadav (PW-14), Rekha Nishad (PW-15), Ghanshyam Singh Thakur (PW-16), Santosh Singh (PW-17), Anil Kumar Sahu (PW-18), Jagatram Yadav (PW-19), Dinesh Kumar Sinha (PW-20), Arun Kumar Kurre (PW-21), Dr. Jitendra Kumar Tamrakar (PW-22) and Manoharlal Sinha (PW-23).

The statement of the convicts/appellants were recorded under section 313 CrPC. They have expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they are innocent and have been falsely implicated.

In support of their case, the convict/appellants got the statement of Khedu Ram Yadav, Jagadhar Nishad, Umesh Yadav, Roopa Dhimar, Leela Yadav and Rekha Nishad exhibited as Exhibit D/1 to D/5, respectively.

The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants/convict as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict.

Mr. Pawan Shrivastava, learned counsel appearing for the convict/appellant-Shahbaz Khan @ Shabbu would submit that though the main accused in this case is Shahbaz Khan who is alleged to have inflicted knife injury to the injured Jagadhar (PW-3) and the deceased Rajesh Dhiwar, however, as the incident took place in a heat of passion and there was no premeditation or common intention of the accused persons to cause death of the deceased, the same would not not fall under the category an offence under Section 302 of the IPC.

Mr. Sanjay Agrawal, Mr. Sourabh Sharma, Mr. Shailesh Tiwari learned counsel appearing for the respective convicts/appellants would submit that it cannot be denied that the quarrel between the parties took place on the date of incident. The main allegation is against the accused-Shahbaz Khan who is alleged to have used knife to cause injuries to the complainant Jagadhar (PW-3) and the deceased Rajesh Dhiwar. Mohammad Basheer is alleged to have assaulted the injured Lakhan (PW-7), Rupa (PW-6) and Khedu Ram (PW-1) with bamboo stick, Mohammad Saleem is alleged to have assaulted Kheduram (PW-1) with a brick and the other accused persons namely Mohammad Afsar, Mohammad Mohsin and Mohammad Ishan are alleged to to have assaulted the injured persons with hands and fists.

Learned counsel for the appellants/convict would submit that Kheduram Yadav (PW-1), in paragraph 6 of his deposition, has stated that he had informed the police that the accused Shabbu had assaulted the deceased with a knife but he had not stated to the police that Shabbu Khan, Mohammad Saleem, Mohammad Bashir Chishti, Mohammad Ishan, Mohammad Akhtar and Mohsin Khan all had caused life threatening injuries with a knife with an intention to kill him. Further, in paragraph 9 he has stated that the police has not conducted the identification parade in his presence and that he had no knowledge of the name and details of the accused on the date of incident and even on the date of making the statement in the Court. Further, the injured witness Jagadhar (PW-3) in his statement at paragraph 6 has stated that the accused were uttering filthy language not to any particular person but amongst themselves and this witness had intentionally stopped him as they were uttering filthy language in front of his house. Further, at paragraph 9, he has deposed that he was not aware with the names of the accused.

It is submitted by the learned counsel for the convict/appellants that there is no evidence available on record to connect the accused Mohammad Mohsin with the offence in question as nothing incriminating has been seized from his possession nor he has committed the murder of the deceased as the allegation of causing injury with a knife is on the accused Shahbaz Khan. The only allegation against Mohammad Mohsin is that he assaulted Umesh Yadav (PW-4) but there are major contradictions and omissions in the statement of prosecution witnesses. Similarly, nothing incriminating has been seized from the possession of the appellant Mohammad Ishan and Mohammad Saleem who are alleged to have abused and caused injuries to the injured Kheduram Yadav (PW-1). The accused Mohammad Basheer has been named by injured Jagadhar Nishad (PW-3) but in the postmortem report (Exhibit P/37), which has been proved by Dr. S.N.Manjhi (PW-11), cause of death of the deceased was hemorrhage and shock as a result of stab injury on abdomen and further in the query report (Exhibit P/39), the Doctor has clearly stated that the stab injury was caused with a knife, which was seized from the possession of the accused Shahbaz Khan. In reply to query No. 3, the Doctor has clearly opined that no injury was found on the body of the deceased caused by bamboo stick, which was recovered from the possession of Mohammad Basheer. The said bamboo stick was sent for examination to the FSL and in the FSL report dated 07.12.2018, though not exhibited but is a part of the paper book, it has been mentioned that blood was found on it but it is not clear as to whether it was a human blood or nor and whether the same belonged to the group which the deceased had. Being a weak piece of evidence, the same should not be relied upon by the learned trial Court. In the present cases, no case of unlawful assembly or rioting is made out.

Learned counsel would further submit that there is absolutely no evidence against the accused Mohammad Basheer, Mohammad Mohsin, Mohammad Saleem and Mohammad Ishaan that they have assaulted either the deceased or the injured witnesses with any deadly weapon on any vital part of their body and as such, no offence under Section 148, 149 or 302 of the IPC is made out against them.

Mr. H.V.Sharma and Mr. Pravin Tulsyan, learned counsel appearing for the appellant-Mohammad Afsar would submit that the incident took place in two parts. Firstly, a scuffle took place between the accused-Shabbu @ Shahbaz Khan, Mohammad Bashir, Saleem Khan and Jagadhar Nishad (PW-3), Khdeuram (PW-1), Umesh Yadav (PW-4) and Lakhan Yadav (PW-7). When Shabbu @ Shahbaz Khan made a call on his mobile and called the other accused persons for his help, Mohammad Ishan, Mohammad Afsar and Mohsin Khan reached the place of incident. As such, convicting the appellant-Mohammad Afasar for the offence punishable under Section 302 with the aid of Section 149 of the IPC is totally unjustified. Most of the witnesses have turned hostile also and their evidence cannot be relied upon.

Lastly, learned counsel for the appellants/accused would submit that it is not a case which falls under Section 302 of the IPC as there was no motive to kill the deceased. It is a case where sudden fight took place between the parties in a heat of passion. The parties are unknown to each other and they were not having any previous animosity. Hence, they pray that the appellants/accused may be acquitted.

On the other hand, Mr. H.S.Ahluwalia, learned Deputy Advocate General appearing for the State/respondent would submit that the learned Court below was fully justified in convicting and sentencing the convicts/appellants as mentioned in the opening paragraph. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned Court below needs no interference and the appeals filed by the convicts/appellants be dismissed.

In support of their contentions, learned counsel for the appellants/convicts have relied on the decisions rendered by the Supreme Court in Uggarsain v. State of Haryana & Others {(2023) 8 SCC 109}, State of U.P. v. Jodha Singh & Others {AIR 1989 SC 1822}, State, Represented by Inspector of Police v. Saravanan & Another {AIR 2009 SC 152}, Kanwarlal & Another v. State of M.P. {AIR 2002 SC 3690}, Dana Yadav alias Dhau & Others v. State of Bihar {AIR 2002 SC 3325}, Manoj Kumar v. State of Himachal Pradesh {AIR 2018 SC 2693}, Joseph v. State, represented by Inspector of Police {(2018) 12 SCC 283}, Kuldip Yadav & Others v. State of Bihar {(2011) 5 SCC 324}, Vijay Pandurang Thakre & Others v. State of Maharashtra {(2017) 4 SCC 377} and a judgment of this High Court in Laxminarayan v. State of Chhattisgarh {AIR OnLine 2022 CHH 165}.

Mr. H.V.Sharma, learned counsel for the appellant-Mohammad Afsar relies on the decisions rendered by the Supreme Court in Ranjitsinh Chandrasinh Atodaria vs. State of Gujarat, {AIR 1994 SC 1060}, Chandrakant Murgyappa v. State of Mahrashtra {AIR 1999 SC 1557}, Manoj Kumar v. State of Himachal Pradesh {AIR 2018 SC 2693}, State, Rep. By Inspector of Police v. Saravanan & Others {AIR 2009 SC 152}, Dana Yadav v. State of Bihar {AIR 2002 SC 3325}, State of Maharashtra v. Syed Umar Syed Abbas {AIR 2016 SC 863}, State of U.P. v.Jodha Singh & Others {AIR 1989 SC 1822}, and Takhaji Hiraji v. Thakore Kubersing Chamansingh & Others {AIR 2001 SC 2328}.

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.

The first question for consideration would be, whether death of deceased Rajesh Dhiwar was homicidal in nature ?

The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr.S.N.Manjhi (PW-11), who conducted postmortem, has come to the conclusion that cause of death was due to hemorrhage and shock as a result of stab injuries on abdomen and was homicidal in nature, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Rajesh Dhiwar @ Tikaram Dhiwar, was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.

Now, the next question for consideration would be whether the accused-appellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eyewitness Kheduram Yadav (PW-1), complainant-Jagadhar Nishad (PW-3), Umesh Yadav (PW-4), Rupabai (PW-6), Lakhanlal Yadav (PW-7), Shailendra Kumar Yadav (PW-13), Leela Yadav (PW-14) and Rekha Nishad (PW-15).

From the evidence of the prosecution witness, it is amply clear that in the first part of the incident, only three appellants were involved in the scuffle and after causing injuries to the complainant, a phone call was made by the appellant-Shahbaz Khan upon which three other accused persons came on the spot as a reinforcement and they also indulged in the scuffle causing injuries to the injured witnesses and also caused stab injury to the deceased. The deceased was taken to the hospital where he succumbed to the injuries.

Dr. S.N.Manjhi (PW-11) in his postmortem has found the following injuries on the body of the deceased:

·         Stab injury wound present on right hypochondria region 4 c.m. right to midline, size of 2.5x1 c.m. vertically both end sharply cut, both margin sharply cut, spindle shaped, another cut mark extends lower border, 0.5 x 0.2 c.m. transversely, after cutting skin, soft tissues which entered abdominal cavity after cutting muscles and peritoneum, blood oozing out from wound, then cut hypocondrial cartilage 4x0.5 c.m. ventrically, then entered cavity , liver right lobe, right to ligaments 4x0.5 c.m. then entered stomach pylorus part both wall through and through then inferior vena cava perforating through and through.

·         All around injury No. 1, red colour ecchymosis present. 13 c.m. deep to abdominal cavity. AP direction.

·         Stab wound present on the left side buttocks. Upper quadrant size 2X 0.5 c.m. vertical 14 c.m. deem which extended abdominally cavity after cutting skin gluteal muscles and entered retroperitoneous all around ecchymosis present. Directed downward to upwards lateral to medial.

·         both injuries showed clear cut margins. Both end sharply cut with abdominal cavity deep.

·         Both injuries caused with hard sharp and pointed object.

·         Abdominal injuries sufficient to cause death in ordinary course of nature.”

Exhibit P/27 is the MLC report of injured Jagadhar (PW-3) which states that the injured sustained lacerated wound measuring 3 c.m. x ½ c.m. below the left eye laterally vertically which may have been caused with hard and blunt object.

The X-ray report (Exhibit P/24) of Roopa Bai (PW-6) states that she had sustained fracture at 5th metacarpal bone. The MLC report (Exhibit P/35) of this witness states that she had sustained lacerated wound 2 c.m. x 1 c.m. on the right parietal region, abrasion 1 c.m. x 1 c.m. lateral to right eyebrow which might have been caused due to hard and blunt object. Vide Exhibit P/36, she was refererred to the Department of Neurosurgery/Ortho.

Kheduram (PW-1) is also one of the injured eyewitness and as per the MLC report (Exhibit P/29), he had sustained a punctured wound and bleeding was present ½ cm x ½ cm on the left side of the forehead and an abrasion 2 cm x 2 cm on the left frontal parietal region which might have been caused due to hard and blunt objects. However, in the X-ray report (Exhibit P/53), no obvious fracture was found.

The X-ray report (Exhibit P/53) of Lakhan Lal Yadav (PW-7) states that there was no obvious fracture. However, the MLC report (Exhibit P/29) states that this witness had sustained punctured wound and bleeding was present on the left side of the forehead. There was an abrasion also in the left fronto parietal region.

Umesh Yadav (PW-4) had received a stab injury on his left thigh laterally middle which was 2 c.m. x 1 c.m. (Exhibit P/31).

Dr. Vidhi Tembhurkar (PW-10) had examined the complainant-Jagadhar Nishad (PW-3), Kheduram (PW-1), Umesh Yadav (PW-4), Lakhan Lal Yadav (P)W-7). Dr. Hulesh Mandle (PW-8) had examined the injured Roopa Dhiwar (PW-6). Similarly, Dr. Jitendra Kumar Tamrakar (PW-22) had conducted the X-ray of injured Lakhanlal, Roopa Dhiwar and Kheduram. He found fracture in the right hand of Lakhanlal.

During the course of investigation, the police has seized the knife, mobile phone, clothes, one motor-cycle at the instance of accused Shahbaz Khan vide Exhibits P/11 and P/12, from the accused Mohammad Bashir Khan Chisti one Bambo Stick vide Exhibit P/13, from the accused Mohammad Afsar one scooter and a mobile phone vide Exhibit P/14, from accused Mohammad Ishan one mobile vide Exhibit P/16, from Mohsin Khan one mobile vide Exhibit P/17. A letter dated 29.09.2018 was sent by the Station House Officer to Dr. S.N.Manjhi (PW-11) raising certain queries with regard to the knife, bamboo stick and other seized articles. In response to the same, Dr. Manjhi had informed that the knife could have been used for commission of murder of the deceased.

The following articles i.e. A-cotton containing blood of the deceased collected from the floor seized from the place of incident, B-plain soil collected from the place of incident, C-blood stained yellow shirt of the deceased, D-blood stained Baniyan of the deceased, E-blood stained lower of the deceased, F-blood stained underwear of the deceased, G-blood stained Lungi of the deceased, H-blood stained jeans pant of the accused Shahbaz Khan, I-blood stained full shirt of the accused Shahbaz Khan, J- blood stained button knife seized from the accused-Shahbaz Khan and K-blood stained stick seized from the accused-Bashir Chishti, were sent for examination to the FSL, Raipur.

The FSL report dated 07.12.2018 states that in Articles A, C, D, E, F, G, H, I, J, K, blood was found and no blood was found in Article B. In Articles C and H, human blood was found. The blood group on Articles A, D, E, F, G, I, J and K could not beascertained as the stains were disintegrated and the blood group of the blood found on Article H was ‘O’.

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 their conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellants ?

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 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.”

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 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.

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.”

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.

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 :-

“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7)

“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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 advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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.

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 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.”

Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that as per evidence of eyewitness Kheduram Yadav (PW-1), complainant Jagadhar Nishad (PW-3), Umesh Yadav (PW-4), Roopa Bai (PW-6), Lakhan Lal Yadav (PW-7), Shailendra Kumar Yadav (PW-13), Leela Yadav (PW-14) and Rekha Nishad (PW-15), it is apparent that the appellants Shahbaz, Mohammad Bashir and Salim were passing by on a motorcycle using abusive languages however, they were not uttering abusive/filthy language to either the injured witnesses or the deceased but were stating those things within themselves, however, the injured (PW-3) stopped them and asked not to utter filthy language which gave rise to a scuffle and a quarrel took place between them, then out of anger and on sudden quarrel, the appellant-Shahbaz assaulted the injured (PW-3) and the deceased with a knife and later, in the second part of the incident, when other three accused/appellants namely Mohammad Ishan, Mohammad Afsar and Mohsin Khan came when they were being called by the appellant-Shahbaz. All of them started assaulting the injured persons with the help of hands and fists, bamboo stick etc. It is also evident that neither the appellants/accused were knowing the injured or the deceased nor the injured were knowing the accused/appellants or there was any animosity between them. As such, it can safely be held that the appellants did not had any intention to cause death of deceased, however, by causing such injuries, they must have had the knowledge that such injuries inflicted by them would likely to cause death of Rajesh Dhiwar, as such, their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants 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 appellant had not taken any undue advantage or acted in a cruel or unusual manner.

Moreover, the knife blow was given by the appellant-accused Shahbaz Khan @ Sabbu only and other appellants have caused injuries with hands, fists, bamboo stick and bricks. As the fight broke between the parties all of a sudden, it cannot be said that the appellants were having any common object and as such, convicting the other appellants under Section 302 taking the aid of Section 149 of the IPC is not justified.

So far as appellants, namely Mohammed Afsar, Mohammad Saleem, Mohammad Mohsin Khan, Mohammad Ishaan, Mohammad Basheer Khan Chishti, are concerned, they are acquitted of the charges under Section 302/149 of the IPC. However, their conviction under the other Sections of the IPC as awarded by the learned trial Court are upheld. These appellants were in jail during the period of trial i.e. from 23.08.2018 to 24.07.2021 and were directed to be released on bail vide order dated 08.02.2023 passed by this Court, as such, they have already served their jail sentences as awarded to them for the offences punishable under Section 506-II, 147, 148, 323/149, 324/149, 325/149 of the IPC. Though these appellants were already released on bail, however, in view of Section 437-A of the Cr.P.C., their bail bonds shall remain effective for a period of six months from today in view of Section 437-A of the Cr.P.C.

So far as the conviction of the appellant-Shahbaz Khan @ Sabbu under Section 302/149 of the IPC is concerned, the same is set aside and he is convicted for the offence punishable under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs. 1000/-. In default of payment of fine, he shall undergo further imprisonment for six months. His conviction under other Sections of the IPC as ordered by the learned trial Court, are upheld.

The appellant-Shahbaz Khan @ Sabbu is in jail since 23.08.2018 and during the entire period of trial, he was in jail. After passing of the judgment dated 24.07.2021 by the learned trial Court, he continued to be in jail and his application for suspension of sentence and grant of bail was also rejected by this Court on 26.07.2023 and as such, he has continuously remained in jail from the date of his arrest. He shall serve out the remaining jail sentence as modified by this Court.

The criminal appeals are partly allowed to the extent indicated herein-above.

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.