Holding

The Court held that the corroborated testimony of the related witness and hostile witnesses is admissible, and that the incident falls under Exception 4 of Section 300 IPC, making the proper conviction under Section 304 Part I IPC.

Summary

On 19 November 2006, a dispute over cutting a tree led three accused (Arjun, Lalaram and Padumlal) to assault the deceased Ayodhya Prasad with a katta, gandasa and a stone, causing fatal head injuries. The prosecution proved the case through the testimony of a related witness (the deceased's brother, PW‑6), four eye‑witnesses, medical evidence and the recovery of the weapons from the accused. The trial court and the High Court convicted the accused under Section 302 IPC read with Section 34 and sentenced them to life imprisonment. On appeal, the Supreme Court held that the testimony of a related witness and of hostile witnesses, when corroborated, is admissible; that the incident was a sudden fight falling under Exception 4 of Section 300 IPC, and that the presence of intent and knowledge makes the offence culpable homicide not amounting to murder under Section 304 Part I IPC. Consequently, the conviction was altered to Section 304 Part I and the sentence reduced to the period already served (9 years 11 months). The appeals were partly allowed.

Issues considered

The admissibility and weight of testimony of a related/interested witness (PW‑6).
The effect of a witness being declared hostile on the evidentiary value of his testimony.
Whether the facts constitute murder under Section 302 IPC or culpable homicide under Section 304 IPC, considering Exception 4 of Section 300.
The appropriateness of convicting the accused under Section 302 read with Section 34.
The correct quantum of punishment for the offence proved.

Legislation cited

Code of Criminal Procedure, 1973s. 27, s. 313
Indian Penal Code, 1860s. 300(4), s. 302, s. 304(1), s. 304(2), s. 34

Subjects

murderculpable homicideException 4 of Section 300 IPCrelated witnesshostile witnessconviction modificationIPC Section 302IPC Section 304 Part Ilife imprisonmentevidence law

Judgment

[2017] 2 S.C.R. 298

A ARJUN AND ANR. ETC. ETC.
v.
STATE OF CHHATTISGARH
(Criminal Appeal Nos. 206-207 of2017)
B FEBRUARY 14, 2017
[DIPAK MISRA AND R. BANUMATHI, JJ.I
Penal Code, 1860 - ss. 300 Exception (4), 304 (Part I) -
Prosecution of 3 accused u!s. 302 and 302134 !PC - Conviction
and life sentence by courts below - On appeal, held: Evidence of
c eye-witness/complainant is reliable - It is further corroborated by
4 other eye-witnesses and medical evidence - Recovery of weapons
from the three accused also substantiated prosecution case - The
prosecution has thus established that the appellants-accused are
responsible for the homicidal death of the deceased - However, the
D incident occurred due to a sudden fight and thus falls under
Exception (4) of s. 300 - It is evident from nature of injuries that
the accused had intention as well as knowledge to cause the injuries
and hence the case would fall under Part I of s. 304 - Therefore,
the conviction is altered from s. 302134 to s. 304 (Part I) - Sentence
of the accused persons reduced to the period already undergone
E
i.e. 9 years 11 months.
s. 304 (Part I) and (Part 11) - Applicability of - Held: In a
case when there is intent as well as knowledge to cause murder and
bodily injury, it will fall under (Part]) of s. 304 and if it is only a
case of knowledge and not the intention, the case would fall under
F
(Part II) of s. 304.
Evidence:
Related witness - Evidentiary value of - Held: Evidence of
related witness cannot be discarded for the sole reason that it is
G related or interested - However, the court should scrutinize the
evidence of such witness with care, as a rule of prudence and not
as a rule of law.
Hostile witness - Evidentiary value of - Held: Merely
because a witness/witnesses have turned hostile in part, their
H
298
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTISGARH 299

evidence cannot be rejected in toto - Such evidence can be accepted A
to the extent their version is found dependable - The court to
examine such evidence more cautiously.
Partly allowing the appeals, the Court
HELD: 1.1 There is no reason to discard the evidence of
PW-6 for the sole reason that he is related to the deceased and B
that he is an interested witness. Where the prosecution case
rests upon the evidence of a related witness, the court shall
scrutinize the evidence with care as a rule of prudence and not as
a rule of law. The fact of the witness being related to the victim or
deceased does not by itself discredit the evidence. [Paras 11 and c
12] [305-F, BJ
Mano Dutt and Am: v. State of Uffar Pradesh (2012)
4 SCC 79 : (2012] 3 SCR 686 - relied on.
1.2 All the four eye-witnesses viz. Pws 1, 2, 7 and 8 have
corroborated that the accused 'P' and 'L' were present. Further, D
according to PW-8, the two accused were present and
immediately on fleeing away from the spot, PW-8 after some
distance turned back and saw that there were three accused
persons standing surrounding the deceased. The presence of two
accused in the beginning and later on joining of the third accused E
'A' is what falls from the evidence of PW-8. Evidence of PW-8,
thus, corroborates the evidence of PW-6 as to the presence of
three accused. The presence of appellant-accused 'A' spoken by
PW-6 is corroborated by the evidence of PW-8. That apart,
recovery of gandasa from appellant 'A' is an incriminating
circumstance/evidence against the appellant 'A' and concurrent F
findings recorded by the courts below that appellant 'A' was also
responsible for the homicidal death of the deceased is based on
evidence. [Paras 14, 17] [306-C-E; 308-E-F]
1.3 Though the eye-witnesses PWs 1, 2, 7 and 8 were
treated as hostile by the prosecution, their testimony insofar as G
the place of occurrence and presence of accused in the place of
the incident and their questioning as to the cutting of the trees
and two accused surrounding the deceased with weapons is not
disputed. The trial court as well as the High Court rightly relied
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300 SUPREME COURT REPORTS [2017] 2 S.C.R.

A upon the evidence of PWs 1, 2, 7 and 8 to the above said extent
of corroborating the evidence of PW-6. Merely because the
witnesses have turned hostile in part, their evidence cannot be
rejected in toto. The evidence of such witnesses cannot be treated
as effaced altogether but the same can be accepted to the extent
that their version is found to be dependable and the court shall
B
examine more cautiously to find out as to what extent he has
supported the case of the prosecution. [Para 15) [306-E-G)
Paramjeet Singh alias Pamma v. State of Uttarakhand
(2010) 10 SCC 439 : [2010) 11 SCR 1064; Mrinal
Das and Ors. v. State of Tripura (2011) 9 SCC 479 :
c [2011) 14 SCR 411; Khachar Dipu alias Dilipbhai
Nakubhai v. State of Gujarat (2013) 4 SCC 322 :
[2013) 5 SCR 341 - relied on.
1.4 Medical evidence corroborates the oral testimo"y of
PWs 6 and 10. Recovery of weapons i.e. katta (cutting object),
D gandasa and stone from the three accused also substantiates
the prosecution version. The prosecution has established that
the appellants are responsible for the homicidal death of the
deceased. [Para 18] [308-G-H)
2.1 The evidence clearly establishes that while the
E deceased and other witnesses were cutting the trees, there was
exchange of words which resulted in altercation and during the
said altercation, the appellants attacked the deceased. Thus,
the incident occurred due to a sudden fight which, falls under
exception (4) of Section 300 IPC. [Para 19) [309-A-B)
F Surinder Kumar v. Union Territory of Chandigarh
(1989) 2 SCC 217 : [1989] 1 SCR 941; Arumugam v.
State, Rrepresented by Inspector of Police, Tamil Nadu
(2008) 15 SCC 590 : [2008) 14 SCR 309 - relied on.
2.2 The accused, as per the version of PW-6 and eye-
G witness account of other witnesses, had weapons in their hands,
but the sequence 'of events that have been narrated by the
witnesses only show that the weapons were used during altercation
in a sudden fight and there was no pre-meditation. Injuries as
reflected in the post-mortem report also suggest that appellants
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTlSGARH 301

have not taken "undue advantage" or acted in a cruel manner. A
Therefore, in the fact situation, exception (4) under Section 300
IPC is attracted. [Para 22] [310-D-F)
3. When and if there is intent and knowledge, then the
same would be a case of Section 304 Part I IPC and if it is only a
case of knowledge and not the intention to cause murder and B
bodily injury, then the same would be a case of Section 304 Part
II IPC. Injuries/incised wound caused on the head i.e. right
parietal region and right temporal region and also occipital region,
the injuries indicate that the appellants had intention and
knowledge to cause the injuries and thus it would be a case falling
under Section 304 Part I IPC. The conviction of the appellants c
under Section 302 read with Section 34 IPC is modified under
Section 304 Part I IPC. [Para 23] [310-F-H]
4. As the appellants have served 9 years 11 months.
Taking into account the facts and circumstances in which the
offence has been committed, for the modified conviction under D
Section 304 Part I IPC, the sentence is modified to that of the
period already undergone. [Para 23] [311-A-B]
Case Law Reference
[2012] 3 SCR 686 relied on Para 12 E
[2010] 11 SCR 1064 relied on Para 16
[2011] 14 SCR 411 relied on Para 16
[2013] 5 SCR 341 relied on Para 16
F
[1989] 1 SCR 941 relied on Para 20
[2008] 14 SCR 309 relied on Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 206-207 of2017. -
G
From the Judgment and Order dated 30.08.2013 of the High
Court ofChhatisgarh at Bilaspur in Crl. A. No. l 00 and 11 I of2008.
Ms. M. Sarada (AC), Rajeev Gulani, Advs. for the Appellants.
C. D. Singh, Ms. Sakshi Kakkar, Advs. for the Respondent.
H
302 SUPREME COURT REPORTS (2017) 2 S.C.R.

A The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. These appeals arise out of the
judgment and order dated 30.08.2013 passed by the High Court of
Chhattisgarh in Criminal Appeal Nos. 111 of 2008 and l 00 of 2008
whereby the High Court affirmed the conviction and sentence of life
B imprisonment imposed by the trial Court on the appellants.
2. Briefly stated case of the prosecution is that on 19.11 .2006 at
about 9:45 a.m., deceased Ayodhya Prasad @ Rahasu had gone to his
field alongwith Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout
(PW-7) and Makunda Raout (PW-8) to cut tree with the help of the
c above persons which was on his land in village Ghatmadwa. At that
time, the appellants-accused came to the field and they stopped the
deceased and his labourers from cutting the tree. Deceased Ayodhya
Prasad@ Rahasu told the appellants that he was the owner of the tree,
therefore, he was cutting the tree which resulted in quarrel between the
parties. The appellants assaulted the deceased with katta, gandasa
D and stone. The deceased fell down and sustained injuries on his head
and his brain matter came out. He was taken to Bilaspur for treatment
but he died on the way to the hospital.
3. Shivprasad (PW-6), brother of the deceased lodged the
complaint in Police Outpost Gidhouri. Based on the complaint, FIR
E (Ex.P-16) was registered in Police Station Bilaigarh. PW- 10, the
Investigating Officer reached the place of occurrence and took up the
investigation. After the inquest, the body was sent for autopsy. The
post-mortem was conducted by Dr. Harnath Verma (PW-12) who gave
the Post Mortem Report (Ex.P-26). Dr. Verma opined that the death of
F the.deceased was due to excessive haemorrhage and injury to the head.
4. PW-10, the Investigating Officer arrested the appellants from
the Gidhouri Bus Stand and recorded their statements under Section 27
of the Evidence Act. Disclosure statement of the appellants led to the
discovery of iron katta (cutting object), gandasa and stone weighing
G
12.5 kg which were seized from Lalaram@Bhagat,Arjun and Padumlal
respectively. Sando baniyan and full-pant of appellant Lalaram @
Bhagat were also seized. Seized articles were sent to Forensic Science
Laboratory, Raipur for chemical examination vide Ex.P-23. After
completion of the investigation, chargesheet was filed against the
appellants in the Court of Judicial Magistrate, First Class Balodabazar,
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTISGARH 303
[R. BANUMATHI, J.]

who, in turn, committed the case to the Court of Session, Raipur, from A
where it was received on transfer by Second Additional Sessions Judge,
Balodabazar, District Raipur, who conducted the trial.
5. In order to prove its case, prosecution examined as many as
twelve witnesses. Bajrang Manjhi (PW-I), Borri Verma (PW-2), Gilli
Raout (PW-7) and Makunda Raout (PW-8) are the eye-witnesses, PW- B
6 Shivprasad is the complainant and brother of the deceased Rahasu.
Constable Gandia! (PW-4), Constable M.R. Sinha (PW-9) and Constable
Bhojram (PW-11) were involved in recording the statement and collection
of evidence, PW-I 0 Deen Bandhu Uaikey is the Investigating Officer
and PW-12 Dr. Harnath Verma is the doctor who conducted the post-
mortem. The accused were questioned under Section 313 Cr.P.C about
c
the incriminating evidence and circumstances, the accused denied all of
them. The accused pleaded that the deceased Ayodhya Prasad attempted
to take possession of the land of the accused by force and, therefore,
they acted in self-defence of their body and property. To sutstantiate
their defence plea, the accused have examined DW-1 Shrawan Kumar D
and DW-2 Dwarika Prasad.
6. Having considered the evidence of the witnesses and the
defence plea and the material placed before it, the trial court held that
the appellants acted with common intention to commit the murder of
deceased Ayodhya Prasad and found that the prosecution has proved E
the guilt of the accused beyond reasonable doubt and convicted the
appellants under Section 302 !PC or 302/34 !PC and sentenced each of
them to undergo imprisonment for life and imposed fine ofRs.20,000/-
and in default of payment of fine to undergo rigorous imprisonment for
two years. Aggrieved by the verdict of conviction, the accused-appellants
Arjun and Lalaram together filed an appeal and accused Padumlal filed F
a separate appeal before the High Court. The High Court after hearing
the counsel for the parties affirmed the conviction of the appeliants and
sentence imposed by the trial court. Aggrieved by the conviction and
sentence imposed on them, the appellants are before us in these appeals
by way of special leave. G
7. Learned counsel for the appellants submitted that the name
of accused Arjun has never found mention in the evidence of witnesses
and the prosecution has failed to prove his presence at the place of
incident. It was further submitted that the eye witnesses have named
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304 SUPREME COURT REPORTS (2017] 2 S C.R.

A only Padum and Lalaram and not Arjun and thus, his conviction under
Section 302/34 IPC was unsustainable in the eyes oflaw. It was contended
that PW-6 Shivprasad is the real brother of the deceased and it would be
unsafe to base conviction on such an interested testimony. It is also the
case of the appellants that mere recovery of gandasa from accused
Arjun cannot establish his guilt as it is normal that most of the farmers
B
have gandasa in their possession and mere recovery without establishing
its use defeats the case of the prosecution.
8. Per contra, the learned counsel for the State submitted that
even though PW-6 Shivprasad is the brother of the deceased, his evidence
is supported by other evidence and also the recovery of weapons from
c the appellants. It was further submitted that even though prosecution
witnesses Bajrang Manjhi (PW-I), Borri Verma (PW-2), Gilli Raout(PW-
7) and Makunda Raout (PW-8) were treated hostile, their evidence
establish the presence of the accused and their overt act of surrounding
the deceased and to that extent, corroborate the version of PW-6
D Shivprasad. It was further submitted that considering the nature of
weapon used by the appellants and the manner of attack, the trial court
as well as the High Court rightly convicted the appellants under Section
302 IPC and the impugned judgment warrants no interference.
9. We have heard learned counsel for the parties at length and
E perused the impugned judgment and the materials placed on record.
10. Shivprasad PW-6 is the real brother of the deceased. PW-6
has deposed in his evidence that on 19.11.2006 at about 8:45 a.m., his
brother Ayodhya Prasad @ Rahasu had gone to the field for cutting of
trees alongwith four labourers who are eye witnesses i.e. PW s I, 2, 7
F and 8 and at that time A 1-Lalaram, A2-Padumlal and A3-Arjun came
there with katta and gandasa and surrounded the deceased quarrelled
with him and prevented him from cutting the tree. The accused told the
deceased that they are the owners of the land and questioned him as to
why he was cutting the tree. When the deceased replied that he was
the owner of the tree and he had the right to cut the tree, there was
G wordy altercation between the accused and the deceased and the
accused attacked him with the weapons they had, namely, katta,
gandasa and a stone. The deceased sustained injuries on his head,
neck, back and abdomen and fell down on the field. He further deposed
that he witnessed the incident from near the shop and the distance
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTISGARH 305
[R. BANUMATHI, J.]

between the shop and the place of occurrence is 15 to 20 feet and due to A
fear, he did not go near.
11. Shivprasad (PW-6) is the brother of the deceased, his
relationship with the deceased does not affect the credibility of the
witness. Only because PW-6 is related to the deceased that may not by
itself be a ground to discard his evidence. Where the prosecution case B
rests upon the evidence of a related witness, it is well-settled that the
court shall scrutinize the evidence with care as a rule of prudence and
not as a rule oflaw. The fact of the witness being related to the victim or
deceased does not by itself discredit the evidence.
12. In Mano Dutt and Anr. vs. State of Uttar Pradesh (2012) C
4 SCC 79, in para (33), this Court held as under:-
"33. The court can convict an accused on the statement of a
sole witness, even ifhe was a relative of the deceased and thus,
an interested party. The condition precedent to such an order is
that the statement of such witness should satisfy the legal D
parameters stated by this Court in a catena of judgments. Once
those parameters are satisfied and the statement of the witness
is trustworthy, cogent and corroborated by other evidence
produced by the prosecution, oral or documentary, then the court
would not fall in error oflaw in relying upon the statement of
such witness. It is only when the courts find that the single E
eyewitness is a wholly unreliable witness that his testimony is
discarded in toto and no amount of corroboration can cure its
defect. Reference in this regard can be made to the judgment of
this Court, in Anil Phukan v. State of Assam ( 1993) 3 SCC
282." F
We find no reason to discard the evidence of PW-6 for the sole
reason that he is related to the deceased and that he is an interested
witness.
13. To bring home the guilt of the accused, prosecution has
examined Bajrang Manjhi (PW-1), BorriVerma(PW-2), Gilli Raout(PW- G
7) and Makunda Raoul (PW-8), the labourers who accompanied the
deceased for cutting the trees. Jn his evidence, PW-1 Bajrang Manjhi
stated that he alongwith Borri Verma (PW-2), Gilli Raoul (PW-7) and
Makunda Raoul (PW-8) went with deceased Ayodhya for cutting the
H
306 SUPREME COURT REPORTS (2017] 2 S.C.R.

A trees at about 7:00-8:00 a.m. and the deceased showed them three trees
to be cut. PW-I further stated that while they were cutting the tree, the
appellants Padum and Lalaram came there and questioned them about
cutting of tree and asked them to go away. PW-I further stated that the
appellants Lalaram and Padum were having iron knife and they
surrounded the deceased. PW-I further stated that out of fear, he and
B
other labourers namely, Barri Verma (PW-2), Gilli Raoul (PW-7) and
Makunda Raoul (PW-8) ran away from the scene and after about 20-25
minutes they came to know thatAyodhya Prasad was murdered. To the
same extent, is the evidence ofBorri Verma (PW-2), Gilli Raoul (PW-7)
and Makunda Raoul (PW-8).
c 14. All the four eye witnesses have corroborated that the accused
Pad um and Lalaram were present. Further, according to PW-8 Makunda
Raoul, accused Padum and Lalaram were present and immediately on
fleeing away from the spot, PW-8 Makunda Raoul after some distance
turned back and saw that there were three accused persons standing
D surrounding the deceased. The presence of two accused in the beginning
and later on joining of the third accused Arjun is what falls from the
evidence of PW-8. Evidence of PW-8, thus, corroborates the evidence
of PW-6 as to the presence of three accused.
15. Though the eye witnesses PWs I, 2, 7 and 8 were treated
E as hostile by the prosecution, their testimony insofar as the place of
occurrence and presence of accused in the place of the incident and
their questioning as to the cutting of tl1e trees and two accused surrounding
the deceased with weapons is not disputed. The trial court as well as
the High Court rightly relied upon the evidence of PWs I, 2, 7 and 8 to
the above said extent of corroborating the evidence of PW-6 Shivprasad.
F Merely because the witnesses have turned hostile in part their evidence
cannot be rejected in 1010. The evidence of such witnesses cannot be
treated as effaced altogether but the same can be accepted to the extent
that their version is found to be dependable and the court shall examine
more cautiously to find out as to what extent he has supported the case
G of the prosecution.
16. In P(lr(lmjeet Singh (l/j(ls P(lntnw vs. St(lfe of
Utt(lmklwnd (20 I 0) I 0 SCC 439, it was held as under:-
"16. The fact that the witness was declared hostile at the instance
of the Public Prosecutor and he was allowed to cross-examine
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTJSGARH 307
[R. BANUMATHI, J.]

the witness furnishes no justification for rejecting en bloc the A
evidence of the witness. However, the court has to be very careful,
as prima facie, a witness who makes different statements at
different times, has no regard for the truth. His evidence has to
be read and considered as a whole with a view to find out whether
any weight should be attached to it. The court should be slow to
B
act on the testimony of such a witness; normally, it should look
for corroboration to his testimony. (Vide State of Rajasthan v.
Bhawani (2003) 7 SCC 291.)
17. This Court while deciding the issue in Radha Mohan Singh
v. State of UP (2006) 2 SCC 450 observed as under: (SCC p.
457, para 7) c
"7.... It is well settled that the evidence of a prosecution
witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be treated as
effaced or washed off the record altogether but the same D
can be accepted to the extent his version is found to be
dependable on a careful scrutiny thereof."
18. In Mahesh v. State of Maharashrra (2008) 13 SCC 271,
this Court considered the value of the deposition of a hostile
witness and held as under: (SCC p. 289, para 49) E

"./9 . ... If PW I the maker of the complaint has chosen not
to corroborate his earlier statement made in the complaint
and recorded during investigation, the conduct of such a
witness for no plausible and tenable reasons pointed out on
record, will give rise to doubt the testimony of the F
investigating officer who had sincerely and honestly
conducted the entire investigation of the case. In these
circumstances, we are of the view that PW 1 has tried to
conceal the material truth from the Court with the sole
purpose of shielding and protecting the appellant for reasons
G
best known to the witness and therefore, no benefit could be
given to the appellant for unfavourable conduct of this witness
to the prosecution."
19. In Rajendra v. Slate of UP (2009) 13 SCC 480, this Court
observed that merely because a witness deviates from his
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308 SUPREME COURT REPORTS [2017] 2 S.C.R.

A statement made in the FIR, his evidence cannot be held to be
totally unreliable. This Court reiterated a similar view in
Govindappa v. State ofKarnataka (2010) 6 SCC 533 observing
that the deposition ofahostile witness can be relied upon at least
up to the extent he supported the case of the prosecution.
B 20. Jn view of the above, it is evident that the evidence of a
person does not become effaced from the record merely because
he has turned hostile and his deposition must be examined more
cautiously to find out as to what extent he has supported the
case of the prosecution."
c The same view is reiterated in !'.frinal Dits and Ors. vs. State
o(Tripura (2011) 9 SCC 479 in para (67) and also in Klwclwr Dipu
alias Diliphlwi Nakublwi vs. State of Gujarat (2013) 4 SCC 322 in
para (17).
17. The contention of the accused is that the eye witnesses
D PWs 1, 2, 7 and 8 have not mentioned the name of appellant Arjun.
Appellant Arjun could have not been convicted, does not merit
acceptance. In his evidence, PW-8 Makunda Raout stated that when
they started cutting trees, accused Padum and Lala came there and
surrounded Ayodhya Prasad and started questioning. After that PW-8
and other eye witnesses ran away from the spot. PW-8 further stated
E that after some distance, he turned back and saw three persons
surrounding the deceased. The evidence of PW-8 establishes the presence
of two accused in the beginningand thatArjunjoined two other accused
and the presence ofappellant Arjun spoken by PW-6 is corroborated by
the evidence of PW-8. That apart, recovery of gandasa from appellant
F Arjun is an incriminating circumstance/evidence against the appellant
Arjun and concurrent findings recorded by the courts below that appellant
Arjun was also responsible for the homicidal death of Ayodhya is based
on evidence.
18. PW-12 opined that the cause of death was haemorrhagic
G shock due to head injuries and the death was homicidal in nature. Medical
evidence corroborates the oral testimony of PWs 6 and 10. Recovery
of weapons i.e. katta (cutting object), gandasa and stone from the
accused Lalaram, Arjun and Padum respectively also substantiates the
prosecution version. The prosecution has established that the appellants
are responsible for the homicidal death of deceased Ayodhya Prasad.
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTISGARH 309
(R. BANUMATHI, J.]

19. The point falling for consideration is whether the conviction A
of the appellants under Section 302 IPC is sustainable. As discussed
earlier, the evidence clearly establishes that while Ayodhya Prasad and
other witnesses were cutting the trees, there was exchange of words
which resulted in altercation and during the said altercation, the appellants
attacked the deceased. Thus, the incident occurred due to a sudden
B
fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be
fulfilled have been laid down by this Court in Surinder Kumar vs. Union
Territory of Clzandigarlz ( 1989) 2 SCC 217, it has been explained as
under:-
c
"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 is it relevant who
offered the provocation or started the assault. The number of D
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 E
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 ac~ed cruelly .............."
21. Further in the case of Ar11n111gam vs. State, Rrepresented F
bv Inspector o(Police, Tamil Nadu, (2008) 15 SCC 590, in support of
the proposition of law that under what circumstances exception (4) to
Section 300 IPC can be invoked if death is caused, it has been explained
as under:-
"9. ••••.•• G
"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
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310 SUPREME COURT REPORTS (2017] 2 S.C.R.

A the ingredients mentioned in it must be found. It is to be
noted that the 'fight' occurring in Exception 4 to Section 300
!PC is not defined in the Penal Code, l 860. It takes two to
make a fight. Heat of passion requires that there must be no
time forthe passions to cool down and in this case, the parties
had worked themselves into a fury on account of the verbal
B
altercation in the beginning. A fight is a combat between two
and 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 o.f fact and
whether a quarrel is sudden or not must necessarily depend
c 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 provision means 'unfair
D
advantage'."
22. The accused, as per the version of PW-6 and eye witness
account of other witnesses, had weapons in their hands, but the sequence
of events that have been narrated by the witnesses only show that the
weapons were used during altercation in a sudden fight and there was
E
no pre-meditation. Injuries as reflected in the post-mortem report also
suggest that appellants have not taken "undue advantage" or acted in a
cruel manner. Therefore, in the fact situation, exception (4) under Section
300 !PC is attracted. The incident took place in a sudden fight as such
the appellants are entitled to the benefit under Section 300 exception ( 4)
F !PC.
23. When and if there is intent and knowledge, then the same
would be a case of Section 304 Part I !PC and if it is only a case of
knowledge and not the intention to cause murder and bodily injury, then
the same would be a case of Section 304 Part II !PC. Injuries/incised
G wound caused on the head i.e. right parietal region and right temporal
region and also occipital region, the injuries indicate that the appellants
had intention and knowledge to cause the injuries and thus it would be a
case falling under Section 304 Part I !PC. The conviction of the appellants
under Section 302 read with Section 34 !PC is modified under Section
304 Part I !PC. As per the Jail Custody Certificates on record, the
H
ARJUN AND ANR. ETC. ETC. v. STATE OF CHHATTISGARH 3 11
[R. BANUMATHI, J.]

appellants have served 9 years 3 months and I 3 days as on 2"' March, A
2016, which means as on date the appellants have served 9 years 11
months. Taking into account the facts and circumstances in which the
offence has been committed, for the modified conviction under Section
304 Part I IPC, the sentence is modified to that of the period already
undergone.
B
24. In the result, conviction of the appellants under Section
302 IPC read with Section 34 IPC is modified as conviction under Section
304 Part I !PC and the sentence is reduced to the period already
undergone and these appeals are partly allowed accordingly. The
appellants are ordered to be released forthwith unless required in any
other case.
c
25. Fee of the learned Amicus is fixed as per Rules.

Kalpana K. Tripathy Appeals partly allowed.