Jharkhand High Court
Hasimuddin Ansari vs The State Of Bihar on 2 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
( 2025:JHHC:13404-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 170 of 1998
[Against the Judgment of conviction dated 19th May, 1998 and
Order of sentence dated 20th May, 1998 passed by learned 1st
Additional Judicial Commissioner, Ranchi in Sessions Trial No.83 of
1989]
1.Hasimuddin Ansari
2.Majibul Ansari
Both sons of Sheikh Rahman Ansari, resident of village-
Barhu, PS: Kanke, Distt: Ranchi
... ... Appellants
Versus
The State of Bihar ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Mr. P.P.N. Roy, Sr. Advocate
Mr. A.K. Sahani, Advocate
For the Respondent : Mr. Bhloa Nath Ojha, Spl. P.P.
.....
C.A.V. on 24/04/2025 Pronounced on 02/05/2025
Per Sujit Narayan Prasad, J.:
1. At the outset it needs to refer herein that the co- accused/appellant namely Tajibul Ansari and Maijul Ansari had died during pendency of the instant criminal appeal, therefore vide order dated 19.02.2025 passed by this Court instant criminal appeal has been abated against the aforesaid accused/appellant. Prayer
2. The instant appeal is directed against the judgment of conviction dated 19th May, 1998 and Order of sentence dated 20th May, 1998 passed by learned 1st Additional Judicial Commissioner, Ranchi in Sessions Trial No.83 of
-1- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) 1989 arising out of Kanke P.S. Case No.144 of 1989 corresponding to G.R. No. 3568 of 1988, whereby and whereunder the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life.
Prosecution Case:
3. Prosecution story, as alleged in the first information, recorded on 15.11.1998 at about 19.30. hrs, inter alia, is that while the informant namely Ramjan Ansari alongwith his brother, Shafique Ahmad and Karijan came out of the Masjid after prayer of Namaj. At that time Majibul Ansari (appellant herein) was also standing there. Karijan asked Majibul Ansari to pay the cost for installing a transformer. On that the Majibul Ansari denied to pay the amount and accordingly, Shafique Ahmad said that electric connection will be disconnected for non-payment of the said amount. Owing to this event there had been exchange of hot words between Majibul Ansari and brother of the informant.
4. In the meantime, Hasimuddin Ansari (appellant herein) came alongwith his wife. She abused Shafique to be a notorious person and on that Hasimuddin Ansari started abusing and in the meantime his brothers, Tajibul (since dead) and Maijul, armed with Dabli had come there and all of them dragged Shafique towards northern side of the Masjid. Majibul asked them to assault him and on
-2- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) that the appellant nos. 1 and Tajibul allegedly assaulted the brother of the informant on his head causing serious injury. The appellant Majibul and co-accused Maijul (since dead) also assaulted with their Lathis but on raising alarm so many persons arrived there then the accused persons fled away.
5. In course of investigation and during treatment, Shafique Mohammad died and on the request of the I.0. Section 302 of the I.P.C. was added.
6. After investigation the police submitted charge-sheet under sections 302/34 of the I.P.C. The case was committed to the Court of Sessions where the charge was framed under sections 302/34 of the I.P.C.
7. The prosecution has altogether examined 08 [eight] witnesses out of which, P.W. 1, 2, 3, 4 and 5 is claimed to be eye-witnesses. P.W.6 Wahab Ansari is a witness of search and seizure.P.W.7 is the doctor who had conducted post-mortem on the dead body of the deceased.P.W.8 is the Investigating officer of the case. One defence witness D.W. 1 doctor who had treated the accused/appellants has been examined on behalf of the defence.
8. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution and defence, has found the allegation proved against the appellants and accordingly, passed the judgment of
-3- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) conviction and sentence as referred herein above, which is impugned in the instant appeal.
Argument on behalf of appellants
9. Mr. P.P.N. Roy, learned senior counsel assisted by Mr. A.K. Sahani, learned counsel for the appellants has taken the following grounds, in assailing the impugned judgment of conviction, as under: -
I. The prosecution has miserably failed to establish the charge said to be proved, beyond all reasonable doubt, in establishing the charge said to be committed by the appellant under section 302/34 of the IPC.
II. The specific allegation and the material produced by the prosecution, if any, is at best against Tajibul Ansari, who has died and the appeal stand abated, against him.
III. The argument has also been advanced that the allegation against Md. Majibul Ansari, is that he has only dragged the deceased but the doctor has not found any sign of dragging of the deceased on his body. Further, as per the prosecution version Majibul (appellant) was having the Lathi but there is no injury said to be caused by the Lathi, as per medical testimony given by the doctor [P.W. 7] which itself casted doubt upon the prosecution version.
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IV. Further, ground has been taken that the weapon by
which the alleged assault was given, i.e., Farsa has neither been seized nor recovered.
V. Further submission has been made that the place of occurrence has also not been established since the blood stain has been found outside the Masjid and in the house also.
VI. Submission has been made, the occurrence is free fight between both the parties, in which, the appellants have also sustained injury, which are grievous in nature, as per medical report given by doctor [D.W. 1], while the witnesses along with the deceased has also sustained injury in a quarrel on the issue of collection of subscription [chanda] for the purpose of installation of a transformer. It has come in the testimony of the witnesses also that the discussion was going on the aforesaid issue and upon refusal of the deceased for making payment of subscription [chanda] there was fight in between both the parties and in course thereof the injury has been sustained by the deceased, and he died. VII. The learned senior counsel appearing for the appellants based upon the aforesaid grounds has submitted that the conviction under section 302 IPC is not established against the appellants and hence,
-5- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) the impugned judgment is fit to be quashed and set aside.
VIII. The learned senior counsel has further submitted that there was no premeditation to commit murder rather on spur of moment the incident took place. IX. The learned senior counsel, in the alternative, has argued that even accepting the prosecution version to be correct, then also it is not a case said to be made out against the appellants under section 302 IPC, rather at best the case under section 304 Part-I or II will be made out reason being that it is the admitted case of the prosecution that there was case and counter case.
X. The learned counsel for the appellants, based upon the aforesaid ground, has submitted that the impugned judgment suffers from illegality, hence not sustainable in the eyes of law.
Argument on behalf of the State
10. While on the other hand, Mr. Bhola Nath Ojha, learned A.P.P., defending the impugned judgment of conviction has raised the following arguments in response to the grounds taken by learned counsel for the appellants, as referred hereinabove:-
I. There is no error in the judgment of conviction and order of sentence since culpable homicide is there
-6- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) and admittedly all the witnesses have deposed about the assault given by appellants, which ultimately resulted into death of the deceased.
II. The argument so far it relates to non-availability of pre-meditation of mind is concerned, submission has been made on behalf of learned State counsel that pre-meditation of mind is to be assessed from the factual aspect of the matter by taking into consideration the testimony of witnesses wherein reason for assault of the deceased by the appellants has all along been supported by the witnesses and hence it cannot be said that there was no premeditation of mind.
III. Herein, the appellants with pre-mediation of mind assembled there and assaulted the deceased with deadly weapons, which is very much clear from the evidence of witnesses so as to attract the penal offence under Section 302 IPC since the conduct clarifies that the appellants were having the intention to kill the deceased.
IV. Learned counsel appearing for the State based upon the aforesaid premise has submitted that the impugned judgment does not suffer from any error hence the instant appeal is fit to be dismissed.
-7- Cr.A (DB) No. 170 of 1998(R)
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Analysis
11. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned judgments as also gone through the testimonies of the witnesses as available in the Trial Court Record as also the exhibits.
12. This Court, before appreciating the argument advanced on behalf of the parties as also the legality and propriety of the impugned judgment, deems it fit and proper to refer the testimonies of the prosecution witnesses.
Testimony of witnesses:
13. P.W.1, Kari Jan Mohammad - He has deposed that when he was returning to his house after offering prayer he saw Moijul was standing with a stick (Danda). He further deposed that transformer was burnt and they were collecting subscription (chanda) but Moijul and Majbool refused to give subscription thereafter Dr. Saffique Ahmad told to cut the electric connection. Then they started using filthy language. Thereafter all four brothers namely Moijul Ansari, Tajibul Ansari, Majibul Ansari and Hasimuddin Ansari came and caught Dr. Shaffique Ahmad and dragged him toward their house. Wife and mother of Hasimuddin also came and started using filthy language.
-8- Cr.A (DB) No. 170 of 1998(R)
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When P.W.1 was trying to stop them then they also threatened him. It has further been deposed that Hasimuddin was holding Farsa and Tajmul was holding a Dabli. Majibul and Moijul were holding a lathi. The accused persons started assaulting Dr. Safique Ahmad with lathi thereafter Hasimuddin was trying to assault on neck as such his ear up-to neck got injured. It has further been deposed he raised alarm thereafter accused persons fled away. Tajmul assaulted with dabli on the head of the deceased. He further deposed that during treatment the deceased died. He proved his signature in the inquest report which is marked as exhibit-1. He also proved his statement before the Magistrate u/s 164 of Cr. P.C which is marked as exhibit-1/A.
14. P.W. 2-Md. Yahsan Ansari -He deposed that when he was returning to his house he heard hulla and saw that Tajmul, Hasimuddin, Majbul and Maijul caught the deceased and dragged him towards their house.
Thereafter at some distance Tajmul assaulted on the head of the deceased by Dabli and Hasimuddin assaulted with Farsa on the neck which gave injury upon the mouth up to ear of the deceased. The deceased fell down then Maijul and Majbul started assaulting with Lathi (Danda) to the deceased. It has further been deposed that when the
-9- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) villagers started collecting to the place of occurrence the accused persons fled away.
15. P.W. 3-Md. Ramjan Ansari -He is the informant of the case. He deposed that when he was returning to his house after offering prayer he saw Majbul was standing near the gate then he and Karijan Mohammad started demanding subscription [chanda] from Majbul for transformer but he refused to give. Then the deceased told to cut the electric connection whereupon Hasimuddin Ansari came holding Farsa alongwith his wife and started using filthy language upon him. Tajmul and Maijul also came there and Maijul was holding Danda and Tajmul was holding Dabli. Majbul dragged the deceased towards their house. Thereafter Tajmul assaulted with Dabli and Hasmuddin assaulted with Farsa to the deceased on his cheek consequently his ear, teeth and tongue were cut. Dr. Saffique fall down then Majbul and Maijul assaulted with lathi. When Karijan Mohammad raised alarm and villagers started collecting the accused persons fled away.
16. P.W. 4-Sheikh Kamruddin -He deposed that when he was returning to his house after offering prayer he saw that Kari Saheb and Safique saheb were demanding subscription from Majbul then he refused to give the same. The deceased told to cut the electric connection of the accused then wife of Hasimuddin used filthy language.
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Hasimuddin, Moijul, Tajmul and Majibul dragged the deceased to their house. Hasimuddin was holding Farsa and Tajmul was holding Dabli. Tajmul assaulted with Dabli and Hasimuddin assaulted with Farsa consequently the ear and cheek of the deceased was cut. Moijul and Makbul assaulted with lathi.
17. P.W. 5-Shukat Ansari -He deposed that on hearing hulla when he reached near the place of occurrence he saw that Hasimuddin was holding a Farsa and he assaulted on the left cheek of the deceased consequently the deceased got injury up to his ear. Moijul and Majibul were holding lathi by which they assaulted to the deceased.
18. P.W. 6-Wahab Ansari -He proved his signature and signature of Gafur on the seizure list which is marked as exhibit-1/b and 1/c. He also proved his signature on the seizure list of blood stained soil which is marked as exhibit-1/d and signature of Gafur was marked as exhibit-1/e.
19. P.W. 7-Dr. Niranjan Minj: He conducted the post mortem report of the dead body of the deceased which is marked as exhibit-2.
20. Dr. Niranjan Minz: He has deposed that on 16.11.1988 when he was posted at medical officer, department of forensic medicine, R.M.C.H Ranchi and on
-11- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) that day 11.30 A.M. he conducted the post mortem examination on the dead body of Dr. Shafique Ahmad. On examination he found the following ante mortem injuries on the person of the dead body aforesaid which are as follows:-
1. Stitched wound un-united 11 c.m long running across horizontally from the lower lip towards the left side of the cheek: having 11 stiches
2. 12 c.m long stitched wound with seven stiches situated over fronto parietal region on the left side of the head "21/2 " from midline;
3. 6 c.m long stitched wound having four stiches situated over the frontal region of the head left side ½‖ c.m from mid line.
On dissection he found different contusion of the whole scalp. On removal of the stiches, the margin of the stitched wounds were sharp. The width and depth of the injury no. (1) was found 1/2 X muscle deep situated on the left side of the cheek. The width and depth of injury no. (2) is 1 c.m X bone deep on the left side cutting the fronto parietal bone measuring 8 c.m X.1 cm X cavity deep, exposing the underlying brain matter, but the brain was not cut. The width and depth of injury no. (3) is 1/2 c.m X bone deep cutting partially the
-12- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) frontal bone measuring 3 1/2 c.m on the left side, situated 1/2 c.m from the mid line.
2. veine section was done on the right foot of the dead body by the treating surgeon.
There was also presence of subdural blood and blood clots over the left hemisphere of the brain.
All the injuries aforesaid were ante mortem caused by sharp cutting cum pointed weapon, may be by Farsa and Dabli. The death of the deceased has been caused by the aforesaid injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Time since death is 6 to 24 hrs.
21. It has further been deposed that the report was prepared by in his pen and it bears his signatures. In cross examination, he has deposed that the said deceased was treated somewhere prior to his death. He did not find any injury on person of the deceased caused by hard blunt substance. He also did not find any injury caused by dragging on the person of the deceased. He further deposed that he cannot say the age of the injuries found on the persons of the dead body of deceased. He cannot say the original shape of the injuries on the persons of the deceased. He further deposed that he has not mentioned
-13- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) in my report about the existence of clothes on the dead bodies.
22. He further stated that he has seen "Dabli" (the witness drew the figure of Dabli on a paper in the dock which has been marked X for identification. Both Dabli and Farsa are flat and sharp cutting weapon. Sword and Dagger are sharp cutting and pointed weapon.
23. P.W. 8-Barmeshwar Pandey: He is the investigating officer of the case. He proved the seizure list of blood which is marked as exhibit-3 and Ext. 3/1. He also proved the inquest report which is marked as exhibit-4. He also proved the fardbeyan which is marked as exhibit-5 and formal F.I.R is marked as exhibit-6.
24. On behalf of defence, D.W. 1-Dr. Bhola Nath Sahay, has been examined. He deposed that on 15.11.1988 he examined Md. Hasimuddin, Tajmul Ansari, Seikh Rahman, Md. Majbul and Samila Kahtoon which were marked as exhibit-A to A/4.
25. He has deposed that he examined Md. Hasimuddin S/o- Sk. Rahman of Village Barhu P.S Kanke Dist. Ranchi and found following injuries:-
i. Lacerated injury 1 ½ ―X ½‖ X ¼‖ on the left eye brow. ii. Lacerated injury ½‖X½‖ X ¼‖ just below the left eye. iii. Scratch ½‖X½‖ on the left arm.
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iv. Incised wound 1‖ X ½‖ X ¼‖ on the left side of the cheek.
Injury No. (i) to (iii) were caused by hard blunt substance but injury No. iv caused by sharp cutting weapon. All injuries were simple except injury No. iv which was grievous. It is stated that he had examined him on 10.20 P.M. The age of injuries were within 12 hours.
The defence doctor has further deposed that on the same days he examined Tajmual Ansari S/O Sk. Rahman of village Barhu P.S. Kanke District Ranchi at 10.35 P.M. and found as follows:
(i) Incised wound 1 1/2" x ½‖ x 1/4" on left ear.
(ii) Lacerated injury ½" x ½" x 1/4" on the left ear just below the ear.
(iii) Scratch 1/2 " x ½" on the right hand near middle and fore finger.
(iv) Swelling 1" X1" on the left forearm.
(v) Lacerated wound ½" x 1/4" on the right chest near clavicle.
Injuries No. (ii) to (v) were simple in nature and caused by hard blunt substance. Injury No. (i) was caused by sharp cutting weapon and grievous in nature. Mark of identification scar mark on forehead. Age of injuries were within 12 hours.
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(4) It has further been stated that on the same day he examined Sk. Rahman S/O Sk. Sabhoor of same village and found the following injuries:
(i) Scratch ½‖X1/4‖ on the left cheek near left eye.
(ii) Swelling 2 "X1" on the left side of back.
Injuries were simple caused by hard blunt substance. Age of injuries were within 12 hours. Mark of identification a mole on the right thigh.
He has further deposed that on the same day he examined Md. Majibul Rahman, S/O Sk. Rahman of same village and found following injuries in his body:-
(i) Swelling 3" x 2" on the right knee joint.
(ii) Scratch ½‖X 1/2‖ on the right foot.
Both caused by hard blunt substance simple in nature. Age of the injuries within 12 hours at the time of examination at 10.30 P.M. Mark of identification: scar mark of left leg.
6. On the same day he examined Sakina Khatoon W/O Sk. Rahman of same village and found the following injuries on her body:
(i) Swelling with inflammation 2" X 1" just below left eye and side of the cheek
(ii) Bruise 2" X 1" on the left cheek
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(iii) Swelling 3" X 2" on the right thigh caused by hard and blunt substance. Age of injuries within 12 hrs at 10.40 P.M. Mark of identification - a mole on her forehead.
26. In Cross examination, he has stated that injured persons were produced by constable but he has not mentioned the fact that who has brought the injured to him. The basis of examination of the age of the injuries have not been mentioned in the injury report. He has also deposed that the Injury no. (i) to (ii) on the person of Hasimuddin is possible by fall while fleeing away.
27. In the cross-examination, he has further deposed that if one falls in sharp edged stone the incised injury is possible. Scratches are possible by fall on hard blunt substance. He further stated that that incised wound are always grievous injuries.
28. Learned trial court, based upon the testimonies of eye witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellants under Section 302/34 of Indian Penal Code and directed to undergo imprisonment for life.
29. This Court, in order to appreciate the submissions advanced on behalf of both the appellants with respect to the culpability of the appellants, of commission of offence under Section 302 or under Section 304 Part-I or II of the Indian Penal Code vis-à-vis the evidences adduced on
-17- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part- I and II.
30. The Hon'ble Apex Court has dealt with the aforesaid position in the case of Surinder Kumar v. Union Territory, Chandigarh reported in (1989) 2 SCC 217 wherein paragraph 6 and 7 are relevant which are being referred hereunder as :-
"6. Exception 4 to Section 300 reads as under:
"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."
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 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
-18- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to hand over possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411 IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the fifth rib about 2" below the nipple. It may incidentally be mentioned that the trial court came to the conclusion that the injury found on the neck of PW 2
-19- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307 IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years."
[Emphasis supplied]
31. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 as under :-
"28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217] , this Court has held as under: (SCC p. 220, para 7)
-20- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) "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 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."
(Emphasis Supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p. 595 : (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
-21- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) 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 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 provision means "unfair advantage"."
[Emphasis supplied]
32. In the case of Surain Singh v. State of Punjab reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :-
"13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have
-22- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight"
implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter."
33. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Hon'ble Apex Court, while clarifying the distinction between section 299 and 300 of the IPC and their consequences, held as under: --
"12. In the scheme of the Penal Code, „culpable homicide‟ is genus and „murder‟ is species. All „murder‟ is „culpable homicide‟ but not vice-versa. Speaking generally, „culpable homicide not amounting to murder‟. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades.
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Culpable homicide of this degree is punishable under the second part of Section 304."
(Emphasis supplied)
34. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, wherein the Hon'ble Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed 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
-24- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) 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."
(Emphasis supplied)
35. The Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under:
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:--
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. ---
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would
-25- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is „guilty intention,‟ whereas the second part would apply when there is no such intention, but there is „guilty knowledge‟.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury
-26- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) caused is not of the higher degree of likelihood which is covered by the expression „sufficient in the ordinary course of nature to cause death‟ but is of a lower degree of likelihood which is generally spoken of as an injury „likely to cause death‟ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that 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.
(6) The word „likely‟ means probably and it is distinguished from more „possibly‟. When chances of happening are even or greater than its not happening, we may say that the thing will „probably happen‟. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though
-27- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
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(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) 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.
[emphasis supplied] Issues for Determination:
36. In the backdrop of the aforesaid discussion of proposition of law, this Court is to consider following issues :-
(i) Whether the material, as has come in course of trial, is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or
(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? or
(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof?
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37. Since all the aforesaid issues are inextricably interlinked, the same are being decided hereinbelow by considering them together.
38. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredients of culpable homicide as provided under Section 299 of the Indian Penal Code amounting to murder as provided under Section 300 IPC and not amounting to murder as provided under Exception 4 to Section 300 of the Indian Penal Code.
39. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that 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. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act -
(a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. ―intent‖ and ―knowledge‖ as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea
-30- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.
40. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jayraj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :-
"32. For this purpose we have to go to Section 299 which defines "culpable homicide". This offence consists in the doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] x"intent"
and "knowledge" in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person."
41. It is, thus, evident that our legislature has used two different terminologies ‗intent' and ‗knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to
-31- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) cause such bodily injury as is likely to cause death, it would be proper to hold that ‗intent' and ‗knowledge' cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‗intent' and ‗knowledge' are the same. ‗Knowledge' will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
42. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be.
43. The framers of the Indian Penal Code designedly used the two words ‗intention' and ‗knowledge', and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he ―must have been aware that certain
-32- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) specified harmful consequences would or could follow.‖ (Russell on Crime, Twelfth Edition, Volume 1 at page 40).
44. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as :-
"20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned 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 the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:
"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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Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. ---"
45. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that 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.
46. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed
-34- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder which are as follows :-
(a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won't amount to murder subject to proviso as provided.
(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person.
(d) 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.
(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
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47. All these exceptions mentioned above shall come under purview of Section 304 and will be termed as culpable homicide not amounting to murder.
48. In the present case the pleas, inter alia, have been taken on behalf of appellants that the appellants have also sustained injury while the witnesses along with the deceased has also sustained injury in a quarrel on the issue of collection of chanda for the purpose of installation of a transformer. It has come in the testimony of the witnesses also that the discussion was going on the aforesaid issue and upon refusal of the deceased for making payment of chanda for the aforesaid purpose, the scuffle took place and initially the deceased was dragged near by the masjid road and thereafter had been taken towards their house where the scuffle took place in course thereof the injury has been sustained by the deceased, and during treatment he died. Hence it has been contended that it is a case not of murder rather it comes within the purview of exception 4 to Section 300 (murder) of IPC.
49. The parameters for judging the case have been dealt with by Hon'ble Apex Court in the case of Sayaji Hanmant Baukar v. State of Maharashtra, AIR 2011 SC 3172 whereunder the circumstances of the case it has been held that if the act is done without premeditation in a
-36- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then exception 4 will be attracted.
50. Law is well settled that in order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied namely :-
(a) It should be sudden fight.
(b) There was no premeditation.
(c) The act was done in a heat of passion
(d) The assailant had not taken any undue advantage or acted in a cruel manner.
51. 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 offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in an unusual or cruel manner. If a person in the heat of a moment on a sudden quarrel picks a weapon which is handy and thereby injuries are caused, one of which proves fatal, he would be entitled to the benefit of this exception 4 to Section 300 of IPC provided he has not acted cruelly. Thus whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC.
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52. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II by appreciating the evidences vis-à-vis the provisions of murder or exception 4.
53. Admittedly, the prosecution witnesses, P.W. 1 to 6 are the residents of the said village where occurrence took place. The accused persons/appellants are also of the same village.
54. This in order to appreciate, whether it is a case under Section 302 or Section 304 Part-I or II by appreciating the evidences vis-à-vis the provisions of murder or exception 4, has again delve into the testimony of the witnesses.
55. P.W.1-Kari Jan Mohammad - In his deposition, he has deposed that since transformer was burnt, they were collecting subscription (chanda) but Moijul and Majibul refused to give subscription thereafter Dr. Safique Ahmad(deceased) told to cut the electric connection. Whereupon, all four brothers namely Moijul Ansari(dead), Tajibul Ansari(dead), Majibul Ansari and Hasimuddin Ansari, the appellants herein, came and caught Dr. Shaffique Ahmad and dragged him toward their house and assaulted Dr. Saffique Ahmad with lathi. But, in the
-38- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) testimony of doctor, it is stated that there is no sign of assault by hard substance like lathi and further the doctor has not found any sign of dragging.
56. P.W. 2-Md. Yahsan Ansari -has supported the prosecution version.
57. P.W. 3-Md. Ramjan Ansari is the informant of the case. He in his examination-in-chief, has reiterated the version, as stated in the First Information Report. He has deposed that when he was returning to his house after offering a prayer, he saw Majibul was standing near the gate then he and Karijan Mohamad started demanding subscription from Majibul for transformer but he refused to give. Then the deceased told to cut the electric connection whereupon the appellant Hasimuddin Ansari came holding Farsa(a sharp weapon) along with his wife and started using filthy language upon him. Tajibul and Maijul also came there and Maijul was holding Danda and Tajmul was holding Dabli. Majibul dragged the deceased towards their house. Thereafter Tajibul assaulted with Dabli on head of the deceased and Hasmuddin assaulted with Farsa to the deceased on his cheek consequently his ear, teeth and tongue were cut. Dr. Saffique fall down then Majibul and Maijul assaulted with lathi. When Karijan Mohammad raised alarm and villagers started collecting the accused persons fled away.
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58. P.W. 4-Sheikh Kamruddin has also deposed the fact about demand of chanda whereupon the quarrel took place resulting into death of the deceased.
59. P.W. 5-Shukat Ansari has deposed that on hearing halla when he reached near the place of occurrence and saw that Hasimuddin was holding a Farsa and he assaulted on the left cheek of the deceased consequently the deceased got injury up to his ear. Moijul and Majibul were holding lathi by which they assaulted to the deceased.
60. P.W. 6-Wahab Ansari is the formal witness, who proved his signature and signature of Gafur on the seizure list and also proved his signature on the seizure list of blood stained soil.
61. P.W. 7-Dr. Niranjan Minj: He conducted the post mortem report of the dead body of the deceased.
62. He has deposed that all the injuries aforesaid were ante mortem caused by sharp cutting cum pointed weapon, may be by Farsa and Dabli. The death of the deceased has been caused by the aforesaid injuries which were sufficient in the ordinary course of nature to cause the death of the deceased.
63. The doctor, in his cross examination, has deposed that the said deceased was treated somewhere prior to his death. He specifically said that he did not find any injury
-40- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) on person of the deceased caused by hard blunt substance. He further deposed that he also did not find any injury caused by dragging on the person of the deceased.
64. P.W. 8-Barmeshwar Pandey is the investigating officer of the case.
65. Herein, the appellants have also sustained injuries and have been treated by the doctor Dr. Bhola Nath Sahay, who has been examined as D.W. 1. He deposed that on 15.11.1988 he examined Md. Hasimuddin (appellant herein), Md. Majibul(appellant herein) Tajmul Ansari, Seikh Rahman, and Samila Kahtoon. He found lacerated wound on the left eyebrow, just below the left eye, on the left arm and left side of the cheek of appellant, Md. Hasimuddin. He has further deposed that injury No.
(i) to (iii) were caused by hard blunt substance but injury No. iv caused by sharp cutting weapon and found injury No. iv to be grievous in nature.
66. He has further deposed that on the same day he has also examined Tajmual Ansari and found incised wound on left ear, on the left ear just below the ear, on the right hand near middle and forefinger; swelling on the left forearm and lacerated wound on the right chest near clavicle. He found injuries No. (ii) to (v) were simple in nature and caused by hard blunt substance. Injury No. (i)
-41- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) was caused by sharp cutting weapon and grievous in nature.
67. He has further deposed that on the same day he examined Sk. Rahman of same village and found scratch on the left cheek near left eye and swelling on the left side of back.
68. He on the same day also examined Md. Majibul and found swelling on the right knee joint; scratch on the right foot. Both the injuries were caused by hard blunt substance simple in nature. He has also examined Sakina Khatoon and found swelling with inflammation just below left eye and side of the cheek; bruise on the left cheek; swelling on the right thigh caused by hard and blunt substance.
69. This Court, on the basis of discussion made hereinabove, has found that the learned trial Court has considered the testimony of witnesses in particular, wherein they have categorically deposed in their evidence that the occurrence took place on account of demand of chanda (subscription). It is stated that since transformer was burnt, they were collecting subscription (chanda) but Moijul and Majibul refused to give subscription thereafter Dr. Safique Ahmad told to cut the electric connection. Whereupon, all four brothers namely Moijul Ansari, Tajibul Ansari, Majibul Ansari and Hasimuddin Ansari,
-42- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) the appellants, came and caught Dr. Shaffique Ahmad and dragged him toward their house and assaulted Dr. Saffique Ahmad with lathi.
70. Learned counsel for the appellants in alternate has taken the ground that there was no premeditation of mind to commit murder rather it was sudden fight and the act was done in a heat of passion in which the appellants also sustained injuries, as would be evident from the testimony of doctor, who has been examined as D.W. 1.
71. In the light of the aforesaid fact and settled legal position as referred hereinabove now it is to be appreciated as to whether the case is coming under Exception 4 to Section 300 of the Indian Penal Code.
72. Admittedly, in order to invoke this exception, four ingredients must be satisfied, i.e., - (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.
73. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed by the Hon'ble Apex Court as under :-
74. "The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence
-43- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 IPC. 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 have worked themselves into a fury on account of the verbal 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
-44- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) 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 provision means 'unfair advantage'.
75. This Court, on the basis of the factual aspect as discussed hereinabove as also after taking into consideration the law laid down by Hon'ble Apex Court in the case of Surinder Kumar v. Union Territory, Chandigarh (Supra), Murlidhar Shivram Patekar and Another v. State of Maharashtra (Supra) and Surain Singh v. State of Punjab (Supra) and Andhra Pradesh Vs. Rayavarapu Punnayya and other aforesaid judicial pronouncements wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not amounting to murder, rebutting back to the facts of the given case, is proceeding to examine the fact of the given case.
76. In the instant case, all the witnesses have deposed that there was exchange of hot talk between the parties on the issue of demand of chanda (subscription) for repair of transformer.
77. The informant in his deposition in unequivocal term has stated that he and Karijan Mohamad started
-45- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) demanding subscription from Majibul (appellant herein) for transformer but he refused to give. Then it is the deceased who told to cut the electric connection whereupon the matter aggravated and the appellant, Hasimuddin Ansari and other accused persons dragged the deceased towards their house but the doctor in his testimony has not found the sign of dragging and assaulted as a result of which, deceased- Dr. Saffique fell down and succumbed to injuries.
78. Therefore, from the testimonies of the witnesses, it is amply clear that the witnesses examined by the prosecution have admitted about the dispute on the issue of demand of chanda (subscription) for repair of transformer. In such scenario it cannot be ruled out that there was sudden fight between the parties. Such finding is arrived by this Court on the basis of doctor who has been examined on behalf of appellants, who has stated that all the appellants/co-accused have sustained injuries and some of the injuries were grievous in nature.
79. No doubt the injuries sustained by prosecution witnesses were more and there was loss of life of deceased on the side of the informant. In this context, it is pertinent to refer to the decision rendered in the case of State of U.P. Vs. Munni Ram & Ors., reported in 2011 (1 )East Cr.C. (SC) 86 wherein the Hon'ble Supreme Court in para-
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17, has observed that the defence version cannot be discarded only on the basis of lesser number of injuries having been suffered by them.
80. In the obtaining evidence, it cannot be possible to say with certainty that the accused/ appellants party were the aggressors. It is evident that origin and genesis of the occurrence appears to have been withheld by both the parties.
81. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. It is evident from the record that as per the post-mortem report vital blow was given on the head of the deceased by the sharp-cutting weapon. This fact has been well substantiated by the testimony of prosecution witnesses who had stated that Tajibul (since dead) had assaulted to the deceased with Dabli (sharp cutting weapon). It has further been established that deceased was assaulted by the lathi by Majibul Ansari (appellant herein), however this fact has not been substantiated by the medical evidence but from the post mortem report and testimony of the prosecution witnesses it is evident that deceased was assaulted by Hasimuddin Ansari with Farsa by on face and ear of the deceased.
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82. Thus, considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that there was scuffle took place on the trivial issue of payment of subscription (chanda) for repair of electric transformer and in the spur of moment alleged occurrence was taken place.
83. Further, from the perusal of the record it is evident that prosecution has not put any evidence in regard of any premeditation among the accused/appellant in order to cause death of the deceased. Further as per DW.1 he has treated medically to the accused/ appellant for aforementioned injuries.
84. It needs to refer herein that as per the law settled the defence witness is also to be given equal weightage as is to be given to the prosecution witnesses as has been held by Hon'ble Apex Court in the case of Munshi Prasad v. State of Bihar, reported in (2002) 1 SCC 351 at para 3 which reads hereunder as:--
3. Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400-500 yards from the place of Panchayat and it is on this piece of evidence, the learned advocate for the State heavily relied upon and contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence -- we cannot but lend concurrence to such a submission : a distance of 400-500 yards cannot
-48- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) possibly be said to be "presence elsewhere" -- it is not an impossibility to be at the place of occurrence and also at the Panchayat meet, the distance being as noticed above : the evidence on record itself negates the plea and we are thus unable to record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution
-- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors‟ witnesses."
85. Further, the Hon'ble Apex Court has reiterated the same view in a judgment rendered in the case of Mahendra Singh v. State of Madhya Pradesh reported in (2022) 7 SCC 157.
86. In the backdrop the aforesaid discussion and the judicial pronouncements and the evidence of prosecution witnesses and also taken into consideration the facts and circumstances of the instant case, we are of the view that the attack was not a premeditated one it occurred due to spur of moment over the matter of subscription [chanda] for repair of transformer.
87. The totality of the circumstances must be taken into consideration in order to arrive at a truthful conclusion
-49- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) that the appellants had a premeditation to commit the offence under which they were convicted.
88. The learned trial court however, has come to the finding by considering the case to be a case of commission of murder and hence has convicted the appellants under Section 302 of the Indian Penal Code but, while doing so, learned trial court has not appreciated the fact about the applicability of the exception as under Exception 4 of Section 300 of I.P.C.
89. This Court is of the view, based upon the judicial pronouncements as referred hereinabove, that the same on the basis of the discussion made hereinabove appears to be a scuffle on the trivial issue with no premeditation and the act was done in a heat of passion and it has also not come that the assailant has acted in a cruel manner. It further appears that for the purpose of attracting the requirement to invoke Exception 4 to Section 300 I.P.C., the number of wounds caused during the occurrence is not decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in the heat of passion.
90. This Court, therefore, is of the view that the learned trial court while convicting the appellants for commission of offence under Section 302 of the Indian Penal Code, has
-50- Cr.A (DB) No. 170 of 1998(R) ( 2025:JHHC:13404-DB ) not taken in to consideration of all the aforesaid facts as recorded in the preceding paragraphs.
91. Accordingly, we are of the view that the judgment impugned convicting the appellants needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-I read with 34 the Indian Penal Code.
92. Thus, on evaluation of the testimony of the witnesses and the material available on record, we hold the appellants guilty for the offence under Section 304 Part I of the I.P.C.
Conclusion
93. The appellants are, thus, held guilty of the offence punishable under Section 304 Part I read with Section 34 IPC. Their conviction under Section 302 read with 34 IPC is altered to Section 304 Part I read with Section 34 IPC.
94. Consequently, the Judgment of conviction dated 19th May, 1998 and Order of sentence dated 20th May, 1998 passed by learned 1st Additional Judicial Commissioner, Ranchi in Sessions Trial No.83 of 1989 is hereby modified and the appellants are held guilty of the offence punishable under Section 304 Part I and sentenced for the period already undergone by them.
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95. Since the appellants are on bail, they are discharged from the liability of their bail bonds.
96. Accordingly, the instant appeal stands dismissed with the aforesaid modification in the judgment of conviction and order of sentence.
97. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
98. Pending Interlocutory Application(s), if any, stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.
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