(Against The Judgment Of Conviction And ... vs The State Of Bihar (Now Jharkhand) on 20 December, 2025

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Jharkhand High Court

(Against The Judgment Of Conviction And ... vs The State Of Bihar (Now Jharkhand) on 20 December, 2025

Bench: Sujit Narayan Prasad

                                                   ( 2025:JHHC:38753-DB )




IN THE HIGH COURT OF JHARKHAND AT RANCHI
       Cr. Appeal (D.B.) No. 59 of 1998(P)

(Against the judgment of conviction and the order of sentence
dated 20.12.1997, passed by the learned 1st Additional Sessions
Judge, Dumka, Santhal Pargana, in Sessions Case No.99 of
1995)

Fakruddin Mian, son of Late Hakim Mian, resident of Vill.
Bhithra, P.S. Jantara, District Dumka ... .... ....... Appellant
                             Versus
The State of Bihar (now Jharkhand)    ... Respondent
                  ...
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
         HON'BLE MR. JUSTICE ARUN KUMAR RAI


For the Appellant   : Mr. Rakesh Kumar Sinha, Amicus
For the Resp.-State : Mr. Pankaj Kumar, P.P.
                  ...
Order No.05/dated 20.12.2025
Per Sujit Narayan Prasad, J.

The instant Appeal is under Section 374(2) of the Code of Criminal Procedure directed against the Judgment of Conviction and the Order of Sentence dated 20.12.1997 passed in Sessions Case No.99 of 1995 by the learned 1st Additional Sessions Judge, Dumka, Santhal Pargana, by which, the sole appellant has been convicted under Section 302 of IPC and sentenced to rigorous imprisonment for life and was further sentenced to undergo rigorous imprisonment for six month for the offence under section 323 IPC. Both the sentences were ordered to run concurrently.

2. The prosecution story, in brief, as per the fardbeyan dated 30.10.1994 of the informant Md. Hasim (P.W.9) of village Bhitra, P.S. Jamtara, District-Dumka is that on 30.10.1994 at about ( 2025:JHHC:38753-DB ) 5.30 a.m. informant's father Md. Hayatullah (deceased) returned his home after prayer in the mosque, then informant's niece Hakani (P.W.8) told him that accused Fakruddin Mian (appellant herein) had assaulted and fractured the leg of his duck. Then, Hayatullah (deceased) went to the courtyard-cum-Khalihan of the accused Fakruddin for enquiry and on this accused Fakruddin abused the Hayatullah and said that the duck had eaten away his paddy. Thereafter, accused started assaulting Hayatullah with fist and on this informant and informant's younger brother Md. Alimuddin (P.W.-4) reached at courtyard of the accused. But, in the meantime accused picked up a lathi kept at courtyard and assaulted Hayatullah on his head as a result Hayatullah sustained injury and he fell down. It is further stated that accused also assaulted informant and his brother with lathi. On hearing halla, co-villagers Lalu Mian (P.W.11). Rustam Mian (P.W.2), Sikandar Mian (P.W.1) and Mudu Mian (P.W.12) arrived at the place of occurrence, then, accused fled away. They brought out Md. Hayatullah on a cot but he was dead.

3. The informant further stated that on a preceding day before the day of occurrence i.e., on 29.10.1994, there was quarrel with the accused on the question of taking water from the well then, the accused had given threat that dead body will come out from the house by the morning.

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4. On the basis of the fardbeyan of the informant Jamtara P.S. Case no. 243/1994 dated 30.10.94 was registered against the accused/appellant. After investigation charge-sheet was submitted and cognizance of the offence was taken. The case was committed to the Court of Sessions.

5. Charges were framed under sections 302 and 323 of IPC against the appellant and trial was held.

6. The prosecution has examined altogether 13 witnesses and based upon the evidence and the documents available on record, particularly, post-mortem report, the Judgment of Conviction has been passed convicting the appellant under Sections 302 and 323 of the Indian Penal Code.

7. The learned trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the appellant, find and hold the appellant guilty and convicted, in the manner as indicated hereinabove.

8. Against the aforesaid judgment of conviction and the order of sentence, the present appeal has been preferred. Submission on behalf of the appellant:

9. Mr. Rakesh Kumar Sinha, Amicus appearing for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:

i. Submission has been made that even if the entire prosecution story will be accepted to be true then also 3 ( 2025:JHHC:38753-DB ) no ingredient of Section 302 of the Indian Penal Code is available rather at best it is a case of under Section 304 (Part-I) of the Indian Penal Code.

ii. Such submission has been made on the basis of the fardbeyan that, the scuffle took place on the issue of injury sustained to a duck, which belonged to the deceased and for that the deceased had gone to house of the appellant for enquiry. Upon which, the scuffle took place in between both the parties and in course thereof the appellant after finding a lathi lying in his courtyard had assaulted the deceased, who died due the injury.

iii. It has been contended that from the aforesaid narration of the prosecution version, it is clear that there was no premeditation of mind to commit murder of the deceased by the appellant.

iv. It has been submitted that it is the deceased who had come to the house of the appellant and he had started scuffling with the appellant and due to sudden fight between the parties, the injury has been caused.

Therefore, there is absolute lack of premeditation of mind for committing murder of the deceased.

v. It has also been contended that if the appellant would have an intention to kill, then it was the deceased, who had rushed to the house of the appellant, then, 4 ( 2025:JHHC:38753-DB ) appellant would have assaulted the deceased in any place outside his house and certainly not in his house.

The aforesaid fact is suggestive of the fact that there was no premeditation of mind but the learned Trial Court has skipped that aspect of the matter and convicted the appellant under Sections 302 and 323 of the Indian Penal Code.

10. The learned counsel for the appellant, in the backdrop of aforesaid grounds, has submitted that the impugned judgment of conviction and order of sentence, since is not based upon proper appreciation of evidence and as such it is not sustainable in the eye of law.

Submission of the learned PP for the state:

11. Per contra, Mr. Pankaj Kumar, learned Public Prosecutor while defending the impugned Judgment has submitted that there is ample evidence of commission of crime of murder of the deceased and it is incorrect on the part of the learned Counsel for the appellant to take the ground that there was no premeditation of mind.

12. It has been submitted that it is incorrect on the part of the learned counsel for the appellant to take the ground that there was no premeditation of mind rather the issue of premeditation will lose its force, depending upon the nature of injury, which has been inflicted upon the head of the deceased resulting into the death of the deceased. As such, it is a case of Section 302 of 5 ( 2025:JHHC:38753-DB ) the Indian Penal Code and, as such, the learned Trial Court while agreeing to the aforesaid aspect of the matter based upon the deposition of the prosecution side, has convicted and sentenced the appellant and the same cannot be said to suffer from any element of perversity and, as such, the impugned Judgment needs no interference.

Analysis

13. We have heard the learned counsel for the parties and gone through the findings recorded by the learned Trial Court in the impugned Judgment. We have also gone through the evidence as available in the Trial Court record including the other documents as available therein.

14. Prosecution had examined altogether 13 witnesses out of whom P.W.-9 Md. Hasim is the informant of the case and son of the deceased; P.W.-1 Sikandar Mian, was declared hostile; P.W.- 2 Rustam Mian is tender witness; P.W.-3 Dr. Baliram Prasad Gupta; P.W.-4 is Md. Alimuddin, who is the son of the deceased; P.W.-5 Dr. Lalit Kumar Lal, had conducted post-mortem examination; P.W.-6 Majlum Bibi, is the wife of the deceased; P.W.-7 Noorjahan Bibi, is the daughter-in-law of the deceased;PW-8 Hakani is the grandson of the deceased; P.W.-10 Bishwajit Bax Rai, is the investigating officer of the case; P.W.- 11 Lalu Mian and P.W.-12 Mudu Mian are hostile witnesses and P.W.-13 is Charu Mian.

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15. P.W.-9. Md. Hasim is the informant of the case and the son of the deceased. Informant has stated in his examination-in- chief that occurrence is of 30.10.1994 and on that day in the morning, his father had gone to the mosque for worship and returned home at about 5.30 am, then his niece Md. Hakani (P.W.-8), told his father that accused Fakruddin had beaten the duck and had broken the leg of the duck. Then, his father along with Hakani, went to the house of accused Fakruddin, which is adjacent to his house, to enquire about the same, thereafter scuffle started and he and his brother Md. Alimuddin (P.W.-4), rushed to the house of the accused Fakruddin and saw from a distance of 2-3 hands, accused Fakruddin assaulting his father with lathi on his head as a result his father fell down.

16. It has further been deposed that Informant tried to restrain the accused Fakruddin, but he sustained injury on his left hand and Alimuddin, also sustained injury in his hand. Informant further stated that blood was oozing out from his father and on hallla, Rustam, his mother Majlum Bibi and his wife Noorjahan Bibi came at the place of occurrence. Informant had further stated that his father had died there itself. It had further been stated that on the preceding day of the date of occurrence, there was quarrel between accused Fakruddin and his father regarding water of well. Informant has proved his signature and signature of his brother Alimuddin on the fardbeyan which is marked as Ext.-2/1 and Ext.-2 respectively. 7

( 2025:JHHC:38753-DB ) In his cross-examination informant has stated that he had told to the police that accused Fakruddin was beating his father with fist and blow.

17. P.W.-4 Md. Alimuddin is also the son of the deceased and he has stated in his evidence that on the day of occurrence at about 07:00 a.m. in the morning, he was at his house. His son had informed his father that accused Fakruddin had fractured the leg of their duck and hence, his father had gone to the Khalihan of the accused Fakruddin to enquire about the same, then Fakruddin abused his father and told him that their duck had eaten his paddy and hence, altercation took place between them. On hearing halla, he and his elder brother Hasim had rushed to the Khalihan of the accused and saw accused Fakruddin was beating his father with fist and blow and when they intervened, then, accused Fakruddin took lathi kept in the Khalihan and gave lathi blow on the head of his father as a result his father sustained injury and fell down and died.

18. P.W.-6 Majlum Bibi, is the wife of the deceased and P.W.- 7 Noorjahan Bibi, is the daughter-in-law of the deceased and both P.W.-6 and P.W.-7 have stated in their evidence that Md. Hakani had informed Hayatullah (deceased) that accused Fakruddin had beaten their duck and had fractured the leg of the duck.

19. P.W.-8 Hakani, is the grandson of the deceased and he has stated in his evidence that when his grandfather returned home 8 ( 2025:JHHC:38753-DB ) from the mosque, then, he had informed him that accused Fakruddin had beaten and fractured the leg of the duck. Then, they went to the courtyard of Fakruddin, where Fakruddin had assaulted his grandfather with lathi.

20. P.W.-3 Dr. Baliram Prasad Gupta, has stated in his evidence that on 30.10.1994, he was posted at Jamtara Sub- Division Hospital. On that day, he examined Md. Hasim and found following injuries on his person:

"(i) Abrasion 1/4'' x 1/8'' over left arm caused by hard and blunt weapon.

(ii) Bruise in left thumb circular, caused by hard and blunt weapon about 1/2'' in length.

Both the injuries were simple in nature. Age of this injury was within 24 hours. Both the injuries might have been caused with lathi. Doctor had proved his injury report which is in his pen which was signature was marked as Ext-1.

(ii) Doctor had also examined Md. Alimuddin (P.W.-4), and found following injuries on his person:

(i) Abraision 1/8'' x 1/8'' on said forearm (left) caused by some hard and blunt weapon.

(ii) Bruise left thumb near bone upto 3/4'' in weight caused by hard and blunt substance.

Nature of both injuries was simple and their age was within 24 hours. The weapon causing those injuries might be Lathi. Doctor had proved his injuries report which is in his pen and signature which was marked as Ext.-1/1." In cross-examination, doctor had deposed that those injuries were possible by fall against any hard substance or fall of any hard substance on the surface.

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21. P.W.-5 is Dr. Lalit Kumar Lal, he has stated in his evidence that on 31.10.1994, he was posted as Medical Officer, in Sub- Divisional Hospital, Jamtara. On that day, at 11:50 a.m., he conducted postmortem examination on the dead body of Md. Heyatullah (deceased) and found the following on his body:

"External appearance.

Average built, fair complexion, white long beard and white hair on scalp, circumcised penis, mouth semi open, eyes semi closed, pupil dilated, rigor mortis present in all the forelimbs. Blood clots on scalp. Ante mortem injuries: -

Obliquely lacerated wound 11/2 '' x 1/2'' x bone deep with underlying depressed fracture of parietal bone in anterior and upper part of the left parietal area. Internal appearance: -

Skull-depressed fracture of the left parietal skull with blood and blood clots on the surface of the brain, meninges pale, brain pale.

Chest- No fracture ribs, both lungs pale, all the both chambers of heart are empty.

Abdomen: Liver, spleen and kidneys-Normal. Stomach-gastric fluid about one ounce. Lungs and smear gut-gas and treaces.

Bladder-empty.

External genetalia normal.

Time elapsed since death at the time of the P.M. examination within 24 hours.

Cause of death-in my opinion the cause of death was shock and haemorrhage as a result of above intra cranial injuries-caused by some hard and blunt substance such as Lathi.

Doctor had proved the P.M. report prepared by him in his pen and signature which was marked as Ext.-

3.

22. P.W.-10 Bishwajit Bax Rai, is the Investigating Officer, of the case. He had stated in his evidence that on 30.10.1994, he was posted as A.S.I. at Jamtara Police Station. On that day, he received information that someone had been murdered in the 10 ( 2025:JHHC:38753-DB ) village Bhithra. Then, on 30.10.1994 at 14:45 hours he reached to the village Bhithra. The son of the deceased, namely, Hasim had given his statement before him and he wrote his fardbeyan. Hasim had put his signature on the fardbeyan and this fardbeyan was marked as Ext.-4. Investigating officer had proved inquest report which was marked as Ext.-5 and formal FIR which was marked as Ext.-6. Investigating officer had stated that the place of occurrence is the courtyard-cum- Khalihan of the accused Fakruddin Mian in village Bhithra. The body was lying on a cot in front of the house at the place of occurrence.

23. P.W.-13 Charku Mian, has stated that the occurrence is of two years ago and it was the month of Kartik. It was morning and Hayatullah had died. Darogaji had made inquest report of dead body and he had given his thumb impression on the inquest report.

In his cross-examination P.W.-13 stated that his house and the house of deceased Hayatullah and accused Fakruddin is in the same tola and he had gone to the place of occurrence. Hasim is his son-in-law (bhagin-damad). The occurrence took place in the courtyard of Fakruddin. Hayatullah, Hasim and Alimuddin had entered in the house of Fakruddin and all were beating Fakruddin. Hayatullah was holding Fakruddin and Hasim and Alimuddin were beating Fakruddin with lathi. They had fractured the left hand of Fakruddin beating him with lathi. 11

( 2025:JHHC:38753-DB ) In course of beating Fakruddin, one lathi blow was assaulted upon Fakruddin as a result left hand of Fakruddin has broken. When Alimuddin hit second blow then Fakruddin removed himself as a result lathi hit on the head of Hayatullah (deceased) and Hayatullah fell down there. Thereafter, Hasim and Alimuddin picked up his father and brought to their house and laid on the cot where Hayatullah succumbed to his injury. There was no lathi in the hand of Fakruddin at the time of occurrence.

24. It is pertinent to mention here that the learned trial Court had disbelieved the testimony of P.W.13 who claimed himself as an eyewitness. It has been observed by the trial Court that although the P.W.1 has been declared hostile by the prosecution but he had stated the reality that when he reached at the place of occurrence, he saw the deceased senseless and further P.W.12 and P.W.13 were also present there but in his deposition, he had not stated about the presence of P.W.13 at the place of occurrence. Further from the fardbeyan, it is evident that informant has categorically stated that P.W.13 had reached at the place of incident after the occurrence. On the basis of the aforesaid, the learned trial court has held that the evidence of P.W.13 is afterthought and unreliable. On the basis of the aforesaid, this Court is of the view that the said finding of the learned trial Court that the testimony of P.W.13 is not fit to be accepted, is correct view, hence not requires any interference. 12

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25. Hence, ongoing through the evidence, we find that informant P.W.-9 Md. Hasim and P.W.-4 Md. Alimuddin, both are the sons of the deceased, P.W.-6 Majlum Bibi and P.W.-7 Noor Jahan Bibi are the wife and daughter-in-law respectively of the deceased and P.W.-8 Hakani, is the grandson of the deceased. All these witnesses are the members of the same family and are related to the Hayatullah (deceased) and all have claimed that on the alleged date of occurrence i.e. 30.10.1994 in the morning, Hayatullah had returned from mosque, when P.W.-8 Hakani told him that the accused Fakruddin Mian had beaten their duck and had fractured the leg of the duck. On such information, Hayatullah went to the courtyard of the appellant for enquiry. P.W.-8 Hakani, the grandson of the deceased, had accompanied the deceased and went to the courtyard of the appellant. P.W.-4 and P.W.-9 have deposed that on the halla, they reached to the place of occurrence and saw that the accused picked up a lathi from the courtyard and assaulted on the head of the deceased as a result, their father sustained injury and died at the place of occurrence itself. When P.W.-4 and P.W.-9 intervened then appellant also assaulted them with lathi as a result they also sustained injury.

26. Hence, from the evidence of the prosecution witnesses, the admitted facts are:-

i. The house of Hayatullah (deceased) is adjacent to the house of the appellant Fakruddin.

( 2025:JHHC:38753-DB ) ii. The appellant had beaten the duck of the informant side, and Hayatullah (deceased) had gone to the house of the appellant for inquiry along with his grandson P.W.-8 Hakani.

iii. In the courtyard of appellant, altercation and scuffle took place between Hayatullah and the appellant Fakruddin and appellant took lathi from courtyard itself and assaulted on the head of Hayatullah, as a result Hayatullah died.

27. This Court is now to consider that in such circumstances whether it can be said to be a case under Section 302 or Section 304 Part-I of the Indian Penal Code.

28. This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I of the Indian Penal Code vis-à-vis the evidences adduced on 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 or Part-II of the Indian Penal Code

29. Section 300 of IPC defines murder with reference to culpable homicide defined in Section 299 of IPC. If the requirements given in Clause 1 to 4 of Section 300 of IPC are fulfilled, then, culpable homicide will amount to murder, but the act shall not fall in exceptions given in Section 300 of IPC. If the 14 ( 2025:JHHC:38753-DB ) act falls within anyone of the exceptions given in section 300 of IPC, then, it will be culpable homicide not amounting to murder.

30. 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.

31. It is, thus, evident that the punishment under Section 302 of the IPC shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the IPC mentions certain exceptions for offence of murder which are as follows: -

(i) 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 15 ( 2025:JHHC:38753-DB ) another person or the person who provoked him, it won't amount to murder subject to proviso as provided.

(ii) 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.

(iii) If a public servant, while discharging his duty and having lawful intention, causes the death of a person.

(iv) 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.

(v) 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.

32. All these exceptions mentioned above shall come under purview of Section 304 of IPC and will be termed as culpable homicide not amounting to murder.

33. The Hon'ble Apex Court has dealt with the aforesaid position of law in the case of Surinder Kumar v. Union Territory, Chandigarh reported in (1989) 2 SCC 217 wherein at paragraph 6 and 7 it has been held as under:

"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; 16

( 2025:JHHC:38753-DB ) 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. 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 17 ( 2025:JHHC:38753-DB ) 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 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."

34. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317, it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether 18 ( 2025:JHHC:38753-DB ) the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as:-

"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] , para 12, this Court held as under: (SCC p. 41) "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7)

7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.‟ The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict 19 ( 2025:JHHC:38753-DB ) the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The „intention‟ and „knowledge‟ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words „intention‟ and „knowledge‟ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to „knowledge‟, „intention‟ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end."

35. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held by the Hon'ble Apex Court at paragraph 28 and 29 which read hereunder as :-

"28. The question however still remains as to the nature of the offence committed by the accused and whether it falls 20 ( 2025:JHHC:38753-DB ) 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) ―

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.

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 the 21 ( 2025:JHHC:38753-DB ) 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"."

36. Now, coming to the judicial pronouncement, in case of Arumugam v. State, (2008) 15 SCC 590, the Hon'ble Apex court has dealt with applicability of Exception 4 of Section 300 of IPC. The relevant paragraph of this judgment is quoted hereinbelow-

"9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

"17. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic 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 originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies 22 ( 2025:JHHC:38753-DB ) 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.

18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two 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'.

19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan [(1993) 4 SCC 238 :

1993 SCC (Cri) 1156 : AIR 1993 SC 2426] it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage."

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37. In the case of Surain Singh v. State of Punjab, reported in (2017) 5 SCC 796 at paragraph 13 and 14, the Hon'ble Apex Court has held as under: -

"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 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.

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14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight,

(c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and

(d) the fight must have been with the person killed. 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 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 had 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 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

38. In Pulicherla Nagaraju v. State of A.P., reported in (2006) 11 SCC 444, 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 25 ( 2025:JHHC:38753-DB ) premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. ...''

39. This Court, on the basis of the legal position as to Section 302 or 304 Part I of IPC as discussed hereinabove as also after taking into consideration the law laid down by the Hon'ble Apex Court in the case of Arumugam v. State (Supra), Surain Singh v. State of Punjab(Supra) and Pulicherla Nagaraju v. State of A.P. (Supra), wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not amounting to murder, is proceeding to examine the evidence of the prosecution witnesses.

40. Recently, the Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the 26 ( 2025:JHHC:38753-DB ) 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 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 27 ( 2025:JHHC:38753-DB ) 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 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 28 ( 2025:JHHC:38753-DB ) 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 unlaw 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 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 29 ( 2025:JHHC:38753-DB ) 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. (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.

41. 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.

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42. 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 necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.

43. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj 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"

( 2025:JHHC:38753-DB ) 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."

44. 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 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.

45. Thus, while defining the offence of culpable homicide and murder, the framers of the Indian Penal 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.

( 2025:JHHC:38753-DB )

46. 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 specified harmful consequences would or could follow. (Russell on Crime, Twelfth Edition, Volume 1 at page 40).

47. It is, thus, evident that if the accused has not intentionally killed 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.

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(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.

48. All these exceptions mentioned above shall come under the purview of Section 304 IPC and will be termed as culpable homicide not amounting to murder. It is, thus, evident the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside the purview of exception carved out under Section 300 of the Indian Penal Code.

49. In the backdrop of the aforesaid settled position of law reverting back to the present case, we find that informant P.W.- 9 Md. Hasim and P.W.-4 Md. Alimuddin, both are the sons of the Hayatullah(deceased), P.W.-6 Majlum Bibi and P.W.-7 Noorjahan Bibi are the wife and daughter-in-law respectively of the deceased and P.W.-8 Hakani, is the grandson of the deceased and they are the members of the same family and related to Hayatullah (deceased).

50. All these witnesses have unequivocally deposed that on the day of occurrence on 30.10.1994, in the morning, when Md. Hayatullah(deceased), returned home from mosque, then he was informed that appellant Fakruddin had beaten their duck and fractured the leg of the duck. Hence, Hayatullah, had gone to the 34 ( 2025:JHHC:38753-DB ) house of the appellant for enquiry, which is adjacent to his house.

51. In the fardbeyan as well as evidence of the witnesses, it has also come that in the Khalihan-cum-courtyard of the appellant's house, altercation and scuffle between Hayatullah (deceased) and Fakruddin (appellant) had taken place. On hearing halla informant P.W.-9 Md. Hasim and P.W.-4 Md. Alimuddin, both sons of the deceased, had rushed to the place of occurrence.

52. Informant P.W.-9 Md. Hasim, is eyewitness to the assault on his deceased father Md. Hayatullah. Informant has stated in his examination-in-chief that scuffle had taken place and he saw appellant assaulting his father with lathi on his father's head as a result his father died.

53. P.W.-4 Md. Alimuddin, is also the son of the deceased and an eyewitness to the assault on his father. On the day of occurrence, on hearing halla, he had also reached at the place of occurrence. P.W.-4 has stated in his examination-in-chief that altercation and assault had taken place in the khalihan-cum- courtyard of the appellant. At paragraph-4 of his deposition P.W.- 4 has specifically deposed that appellant had picked up lathi kept at khalihan and had assaulted on his father's head as a result his father died.

54. Hence, from the deposition of P.W.-4, P.W.-6, P.W.-7. P.W.-8 and P.W.-9, who are from the same family and related to 35 ( 2025:JHHC:38753-DB ) the deceased, fact emerges that duck of the informant party had entered into the khalihan of the appellant and duck had eaten the paddy of the appellant. Hence, appellant had beaten the duck.

55. So, Hayatullah had gone to the house of appellant for enquiry where altercation and scuffle took place between the Hayatullah and appellant at khalihan-cum-courtyard and appellant picked lathi laying in the khalihan-cum-courtyard itself and assaulted on the head of the deceased with lathi resulting in the death of the Hayatullah.

56. Learned Amicus has taken the ground that there was no premeditation of mind to commit murder of Hayatullah rather it was sudden fight and scuffle and the act was done in a heat of passion.

57. In order to invoke exception 4 to Section 300 of IPC, 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.

58. Hence, this Court is proceeding to examine whether the present case falls under exception 4 to Section 300 of IPC.

59. This Court, on the basis of evidence of prosecution witnesses, finds that Hayatullah had gone to the Khalihan-cum- courtyard of appellant for enquiry regarding injury to the duck, where altercation and scuffle took place between Hayatullah and 36 ( 2025:JHHC:38753-DB ) appellant Fakruddin. Hence, there was sudden fight and scuffle between the deceased and the appellant. Thereafter, in heat of passion appellant had assaulted Hayatullah on his head by lathi resulting in death of Hayatullah.

60. Further, in the present case absence of premeditation can be seen from the deposition of P.W.-4 Md. Alimuddin, who is son of the deceased and an eyewitness to the assault on his father. P.W.-4 had deposed in his examination-in-chief that altercation and assault had taken place in the khalihan-cum-courtyard of the appellant and at paragraph-4 of his deposition P.W.-4 has admitted that appellant had picked up lathi kept at khalihan- cum-courtyard and had assaulted on his father's head as a result his father died. Hence, appellant was not carrying lathi prior to the assault, instead, as per deposition of P.W.-4, appellant had picked up lathi during altercation and scuffle, from the place of occurrence i.e. khalihan-cum-courtyard itself and had assaulted with lathi on his father's head. So, prosecution has failed to prove premeditation on the part of the appellant.

61. Regarding ingredient of undue advantage, we find that there was no undue advantage by the appellant which is apparent from the nature of weapon used by the appellant, since, P.W-4 and P.W.-9, have deposed that appellant had assaulted by lathi. Further, doctor P.W.-5, who had conducted post-mortem examination, had found only one injury on the person of the deceased - Ante mortem injuries: -obliquely lacerated wound 11/2 '' x 1/2'' 37 ( 2025:JHHC:38753-DB ) x bone deep with underlying depressed fracture of parietal bone. Hence, there was no multiple injuries on the person of the deceased, which, further proves that appellant had not taken undue advantage or acted in a cruel manner.

62. In the backdrop of 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 and it occurred due to spur of moment over the matter of eating of paddy by the duck which resulted in beating the duck by the appellant.

63. Accordingly, we are of the view that the judgment impugned convicting the appellant needs to be interfered with by modifying it to that of conviction of the appellant under Section 304 Part-I of the Indian Penal Code.

64. Thus, on evaluation of the testimony of the witnesses and the material available on record, we hold the appellant guilty for the offence under Section 304 Part I of the I.P.C. and under Section 323 IPC.

65. Accordingly, impugned Judgment of Conviction dated 20.12.1997 passed in Sessions Case No.99 of 1995 by the learned 1st Additional, Sessions Judge, Dumka, Santhal Pargana, is hereby modified and the appellant is held guilty of the offence punishable under Section 304 Part I of IPC and under Section 323 IPC.

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66. Regarding sentence, this Court is of view that incident occurred 30 years back and bail was granted by this Court on 03.07.1998 and thereafter, appellant was on bail all along. Appellant has already undergone the sentence of 3 years and 8 months and in such situation, it would not be proper to send the appellant back to prison. Hence, sentence is reduced to period undergone by the appellant.

67. Accordingly, this Criminal Appeal stands disposed of with the aforesaid modification in the judgment of conviction and the order of sentence.

68. In consequence thereof, the appellant is discharged from the criminal liability of the bail bond.

69. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.

70. Pending Interlocutory Application(s), if any, stands disposed of.

71. Mr. Rakesh Kumar Sinha, Amicus has assisted this Court, as such, Member Secretary, JHALSA, shall reimburse the admissible fees to the Amicus.

(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) 20th December, 2025 P.K.S./Madhav 39

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Jharkhand High Court