Chattisgarh High Court
Shivlal Jade vs State Of Chhattisgarh on 8 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:16072-DB
Digitally signed
by SAGRIKA
SAGRIKA AGRAWAL
AGRAWAL Date:
2026.04.15
NAFR
12:00:55 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1313 of 2025
Shivlal Jade S/o Nirgu Ram Jade, Aged About 33 Years R/o Village
Malhar, Thana - Manpur, District Mohla Manpur -Ambagarh Chowki,
Civil District Rajnandgaon C.G.
... Appellant(s)
versus
State Of Chhattisgarh Through Thana Manpur, District Mohla Manpur -
Ambagarh Chowki, Civil District Rajnandgaon. C.G.
... Respondent(s)
For Appellant (s) : Mr. Rajesh Jain, Advocate
For State : Mr. S. S. Baghel, Govt. Advocate
For Respondent No. 3 : Mr. Rajesh Kesharwani, Advocate along with
Ms Shrijita Kesharwani, Advocate
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
08.04.2026
Heard Mr. Rajesh Jain, learned counsel for the appellant as
well as Mr. S. S. Baghel, Govt. Advocate for the Respondent/
2
State and Mr. Rajesh Kesharwani, Advocate along with Ms Shrijita
Kesharwani, learned Counsel for the Respondent No. 3.
1. The present appeal under Section 415 (2) of BNSS, 2023 has
been filed by the appellant against the impugned judgment of
conviction and sentence dated 14/02/2025 passed by learned
Sessions Judge, Rajnandgaon (CG) in Sessions Case No.
80/2021, whereby the appellant has been convicted and
sentenced in the following manner:-
S. No. Conviction Sentence
1. Under Section 302 of R.I. for life with fine of Rs. 1000/- in
IPC default of payment of fine, further R.I.
for 06 months.
2. Brief facts of the case are that the deceased Hemlata Jade is the
wife of the appellant. They were resided together along with their
children. On 29.03.2021, in the night, deceased Hemlata Jade
vomit and then a quarrel took place between the appellant and
deceased and then the deceased proceeded towards Baadi of
one Dhariyar Shah. The appellant catched her and assaulted by
wooden club on her head and other part of her body, which which
she received injuries and fell down. The appellant dragged her
towards his house and let her down on the Baranda. He
conceived her saree and his shirt. The incident was witnessed by
their daughter (PW/2) Sarojani. In the next morning, the appellant
took his wife to the Manpur Hospital, where she was declared
brought dead. Murg intimation was sent from the hospital to the
3
Police and then murg report (Ex-P/13) was recorded. The enquest
of the dead body of the deceased (Ex-P/2) was prepared in
presence of the witnesses and then the dead body was sent for its
post-mortem to Community Health Centre, Manpur. Dr. Govind
Kaushik (PW/5) conducted the post-mortem of the dead body of
the deceased and gave his report (Ex-P/9). He found injuries on
the body of the deceased and opined that the cause of death are
excessive bleeding due to head injury which are antemortem in
nature. Nature of death are suspected antemortem. Spot Map
(Ex-P/3) was prepared by the Patwari and (Ex-P/18) was
prepared by the Police. Blood stain and plain soil, broken peace
of bangles have been seized from the spot vide seizure memo
(Ex-P/7). FIR (Ex-P/14) was registered against the appellant for
the offence under Section 302 of IPC. The appellant was arrested
on 31.03.2021 and his memorandum statement (Ex-P/4) was
recorded. Based on his memorandum statement, one wooden
club has been seized vide seizure memo (Ex-P/5). The saree of
the deceased and his full shirt have also been seized vide seizure
memo (Ex- 6). The blood stain and plain soil, broken peace of
bangles seized from the spot, wooden club, saree and full shirt,
seized from the appellant were sent for its chemical examination
to State FSL, Raipur, from were report (Ex-P/17 B) was received
and according to the FSL report, human blood was found on
blood stain soil, saree of the deceased and shirt of the appellant.
The blood was also found on broken peace of bangles (Article-C)
4
and wooden club seized from the appellant (Article-E). The
statement of the the prosecution witnesses and victim under
Section 161 have been recorded and after completion of usual
investigation, chrge-sheet was filed against the appellant for the
offence under Section 302 of IPC before the learned Judicial
Magistrate First Class, Mambagarh Chowki. The case was
committed to the court of learned Sessions Judge, Rajnandgaon
for its trial.
3. The learned trial Court has framed the charge against the
appellant for the offence under Section 302 of IPC. The appellant
denied the charge and claimed trial.
4. In order to prove the charge, the prosecution has examined as
many as 10 witnesses. Statement of the appellant under Section
313 of Cr.P.C. has also been recorded in which he denied the
material appears against him, plead innocence and submitted that
he has been falsely implicated in the offence.
5. After appreciation of oral as well as documentary evidence led by
the prosecution, the learned trial Court has convicted the
appellant and sentenced him as mentioned in earlier part of this
judgment. Hence this appeal.
6. Learned counsel for the appellant would submit that the
prosecution has failed to prove its case beyond reasonable doubt.
There are material omission and contradiction in the evidence of
prosecution witnesses which cannot be made basis to convict the
appellant for the offence in question. The alleged eye witness
5
(PW/2) Sarojani is a child witness and tuitor by her elder mother.
Her evidence is not reliable as there are material dependencies
with that of her 161 CrPC statement. The incident is occurred in
an open place, yet there is no eye witness in the incident and the
dead body of the deceased was also found in the outside of the
house. Therefore, no liability can be fasten upon the appellant that
he committed the murder of the deceased. He would further
submit that even if it is found that the appellant cause injuries to
the deceased by assaulting her, the offence of the appellant, if
any, does not travel beyond scope of Section 304 of IPC. The
appellant under the intoxication of liqure and on a sudden heat of
passion assaulted the deceased by the wooden club. The
appellant is in jail since 31.03.2021 and therefore, by modifying
the convicting of the appellant from the offence of Section 302 of
IPC to Section 304 Part II of IPC, his sentence may be reduced
for the period already undergone by him.
7. On the other hand, learned State counsel vahementally opposes
and has submitted that the prosecution has proved its case
beyond reasonable about but for minor omission or contradictions,
the evidence of prosecution witnesses are fully reliable. The
incident is witnessed by (PW/2) Sarojani who is the daughter of
the deceased as well as the appellant, and she cannot be treated
as interested witness as the appellant is her father. From the
evidence of (PW/2), the guilt of the appellant has duly been
established that he repeatedly assaulted the deceased by wooden
6
club by which she fell down on the ground and then the appellant
dragged her up to his house. Although, the evidence suggests
that in the morning the appellant took her to hospital but that itself
does not dilute the allegation of assault or the nature of offence. In
the FSL report, human blood has been found on the shirt and
saree for which there is no explanation and thus, the impugned
judgment of conviction and sentence are justice and the appeal of
the appellant is liable to be dismissed.
8. We have heard learned counsel for the parties and perused the
record of the trial Court.
9. The homicidal death of the deceased has been proved by the
prosecution by the evidence of (PW/1) Ram Lal Potai, who is the
witness of enquest (Ex-P/2), who stated that when he had gone to
the house to the appellant and the deceased, he found the dead
body of the deceased having injuries on her body. (PW/2)
Sarojani is the daughter of the deceased and appellant, she too
have proved the assault made upon her mother by the appellant.
Further from the murg intimation (Ex-P/13) sent by the doctor to
the Police Station- Manpur, it has been proved that the death
intimation of the deceased was sent by the daughter to the Police.
From the evidence of Dr. Govind Kaushik, who conducted the
post-mortem of the dead body of the deceased, homicidal death
and antemortem injuries on the body of the deceased Hemlata
Jade has been proved. While conducting post-mortem, the doctor
has found excessive bleeding over head, occipital and parietal
7
region, Multiple abrasion on anterior and posterior parts, multiple
abrasions on upper and lower limbs and bleeding near nose and
mouth. On external examination, blood was found on the brain
and opined that the cause of death is excessive bleeding due to
head injury which is antemortem in nature. In his cross-
examination, the defence could not extracted any material so that
his evidence could be disbelieved or it can be said that the
deceased died due to by other reason and not by the assault.
After appreciating the evidence available on record, the learned
trial Court held that the death of the deceased is homicidal in
nature in which we does not find any perversity or infirmity in such
finding.
10. So far as the involvement of the appellant in the offence in
question, the case of the prosecution is based on the evidence of
(PW/2) Ku. Sarojani, who is the eye witness to the incident. She
stated in her evidence that the accused Shiv lal is her father and
her mother has been murdered by her father. At the time of
Phagoon in the last year, her father was in drunken condition and
he assaulted her mother by Lathi. By the assault her mother
received injury on her head. She tried to raise alarm but no one
came to rescue her. After assaulting her mother, her father
dragged her towards the house and left her. He also poure water,
she could not regain her conscious. In the next morning, she
disclosed the incident to her elder mother. In cross-examination,
she remain firm in saying that her father assaulted her mother by
8
wooden club. She specifically narrated that her mother was being
assaulted by her father i.e. the appellant. She also denied the
suggestion that he deposed on instance of her elder mother.
11. Though, this witness is a child witness, aged about 12 years, but
after considering her I.Q. the learned trial Court recorded her
evidence and she firmly deposed against the appellant. Her
evidence inspire confidence upon the Court that she being the
eye witness to the incident supported the prosecution’s case. The
defence tried to take benefit that she being the child witness and
tuitored by her elder mother but that itself cannot be a ground to
disblieve her evidence as she firmly deposed against the
appellant who is her own father.
12.In the matter of “Attorney General for India v. Satish And Another“
2022(5) SCC 545, the Hon’ble Supreme Court in Para 75 to 84 has
held as under:-
“75. A plain reading of Section 7 would show that
the expression “assault” has a meaning entirely
removed from the definition of “assault” in Section
351 of IPC. The latter involves an overt gesture, or
preparation by one person, that causes another to
apprehend that the former would use criminal force
upon the intended victim. The emphasis of Section
7 is to address the felt social need of outlawing
behaviour driven by sexual intent.
76. The structure of Section 7 can be conveniently
parsed in the following manner: “Whoever,i. with sexual intent touches the vagina, penis,
anus or breast of the child or; makes the child
9touch the vagina, penis, anus or breast of
such person or any other person,
ii. or does any other act with sexual intent
which involves physical contact without
penetration is said to commit sexual assault.”
77. A close analysis of Section 7 reveals that it is
broadly divided into two limbs. Sexual assault,
under the first limb is defined as the touching by a
person – with sexual intent – of four specific body
parts (vagina, penis, anus or breast) of a child, or
making a child touch any of those body parts of
“such person” (i.e. a clear reference to the offender)
or of “any other person” (i.e. other than the child, or
the offender). In the second limb, sexual assault is
the doing of “any other act with sexual intent which
involves physical contact without penetration”.
78. The use of the expression “touch” appears to
be common, to the first and second parts, of the
first limb. “Touch” says the Cambridge Dictionary is
“to put your hand or another part of your body
lightly onto and off something or someone.”
79. Collins Dictionary, likewise, states that:
“Your sense of touch is your ability to tell what
something is like when you feel it with your hands.”
80. “Contact” on the other hand, which is used in
the second limb, has a wider connotation; it
encompasses – but is not always limited to –
‘touch’. While it is not immediately apparent why
the term ‘physical contact’ has been used in the
second limb, its use in conjunction with “any other
act” (controlled by the overarching expression “with
sexual intent”), indicates that ‘physical contact’
10
means something which is of wider import than
‘touching’. Viewed so, physical contact without
penetration, may not necessarily involve touch. The
“other act” involving “physical contact” may involve:
direct physical contact by the offender, with any
other body part (not mentioned in the first limb) of
the victim; other acts, such as use of an object by
the offender, engaging physical contact with the
victim; or in the given circumstances of the case,
even no contact by the offender (the expression
“any other act” is sufficiently wide to connote, for
instance, the victim being coerced to touch
oneself).
81. Parliamentary intent and emphasis, however, is
that the offending behavior (whether the touch or
other act involving physical contact), should be
motivated with sexual intent. Parliament moved
beyond the four sexual body parts, and covered
acts of a general nature, which when done with
sexual intent, are criminalized by the second limb of
Section 7. The specific mention of the four body
parts of the child in the first limb, and the use of the
controlling expression “sexual intent” mean that
every touch of those four body parts is prima facie
suspect.
82. The circumstances in which touch or physical
contact occurs would be determinative of whether it
is motivated by ‘sexual intent’. There could be a
good explanation for such physical contact which
include the nature of the relationship between the
child and the offender, the length of the contact, its
purposefulness; also, if there was a legitimate non-
sexual purpose for the contact. Also relevant is
11
where it takes place and the conduct of the offender
before and after such contact. In this regard, it
would be useful to always keep in mind that “sexual
intent” is not defined, but fact-dependent – as the
explanation to Section 11 specifies.
83. The inference by the High Court that “touch”
cannot necessarily involve contact with a child’s
sexual body parts (in one of these cases, the
breast) through clothes, is based on a disingenuous
argument. Unsurprisingly, that argument had its
roots in other jurisdictions. In Regina v H the UK
Court of Appeal, whilst interpreting the words
“touching includes (a) with any part of the body; (b)
with anything else or (c) through anything, and in
particular, includes touching amounts to
penetration” per Section 79 (8) of the UK Sexual
Offences Act, repelled an argument on that the
individual accused of an act in relation to a victim,
that involved grabbing “her track-bottoms by the
area of the right pocket” was not “touching”. It was
observed by the court, that
“26…….The opening words of section 79 (8)
are “Touching includes touching” and in
particular “through anything”. Subsection (8)
is not a definition section. We have no doubt
that it was not Parliament’s intention by the
use of that language to make it impossible
to regard as a sexual assault touching which
took place by touching what the victim was
wearing at that time.”
84. Likewise, in State v. Phipps as well as State v.
Pearson, the court had to consider whether a “sex
12
act” or “sexual activity” (criminalised by Section
709.1, 709.3 and 709.17) meant only sexual
contact between two or more persons, i.e., through
penetration, mouth and genitalia or by contact
between genitalia of one person and that of
another. In both the judgments, the argument that
contact or touch through clothing did not amount to
an offence, was decisively rejected. The test
indicated (per Pearson) was that prohibited contact
occurs when: (i) specified body parts or substitutes
touch and (ii) intervening material would not
prevent participants, viewed objectively, from
perceiving that they had touched. Interestingly, in
these decisions one comes across the argument
that what is an offence is one that involves direct or
“skin to skin” touch or contact.”
13. In the matter of “State of Karnataka v. Shantappa Madivalappa
Galapuji and Ors.” 2009(12) SCC 731, the Hon’ble Supreme
Court in Para 15 has held as under:-
“15. “6….. The Indian Evidence Act, 1872 (in short “the
Evidence Act“) does not prescribe any particular ageas a determinative factor to treat a witness to be a
competent one. On the contrary, Section 118 of the
Evidence Act envisages that all persons shall be
competent to testify, unless the court considers that
they are prevented from understanding the
questions put to them or from giving rational
answers to these questions, because of tender
years, extreme old age, disease — whether of mind,
or any other cause of the same kind. A child of
tender age can be allowed to testify if he has
13intellectual capacity to understand questions and
give rational answers thereto. This position was
concisely stated by Brewer, J. in Wheeler v. United
States (159 US 523). The evidence of a child
witness is not required to be rejected per se, but
the court as a rule of prudence considers such
evidence with close scrutiny and only on being
convinced about the quality thereof and reliability
can record conviction, based thereon. [See
Suryanarayana v. State of Karnataka (2001 (9) SCC
129)]
7. In Dattu Ramrao Sakhare v. State of Maharashtra
[(1997) 5 SCC 341] it was held as follows: (SCC p.
343, para 5):
“5. ….. A child witness if found competent
to depose to the facts and reliable one
such evidence could be the basis of
conviction. In other words even in the
absence of oath the evidence of a child
witness can be considered under Section
118 of the Evidence Act provided that suchwitness is able to understand the
questions and able to give rational
answers thereof. The evidence of a child
witness and credibility thereof would
depend upon the circumstances of each
case. The only precaution which the court
should bear in mind while assessing the
evidence of a child witness is that the
witness must be a reliable one and his/her
demeanour must be like any other
14competent witness and there is no
likelihood of being tutored.”
The decision on the question whether the child
witness has sufficient intelligence primarily rests
with the trial Judge who notices his manners, his
apparent possession or lack of intelligence, and the
said Judge may resort to any examination which
will tend to disclose his capacity and intelligence as
well as his understanding of the obligation of an
oath. The decision of the trial court may, however,
be disturbed by the higher court if from what is
preserved in the records, it is clear that his
conclusion was erroneous. This precaution is
necessary because child witnesses are amenable
to tutoring and often live in a world of make-believe.
Though it is an established principle that child
witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shaken
and moulded, but it is also an accepted norm that if
after careful scrutiny of their evidence the court
comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of
accepting the evidence of a child witness.
The above position was highlighted in Ratansingh
Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC
64).”
14. (PW/1) Ram Lal Potai is the witness before whom the appellant
made extrajudicial confession that he assaulted the deceased. He
stated in his evidence that at about 6 am, the appellant came to
his house and asked to accompany him. When he had gone to his
house, he saw her dead body in injured condition and then, the
15
appellant confessed before him that in the night, she vomits and
then he assaulted her by wooden club. In his cross-examination,
though, he stated that he has not given any Police statement and
he did not know about the same but that itself is not sufficient to
discredit her evidence. He being the natural witness that the
appellant called him in the morning and he had gone to his house
then the appellant made extrajudicial confession that he
committed murder of his wife. He being the cousin brother of the
appellant supported the prosecutions case that the appellant
made extrajudicial confession which is corroborative with the
evidence of PW/2 who is the eye witness to the incident.
15. From the FSL report (Ex-P/17 B) the involvement of the appellant
in the offence in question has also been found as the human
blood has been found on his shirt as well as the saree of the
deceased for which there is no explanation in his 313 CrPC
statement and thus, the involvement of the appellant in the
offence has also been found proved.
16. The next question for consideration is, whether the case of the
appellant is covered within Exception-4 to Section 300 IPC vis-a-
vis culpable homicide not amounting to murder and his conviction
can be converted to Section 304 Part-I or Part-II of the IPC, as
submitted by the learned counsel for the appellant ?
17. The Supreme Court in the matter of Sukhbir Singh v. State of
Haryana, reported in 2002 (3) SCC 327 observed as under:-
16
“21. Keeping in view the facts and circumstances of the
case, we are of the opinion that in the absence of the
existence of common object Sukhbir Singh is proved to
have committed the offence of culpable homicide without
premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and did not act in a cruel or
unusual manner and his case is covered by Exception 4
of Section 300 IPC which is punishable under Section 304
(Part I) IPC. The finding of the courts below holding the
aforesaid appellant guilty of offence of murder punishable
under Section 302 IPC is set aside and he is held guilty
for the commission of offence of culpable homicide not
amounting to murder punishable under Section 304 (Part
I) IPC and sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.5000. In default of
payment of fine, he shall undergo further rigorous
imprisonment for one year.”
18. The Supreme Court in the matter of Gurmukh Singh v. State of
Haryana, 2009 (15) SCC 635, laid down certain factors which are
to be taken into consideration before awarding appropriate
sentence to the accused with reference to Section 302 or Section
304 Part II of the IPC, which state as under :-
“23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case has
to be seen for its special perspective. The relevant factors
are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of
the moment;
17
(c) The intention/knowledge of the accused while inflicting
the blow or injury;
(d) Whether the death ensued instantaneously or the
victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation
in a sudden fight;
(h) The nature and size of weapon used for inflicting the
injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the
accused;
(j) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the death
was because of shock;
(k) Number of other criminal cases pending against the
accused;
(l) Incident occurred within the family members or close
relations;
(m) The conduct and behaviour of the accused after the
incident.
19. Whether the accused had taken the injured/the deceased to the
hospital immediately to ensure that he/she gets proper medical
treatment ?
20. These are some of the factors which can be taken into
consideration while granting an appropriate sentence to the
accused.
24. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our considered view,
proper and appropriate sentence to the accused is the
bounded obligation and duty of the court. The endeavour
18
of the court must be to ensure that the accused receives
appropriate sentence, in other words, sentence should be
according to the gravity of the offence. These are some of
the relevant factors which are required to be kept in view
while convicting and sentencing the accused.”
21. Likewise, in the matter of State Vs. Sanjeev Nanda, 2012 (8)
SCC 450, the Hon’ble Supreme Court has held that once
knowledge that it is likely to cause death is established but without
any intention to cause death, then jail sentence may be for a term
which may extend to 10 years or with fine or with both. It has
further been held that to make out an offence punishable under
Section 304 Part II of the IPC, the prosecution has to prove the
death of the person in question and such death was caused by
the act of the accused and that he knew that such act of his is
likely to cause death.
22. Further, the Supreme Court in the matter of Arjun Vs. State of
Chhattisgarh, 2017 (3) SCC 247, has elaborately dealt with the
issue and observed in paragraphs 20 and 21, which reads as
under :-
“20. To invoke this Exception 4, the requirements that are
to be fulfilled have been laid down by this Court in
Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 :
1989 SCC (Cri) 348], it has been explained as under :
(SCC p. 220, para 7)
“7. To invoke this exception four requirements
must be satisfied, namely, (I) it was a sudden
fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
19acted in a cruel manner. The cause of the quarrel
is not relevant nor its I relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a
decisive factor but what is important is that the
occurrence must have been sudden and
unpremeditated and the offender must have acted
in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a
weapon which is handy and causes injuries, one
of which proves fatal, he would be entitled to the
benefit of this exception provided he has not acted
cruelly.”
21. Further in Arumugam v. State [(2008) 15 SCC 590 :
(2009) 3 SCC (Cri) 1130], in support of the proposition of
law that under what circumstances Exception 4 to Section
300 IPC can be invoked if death is caused, it has been
explained as under :
“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
20
into a fury on account of the verbal altercation in
the beginning. A fight is a combat between two or
more persons whether with or without weapons. It
is not possible to enunciate any general rule as to
what shall be deemed to be a sudden quarrel. It is
a question of fact and whether a quarrel is sudden
or not must necessarily depend upon the proved
facts of each case. For the application of
Exception 4, it is not sufficient to show that there
was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted
in cruel or unusual manner. The expression
“undue advantage” as used in the provisions
means “unfair advantage”.
23. In the matter of Arjun (supra), the Supreme Court has held that if
there is intent and knowledge, the same would be case of Section
304 Part-I of the IPC and if it is only a case of knowledge and not
the intention to cause murder and bodily injury, then same would
be a case of Section 304 Part-II of the IPC.
24. Further, the Supreme Court in the matter of Rambir Vs. State
(NCT of Delhi), 2019 (6) SCC 122, has laid down four
ingredients to bring a case within the purview of Exception 4 to
Section 300 of IPC, which reads as under:
“16. A plain reading of Exception 4 to Section 300 IPC
shows that the following four ingredients are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) he act was committed in a heat of passion; and
21
(iv) The offender had not taken any undue advantage or
acted in a cruel or unusual manner.”
25. Reverting to the facts of present case, it is quite vivid that on the
date of incident, the appellant was in a drunken conditions, in the
night when the deceased vomit, quarrel took place between them
and when the deceased proceeded towards Baadi, the appellant
assaulted her by wooden club. By which she received injury and
fell down. There was no premeditation on the part of the appellant
to cause death of deceased Hemlata Jade and only because of
vomit which she did, the appellant become unreached under the
influence of liquor assaulted the deceased. The appellant did not
have any intention to cause death of the deceased Hemlata Jade,
but by causing such injury he must have had the knowledge that
such injury inflicted by him would likely to cause death of the
deceased and as such, his case would fall within the purview of
Exception 4 of Section 300 of IPC, as the act of the appellant
herein completely satisfies the four necessary ingredients of
Exception 4 to Section 300 IPC i.e. (i) there must be a sudden
fight; (ii) there was no premeditation; (iii) the act was committed in
a heat of passion and (iv) the appellant had not taken any undue
advantage or acted in a cruel or unusual manner.
26. Considering the law laid down by Hon’ble the Supreme Court in
the aforesaid cases, considering the evidence of eyewitness Ku.
Sarojani (PW-2), and also taking into consideration the fact that
the appellant is in jail since the date of his arrest i.e. 31.03.2021,
22
ends of justice would meet if the conviction of the appellant under
Section 302 IPC is altered/converted to one under Section 304
Part-I of the IPC.
27. Accordingly, the appeal is allowed to extent that conviction of the
appellant under Section 302 IPC is set aside, however, he is
convicted under Section 304 Part-I of the IPC and sentenced to
undergo R.I. for 10 years with fine of Rs. 1000/-, In default of
payment of fine, further R.I. for two months.
28. As the appellant is stated to be in jail, he shall serve the remaining
sentence as modified by this Court.
29. Registry is directed to sent a copy of this judgment to the
concerned Superintendent of Jail where the appellants are
undergoing their jail sentence to serve the same on the appellants
informing them that they are at liberty to assail the present
judgment passed by this Court by preferring an appeal before the
Hon’ble Supreme Court with the assistance of High Court Legal
Services Committee or the Supreme Court Legal Services
Committee.
30. Let a copy of this judgment and the original records be transmitted
to the trial Court forthwith for necessary information and
compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
sagrika