Judgment:
Sunil Kumar Sinha, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 09.01.2002 passed by the II Addl. Sessions Judge, Baloda Bazar, Distt. Raipur (C.G.) in Sessions Trial No. 64/2001, whereby, the appellant has been convicted Under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo R.I. for six months.
2. The case of the prosecution is that on 10-12-2000 at about 7.30 p.m., deceased Banti alias Lokesh and his friend Shankar Bhaat (P.W.I) were sitting near Fowara Chowk. At that time, 3 accused persons namely Gabbar alias Dinesh (appellant herein), Jaiki alias Lokesh and Santosh came there and on account of some previous dispute, they started quarrelling and thereafter they assaulted the deceased with hands and fists. A report of the incident was lodged in Bhatapara Town Police station vide Ex.P.9. Banti alias Lokesh was taken to Jeevanmal Hospital, from where, he was taken to Sector-9 Hospital of Bhilai Steel Plant where he died on 13.12.2000 during the course of treatment. After his death, Merg intimation, Ex.P.6, was lodged in Bhatapara Police Station. During the course of investigation, the dead body was sent for its postmortem and the postmortem examination was conducted by Dr. S.R. Churendra (P.W.11). The Autopsy Surgeon found that there was a big Hematoma, about 8 cm round, on the occipital region of his skull and there was a fracture of occipital bone. He prepared his report Ex. P. 10 and opined that the cause of death was Coma due to head injury.
3. After completion of usual investigation, the charge-sheet was filed in the concerned Court and the matter was committed and transferred to the Court of Second Additional Sessions Judge, Baloda Bazar, who after conducting the trial, convicted and sentenced the appellant as aforementioned. However, the other two co-accused persons were acquitted.
4. The conviction of the appellant is based upon the testimonies of eye-witnesses namely Shankar Bhaat (P.W.I), Dhannu alias Ganesh (P.W.2), Suraj Kumar Bhoi (P.W.3), Jaskaran (P.W.5) and Raju alias Rajendra Kumar (P.W.6).
5. Mr. Utkarsh Verma, learned Counsel for the appellant has neither disputed the homicidal death of the deceased nor the involvement of the appellant in crime in question. He only argued that the accused persons and deceased were young boys of 18 -19 years of age and the incident took place on account of sudden quarrel between the two groups, i.e. accused persons and the deceased; it was not premeditated; the accused persons were unarmed; they had used only hands and fists and the single injury sustained by the deceased was not a direct result of the alleged assault said to have been caused by the appellant: therefore, in the facts and circumstances of this case, the offence would not travel beyond Section 304 Part-II IPC.
6. On the other hand, Mr. Praveen Das, learned Deputy Govt. Advocate opposed these arguments and supported the judgment of the trial Court.
7. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.
8. To appreciate the arguments advanced by Mr. Utkarsh Verma, we have carefully examined the evidence of above eye-witnesses. Shankar Bhaat (P.W. 1) deposed that prior to the said incident, another incident had taken place in which the accused persons namely Lokesh and Santhosh Kumar had dashed their Bicycle against the deceased and this witness, on which, hot exchanges had taken place. Thereafter when they were sitting near Fowara Chowk, the accused persons came there and started abusing him and the deceased Banti alias Lokesh and then they also started beating the deceased, who became unconscious. In Para-12 of his cross-examination, he has categorically admitted that the accused persons were unarmed and they had not used Lathi, Danda or any other kind of weapon. He has also admitted that the quarrel began all of a sudden and it was a quarrel on account of the bicycle accident which had occurred prior to this incident. Dhannu alias Ganesh (P.W. 2) deposed that he saw that the accused persons and deceased etc., were abusing each other. The accused persons were beating Banti and Shankar Bhaat (P.W. 1). He deposed that the persons of both the groups were beating each other. The appellant caught hold of the tuft of the hair of the deceased and gave one 'Karate blow' to him on which he fell down. In cross-examination, he deposed that he saw that the appellant has given a single blow on the neck of the deceased. He has categorically deposed that the accused persons had not used any arm like lathi, Danda etc. Suraj Kumar Bhoi (P.W.3) has also deposed in similar fashion and has stated that scuffling was going on. He has deposed that firstly some hot exchanges began and thereafter scuffling took place between the persons of both the groups, the deceased was beaten by the accused persons, due to which, he became unconscious and fell down. Jaskaran (P.W.5) and Raju alias Rajendra Kumar (P.W.6) have also deposed in the same fashion that the deceased was beaten by hands and fists; appellant Gabbar gave one blow on the neck of the deceased due to which, he fell down and became unconscious.
9. So far as medical evidence is concerned, Dr. Rajesh Kumar Awasthi (P.W. 17) had examined the deceased on 10.12.2000 at about 8.30 p.m. He found that there was a Hematoma of about 5 cm x 6 cm on the back side of the skull, over which, there was an abrasion of 4 x 3 cm size. According to his opinion, the injury could have been caused by hard and rough object. Dr. S. R. Churendra (P.W. 11} deposed that when he opened the wound which was on the back portion of the skull, he found that there was a fracture and blood clot was also there in the brain.
10. On appreciation of the above evidence, we find that on account of some previous dispute between the two groups of young boys, who were in between 18 and 19 years of age, a quarrel took place between them in which the accused persons, who were unarmed firstly indulged in hot exchanges with the deceased and his friend Shankar Bhaat (P.W.I), then they scuffled with the deceased and thereafter, during the course of such quarrel, the appellant gave a hand blow in Karate style on the neck of the deceased who became unconscious and fell down. The medical report as also the postmortem report of the deceased would show that he had received only one injury on the back portion of his skull, due to which, a big hematoma was formed, over which there were abrasions and beneath the said injury, there was fracture of skull bone. Certainly such injury was not a direct result of the hand blow said to have been given by the appellant.
11. Exception 4 of Section 300 IPC covers the acts done in a sudden fight. Exception 4 deals with the 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 the parties puts them in respect of guilt upon equal footing. Exception 4 comes into play if the death is caused without premeditation; in a. sudden fight; without the offender's having taken undue advantage or acted in a cruel or unusual manner; and 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. Please see : 2004CriLJ3875 , Sridhar Bhuyan v. State of Orissa.
12. If we examine the case in hand on the above principles, it would appear that there was no premeditation and in a sudden fight between the young boys of two groups, in heat of passion, upon a sudden quarrel without the appellant's having taken undue advantage, one hand blow was given to the deceased which does not show that he has acted in a cruel manner or unusual manner and apparently the injury sustained by the deceased was not a direct result of the blow given to him by the appellant and unfortunately when the deceased fell down, he received injury on the skull having fracture of skull bone which proved fatal for him.
13. In these facts and circumstances, in our opinion, this case would fall within Exception 4 of Section 300 I.P.C. and as the appellant was having knowledge that the act done by him is likely to cause death but he did so without any intention to cause death or to cause such bodily injury so as to cause death, he would, therefore, be liable for punishment Under Section 304 Part II, I.P.C.
14. Accordingly, the appeal is partly allowed.
15. The conviction and sentence awarded to the appellant Under Section 302 IPC are set aside. Instead, he is convicted Under Section 304 Part-11 IPC and sentenced to undergo R.1. for 7 years. The appellant shall be entitled to set-off for the period already undergone by him.