CHENDA @ CHANDA RAMversusSTATE OF CHHATISGARH

                    [2013] 17 S.C.R. 327


                CHENOA @ CHANDA RAM                               A
                              v.
                STATE OF CHHATISGARH
            (Criminal Appeal No. 1285 of 2013)
                     AUGUST 27, 2013
                                                                  B
          [CHANDRAMAULI KR. PRASAD AND
                KURIAN JOSEPH, JJ.]

     Penal Code, 1860 - ss.300 Exception 4 and 304 (Part
8) - Prosecution under s.302 - Conviction by courts below -       c
Held: The evidence shows that there was no previous enmity
between the parties - There was also no premeditation and it
was a case of sudden fight and a result of immediate
provocation - The fatal blow was in the course of a scuffle
between two persons - The accused also did not take               D
advar;tage of the situation or behave in a cruel and unusual
manner - Hence, the case is covered under Exception 4 to
s.300 - In view of the facts the case would fall uls. 304 (Part
II) - Punishment of the accused is altered from life
imprisonment to imprisonment for a period of 10 years with        E
fine of Rs. 50, 0001- - The fine amount to be paid as
compensation to the widow and child of the deceased.

     The appellant-accused was prosecuted alongwith
another accused for having killed one person. Appellant-
accused was convicted uls.302 IPC and sentenced him               F
to life imprisonment. However the other accused was
acquitted. High Court confirmed the judgment of trial
court. Hence the present appeal.

    Appellant-accused contended that the case would               G
come under Exception 4 of s. 300 IPC as there was only
a single blow with a stick and there was no previous
enmity and as such the act was done in the spur of the
moment without any premeditation.
                         327                                      H
        328        SUPREME COURT REPORTS (2013) 17 S.C.R.

1A            Partly allowing the appeal, the Court
'
              HELD: 1. Exception 4 to s.300 IPC can be invoked if
        death is caused (i) without premeditation; (ii) in a sudden
        fight; (iii) without the offender's having taken undue
        advantage or acting in a cruel or unusual manner; and
    8   (iv) the fight must have been with the person killed. All
        the four ingredients must be found in order to apply
        Exception 4. [Para 13] [338-E, F]

         2. There is no evidence in the present case that there
C ·was previous enmity between parties though PW2 has
   attempted for such a version of the case, she has been
   disbelieved on that account because of contradictions
   within her own statement under Section 161. The
   available evidence would show that there was no
o premeditation on the part of the appellant and that it was
   a case of sudden fight. It has to be noted that the
   deceased was called by his wife to the spot to settle the
   disputes once for all and that the ensuing sudden scuffle
   with the first accused was in the presence of his wife. It
E has come out in the evid.ence of PW11 that the injury
   inflicted by the appellant was during the scuffle between
   the deceased and the first accused A-1 and that after the
   lone strike on the head of the deceased by the appellant,
   both the deceased and A-1 had fallen down and it was
   PW2 who separated A-1 and the deceased as they had
F
   become entangled with each other. That only means that
   the deceased had overpowered A-1 or else the deceased
   alone would have fallen down and not the first accused
   A-1. The said conduct of the deceased overpowering A-
   1 during the scuffle was the immediate provocation for
G the appellant to take the weapon, the tekani which was
   available in the vicinity to hit the deceased. There is no
   evidence at all as to whether the appellant intended to
   hit on the head only or elsewhere on the body. The
   scuffling parties being in motion, it could easily have
H
       CHENOA @ CHANDA RAM v. STATE OF                 329
                CHHATISGARH
  happened that the blow fell on the head unintentionally. A
  No doubt the scuffle of the deceased was with the A-1
  but the entire fight was with the deceased on one side,
  and the appellant and other accused A-1 on the other
  side. It is not required that the fight must be between the
  main accused and deceased. The fight can as well be B
  between two parties, the deceased on one side and all
  the other accused on the other side. There is only one
  hit. There is nothing to show that there was any cruelty
  involved by inflicting any other injury or by any other
  conduct on the part of the appellant so as to hold that c
  the appellant was taking any undue advantage of the
  situation or that he behaved in a cruel or unusual
· manner. Thus, all the four ingredients required for
  treating the case under Exception 4 to Section 300 of the
  Code are satisfied in the instant case. [Para 16] [342-H;
                                                              0
  343-A-H; 344-A]

      3. The offence in the present case, seems to fall
 under the second part of s.304 IPC. There is no evidence
 of motive or previous enmity. The incident has taken
 place on the spur of the moment. There is no evidence E
 regarding the intention behind the fatal consequence of
 the blow. There was only one blow. The accused is
 young. There was no premeditation. The evolution of the
 incident would show that it was in the midst of a sudden
 fight. There is no criminal background or adverse history F
 of the appellant. It was a trivial quarrel among the
 villagers on account of a simple issue. The fatal blow was
 in the course of a scuffle between two persons. There has
 been no other act of cruelty or unusual conduct on the
 part of the appellant. The deceased was involved in the G
 scuffle in the presence of his wife and he had actually
 been called upon by her to the spot so as to settle the
 score with the accused persons. The deceased had, in
 the scuffle, overpowered the first accused. That first
  accused was acquitted. Thus, considering all these H
    330        SUPREME COURT REPORTS [2013] 17 S.C.R.


A   aspects, it is a fit case to alter the punishment of
    imprisonment for life to imprisonment for a period of 10
    years with fine of Rs.50,000/-. [Para 17] [344-B-F]

         4. Since the deceased has been left with a young
    widow and one child, the amount of fine thus recovered
8
    shall be paid as compensation to the widow and the
    child. In the event of the appellant defaulting to pay the
    fine, he shall undergo imprisonment for a further period
    of two years. [Para 17] [344-F, G]

C        Virsa Singh vs. State of Punjab (1958) 1 SCR 1495;
    State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr
    (1976) 4 SCC 382: 1977 (1) SCR 601; Pappu vs. State of
    Madhya Pradesh (2006) 7 SCC 391: 2006 (3) Suppl. SCR
    394; Jagriti Devi vs. State of Himachal Pradesh (2009) 14
D   SCC 771: 2009 (10) SCR 167; Gurmukh Singh vs. State of
    Haryana (2009) 15 SCC 635: 2009 (13) SCR 548 - relied
    on.
                        Case Law Reference :
E     (1958) 1 SCR 1495             relied on      Para 11
      1977 (1) SCR 601              relied on      Para 12
      2006 (3) Suppl. SCR 394       relied on      Para 13
      2009 (10) SCR 167             relied on      Para14
F
      2009 (13) SCR 548             relied on      Para 15
        CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
    No. 1285 of 2013
G       From the Judgment and Order dated 18.06.2010 of the
    High Court of Chhatisgarh at Bilaspur in Criminal Appeal No.
    505 of 1994.

        Anup Kumar, Venkita Subramaniam (For Devvrat) for the
H   Appellant.
       CHENOA @ CHANDA RAM v. STA1E OF                        331
                CHHATISGARH
    Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha for the             A
Respondent.                                    '

    The Judgment of the Court was delivered by

     KURIAN, J.: 1. Leave granted.'
                                                                      B
      2. 'Homicide', as derived from Latin, literally means the act
of killing a human being. Under Section 299 of the Indian Penal
Code (hereinafter referred to as 'the Code'), homicide
become"s culpable when a human being terminates the life of
another in a blameworthy manner. Culpability depends on the           c
knowledge, motive and the manner of the act of the accused.
The offence is punishable under either Section 302, or Section
304 which consists of two parts. In the case before us, we are
called upon to examine the nature of the offence of culpable
homicide for which the appellant has been convicted by the Trial      D
Court under Section 302 and sentenced to life imprisonment.
His appeal was dismissed by the High Court.

      3. It is sad and unfortunate that the epicenter of the matter
is a simple quarrel on a trivial issue - a cat was chased away
by the child of the deceased and; in the process, it landed on        E
the terrace of the first accused where some gram was kept for
drying. The'app~llant before us is the second accused who
inflicted the fatal blow. The first accused who initiated the
quarrel was, however, acquitted of the charges under Section
302 read with Section 34, for want of evidence.                       F

BRIEF FACTS

     4. On 26.02.1~93 at about 04.00 P.M., one master
 Kishore Kumar, son· of the deceased Ramgulal, residing in a
 remote village Deori .Tola in district Durg, presently in            G
 Chhattisgarh State, threw a stone on a cat, which, while jumping,
 landed on the terrace of the first accused Anjoriram where he
 had kept his gram. The boy was scolded badly and one Chanda
,Ram beat him with a cane. Hearing his loud weeping, his
!                                                                     H
    332          SUPREME COURT REPORTS [2013) 17 S.C.R.

A  mother Heminbai reached the spot and there was a verbal
   altercation between her and the accused. She told the child to
   call"his father Ramgulal. There was a scuffle between Ramgulal
   and Anjoriram and the appellant-Chenda alias Chanda Ram,
   in the meanwhile, struck the head of Ramgulal with a tekani
B (piece of wood) used for supporting bullock carts. He fell down
   immediately. The neighbours shifted him to his house,
  thereafter to the District Hospital and, from there, to the hospital
  of the Bhilai Steel Plant at Bilaspur where he died at about
  08.25 P.M., nearly four hours after the incident. Based on the
c  report from the District Hospital, the case was initially charged
  under Section 307 read with Section 34 and afterwards, it was
  converted to Section 302 read with Section 34. Anjoriram is
  the first accused and the appellant Chanda Ram, the second.
  Nineteen witnesses were examined of which four are eye
0 witnesses including the wife and child of the deceased. The
  Sessions Court entered a finding that the appellant Chanda
  Ram had the intention of killing Ramgulal when he hit on his
  head with a weighted tekani due to which he suffered serious
  head injury involving five fractures and, hence, he was convicted
E un~er Section 302. However, taking note of the age of the
  accused as twenty three years and other circumstances, the
  appellant was awarded life imprisonment. The first accused
  Anjoriram was acquitted for want of any evidence in relation to
  the act leading to the death. In appeal, as per the impugned
  judgment dated 18.06.2010, the High Court concurred with the
F findings of the Sessions Court and held that:

          "16. From the overall evidence available on record, we find
          that the quarrel started when the stone pelted by child
          Kishore Kumar for hitting the cat fell on the terrace of .
G         Anjoriram where gram was kept. While Anjoriram was
          engaged in scuffle with Ramgulal, who came much after
          the initial quarrel of beating of Kishore Kumar and quarrel
          with his mother Heminbai, the appellant picked up a heavy
          wodden plank use for support of bullock cart and assault
H         the deceased on his vital part head with such force that
       CHENOA @ CHANDA RAM v. STATE OF                           333
            CHHATISGARH [KURIAN, J.]
     he sustained fracture of both parietal bones, fracture of A
     nose and fracture of occipital bones and died just four
     hours after the assault. We are unable to accept tHe
     argument of learned counsel for the appellant that the
     incident occurred as a result of sudden provocation,
     without premeditation on the spur of moment. From the B
     evidence available on record, we. have already pointed out
     that when the deceased and co-accused Anjoriram were
     involved in the scuffle, the appellant gave a fatal blow on
     the vital part head of the deceased without any
     provocation. Intention of the appellant is to be gathered c
     from the weapon of offence used for assault, the force with
     which and the part on which the assault was made. In the
     instant case, the assault was made by a heavy wooden
     plank with a force on' the vit~I part head of the deceased
     resulting in multiple fractures of both parietal bones, nose
                                                                  0
     bone and occipital bones.

     17. On the basis 'of afore9aid discussions, we are of the
     opinion that the trial court has rightly convicted the
     appellant under Section 302 of the IPC and sentenced him
     for life imprisonment. There is no illegality or infirmity in the   E
     impugned judgment. The appeal is without any substance
     and deserves to be dismissed."

       5. It is contended on behalf of the appellant that the
  evidence if properly appreciated would lead to only one F
  inference, that the appellant did not have any intention to
  commit murder. There was only a single blow with the stick, the
  same happened to be on the head, it was done qn the spur of
  the moment, it was without any premeditation and that it was
  in the process of a fight qetween the parties. There is no G
  evidence regarding any previous enmity between the parties
  and, thus, the case would ·come under Exception 4 of Section
. 300 of the Code.

     6. On behalf of the respondent State, it is submitted that
 on the only ground that there was a mere single blow, the               H
    334          SUPREME COURT REPORTS [2013] 17 S.C.R.


A   offence cannot be roped in under Exception 4 since, admittedly,
    the fight was not with the accused. It is further contended that
    the fatal blow was on a vital organ, i.e., the head, with great force
    resulting in serious injury to the head causing five fractures, the
    injury is sufficient in the ordinary course of nature to cause death
B   and, thus, both intention and knowledge are decipherable from
    the conduct of the accused appellant and, hence, the conviction
    under Section 302 is to be upheld.

         7. The crucial aspect to be analysed in this case is whether
C   the conduct of the appellant in inflicting the fatal blow is
    intentional and with knowledge or with knowledge only. The
    medical report given by PW14 shows that the injury caused by
    the weapon used by the appellant is sufficient in the ordinary
    course of nature to cause death. Hence, we have to analyse
    the evidence in the light of Section 300 clause "Thirdly" and
D   examine whether Exception 4 to Section 300 is applicable.
    Section 300 "Thirdly" reads as follows:

          "300. Murder.-Except in the cases hereinafter excepted,
          culpable homicide is murder, ifthe act by which the death
E         is caused is done with the intention of causing death, or-

                              xxx xxx xxx xxx

          Thirdly.- If it is done with the intention of causing bodilv
          injury to anv person and the bodily injury intended to be
F         inflicted is sufficient in the ordinary course of nature to
          cause death, or-"

                                                 (Emphasis supplied)

          Exception 4 to Section 300 of the Code, reads as follows:
G
          "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 wifhout the
          offender having taken undue advantage or acted in a
H         cruel or unusual manner.
      CHENOA @ CHANDA RAM v. STATE OF                      335
           CHHATISGARH [KURIAN, J.]
    Explanation.-lt is immaterial in such cases which party_, A
    offers the provocation or commits th.e first assault. "

                                          (Emphasis supplied)

    8. If the case falls under Exception 4, then the further inquiry
should be as to whether the case falls under the first part of B
Section 304 or the second part, which reads as follows:

      "304-Punishment for culpable homicide not
      amounting to murder.-Whoever commits culpable
      homicide not amounting to murder shall be punished with c
      imprisonment for life . . or imprisonment of either
    · description for a term which may extent to ten years. and
      shall also be liable to fine. if the act by which the death
      is caused is done with the intention of causing death. or
      of causing such bodily injury as is likely to cause death. 0

    or with imprisonment of either description for a term which
    may extend to ten years. or with fine. or with both. if the
    act is done with the knowledge that it is likely to cause
    death, but without any intention· to cause death. or to
    cause such bodily injury as is likely to cause death."      E
                                          (Emphasis supplied)

     9. All the eye witnesses have narrated the evolution of the
quarrel and about the conduct of the appellant inflicting the
injury with tekani used for supporting buflock carts. PW2- F
Heminbai, wife of deceased, reached the spot.on finding her
child weeping on account of a cane beating by Ar:ijoriram. There
was verbal altercation between herself and Anjoriram. She
asked her son PW5-Kishore Kumar to call her husband
Ramgulal (deceased). During, the scuffle that followed, Chanda G
Ram hit Ramgulal on his head once and sh~ caught hold of
Ramgulal when he fell down .. Ac;cording to her, there was
previous enmity with the accused persons. PW5-child Kishore
Kumar is the second eyewitness. He depolied thaf he had
                                                                 H
    336         SUPREME COURT REPORTS [2013] 17 S.C.R.


A   thrown a stone on a cat and in the process, ii ran away and
    landed on the roof of the accused persons due to which some
    gram kept on the terrace fell down. Infuriated, the appellant
    Chanda Ram beat him on his leg with a cane. He started to
    weep and his mother came to the spot. She questioned the
B appellant as to why he beat the child and she told Kishore
    Kumar to call his father so as to have a final decision about
    the ongoing fights. He went weeping to his father to call him to
    the spot immediately. A scuffle between the father Ramgulal and
    Anjoriram followed. Anjoriram hit Ramgulal with a screwdriver
c   on his nose while the appellant hit Ramgulal on the head with
   ·,1~ani. Resultantly, his father fell down. He was shifted to the
  i<l1,ouse and thereafter to the hospital. PW9-Latabai, resides
    adjacent to the house of the deceased. She has also slated
    that during the scuffle between Anjoriram and the deceased, ii
    was Chanda Ram who hit the head of Ramgulal with the tekani.
0
    According to PW11-Kartikram, during the verbal altercation
    between the first accused Anjoriram and PW2-Heminbai,
    Ramgulal (deceased) came to the spot and there was a scuffle
    between Anjoriram and Ramgulal. During the scuffle, the
    "J.Ccused Chanda Ram hit Ramgulal once on the head with
E tekani and consequently, Ramgulal fell down. Anjoriram also fell
    down, the hands of Anjoriram and Ramgulal were tied to each
    other and it is PW2-l'-leminbai who separated Anjoriram.
    PW14-Dr. R. N. Pandey who conducted the autopsy has stated
    that he had noted the following injuries:
F
           (1)   Cut wound on the head of size 4inch x 3inch bone
                 deep.

          (2)   Floated swelling on head and nose and on both the
                eyes.
G
          (3)   There was~ fracture in skull on both sides of
                cuttlebone, in bell up skull and also in the bone of
                nose.

H         (4)   Fractures were also found in the left parietal and
       CHENDA @ CHANDA RAM v. STATE OF                            337
            CHHATISGARH [KURIAN, J.]
             occipital bone of the Skull, there were to.ta! 5             A
             fractures in the skull.

     10. According to Dr. Pandey, those injuries can be caused
by one blow with the weapon of offence and that the injury was
sufficient in the ordinary course of nature to cause death.               B
      11. The landmark judgment in Virsa Singh vs. State of
=>unjab' draws a distinction between "Thirdly" of Section 300
and Exception 4 thereunder. The following are the four steps
')f inquiry involved:
                                                                          c
      i.     first, whether bodily injury is present;

      ii.    second, what is the nature of the injury;

      iii.   third, it must be proved that there was an intention
             to inflict that particular injury, that is to say, that it   D
             was not accidental or unintentional or that some
             other kind of injury was intended; and

      iv.    fourthly, it must be proved that the injury of the type
             just described made up of the' three elements set            E
             out above was sufficient to cause death in the
             ordinary course of nature.

     12. In State of Andhra Pradesh vs. Rayavarapu Punnayya
 ·1d Anothef, it was held that culpable homicide without the
 Jecial characteristics of murder is culpable homicide not                F
  nounting to murder, falling under Section 304 of the Code. It
  as further held that there are three degrees of culpable
 ')micide. The first is murder under Section 300; second,
 Jlpable homicide not amounting to murder falling under the first
 3rt of Section 304; and third is culpable homicide not                   G
  nounting to murder falling under the second part of Section
  J4. To quote: -

    (1958) 1 SCR 1495.
    (1976) 4 sec 382.                                                     H
    338           SUPREME COURT REPORTS (2013) 17 S.C.R.


A         "12. In the scheme of the Penal Code, 'culpable homicide'
          is genus and 'murder' its specie. All 'murder' is 'culpable
          homicide' but not vice-versa. Speaking generally, 'culpable
          homicide' sans 'special characteristics of murder', is
          'culpable homicide not amounting to murder'. For the
B         purpose of fixing punishment, proportionate to the gravity
          of this generic offence, the Code practically recognises
          three degrees of culpable homicide. The first is, what may
          be called, 'culpable homicide of the first degree'. This is
          the greatest form of culpable homicide which is defined
c         in Section 300 as 'murder'. The second may be termed
          as 'culpable homicide of the second degree'. This is
          punishable under the first part of Section 304. Then, there
          is 'culpable homicide of the third degree'. This is the lowest
          type of culpable homicide and the punishment provided for
          it is, also, the lowest among the punishments provided for
D
          the three grades. Culpable homicide of this degree is
          punishable under the second Part of Section 304."

        13. In Pappu vs. State of Madhya Pradesh 3 the Court
  almost exhaustively dealt with the parameters of Exception 4
E to Section 300 of the Code. It was held that the said Exception
  can be invoked if death is caused (i) without premeditation; (ii)
  in a sudden fight; (iii) without the offender's having taken undue
  advantage or acting in a cruel or unusual manner; and (iv) the
  fight must have been with the person killed. It was further held
F that all the four ingredients must be found in order to apply
  Exception 4. To quote:

          "13 .... The help of Exception 4 can be invoked if death is
          caused (a) v.ithout premeditation; (b) in a ·sudden fight; (c)
          without the offender's having taken undue advantage or
G
          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
H   3.   (2006) 7 sec 391.
        CHENOA @ CHANDA RAM v. STATE OF                       339
             CHHATISGARH [KURIAN, J.]
       4 to Section 300 IPC is not defined in IPC. It taKes two to A
       make a fight. Heat of passion requires that there must be
       no time for the passions to cool down and in this case, the
       parties have worked themselves into a fury on account of
       the verbal altercation in the beginning. A fight is a combat
       between two and more persons whether with or without B
       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 quarr~I 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 c.
       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".
                                                                    D
      14. It cannot be laid down as a rule of universal application
      that whenever one blow is given, Section 302 IPC is ruled
      out. It would depend upon the weapon used, the size of it
      in some cases, force with which the blow was given, part
      of the body on which it was given and several such relevant     E
      factors."

     14. In Jagriti Devi vs. State of Himachal Pradesh 4 , it was
held that the expressions "intention" and "knowledge" postulate
the existence of a positive mental attitude. It was further held      F
that when and if there is intent and knowledge, then the same
would be a case under first part of Section 304 and if it is only
a case of knowledge and not intention to cause murder by
bodily injury, then the same would be a case of second part of
Section 304. To quote:
                                                                      G
      "26. Section 299 and Section 300 /PC deal with the
      definition of "culpable homicide" and "murder"


4.   (2009) 14   sec 771.                                             H
     340            SUPREME COURT REPORTS (2013) 17 S.C.R.

·A         respectively. Section 299 defines "culpable homicide" as
           the act of causing death:

            (i)     with the intention of causing death, or

            (ii)    with the intention of causing such bodily injury as
 B                  is likely to cause death, or

            (iii)   with the knowledge that such act is likely to cause
                    death.

           A bare reading of the section makes it crystal clear that
 c         the first and the second clauses of the section refer to
           intention apart from the knowledge and the third clause
           refers to knowledge alone and not intention. Both the
           expressions "intent" and "knowledge" postulate the
           existence of a positive mental attitude which is of different
 D         degrees. The mental element in culpable homicide i.e.
           mental attitude towards the consequences of conduct is
           one of intention and knowledge. If that is caused in any of
           the aforesaid three circumstances, the offence of culpable
           homicide is said to have been committed.
 E
           27. Section 300 IPC, however, deals with murder although
           there is no clear definition of murder provided in Section
           300 IPC. It has been repeatedly held by this Court that
           culpable homicide is the genus and murder is species and
 F         that all murders are culpable homicide but not vice versa.

           28. Section 300 IPC further provides for the exceptions
           which will constitute culpable homicide not amounting to
           murder and punishable under Section 304. When and if
           there is intent and knowledge, then the same would be a
 G         case of Section 304 Part I and if it is only a case of
           knowledge and not the intention .to cause murder and
           bodily injury, then the same would be a case of Section
           304 Part II. The aforesaid distinction between an act
           amounting to murder and an act not amounting to murder
 H
       CHENOA@ CHANDA RAM v. STATE OF                       341
           CHHATISGARH [KURIAN, J.]
     has been brought out in the numerous decisions of this         A
     Court."

      15. In Gurmukh Singh vs. State of Haryana 5 after scanning
all the previous decisions where the death was caused by a
single blow, this Court indicated, though not exhaustively, a few   B
factors to be taken into consideration while awarding the
sentence. To quote:

     "23. These are some factors which are reqaired to be
     taken into consideration before awarding appropriate
     sentence to the accused. These factors are only C
     illustrative in character and not exhaustive. Each case
     has to be seen from its special perspective. The relevant
     factors are as under:

       (a)   Motive or previous enmity;                             D
       (b)   Whether the incident had taken place on the spur
             of the moment;

       (c)   The intention/knowledge of the accused while
             inflicting the blow or injury;                         E

       (d)   Whether the death ensued instantaneously or the
             victim died after several days;

       (e)   The gravity, dimension and nature of injury;
                                                                    F
       (f)    The age and general health condition of the
              accused;

       (g)    Whether the injury was caused without
              premeditation in a sudden fight;
                                                                    G
       (h)    The nature and size of weapon used for inflicting
              the injury and the force with which the blow was
              inflicted;

5.   (2009) 15 sec 635.                                             H
    342          SUPREME COURT REPORTS (2013] 17 S.C.R


A          (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;
B
           (k)   Number of other criminal cases pending against the
                 accused;

           (I)   Incident occurred within the family members or
c                close relations;

           (m)   The conduct and behaviour of the accused after the
                 incident. Whether the accused had taken the
                 injured/the deceased to the hospital immediately to
                 ensure that he/she gets proper medical trea.tment?
D
          These are some of the factors which can be taken into
          consideration while granting an appropriate sentence to
          the accused.

E         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
          of the court must be to ensure that the accused receives
          appropriate sentence, in other words, sentence should be
F
          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."

          16. In the light of the principles which have been discussed
G   fairly exhaustively, we have to analyse the factual position as
    to whether the appellant had the intention to cause death, or
    whether he only had the knowledge about the injury which is
    likely to cause death. We have to also analyse the manner in
    which the injury is caused and the provocation for the same.
H   There is no evidence in the case that there was previous enmity
      CHENOA @ CHANDA RAM v. STATE OF                       343
           CHHATISGARH [KURIAN, J.]
between parties though PW2 has attempted for such a version A
of the case. She has been disbelieved on th111t account because
of contradictions within her own statement under Section 161.
The available evidence would show that there was no
premeditation on the part of the appellant and that it was a case
of sudden fight. It has to be noted while appreciating the B
evidence that Ramgulal (deceased) was called by his wife to
the spot to settle the disputes once for all and that the ensuing
sudden scuffle with the first accused was in the presence of his
wife. It has come out in the evidence of PW11-Kartikram that
the injury inflicted by the appellant was during the scuffle c
between the"deceased and the first accused Anjoriram and that
after the lone strike on the head of the deceased by the
appellant, both the deceased and Anjoriram had fallen down
and it was PW2-Heminbai who separated Anjoriram and
Ramgulal as they had become entangled with each other. That
                                                                    0
only means that Ramgulal had overpowered Anjoriram or else
the deceased alone would have fallen down and not the first
accused A("ljoriram. The said conduct of the deceased
overpowering Anjoriram during the scuffle was the immediate
provocation for the appellant to take the weapon, the tekani
which was available in the vicinity to hit the deceased. There E
is no evidence at all as to whether the appellant intended to hit
on the head only or elsewhere on the body. The scuffling parties
being in motion, it could easily have happened that the blow
fell on the head unintentionally. No doubt the scuffle of the
deceased was with the Anjoriram but th·e entire fight was with F
the deceased on one side, and the appellant and other accused
Anjoriram on the other side. It is not required that the fight must
 be between the main accused and deceased. The fight can as
well be between two parties, the deceased on one side and
 all the other. accused on the other side. There is only one hit. G
 There is nothing to show that there was any cruelty involved by
 inflicting any other injury or by any other conduct on the part of
 the appellant so as to hold that the appellant was taking any
 undue advantage of the situation. or that he behaved in a cruel
 or unusual manner. Thus, all the four ingredients required for H
    344          SUPREME COURT REPORTS [2013] 17 S.C.R.

A   treating the case under Exception 4 to Section 300 of the Code
    as stated in Pappu's case (supra) are satisfied in the instant
    case.

        17. The next inquiry is w~ether the offence falls under first
  part of Section 304 or the second part. Having regard to the
B
  parameters indicated in Gurmukf! Singh's case ·(supra), the
  offence seems to fall under the second part. There is no
  evidence of motive or previous enm.ity. The incident has taken
  place on the ~pur of the moment. There is no evidence
C regarding the i11tention behind the Jatal consequence of the
  blow. There was only one blow. The:accused is young. There
  was no premeditation. The evolution of the incident would show
  that it was in the midst of a sudden fight. There is no criminal
  background or adverse history of the appellant. It was a trivial
  quarrel among the villagers on account of a simple issue. The
D fatal blow was in the course of a scuffle between two persons.
  There has been no other act of cruelty or unusual conduct on
  the part of the appella11t. The deceased was involved in the
  scuffle in the presence of his wife and he had actually been
  called upon by her to the spot so as to settle the score with the
E accused persons. The deceased had, in the scuffle,
  overpowered the first accused. That first accused was
  acquitted. Thus, considering all these aspects, we are of the
  view that it is a fit case to alter the punishment of imprisonment
  for life to imprisonment for a period of 1O years with fine of
F Rs.50,000/-. Ordered accordingly. Since the deceased has
  been left with a young widow and one child, the amount of fine
  thus recovered shall be paid as compensation to the widow and
  the child. In the event of the appellant defaulting to pay the fine,
  he shall undergo imprisonment for a further period of two years.
G In case the appellant has already served the term as above,
  he shall be released forthwith, if not required to be detained in
  connection with any other case. The appeal is allowed as
  above.

    Kalpana K. Tripathy                           Appeal partly allowed.
H