JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 21/04/2015 passed in Special Case No. 05/2013 whereby learned Special Judge (Atrocitiy) Rajnandgaon has convicted the appellant/accused for offences punishable under Sections 302 and 323 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced for the period as shown in the table below :- Conviction Sentence U/s 302 of Indian Penal Code,1860 R.I. for life and fine of Rs. 100/- in default of payment of fine further R.I. for 6 months U/s 323 of Indian Penal Code,1860 R.I. for 3 months and fine of Rs. 100/in default of payment of fine further R.I. for 3 months U/s 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 R.I. for life and fine of Rs. 100/in default of payment of fine further R.I. for 6 months. 2. Case of the prosecution, in brief, is that on 23/11/2012 at about 09:00 PM at Village Thakurtola, the appellant herein assaulted Chhabilal with a laathi with the intention of causing his death knowing fully well that he was a member of Scheduled Tribes due to which Chhabilal suffered grievous injury on his head and died instantaneously. The appellant also assaulted Arjun Yadav (P.W.1), who tried to intervene, and inflicted simple injuries upon him and thereby, committed the aforesaid offences. 3. Further case of the prosecution, in brief, is that on 23/11/2012, Arjun Yadav (P.W.1) lodged merg intimation (Ex. P/1A) at Police Station Khadgaon stating that at about 9 PM, when he reached the house of Dhiraji (P.W.2) he found that Dhiraji and deceased Chhabilal were sitting together outside his house and with regard to the encroachment made by the appellant in the land in front of Dhiraji's house, the deceased was taunting him as to why he let the appellant encroach the said land. Thereafter, suddenly appellant came therein from the fields after crossing the wooden barrier armed with a teakwood laathi and with the intention of causing death, assaulted deceased Chhabilal on his head and inflicted grievous injury due to which he died instantaneously. When Arjun Yadav (P.W.1) tried to intervene, the appellant also assaulted him and inflicted injury on his knees. Thereafter, suddenly appellant came therein from the fields after crossing the wooden barrier armed with a teakwood laathi and with the intention of causing death, assaulted deceased Chhabilal on his head and inflicted grievous injury due to which he died instantaneously. When Arjun Yadav (P.W.1) tried to intervene, the appellant also assaulted him and inflicted injury on his knees. On the basis of the merg intimation, FIR for offence punishable under Section 302 of IPC was registered against the appellant vide Ex. P/1 and thereafter, inquest was conducted vide Ex. P/3 and the dead body of deceased Chhabilal was sent for postmortem to Primary Health Center, Mohla wherein postmortem was conducted by Dr. S.R. Mandavi (P.W.4) and the postmortem report has been filed as Ex. P/8 in which cause of death is shock due to excessive haemorrhage as a result of rupture of brain and fracture of bone of skull and the nature of death is homicidal. Nazri naksha was prepared vide Ex. P/10 and pursuant to the memorandum statement of appellant/accused vide Ex. P/5, recovery of teakwood laathi was made from his possession vide Ex. P/6. The seized articles were though sent for chemical examination but no FSL report has been brought on record. After recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offences punishable under Sections 302 and 323 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 12 witnesses and brought into record 13 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt but examined none, however, he exhibited 6 documents in his defence. 5. Learned trial Court, after appreciating the oral and documentary evidence on record, proceeded to convict him for offences punishable under Sections 302 and 323 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 6. Mr. Suresh Tandan, learned counsel for the appellant, would submit that Arjun Yadav (P.W.1) and Dhiraji (P.W.2) have not really seen the appellant assaulting the deceased, therefore, his conviction cannot rest on the basis of their testimonies. 6. Mr. Suresh Tandan, learned counsel for the appellant, would submit that Arjun Yadav (P.W.1) and Dhiraji (P.W.2) have not really seen the appellant assaulting the deceased, therefore, his conviction cannot rest on the basis of their testimonies. He would further submit that even if the appellant is held to be the perpetrator of the crime, looking to the dispute between the parties, the present case is covered with Exception 4 to Section 300 of IPC and since the appellant is in jail since 24/11/2012 i.e. more than 9 years, therefore, he be sentenced for the period already undergone. 7. Per Contra, Mr. Ashish Tiwari, learned State counsel, would support the impugned judgment and submit that in view of the statements of Arjun Yadav (P.W.1) and Dhiraji (P.W.2), who are eye witnesses of the incident, the appellant has rightly been convicted for the aforesaid offences, therefore, this appeal deserves to be dismissed as argued by learned counsel for the appellant, it is not a case which is covered by Exception 4 to Section 300 of IPC. 8. We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection. 9. The first question is whether the death of deceased Chhabilal was homicidal in nature ? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. S.R. Mandavi (P.W.4) who has conducted postmortem of the deceased, in which he has clearly stated in the postmortem report (Ex. P/8) that cause of death is shock due to excessive haemorrhage as a result of rupture of brain and fracture of bone of skull and the nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the grievous injury sustained by the deceased on his head and relying upon the medical opinion of Dr. S.R. Mandavi (P.W.4) as well as postmortem report (Ex. P/8), we are of the considered opinion that learned trial Court has rightly held the death of deceased Chhabilal to be homicidal in nature. Moreover, the fact that the deceased was not homicidal in nature has not even been seriously questioned by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Chhabilal is homicidal in nature. 11. Moreover, the fact that the deceased was not homicidal in nature has not even been seriously questioned by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Chhabilal is homicidal in nature. 11. The next question for consideration is whether the appellant is the perpetrator of the crime in question ? 12. Learned trial Court has also recorded an affirmative finding in this regard relying upon the testimonies of eyewitnesses Arjun Yadav (P.W.1) and Dhiraji (P.W.2). Arjun Yadav (P.W.1) is the injured witness and he has proved merg intimation vide Ex. P/1A wherein he has clearly stated that on the fateful day, at about 09:00 PM, he was returning to his house and when he reached Dhiraji's house, he found that Dhiraji (P.W.2) was sitting outside with deceased Chhabilal. Arjun Yadav (P.W.1) also joined them and they started chatting and with regard to the land encroached by the appellant in front of Dhiraji's house, the deceased was taunting Dhiraji (P.W.2) as to why he let the appellant encroach the said land when suddenly appellant came therein from the fields after crossing the wooden barrier armed with a teakwood laathi and assaulted the deceased and inflicted grievous injuries on his head on account of which, deceased died instantaneously. Thereafter, when Arjun Yadav (P.W.1) tried to intervene, the appellant also assaulted him and caused simple injuries on his knees after which, being afraid, he ran away along with Dhiraji (P.W.2). 13. Similarly, Dhiraji (P.W.2) has also made a similar statement and has supported the case of the prosecution and moreover, pursuant to the memorandum statement of the appellant vide Ex. P/ 5, recovery of teakwood laathi has also been made vide Ex. P/6. In that view of the matter, we are of the considered opinion that learned trial Court has rightly held the appellant to be the perpetrator of the crime in question. 14. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC and as such as contended by learned counsel for the appellant ? 15. 14. The aforesaid finding brings us to the next question for consideration, which is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC and as such as contended by learned counsel for the appellant ? 15. In the matter of Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 , Their Lordships of the Supreme Court have observed as under : “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 Sukhir 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.” 16. Thereafter, in the matter of Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 , Their Lordships of the Supreme Court have laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused 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. 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; (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 with 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 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. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? 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 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.” 17.Further, the Supreme Court in the matter of Arjun v. 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. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 17.Further, the Supreme Court in the matter of Arjun v. 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 acted 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 : (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. 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 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”. 18. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 PartI 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 IPC. 19. Reverting to the facts of the present case in light of the aforesaid principle of law laid down by Their Lordships of Supreme Court, it is quite vivid from the merg intimation (Ex. P/1A) which has been duly proved by Arjun Yadav (P.W.1) that when deceased Chhabilal taunted Dhiraji (P.W.2) as to why he let the appellant encroach the land opposite to his house, the appellant suddenly came therein and out of sudden anger and in heat of passion, assaulted the deceased on his head with teakwood laathi. From a careful perusal of the testimonies of eyewitnesses Arjun Yadav (P.W.1) and Dhiraji (P.W.2) it is quite clear that the dispute pertaining between the appellant and the deceased was with regard to the land opposite of the house of Dhiraji. From a careful perusal of the testimonies of eyewitnesses Arjun Yadav (P.W.1) and Dhiraji (P.W.2) it is quite clear that the dispute pertaining between the appellant and the deceased was with regard to the land opposite of the house of Dhiraji. Moreover, when the deceased was sitting with Dhiraji outside his house along with Arjun Yadav standing with them, the appellant came therein already armed with a laathi and without uttering a single word, he straightway inflicted a blow on the head of the deceased which goes to show that appellant had the intention to cause the death of the deceased and looking to the nature of injury sustained by the deceased, that too, on his head which is a vital part of the body, the appellant must have had the knowledge that it would likely cause the death of the deceased. Therefore, all the four ingredients of Exception 4 to Section 300 of IPC are satisfied and in that view of the matter, conviction of the appellant under Section 302 of IPC is altered to Section 304 Part I of IPC and since he is in jail since 24/11/2012 i.e. for more than 9 years, we hereby sentence him to the period already undergone. 20. So far as the conviction of appellant for offence punishable under Section 323 of IPC is concerned, neither it has been seriously questioned by learned counsel for the appellant nor do we find any infirmity with the findings recorded by the trial Court, as such, his conviction for offence punishable under Section 323 of IPC is hereby maintained. 21. Now the next question for consideration is whether the trial Court was justified in convicting the appellant for offence punishable under Section 3(2) (v) of the SC and ST Act, 1989 ? 22. Section 3(2)(v) of the SC and ST Act (Prevention of Atrocities) Act, 1989 prior to its amendment w.e.f. 26/01/2016 by SC and ST Act (Prevention of Atrocities) Act, 2015, stood as under :- “3. 22. Section 3(2)(v) of the SC and ST Act (Prevention of Atrocities) Act, 1989 prior to its amendment w.e.f. 26/01/2016 by SC and ST Act (Prevention of Atrocities) Act, 2015, stood as under :- “3. Punishments for offences of atrocities – (1) XXX XXX XXX (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (I) to (iv) XXX XXX XXX (v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” 23. The Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh, AIR 2021 SC 2190 noticing Section 3(2) (v) of the Act of 1989 (unamended) considered the issue of proving the offence under Section 3(2)(v) of the Act of 1989 against a person on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member and held that it is to be established by the prosecution on the basis of evidence at the trial and held as under : “58. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model. 59. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. 61. However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.” 24. Reverting to the facts of the present case in light of the principle of law laid down by Their Lordships of the Supreme Court in the matter of Patan Jaman Vali (supra), it is quite vivid that as per Article A attached with the paper-book which is a copy of caste certificate of deceased Chhabilal, it is evident that he was a member of the Scheduled Tribe but since the offence was committed on 23/11/2012 i.e. prior to the incorporation of the amendment inserted under Section 3(2)(v) of the Act of 1989 w.e.f 26/01/2016, it was entirely upon the prosecution to establish and prove that the offence was committed because deceased was a member of Scheduled Tribe. From the perusal of entire evidence available on record, it is quite clear that prosecution has failed miserably to prove that appellant committed the offence on the basis of the caste identity of deceased Chhabilal, being a member of Scheduled Tribe. There is no separate evidence led on behalf of the prosecution to establish that appellant committed the offence on the basis of caste identity of the deceased. While it can be presumed that appellant knew that deceased belonged to Scheduled Tribe category as both the appellant as well as the deceased were residents of same village, but the mere knowledge of the same cannot be said to be the basis of the commission of offence and it had to be proved by the prosecution by leading separate evidence as held by Their Lordships of the Supreme Court in the matter of Patan Jaman Vali (supra). In absence of any such independent evidence led by the prosecution establishing that appellant assaulted the deceased and caused his death only on the ground that he belonged to Scheduled Tribe category, we are of the considered opinion that learned trial Court has legally erred in convicting the appellant for offence punishable under Section 3(2)(v) of the Act of 1989. Accordingly, his conviction for offence punishable under Section 3(2)(v) of the Act of 1989 is hereby set aside. 25. In conclusion of the aforesaid legal discussion, the conviction recorded and the sentence awarded to the appellant for offence punishable under Section 302 of IPC as well as for offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hereby set aside, rather he is convicted for offence punishable under Section 304 Part-I of IPC and since he is in jail since 24/11/2012, we hereby sentence him for the period already undergone by him. So far as his conviction for offence punishable under Section 323 of IPC is concerned, it is hereby maintained. The appellant be released forthwith, if not required in any other case. 26. Accordingly, this criminal appeal is allowed to the extent indicated hereinabove.