JUDGMENT : Goutam Bhaduri, J Heard. 1. This criminal appeal preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 06/03/2020 passed by the Additional Sessions Judge, Special Court (Naxal), Dantewada, District South Bastar Dantewada, C.G. in Sessions Trial No.235/2017 whereby the appellants have been convicted under Section 323/34 IPC (two times) and under Section 302/34 IPC and sentenced to undergo R.I. for 1 Year, R.I. for 6 months and Life Imprisonment with usual default stipulations. 2. The prosecution case, in brief, is that on 01/05/2017 the accused Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) was leveling a land with help of hired tractors which originally belong to Sukhlal Yadav (PW-10) which was objected by Sukhlal Yadav (PW-10), Sobilal, the deceased and Smt. Sulo Bai (PW-4) claiming that the land belong to them. The drivers of tractor which was being used for leveling the field were threatened, due to which they stopped the work of leveling the said field. Offended by the fact that the tractors has been stopped from working, Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) and Devendra Yadav (A/2) came to the place of incident wherein some altercation took place between deceased and his allies. Thereafter accused asked both the tractor drivers to continue the leveling the field. Subsequently, the dispute got even more aggravated and the appellants/accused came armed with an iron rod and wooden plank and assaulted Sobilal Yadav (deceased) on his head and Sukhlal Yadav (PW-10) & Smt. Sulo Bai (PW-4). The injured persons were thereafter referred to the doctor. The doctor on the primary opinion came to a conclusion that the injury was grievous in nature and referred for treatment to the higher center. Subsequently, after few days Sobilal Yadav (deceased) succumbed to such injury and the dead body when was subjected to postmortem the nature of death was reported to be homicidal. 3. The police after recording the statement of the witnesses filed the charge-sheet before the Court. 4. During the course of trial, the appellants abjured their guilt and claimed to be tried. The prosecution on their behalf examined as many as 14 witnesses and exhibited 27 documents. After entire trial the appellants were convicted as aforesaid. Hence this appeal. 5. 3. The police after recording the statement of the witnesses filed the charge-sheet before the Court. 4. During the course of trial, the appellants abjured their guilt and claimed to be tried. The prosecution on their behalf examined as many as 14 witnesses and exhibited 27 documents. After entire trial the appellants were convicted as aforesaid. Hence this appeal. 5. Learned counsel for the appellants would submit that none of the witnesses have stated anything about the role played by Devendra Yadav (A/2) and initial report i.e. Dehatinalisi which was made immediately after incident (Ex. P/3) in which the entire assault was attributed to Gheenuram Lekami Raut @ Gheenuram Yadav (A/1). He would further submit that the eye witness Arun Yadav (PW-5), who is the son of the deceased tried to improve his statement before the Court and tried to inculpate Devendra Yadav (A/2) though according to the Dehatinalisi Devendra Yadav (A/2) has not played any role. He would further submit that the incident occurred on a spur of moment in a sudden provocation for the reason that the altercation broke out due to leveling of the land was objected wherein the accused persons were carrying on their agriculture for the last three years. The said objection resulting altercation led to sudden provocation and on spur of moment the assault took place, therefore, the conviction under Section 302 IPC is required to be modified/altered to exception II to Section 300 of IPC. 6. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellants and would submit that the witnesses Kunwar Singh Yadav (PW-3), Smt. Sulo Bai (PW-4), Arun Yadav (PW-5) & Sukhlal Yadav (PW-10) have categorically deposed about the role played by both the appellants. He would further submit that reading of their statements simplicitor would lead to show that both the appellants actively participated in commission of crime which lead to death of Sobilal Yadav and injury to Smt. Sulo Bai (PW-4) & Sukhlal Yadav (PW-10) and would submit that therefore the judgment of the Court below is well merited which do not call for any interference. 7. We have heard learned counsel for the parties and perused the record. 8. 7. We have heard learned counsel for the parties and perused the record. 8. The cumulative perusal of the statement of the witnesses Kunwar Singh Yadav (PW-3), Smt. Sulo Bai (PW-4) & Arun Yadav (PW-5) would show that the genesis of the dispute was a land. On the date of incident on 01/05/2017 the incident happened at about 10.00 AM and the report Dehatinalisi (Ex. P/3) at about 12:30 pm. Perusal of the Dehatinalisi would show that the entire allegations of assault were attributed to Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) and no allegations have been attributed to Devendra Yadav (A/2) though he has been named in the Dehatinalisi. 9. Venktesh Pitel (PW-1) & Manish Kumar Chichad (PW-2) were the drivers of the Tractor who were leveling the field on which the dispute arose. According to their statement they were leveling the field at the instance of Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) which was objected by Sukhlal Yadav (PW-10) & Smt. Sulo Bai (PW-4), who were injured and Sobilal Yadav (deceased). Having objected they stopped the leveling of the field. Subsequently, at the instance of Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) that the land belong to him they again started the work thereafter injured and the deceased again came back with wooden club, having seen them both of them i.e. the drivers of tractors fled away. This would show that the dispute mainly arose on account of leveling of the field and both the rival parties were asserting their claim of ownership over the said land in dispute. 10. Now coming back to the evidence and initially Kunwar Singh Yadav (PW-3) who is also related to the deceased Sobilal Yadav (deceased) and injured Sukhlal Yadav (PW-10). Kunwar Singh Yadav (PW-3) stated that they know both the accused they are father and son. On 1st May, 2017 at about 10 am Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) was getting his land leveled by Tractor wherein Sobilal Yadav (deceased) was present. Subsequently, Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) went back to his house came with an Iron rod and assaulted Sobilal Yadav (deceased) on his head. The presence of Devendra Yadav, the son, is also been affirmed. The witness states that Sukhlal Yadav (PW-10) tried to intervene but Devendra Yadav (A/2) entered into the scuffle with Sukhlal Yadav (PW-10). Subsequently, Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) went back to his house came with an Iron rod and assaulted Sobilal Yadav (deceased) on his head. The presence of Devendra Yadav, the son, is also been affirmed. The witness states that Sukhlal Yadav (PW-10) tried to intervene but Devendra Yadav (A/2) entered into the scuffle with Sukhlal Yadav (PW-10). Thereafter, they tried to stop the appellant but they did not stop and fled away. Sobilal Yadav (deceased) fell down there and was taken to the hospital. According to this witness the further allegations were attributed to Devendra Yadav (A/2) was that he took out a wooden plank of the boundary from the spot and assaulted. This witness who lodged the Dehatinalisi (Ex. P/3) and the map Nazarinaksha (Ex. P/4) affirmed the same. In the cross-examination witness states that the land in dispute which was shown in map (Ex. P/4) the map Nazarinaksha belongs to Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) and in the mids of that the one road passes. He further states that as Ex. P/4 the map wherein the incident happened the accused was sowing the field for last three years and he admits the fact that when the land was being leveled by the Tractor, at that time Sobilal Yadav (deceased), Smt. Sulo Bai (PW-4) & Sukhlal Yadav (PW-10) gave threat to the drivers of the tractors to stop the work, whereby both the drivers fled away. He further states that having heard that the Tractor has stopped Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) came to investigate as to how the Tractor has stopped working and volunteered that Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) came with a wooden stick. Thereafter, he at the instance of Sobilal Yadav (deceased), Smt. Sulo Bai (PW-4) & Sukhlal Yadav (PW-10) went to the spot. He states that after the dispute/incident happened Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) has also made a report against Sobilal Yadav (deceased), Smt. Sulo Bai (PW-4) & Sukhlal Yadav (PW-10) and the police after the investigation filed the charge-sheet. 11. The statement of this witness, therefore, would show that the incident happened when Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) was leveling his field which he was sowing for the last three years wherein the deceased and injured were the aggressor to stop the work. 12. 11. The statement of this witness, therefore, would show that the incident happened when Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) was leveling his field which he was sowing for the last three years wherein the deceased and injured were the aggressor to stop the work. 12. Another witness the injured Smt. Sulo Bai (PW-4) states the similar incident that while the field was being leveled it was objected by them which led to a dispute. Thereafter, Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) came with an iron rod and one wooden stick and assaulted Sobilal Yadav (deceased) on his head and while his husband Sukhlal Yadav (PW-10) was trying to intervene to console he was also assaulted by Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) and when she tried to intervene she was assaulted by hand and fists. In her statement nothing is attributed to Devendra Yadav. The cross-examination of this witness would show that the land on which the dispute arose they do not have any ownership as they failed to give it to the police. The genesis of the incident has been narrated in the verbatim that while they stopped the leveling of the field having heard the effect about the stoppage of noise of tractor the appellant came and thereafter the incident happened as the rival claim was made by the witnesses. 13. Another injured witness Sukhlal Yadav (PW-10) states the similar incident, however, in the statement the assault is also attributed to Devendra Yadav (A/2) that he was assaulted by Devendra Yadav on his temporal region whereby he fell down and lost his conscious. 14. Arun Yadav (PW-5) the son of the deceased Sobilal Yadav also states similar fact that while his land was being leveled it was objected by them which led to dispute and Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) assaulted by rod and Devendra Yadav (A/2) by wooden plank. They tried to intervene but they were also assaulted. He in the cross-examination further states that at the first point of time when they objected for leveling of the field at that time Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) and Devendra Yadav (A/2) the accused were not there but when the tractor was stopped thereafter they came and they stated to Devendra Yadav that they have stopped the tractor which led to a dispute and the assault was made. Therefore, the statement of the witnesses, injured witnesses and the eye witnesses would show that the incident happened at the time of leveling of the field of which the accused claimed the ownership and having stopped the work in the mids of altercation the incident happened. 15. Dr. Surya Gupta (PW-6), who examined the injured Sukhlal Yadav (PW-10) and Sobilal Yadav (deceased), given his report in respect of Sukhlal Yadav (PW-10) which is (Ex. P/5). The injury was found to be grievous in nature wherein in respect of Sobilal Yadav (deceased) Dr. Surya Gupta (PW-6) gave his report Ex. P/6 it was also found to be grievous in nature. Further, in the cross-examination of the witness, he states that the other nature of grievous injury could have been ascertained after the C.T. Scan and X-ray report. The statement would show that one injury was on the head of Sobilal Yadav (deceased) and except that other injuries were not found on his body and in respect of Sukhlal Yadav (PW-10) following injuries were found:- “1. There was a cut wound on the outer part of his left eye, the size of which was 3×2×1 cm and there was a spot of red-brown color. 2. There was swelling near his left ankle size of which was 3 x 4 CM and there was a spot of red colour.” 16. In respect of Sobilal Yadav (deceased) following injuries were found:- There was a deep cut wound in the middle part of the head (skull). Which was a lacerated wound up to the right temporal region whose total size is 5x3x2 cm and blood was flowing from there. The scalp came out near that wound. Sobilal Yadav (deceased) after few days was referred to the higher medical center and he died after few days. 17. Dr. Santu Bagh (PW-14) conducted the postmortem. Ex. P/26 is the postmortem report. According to the doctor the death was homicidal in nature and he found the following injuries:- (1) Lacerated wound with stitches on frontal to vertex region obliquely 7 CM long. (2) Blackness around right eye. (3) Contusion present on the right side of the face, neck, temporal region all over fracture of right side zygomatic bone. Contusion present in right cheek and bone situated downside of cheek was fractured. (2) Blackness around right eye. (3) Contusion present on the right side of the face, neck, temporal region all over fracture of right side zygomatic bone. Contusion present in right cheek and bone situated downside of cheek was fractured. During internal examination of the dead body the following injuries were found:-(01) On opening the scalp, blood accumulation (diffuse ecchymosis) was present in the frontal and parietal area on the right side and also in the frontal parietal area on the left side, which was dark red-black. (2) A defended fracture was present in the right parietal frontal bone of the skull. On opening the skull, extradural hemorrhage was present in the right parietal region of the brain and subdural and subarachnoid hemorrhage was present everywhere in both hemispheres of the brain. There was a contusion in the temporal lobe on the right side of the brain, which contained blood clots. (3) On opening the skull, after removing the brain, a bone fracture was present in the middle cranial fossa of the right side of the base of the skull. (4) On opening the chest, all the internal structures of the chest were healthy. (5) The stomach was empty, undigested food in the small intestine and feces in the large intestine The substance was present. (6) Spleen, both kidneys, liver were healthy, urinary bladder was empty, external and internal genitals were healthy. Other structures of the body were healthy. 18. The entirety of the evidence would show that the way the offence occurred the intention to cause death cannot be gathered. The facts would suggest that the injured and the deceased were aggressor for the reason that while the field was being leveled by Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) they initially stopped the work. The evidence is also on record that Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) was cultivating the land for last three years and the prosecution witnesses themselves admitted that the land belong to Gheenuram Lekami Raut @ Gheenuram Yadav (A/1). Consequently, the inference can be drawn that such stoppage of work was done by the injured and the deceased, which led to provocation and on spur of moment single blow was made on the head of the deceased Sobilal Yadav (deceased) and Sukhlal Yadav (PW-10) who were party in such dispute due to which they sustained injury. 19. Consequently, the inference can be drawn that such stoppage of work was done by the injured and the deceased, which led to provocation and on spur of moment single blow was made on the head of the deceased Sobilal Yadav (deceased) and Sukhlal Yadav (PW-10) who were party in such dispute due to which they sustained injury. 19. The Supreme Court in the matter of Pappu Versus State of M.P. { (2006) 7 SCC 391 } has held that for bringing in its operation to exception IV to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. Where the exception to Section 300 can be invoked at para 13 of the judgment the Court laid down as under:- 13. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties 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 weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 20. Further this Court in the matter of Vishnu Kumar Vs. 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'. 20. Further this Court in the matter of Vishnu Kumar Vs. State of Chhattisgarh {CRA No.1079 of 2013, decided on 11/05/2023} has laid down when the exception to Section 300 IPC vis a vis culpable homicide not amounting to murder can be set into motion at para 29 the Court held as under:- 29.The Supreme Court in the matter of Arjun vs. State of Chhattisgarh reported in (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :- “20. To invoke this Exception (4), the requirements that areto 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:- “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in the case of 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 beenexplained as under:- (SCC p.596, para 9) “9. .......“18. Further in the case of 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 beenexplained as under:- (SCC p.596, para 9) “9. .......“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 21. Applying the aforesaid principle in this case, the facts would show that while the appellants were leveling the field having objected on a spur of moment the incident happened. Fact can be looked into from the other angle that had there been no quarrel or objection to level the field, the incident would not have happened at all. The deceased had a single injury on his head and the background of the incident was a land dispute and the land was an agricultural field. Fact can be looked into from the other angle that had there been no quarrel or objection to level the field, the incident would not have happened at all. The deceased had a single injury on his head and the background of the incident was a land dispute and the land was an agricultural field. Therefore, we are of the view that there was no premeditation on the part of the appellants to cause the death of the deceased as the assault was made is an out come of sudden quarrel and the injured and the deceased were the aggressor. The single blow on the head which caused the death would show that they have not acted in cruel or unusual manner, therefore, in our considered opinion the present case would fall within the exception 4 to Section 300 of IPC. 22. Accordingly, we allow the appeal in respect of Devendra Yadav (A/2) and he is acquitted of all the charges leveled against him. Whereas the conviction and sentence imposed on Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) under Section 302 IPC is altered as conviction under Section 304 Part-II of IPC and considering the entirety of circumstances that Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) has suffered 6 years and 8 months of imprisonment, we are of the considered opinion that the ends of justice would be served if Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) is sentenced to the period which he has already undergone. However, his conviction for the offence under Section 323 IPC and fine sentence are hereby maintained. In that view of the matter, the appeal of Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) is partly allowed to the above extent. 23. Appellant Gheenuram Lekami Raut @ Gheenuram Yadav (A/1) is reported to be in jail, he be set at liberty forthwith if not required to be detained in any other case. Appellant Devendra Yadav (A/2) is reported to be on bail, his bail bonds stands cancelled and the sureties stand discharged.