Conviction under Section 302 IPC is converted to Section 304 Part II IPC when the act is committed during a sudden fight in the heat of passion without premeditation and without taking undue advantage, satisfying Exception 4 to Section 300 IPC.

DMA D15Ai aOg :tD 0i eHt 9I :a LA :2l 0 MK 0y 2 2HM s +6i AgE .00NnD 53e 3.d 10 0by (Cause title taken from Case Information System)

Judgment on Board

Per Ramesh Sinha, Chief Justice

1. The present criminal appeal has been filed by the appellants under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 28-12-2021 passed by the learned learned Additional Sessions Judge (F.T.C.), South Bastar Dantewada in Sessions Case No.224/2018 whereby the appellants have been convicted and sentenced in the following manner:-

2. The brief facts of the case are that, on 13-02-2018 when deceased Ramakant Sen had gone to dig soil there was altercation with the accused persons/appellants with respect to lifting of soil and at that time accused/appellant Nirmala Sen caused injuries by crow bar on his head by which he received grievous injuries. Appellant/accused Suresh Sen also assaulted the deceased by hand and fists. The incident was witnessed by PW-1 Anju, wife of the deceased, PW-2 Dhiraj, son of the deceased and PW-5 Pratibha. The deceased was referred to Mekahara Hospital, Raipur for his treatment where he died during treatment. Merg intimation was informed to Maudahapara, Raipur police and then inquest of the dead body was prepared and it was sent for its postmortem to Doctor Bhimrao Ambedkar Hospital, Raipur where PW-8 Doctor Thakur M. Nirala conducted postmortem of the dead body of the deceased and found one stitched wound present on left side of frontal region extends to right temporal region, contusion present on mid part of chest, in right side of elbow and in mid part of right leg anterior aspect. Ecchymosis present on right side fronto-parieto-temporal region under scalp. Craniotomy done on right side of fronto-parieto - temporal bone. Menings torned. Hemorrhagic contusion present on right side of frontal lobe. SDH present all over the brain and cerebral, fracture on post cranial fossa were found. Injuries were antemortem in nature and caused by hard and blunt object and sufficient to cause death and opined that death was due to cardio respiratory failure as a result of head injury and his postmortem report is Ex.-P/11. FIR Ex.-P/3 was registered for offence under Section 302, 294, 34 of the IPC against the accused persons. Spot map Ex.-P/1 was prepared by police and Ex.-P/10 was prepared by Patwari. The accused persons were arrested on 27-03-2018 and the memorandum statement of accused Nirmala Sen was recorded which is Ex.-P/6. Based on her memorandum statement one iron crow bar has been seized from her house vide seizure memo Ex.-P/7. Statement of the witnesses under Section 161 of the CrPC have been recorded and after completion of usual investigation charge sheet was filed before the learned Chief Judicial Magistrate Bijapur for the offence under Section 294, 302, 34 of the IPC. The case was committed to the learned Sessions Court South Bastar Dantwada from where it has been transferred to the learned trial Court for its trial.

3. The learned trial Court has framed charge against the accused persons for the offence under Section 294/34 and 302/34 of the IPC. The appellants/accused persons denied the charge and claimed trial.

4. In order to prove charge against the accused persons the prosecution has exa