Rajasthan High Court – Jaipur
Sharvan Kumar S/O Shri Chhotudas vs State Of Rajasthan on 12 August, 2025
[2025:RJ-JP:30315-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal (DB) No. 195/2020
Sharvan Kumar S/o Shri Chhotudas, R/o Raiwasa, Police Station
Ranoli, District Sikar (Raj.)
(At Present Confined In District Jail Sikar)
----Accused-Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr.Hemant Gupta
For Respondent(s) : Mr.Jitendra Singh Rathore, P.P.
HON'BLE MR. JUSTICE AVNEESH JHINGAN
HON’BLE MR. JUSTICE BALJINDER SINGH SANDHU
Judgment
Reserved on : 06/08/2025
Pronounced on : 12/08/2025
AVNEESH JHINGAN, J:-
1. This appeal is preferred by Sharvan Kumar against the
judgment dated 08.07.2020 passed by the Sessions Judge, Sikar
in Sessions Case No.200/2018, convicting the accused-appellant
under Section 302 IPC. Vide order of even date, the appellant was
ordered to undergo life imprisonment and to pay a fine of
Rs.5,000/-. In default of payment of fine, to further undergo three
months additional simple imprisonment.
2. The facts as set up by the prosecution are that Vinod Kumar
(complainant) reported the matter to the police on 13.08.2018
stating that at about 10 A.M. his father Sitaram (hereinafter
referred to as ‘deceased’) along-with the appellant were sitting
near weighing bridge, Raiwasa. During heated exchange of words
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[2025:RJ-JP:30315-DB] (2 of 11) [CRLAD-195/2020]the appellant broke a bottle, stabbed with it in the neck of the
deceased and the injuries were inflicted on the head, hand and
stomach. The deceased succumbed to injuries in the hospital . An
FIR No.189/2018 was registered at Police Station Ranoli, District
Sikar u/s 302 IPC. The charge-sheet was filed and the charge was
framed u/s 302 IPC. The prosecution examined thirteen witnesses
and exhibited thirty two documents to prove the case. In the
statement recorded u/s 313 Cr.P.C., it was stated to be a case of
false implication. In defence two documents were exhibited. The
trial court relying upon statement of the eye witnesses, medical
evidence and appreciating the evidence adduced convicted the
appellant u/s 302 IPC.
3. The only issue raised and pressed by counsel for the
appellant is that it was not a case of murder and falls within the
ambit of Exception 4 of Section 300 IPC.
4. It is argued that there was no premeditation to kill and the
appellant was not armed. Reliance is placed upon statement of
PW-4 Dr. H.S. Fagediya, wherein it was stated that only one injury
on the neck proved fatal due to excessive bleeding as the internal
jugular vein was ruptured. Submission is that as per the custody
certificate dated 12/07/2025 appellant is in custody for nine years
including remission.
5. Learned Public Prosecutor submits that injuries were inflicted
by the appellant to the deceased with an intention to kill.
6. Heard learned counsel for the parties and perused the record
with their able assistance.
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7. PW-2 Dudha Ram and PW-3 Mohd. Hussain stated to be eye
witnesses were declared hostile.
8. PW-6 Jagdish an eye witness, supported the case of the
prosecution by narrating the entire incident. As per the statement,
the appellant and the deceased were having drinks near the shop
of Balai welding. The son of the appellant had died two to three
days back and body was recovered from the hills. The appellant
said to the deceased that due to his nephew, he lost his son. The
issue flared up resulting in exchange of heated words during which
the appellant broke a beer bottle and inflicted injuries. The injury
inflicted on neck resulted in rupture of internal jugular vein and
the deceased died due to excessive blood loss.
9. Exception 4 of Section 300 IPC is reproduced below:-
“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 without the offender having
taken undue advantage or acted in a cruel or
unusual manner.
Explanation – It is immaterial in such cases
which party offers the provocation or commits
the first assault.”
10. There are four pre-requisites for invoking Exception 4 of
Section 300 IPC:-
(i) Sudden fight;
(ii) No premeditation;
(iii) The accused had not taken any undue advantage or
acted in a cruel or unusual manner; and lastly
(iv) fight should be with the deceased.
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11. In the case in hand, the appellant had no pre-meditation.
There is nothing on record to show that appellant was armed or
there was enmity between the appellant and the deceased. The
comment on a sensitive subject of death of son of the appellant
flared tempers and led to a sudden fight in which the appellant
inflicted injuries to the deceased.
12. As per the case of the prosecution, the appellant and the
deceased were consuming alcohol at the time of the incident. The
appellant was not armed and the injuries were inflicted using a
broken beer bottle, which was picked from site during the
altercation. The fight was between the appellant and the
deceased. The three ingredients of Exception 4 to Section 300 of
IPC are satisfied. The issue needing consideration is whether the
appellant acted in a cruel or unusual manner.
13. There cannot be a straight jacket formula for determining the
cruelty and depends upon facts of each case. In this case, sudden
provocation was triggered by an argument regarding the cause of
death of son of the appellant and the tempers were high.
Appellant having lost self restrain on an emotional issue, before
regaining self control inflicted injuries to deceased. There is no
motive attributed for the incident and nothing is on record to show
that there was enmity between the appellant and the deceased.
The injuries were caused by a broken beer bottle taken from the
spot. The medical evidence is that rupture of internal jugular vein,
if treated within fifteen to thirty minutes may not have prove fatal.
Except for the injury on the neck that led to rupture of the jugular
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vein, no other injuries have been proved to have contributed to
the death of the deceased.
14. The Supreme Court in the case of Budhi Singh Vs. State of
Himachal Pradesh reported in (2012) 13 SCC 663 has held:-
“18. The doctrine of sudden and grave
provocation is incapable of rigid construction
leading to or stating any principle of universal
application. This will always have to depend on
the facts of a given case. While applying this
principle, the primary obligation of the Court is
to examine from the point of view of a person
of reasonable prudence if there was such grave
and sudden provocation so as to reasonably
conclude that it was possible to commit the
offence of culpable homicide, and as per the
facts, was not a culpable homicide amounting
to murder. An offence resulting from grave and
sudden provocation would normally mean that
a person placed in such circumstances could
lose self-control but only temporarily and that
too, in proximity to the time of provocation.
The provocation could be an act or series of
acts done by the deceased to the accused
resulting in inflicting of injury.
19. Another test that is applied more often
than not is that the behaviour of the assailant
was that of a reasonable person. A fine
distinction has to be kept in mind between
sudden and grave provocation resulting in
sudden and temporary loss of self-control and
the one which inspires an actual intention to
kill. Such act should have been done during
the continuation of the state of mind and the(Downloaded on 13/08/2025 at 05:52:50 PM)
[2025:RJ-JP:30315-DB] (6 of 11) [CRLAD-195/2020]time for such person to kill and reasons to
regain the dominion over the mind. Once there
is pre-meditated act with the intention to kill, it
will obviously fall beyond the scope of culpable
homicide not amounting to murder. When we
consider the facts of the case in hand, it is
obvious and, as already noticed, tobru (small
axe) is a commonly available weapon in the
houses in the hills which is used for cutting and
collecting the firewood. It is also a matter of
common knowledge that the cooking gas was
not available in interior parts of hills 12 years
back. The provocation was sudden and
apparently of grave nature. It is the case of
prosecution itself that the deceased was
abusing and even assaulting his father and
father had shouted for help and called the
accused who was already in the house. The
deceased was in a drunken state. As it appears
that tobru was easily available which the
accused picked up and went straight out and
assaulted his brother, the deceased. The
injuries proved fatal. There is no prosecution
evidence to show that there was animosity
between the deceased and the accused or
there was any other motive much less a
pre-meditation to kill the accused. They had
been living in the same house for years. No
unpleasant incident or physical fight was stated
to have been reported to the Police in the past.
If one examines the cumulative effect of the
prosecution evidence while keeping the
relationship of the parties in mind and the
factum of the deceased being in a drunken
state abusing and assaulting his father, it can
reasonably be inferred that there was sudden
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and grave provocation to the accused. In our
society, a son normally would not tolerate that
his father is insulted, much less assaulted. Of
course, the weapon used in crime was used
with the knowledge that it could cause a
grievous hurt endangering the life or even
cause death of the deceased but, as indicated
supra, such weapon is most easily available in
houses.”
15. The decision in Budhi Singh (supra) was considered in the
case Surain Singh Vs. State of Punjab reported in (2017) 5
SCC 796, wherein it was held that the High Court erred in not
bringing the case within the ambit of Section 304 Part-II IPC on
the ground of injuries having been inflicted to six persons and a
death being caused. Relevant para of the judgment is quoted
below:-
“18. Now, we have to consider the facts of this
case on the touchstone of Section 300
Exception 4 in order to find out whether the
case falls under the same or not. During the
course of hearing, the learned counsel for the
appellant-accused strenuously contended
before this Court that the High Court recorded
a categorical finding that “an inescapable
conclusion that can be drawn is that it was a
case of sudden fight where the attack was
without premeditation”. He further contended
that despite holding so, the High Court
erroneously convicted the appellant-accused
under Section 302 IPC instead of Section 304
Part II on the ground that the appellant-
accused had acted in cruel manner and had
caused injuries to six persons and a death.”
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16. The Supreme Court in the case of Surinder Kumar Vs.
Union Territory, Chandigarh reported in (1989) 2 SCC 217 set
aside the order of the High Court, wherein the benefit of Section
304 IPC Part-I was denied for accused having inflicted three
injuries and thereby acted in a cruel manner. Relevant part of the
judgment is quoted below:-
“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.”
17. The Supreme Court in the case of Rahul @ Lambu
Shankarprasadsing Rajput Vs. State of Gujarat reported in
(2020) 4 RCR (Criminal) 108 considering that the appellant
and the deceased were having drinks together and without any
prior preparation the offence occurred and during that time
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altercation took place resulting in attack by the accused with a
knife causing around eight injuries to the deceased. The case was
held to be covered under Exception 4 of Section 300 of IPC. The
relevant paras are quoted below:-
“8. According to the accused-appellant, Exception
4 of Section 300 of the Indian Penal Code must
come to the aid of the accused-appellant to hold
that it was a case of culpable homicide not
amounting to murder. That view could be taken on
the basis of the finding recorded by the Trial Court
and which finding has not been disturbed by the
High Court. To wit, that the accused-appellant and
the deceased came separately at the place where
the offence occurred, for having drinks without any
prior preparation and they sat together. During that
time, some altercation took place resulting in the
attack by the accused-appellant with a knife,
causing around eight injuries to the deceased.
9. In the facts of the present case, after perusing
the evidence on record including the findings
recorded by the Trial Court, we have no hesitation in
accepting the argument of the appellant-accused
that this case would be covered by Exception (4) to
Section 300 of the Indian Penal Code, as the offence
was not premeditated and had happened on the
spur of the moment, in the heat of passion, upon a
sudden quarrel.
10. The next question is whether the case would be
covered by Section 304 Part-I or 304 Part-II of the
Indian Penal Code? Considering the fact situation of
the present case and the exposition in paragraph 13
in the case of Surain Singh v. The State of
Punjab reported in (2017) 5 SCC 796, we have
no hesitation in holding that the case would be(Downloaded on 13/08/2025 at 05:52:50 PM)
[2025:RJ-JP:30315-DB] (10 of 11) [CRLAD-195/2020]covered by Section 304 Part-II of the Indian Penal
Code.
11. It is not in dispute that the accused-appellant
has already undergone seven years and around
seven months of the sentence period. Taking into
account the remission period, the accused-appellant
must have completed more than nine years of the
sentence period which, in our opinion, is just and
proper. In other words, the accused-appellant
deserves to be released on the basis of the sentence
period already undergone by him for the stated
offence. We order accordingly.”
18. Taking into consideration that:-
(a) both appellant and deceased were sitting together
and consuming alcohol;
(b) there was heated conversation with regard to cause
of death of son of the appellant;
(c) appellant was unarmed and there was no
premeditation;
(d) the Beer bottle was picked from spot and injuries
were inflicted to the deceased;
(e) except injury causing rapture of Jugular vein no
other injury was proved to have contributed to death of
the deceased; and
(f) the injuries were inflicted in heat of moment after
appellant lost self control on a sensitive issue to which a
reasonable person would react;
We hold that the case fall within ambit of Exception 4 of
Section 300 of IPC.
19. In view of the above discussion, the impugned judgment is
modified to the extent that appellant is convicted u/s 304 Part-I
IPC and the appellant is ordered to sentence to the period already
undergone.
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20. The appeal is partly allowed. Appellant who is in custody, be
set at liberty forthwith, if not required in any other case.
21. Keeping in view the provisions of Section 481 BNSS,
appellant Sharvan Kumar S/o Shri Chhotudas is directed to
forthwith furnish a personal bond in the sum of Rs.50,000/- and
surety bond of the like amount, before the Registrar (Judicial) of
this Court, which shall be effective for a period of six months with
the stipulation that in the event of filing of Special Leave Petition
against this judgment or on grant of leave, appellant Sharvan
Kumar on receipt of notice thereof, shall appear before the
Supreme Court.
(BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J
Monika/Chandan/45
Reportable: Yes
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