JUDGMENT
Mukundakam Sharma, J.
1. As against the judgment of conviction and sentence dated 30th October, 1996 passed by the learned Additional Sessions Judge convicting Suraj Dev and Raj Kumar under section 302/34 Indian Penal Code, two appeals were filed in this court by the accused appellants which are registered as Criminal Appeal Nos. 103/1997 and 127/1997. Since the facts and the issues arising for consideration in both the appeals are the same, we propose to dispose of both these appeals by this common judgment and order.
2. The prosecution case in brief is that on 25th February, 1993 at about 4.30 P.M., when Naval Singh went to the place of occurrence on a cycle rickshaw of Ram Parvesh and as he was entering the said place from where the kabari business was being carried out on partnership basis, Suraj Dev got annoyed on seeing Naval Singh and in an angry mood he asked Naval Singh as to why he had come to the plot. On that there was exchange of hot words between Naval Singh and Suraj Dev when Suraj Dev pushed Naval Singh. Naval Singh being a handicapped person fell down on the push of Suraj Dev whereupon Suraj Dev gave a lathi blow on the back of Naval Singh and on his extortion Raj Kumar, the other accused, who is also the brother of Suraj Dev, picked up a chaukhat wooden log) and hit Naval Singh on his forehead as a result of which Naval Singh started bleeding from his nose and mouth. Seeing the said condition of Naval Singh, Ram Parvesh removed injured Naval Singh to Hindu Rao Hospital where he was declared brought dead. The aforesaid information about the incident was given to the police station Samaipur Badli by the duty constable on the basis of which DD No. 17-A was recorded. Thereafter, a case was registered under F.I.R. No. 81/93 against both the appellants/accused persons under section 302/34 I.P.C. During the course of investigation, the police arrested both the appellants on the next date, i.e., 26th February, 1993, and after completion of the investigation submitted a charge sheet as against both the accused persons. Charge was framed against both the appellants under sections 302 and 34 I.P.C.
3. During the trial the prosecution examined as many as twelve witnesses in support of its case, whereas the defense examined two witnesses. The doctor who performed the post mortem examination was examined as PW-1. After completion of the trial, the learned Additional Sessions Judge passed the impugned order of conviction and sentence on 30th October, 1996 which is under challenge in this court in these appeals. By the aforesaid order both the appellants were sentenced to imprisonment for life and also to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo three months rigorous imprisonment each. We have heard the learned counsel appearing for the appellants as also the Additional Public Prosecutor appearing for the State.
4. PW-1 is the doctor who performed the post mortem examination. During his post mortem examination he found three external injuries of the following nature:
1. Bruise 3″ x 1-1/2″ on the back of rt. Arm middle part.
2. Small abrasion 1-1/4″ x -+” on the left elbow.
3. Haemetoma 2″ x 2″ on the frontal region.
In his statement he has given his opinion that injuries were ante mortem and were caused with blunt weapon. He has also stated in his opinion that injury to skull was sufficient to cause death. In cross-examination he has stated that injury on the frontal area of the skull could have resulted from a fall.
5. PW-2 Ram Parvesh is a witness who was examined as he allegedly accompanied the deceased in his cycle rickshaw to the place of occurrence on the fateful day. In his deposition he has stated that on 25th February, 1993 he was going in his rickshaw with Naval Singh to the place of occurrence and when they reached near the plot, Naval Singh went inside the plot which was purchased by Naval in partnership with Suraj Dev and Ram Chander. The witness also stated that he went with him inside the plot and Suraj Dev on seeing Naval entering into the plot asked him in an angry mood as to why he had come there and asked Naval to go away. On being stated so Naval told Suraj Dev that he was also a partner in the plot and had a right to come there, and at that here was exchange of hot words between Naval Singh and Suraj Dev whereupon Suraj Dev pushed Naval who being handicapped fell down on the ground due to push and then Suraj Dev hit him with a lathi blow and exhorted his brother Raj Kumar to kill Naval. Suraj Dev then gave a lathi blow on the back of Naval and Raj Kumar hit with a wooden chokhat on the forehead of Naval. In cross-examination, the said witness stated that he knew Naval, Raj Kumar, Udal and Mithu for the last five years as they were staying in the same colony. He also stated that there was one more person who was also present at the spot at the time of occurrence and the said person was known to him. He stated in the cross-examination that he was present when there was exchange of hot words between Suraj Dev and Naval and that when accused Suraj Dev pushed Naval, the witness caught Suraj Dev but then Suraj after making himself free brought a lathi and gave lathi blows to Naval. According to him, the lathi was about 4 to 5 feet in leggth. He also stated that he was not hit by any lathi blow and that Suraj Dev gave only one lathi blow. He also stated that he had told the doctor that Naval had received injuries in a quarrel.
6. PW4 Bishamber Nath is a person carrying on business in the neighborhood. He stated that on the date of incident at about 4 or 4.30 P.M. he saw both the accused persons quarreling with their brother Naval in the said plot and that the two persons who had come earlier with Naval took away Naval in a rickshaw. He stated that the accused persons were abusing in the quarrel and that after about half an hour Naval was got back by those two persons and that he came to know that Naval had died. It is also stated by him that the accused persons disclosed about the articles during the search and the police recovered one `danda’ and one `lakkar’ . In his cross-examination he stated that he reached the spot after hearing the noise of the quarrel. He also stated that he did not see any of the accused holding Exhibits P-1 and P-2 during quarrel.
7. PW-6 Laljeet Gupta is a driver in Tehra Transport Service. He stated that he was passing through the plot at about 4 or 4.30 P.M. as his vehicle got broke down little away from the plot of the accused. He then saw a lathi blow being given to Navally accused Suraj when he fell down. He also deposed that accused Raj Kumar again hit Naval with a piece of chokhat and then the deceased started vomiting blood from the mouth. In his cross-examination he stated that he knew the deceased Naval and the accused for the last four or five years. He also stated that he saw the incident from a distance of about ten paces and that there was five to seven persons related to the accused in the plot. He also stated that the rickshaw was standing at a distance of 5 or 7 paces from the gate of the plot. He stated that he never went to save Naval. He also stated that nothing was recovered by the police during his presence and that the lathi with which Suraj had given a blow to Naval was about a yard long an the piece of chokhat with which Raj Kumar gave blow was less than a yard. It was also deposed by him that Suraj Dev when gave lathi blow to Naval he was standing but he fell down soon after the blow.
8. The MLC of the deceased Naval Singh was proved in the trial by PW-12 Inspector Harshwadhan. He stated that he collected the MLC of the injured Naval Singh who was declared as brought dead. The said MLC was proved as Ext.PW12/A. He stated that he mt PW-2 Ram Parvesh at the hospital and he recorded his statement which is Ext.PW2/A. He stated that the names of the accused were ascertained by him from the statement of Ram Parvesh. He also stated that both the accused persons made disclosure statements which are Ext.PW10/D and 10/E and that the weapons of offence, i.e., the lathi and the wooden log, were recovered on the basis of the said disclosure statements. According to him, the said two accused got recovered wooden log and lathi from under the raddi at the instance of accused Suraj Dev and accused Raj Kumar. In his cross-examination, however, he stated that he did not record any statement of public persons who assembled at the spot. Regarding the arrest of the two accused, the witness deposed that both the accused persons were standing at Shahbad Dairy bus stand and he arrested them from there. It is also stated by him that Suraj Dev get recovered lathi from underneath the raddi and Raj Kumar got recovered a wooden log from underneath the waste papers. It is also stated by him that the only public witness Bishamber Nath was present at the spot when the aforesaid recoveries were made. He, however, admitted that the recovered lathi and wooden log was not sealed and he also could not tell as to whether or not there were blood stains on both the weapons.
9. Counsel appearing for the appellants, in the light of the aforesaid evidence adduced, vehemently submitted that at any rate it cannot be said that the present case is a case where provisions of section 300 as punishable under section 302 of the Indian Penal code are attracted. He pointed out that there was no premeditation at all to commit the offence and that the incident had occurred at the spur of the moment consequent upon exchange of hot words and quarrel between the accused and the deceased.
He also submitted that the weapons are allegedly a lathi and a chokhat which are blunt weapons and, therefore, there was no intention at all on the part of the accused persons to kill the deceased. He also drew our attention to the medical evidence available on record where the doctor who performed the post mortem examination candidly stated that the blunt injury at the forehead which, in the ordinary course could have been the cause of death, could have been received by the deceased on falling down on the ground.
10. The learned Additional Public Prosecutor appearing for the state, however, submitted that there was no injury on the accused persons nor the deceased used any weapon consequent upon the exchange of hot words and therefore it cannot be said that any of the exceptions as provided for under section 299 and 300 of the Indian Penal Code is attracted in the present case.
11. In the light of the aforesaid submissions we have carefully analysed and scrutinised the evidence on record. It is proved and established on the basis of the evidence on record that the deceased went to the place of occurrence of his own accord and apparently without any intimation to the accused persons. It is also stated by PW-2 that on seeing Naval Singh entering the place of occurrence, Suraj Dev got angry and asked Naval Singh to go away from the place. Naval Singh, however, challenged Suraj Dev stating that he had a right to come to the place of occurrence as he was a partner in that plot. In view of the aforesaid stand taken there was exchange of hot words between Naval Singh and Suraj Dev. It is also, therefore, proved and established on record that there was no premeditation on he part of the accused persons to commit the offence alleged and that there was quarrel and exchange of hot words between Naval Singh and Suraj Dev. The evidence adduced also disclose that PW-2 at one state had tried to state that Suraj Dev gave two lathi blows to Naval Singh when he stated that when Naval Singh fell down on the ground on the push given by Suraj Dev then Suraj Dev gave a lathi blow and exhorted his brother Raj Kumar to kill Naval Singh and that Suraj Dev gave another lathi blow on the back of Naval Singh and Raj Kumar hit the deceased with the wooden chokhat on the forehead of Naval Singh. In his cross-examination also he sought to say that when accused Suraj Dev pushed Naval Singh the witness caught Suraj Dev but he after making himself free brought a lathi and gave lathi blows to Naval. However, when he was asked whether he was also hit by a lathi, he denied the suggestion saying that he himself was not hit by any lathi blow and Suraj Dev gave only one lathi blow to the deceased. He stated that Raj Kumar hit with a wooden chokhat on the forehead of Naval. There are three injuries on the person of the deceased which are disclosed from the medical evidence. There is a bruise on the back of right arm middle part and a small abrasion on the left elbow. The cause of death was, however, the injury to the skull which was on the frontal region. According to the doctor, the said injury on the frontal area of the skull could have resulted from a fall. There is evidence on record, as stated by PW-2 himself, that the deceased fell down on the push given by accused Suraj Dev. At any rate the alleged blow given by Suraj Dev only caused a bruise on the back of right arm middle pat. If that was the blow given by Suraj Dev, then the cause of second injury remains unexplained. If the prosecution version is accepted that Raj Kumar gave a blow on the frontal region then the cause of injury No.2 remains unexplained. It is disclose from the evidence on record that the incident occurred unexpectedly and at the spur of the moment when the deceased came to the plot, where the appellants were present. Consequent upon exchange of hot words, a quarrel took place. There was no premeditation and in the heat of the passion and at the spur of the moment, one injury each was alleged to have been given by the two appellants to the deceased. The blows were not repeated. The nature of weapons was blunt and not deadly. There is also no evidence on record to show that the said two weapons contained any blood mark. It is, thus, proved that there was a sudden fight, that there was no premeditation and that the act was done in the heat of passion. It is also established on record that the two accused persons, who are appellants herein, had not taken any undue advantage or acted in a cruel manner. Therefore, the four requirements of Exception 4 of section 300 I.P.C. stand satisfied in the present case. In Sikander alias Mohd. Safiq v. State (Delhi Admn), , the Supreme Court had occasion to analyze the scope of Exception 4 of section 300 I.P.C. After analysing the said provision it was held by the Supreme Court that in order to invoke the aforesaid exception, foul 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 aforesaid decision was rendered by the Supreme Court on the basis of the earlier decision of the Supreme Court in Surinder Kumar v. Union Territory, Chandigarh, . In the said decision it was also stated as follows:-
“….. 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.”
12. In Willie (William) Slaney v. State of Madhya Pradesh, , the benefit of Exception 4 of section 200 I.P.C. was given on the ground that there was a heated exchange of words whereupon the accused slapped the deceased on the cheek and thereafter the accused snatched a hockey stick from his younger brother and gave one blow on the head of the deceased consequent to which the skull was fractured. In the context of the said facts it was held that in the facts and circumstances of the case the offence fell under section 304 Part-II IPC and not under section 302 I.P.C. Considering the entire facts and circumstances of this case , we are also of the considered opinion that the prosecution has failed to prove that there was any intention in the part of either of the accused persons to commit murder of the deceased. The incident happened without any premeditation and that there was sudden fight. The weapons of offence used were also blunt weapons. If there would have been intention on the part of the accused persons to kill the deceased then they would have brought sharp weapons so as to take no chance at all.
13. In Joseph v. State of Kerala, 1995 SCC (Cri) 165, it was held as follows in para 3 :-
“3. In this appeal the learned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the nature was not established. In support of this submission he relied on the circumstances namely that the whole incident took place because of a trivial incident which resulted in a quarrel and that the weapon used was only lathi and in the circumstances it cannot be said that the accused intended to cause the death by in licting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3rdly of Section 300 IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded there under. Instead we convict the appellant under Section 304 Part II PC and sentence him to five years’ RI.”
The facts of the said case are close to the present case and the reasoning would apply to the present appeals as well.
14. In Pularu v. State of M.P., 1993 SCC (Cri) 1023, the accused inflicted a single blow on the head with an agricultural implement, tabbal, which resulted in fracture of bone causing death of deceased. It was held in the said case that clause Firstly of Thirdly of Section 300 IPC were not attracted and the offence was converted to section 304 Part-II IPC. In Chamru Budhwa v. State of M.P., , the single lathi blow on the head of the deceased following severe exchange of abuses between the parties was held to attract section 304 Part-II IPC and not section 302 IPC. In Shitla Prasad v. State of U.P., , death was caused by a single injury with a spear. It was held that the prosecution failed to prove that the appellant intended to cause that particular injury which caused death. As such, the ingredients of clause Thirdly were held to be not established beyond doubt and the case was converted to one under section 304 Part-II IPC. The appellant in that case was however, attributed the knowledge that by inflicting such injury he would likely to cause death. In Jagpati v. State of M.P., , two injuries were inflicted out of which one on the head resulted in fracture of the skull. Since the issue started over a trivial quarrel, the accused were attributed only knowledge that they were likely to cause death and offence committed by them was held to be one under Section 304 Part-II IPC. Reliance was also placed on the decision of the Supreme Court in Hemraj v. State (Delhi Admn), , wherein referring to other cases also it was observed in para 14 as under:-
“14. The question is whether the appellant could be said to have caused that particular injury with the intention to causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened not unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of S. 300 IPC will be attracted. We are supported in this view by a series of decisions of this Court namely, (1) Jagrup Singh v. State of Haryana, ; (2) Kulwant Rai v. State of Punjab, ; (3) Randhir Singh v. State of Punjab ; (4) Gurmail Singh. State of Punjab, , and (5) Jagtar Singh v. State of Punjab, . Following the ratio of the aforementioned decisions, we hold in the present case that the offence committed by the appellant is the one punishable under S. 304, Part II, IPC but not under Section 302 IPC.”
Reliance was also placed on the decision of the Supreme Court in K. Ramakrishnan Unnithan v. State of Kerala, , wherein considering the facts that the occurrence had happened in a spur of the moment and in the heat of passion upon a sudden quarrel, it was held that the scenario of the place of occurrence did not show that the appellant had intended or requisite knowledge to the deceased, and as such the offence was held to be not under section 302 IPC but under section 304 Part-II IPC.
15. In that view of the matter, we are of the considered opinion that the evidence adduced take the case out of the purview of section 300 IPC punishable under section 302 IPC and would bring the case under section 304 Part-II IPC. Therefore, we are satisfied that the offence alleged falls under section 304 Part-II IPC and not under section 302 I.P.C. The appellant Suraj Dev, as per nominal roll available on record, has undergone over seven years and four months of actual imprisonment and without calculating the remission that he has earned. Raj Kumar, on the other hand, has undergone six years and three months of actual imprisonment. Accordingly, we modify the impugned order of conviction and sentence to one under section 304 Part-II IPC, and sentence both the accused-appellants to the period of imprisonment already undergone. Therefore, both the appellants shall now be released forthwith, if they are not wanted in any other case.