Sufeda Etc v. State of Hy

::1:: INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAToCHANDIGARH

(102) CRA-D-201-DB-2004o(Oo&oM) Reser e!o"#:o$0%04%202& D'(eo")oPr"#"*#+e,e#(:0-%0&%202& Sufeda and ors. .... appellants V/s State of Haryana ...Respondent CORAM: HON.B/EoMR%oJU0TICEoGUR1INDERo0INGHoGI// HON.B/EoMR%oJU0TICEoJA0JITo0INGHoBEDI Present: Proceedings qua appellant No.1-Sufeda stands abated vide order dated 04.04.2025. Mr. Arnav Sood, Advocate as Amicus Curiae, for appellants No.2 to 4. Mr. Ranvir Singh Arya, Addl.A.G., Haryana. ***** oJA0JITo0INGHoBEDI2ooJ%o The present appeal has been filed against the judgment of conviction and order of sentence dated 12.08.2003 passed by the Additional Sessions Judge, Fast Track Court, Gurgaon.

¶2The instant FIR came to be registered on 08.10.1999. The accused-appellants came to be convicted vide judgment of conviction and order of sentence dated 12/16.08.2003. The present appeal against the judgment of conviction and order of sentence was filed on 06.01.2004. The matter has come up for final hearing now after almost 26 years of the registration of the FIR.

¶3Briefly stated the case of the prosecution as set out on the statement of the complainant-Nasru is that on 07.10.1999 at about 7:00 PM.SUKHPREET KAUR ::2:: Salma daughter of Nasru was present in the field to keep a watch on the crop of Bajra whereas Nasru, her father, had gone to the Masjid to offer Namaz. On return of the complainant, Salma told him (complainant) that Yakub son of Sufeda had come there and had made someoobscene jokes on her. Yakub had told Salma that she was to lose nothing if she was of some use to him. Then, Nasru as per his statement before the police took his grand father Dhotali to lodge a protest at the house of Yakub but Yakub was called at the 'thari' of the village chowk. Dhotali andoprotested to him as to why he had made obscene jokes upon Salma. Yakub got annoyed and spoke loudly. Then Akhtar armed with a farsa and others viz. Fajru, Sufeda, Sukarbi, Asmina and Farida armed with lathis and stones came there in prosecution of the common object of all to commit offences. Akhtar gave a farsa blow on the head of Dhotali and Yakub gave a lathi blow on the wrist of the right hand of Dhotali. Fajru gave a lathi blow on his right hand palm. Sufeda gave a lathi blow on the elbow of his left hand. Sukarbi gave a stone (rora) blow on the wrist of his left hand. Asmina struck him by throwing a brick on the knee of his left leg. Farida also threw a stone (rora) on the wrist of his right hand. Fajru gave another lathi blow on the palm of his right hand. He (Fajru) also gave a lathi blow on the wrist of his left arm. Yakub gave a lathi blow on the thumb of the right hand of Issa. Moosa and Issa had come to the spot as soon as the occurrence took place to save the complainant party. But they received injuries, too. Akhtar gave a farsa blow from the reverse SUKHPREET KAUR side just above the left eye of Moossa and another farsa blow on the ::3:: lower side of the left eye of Moosa. A third blow was given on the left arm of Moosa. Yakub too gave a lathi blow on the right arm of Moosa. On the basis of the statement of Nasru, the FIR was registered.

¶4The injured were taken to hospital and were got medico-legally examined. Dhotali injured was taken to General Hospital, Gurgaon, and then to Safdarjang Hospital, where he died on 10.10.1999. Head constable Fajruddin went to the spot and prepared the rough site plan and recorded the statements of the witnesses. After this, the investigation was taken up by ASI Ishwar Singh. On 10.10.1999 Fajru and Sufeda were arrested from a jungle near the abadi of village Nasirbas. Akhtar was also arrested there. These accused persons were brought to the police station and they were interrogated by ASI Ishwar Singh. Akhtar made a disclosure statement regarding the farsa kept concealed by him in his residential chappar. After this, Sufeda made a disclosure statement regarding lathi used by him and kept concealed in his residential house. Fajru too disclosed regarding lathi kept concealed in his house. Their disclosure statements were recorded on

11.10.1999. ASI Siri Niwas after coming to know that Dhotali had died, prepared inquest papers. He also got the post-mortem examination conducted on the dead body of Dhotali from the doctors. DSP Om Parkash who was working as District Inspector, Gurgaon, on 13.10.1999 received the investigation and interrogated Sufeda, Akhtar and Fajru accused. After recording their disclosure statements necessary recoveries qua weapons of SUKHPREET KAUR offence were effected. All the weapons were duly sealed. Naveen Kumar ::4:: District Inspector on 08.11.1999 arrested Yakub and recovered from him a lathi, which was taken into possession by preparing a memo. Scaled site plan was got prepared from Naresh Kumar, Draftsman. Report of FSL was obtained. After completion of necessary investigation and other usual formalities, the challan was prepared and the same was then presented before the Court for trial of the accused, as per law.

¶5On the basis of police report under Section 173 Cr.P.C. and other documents on record all the accused were charge-sheeted under Sections 148, 323/149, 324/149, 325/149, 307/149 and 302/149 of IPC. Accused Yakub was also charge-sheeted under Section 294 IPC. The accused pleaded not guilty to the charges and claimed trial.

¶6In order to substantiate its allegations, the prosecution examined 17 witnesses in the case.

¶7Dr. Sarayu Sharma/PW-1 stated that on the application of ASI Ishwar Singh Ex. PA, he reported that the patient has been referred to Safdarjang Hospital, Delhi, for further management and treatment. He proved his Report Ex.PA/1. Similarly, on another application Ex.PB the doctor made report Ex.PB/1 that the patient has been referred to Safdarjang Hospital, Delhi. Constable Naresh Kumar, PW-2 prepared the scaled site plan Ex.PC. SI Babu Lal PW-3 prepared the challan and submitted the same before the court for trial of the accused. HC Vijay Pal PW-4 tendered into evidence his affidavit Ex.PD. Constable Pardeep Kumar PW-5 tendered into SUKHPREET KAUR evidence his affidavit Ex. PE. Inspector Naveen Kumar PW-8 arrested ::5:: YakuboaccusedoandotookointoopossessionolathiovideomemooEx.PT.oASIoSiri NiwasoPW-9opreparedotheoinquestopapersoEx.PUoafterotheodeathoofoDhotalioon

11.10.1999.oConstableoRajaoRamoPW-14obroughtotheoDailyoDiaryoofoSarojani Nagaroandoprovedotheosame.o

¶8Dr. o Jai o Narain o PW6 o medico-legally o examined o Dhotali o on

07.10.1999oandoreportedotheofollowingoinjuriesoonohisoperson:-

1.oAnoincisedowoundosizeoofo5ocmoinolengthoavulsed/superficial skin/slashingoofotheoskin,otheoleftomarginowhichowasocontinuous withotheoskinoonotheoleftosideoandobelowotheoslashedoskin.oThere wasoaowoundowhichowasoboneodeep.oColourowasoreddish. Bleedingowasopresent.oThereowasoswellingoonotheoleftosideowhich was o extending o towards o the o left o eye o brow o and o there o was blackeningoofotheoleftoupperoeyelid.oX-rayowasoadvisedoforoskull APoLateral.

2.oAolaceratedowoundosizeo2ocmoxo1cmooveroposterioroaspectoof rightofore-armoalmostoinotheomiddle.oBleedingowasopresent. Colourowasoreddish.oNooforeignobodyowasoseenoinsideothe wound.oX-Rayowasoadvisedofororightofore-arm. HeoprovedotheocopyoofoMLRoEx.PFoasowelloasorukkaoEx.PG. Dr.oJaioNarainoPW-6oalsoomedico-legallyoexaminedoNasruoon theosameodayoandoreportedotheofollowingoinjuriesoonohisoperson:-

1.oLaceratedowoundosizeoofo1ocmooverotheoposterioroaspectoand atotheobaseoofotheorightolittleofinger.oBleedingowasopresent. Colourowasoreddish.oMovementowereorestricted.

2.oAobruiseoreddishooveroposterioromedialoaspectooforightohando4 xo2ocm.oMovementowereorestricted. ::6::

3.oAobruiseoreddishooverotheomiddleoknuckleooforightolittleofinger 1oxo1ocm.oX-RayowasoadvisedoforoinjuryoNo.o1otoo3orightohand.

4.oAoreddishobruiseooverolateraloaspectoandoupperopartoand elboworegionoofoleftofore-armosizeoofo5oxo5ocm.oRestricted movementsowereothere.oX-Rayowasoadvisedoforoleftoelbowoand upperopartoofoleftofore-arm.

5.oAobruiseoreddishosizeoofo5oxo3ocmooverotheoloweropartoofoleft thigh.

6.oAoreddishobruiseooveroposterioroaspectooforightofore-armoin theomiddleo6oxo3ocms.

7.oAoreddishobruiseo3oxo2ocmooverotheomiddleoandoposterior aspectoofoleftofore-arm. HeoprovedocopyoofoMLRoEx.PG.oThisodoctoroalsoomedico-legallyoexaminedoMoosaoonotheosameodayoandoreportedotheofollowingoinjuries onohisoperson:-

1.oAolaceratedowoundosizeoofo2oxo.5ocmojustoaboveotheoleftoeye brow.oColourowasoreddish.oNooforeignobodyowasoseen.oThereowas swellingoaroundoit.oBleedingowasopresent.

2.oAoreddishobluishobruiseooveroleftomaxillaryoregionoandolower eyelid. AdvisedoX-Rayoskull.

3.oAoreddishobruiseo5oxo3ocmooverolateralopartoofoleftoarmoinothe middle.

4.ooAoreddishobruiseo5oxo2ocmooverotheoupperopartooforightoarm. HeoprovedocarbonocopyoofoMLRoEx.PH. Theodoctorofurtheromedico-legallyoexaminedoIssaoonotheosame dayoandoreportedotheofollowingoinjuries- ::7::

1.oAolaceratedowoundosizeoofo'.5o!o.'ocmooverotheodorsaloaspect oforightothumb.oColourowasoreddish.o leedingowasopresent. Cop"oofo+&)o,!.%4owasoproved. After getting X-Ray of Nasru injured, this doctor gave his report Ex. PN, which is as under:- 5#$)a"orightohandothereowasofractureooforighto5tho+etaocarpal boneoandorightopro!imalophal"nsooforightolittleofingerowasoseen.5 No bone injury was seen on the X-Ray of elbow. The doctor reported that the injuries Nos.1 and 2 qua Nasru were grievous, but not dangerous to life.

¶9SI/SHO Ram Niwas PW-7 stated that on 10.10.1999, Moosa came to the Police Station and gave a statement that the injured Dhotali had expired in Safdarjang Hospital, Delhi due to the injuries sustained in the occurrence. He proved the statement Ex.PS of Moosa. Section 302 of Indian Penal Code was added and the special reports to the concerned officers as well as to Illaqa Magistrate were sent.

¶10Dr. Arvind, CMO, Safdarjang Hospital, New Delhi was examined as PW-11. He conducted the post-mortem examination on the dead body of Dhotali and reported the following injuries- .eneralo6bservation7 Theobod"owasodressedoinohospitalosheet.o(ooclothesowereopresent atotheobod".o)igoromortisowasopresentoallooverotheobod".o%ost$ mortemostainingowasopresentoonoback.o,"esowereoclosed.o,ar, noseoandomouthowereonormal.o(ooweaponoofooffenceowas integrity of this document producedoatotheotimeoofopost$mortemoe!amination. ::8:: ExternaloExaminationoInjuries:

1.oIncisedowoundo5xo2ocmointooboneodeep,ostitched,ogotoloosed, verticallyoplacedoonofrontaloandoparietaloregionoofotheoskull.oIt wasolocatedo9cmoaboveotheorootoofonoseoando10cmoaboveothe medialotoorightopinnaoando1cmoleftotooskullomidoline,obothothe endsoofotheowoundowereotampering.

2.oAbrassiono2oxo1ocmolocatedo2ocmobehindotheoinjuryoNo.1.

3.oIncisedowoundoonoouteroaspectoofomiddleooforightofore-arm. Sizeowaso2oxo.5ocmointooboneodeep.

4.oContusionoonoleftotemporooparietaloregiono6oxo4ocmosize, defusedoinonature. InternaloExamination:ooScalp,oskull,obraino oooEffusionoofobloodoseenoinofrontaloparietal and otemporal oregiono and o left o temporal o muscle.o Theo skull showedocutofractureoofoleftofrontooparietaloboneounderneath. Injury o No.I o and o fissured o fracture o of o parietal o frontal o and temporalobonesoonoleftoside,oparietaloboneoofotheorightoside,oAlso depressed, o elevated, o communitted o fracture o of o left o temporo parietaloboneoonoleftosideoseenotendingotooleftomiddleocranial fossa.oTheobrainoshowedoleftosideoextraoduralohaemorrhageoand thing o sub o dural o haemorrhage o on o both o side o of o cerebral hemisphere.oContusionowasopresentoonobothofrontaloparietaloand left o temporal o lopes. o The o brain o was o soft, o swollen o and oaedematousooweighedo1500ograms. NeckoandoThorxo-otrachea/neckostructureowereointact.oChestowall showedofractureoofoleftosideothirdorib.oLungsowereointact.oHeart andocorobariesowereonormal. Abdomeno&oPulvis Stomachowasoemptyoandoallovisceraowereonormal.oThe bloodoswabowasopreservedosealedoandohandedooverotootheoI.O. integrity of this document foroFSLoexamination. ::9:: Accordingotootheodoctoroallotheoin1uriesowereoante$mortem inonatureoandocauseoofodeathowasodueotoocranioocerebral damageoconse=uentouponoin1ur"o(o.1ocausedob"osharpoweapon likeofarsaoandoin1ur"o(o./ocausedob"obluntoweaponolikeolathi.o*e furtheroopinedothatoin1ur"o(os.o1oando/owereoindividuall"oand collectivel"osufficientotoocauseodeathoinoordinar"ocourseoof nature.o*eoprovedo%ost$mortemo)eporto,!o%AA.o8n=uestopapers ,!.o%>o?1'osheets@owereoalsooprovedob"oinitialledob"ohim.

¶11The complainant-Nasru/PW-12 stated that on 07.10.1999 at about 7.00 PM, he asked his daughter-Salma to keep a watch on the crop of Bajra and went to offer Namaz to a Masjid. When he returned back at about

7.10.PM, his daughter told him that Yakub son of Sufeda had passed obscene comments on her. Thereafter, he took his grand-father/Dhotali and was going to the house of Yakub. When he came across Yakub at the back of Panchayat ghar, Dhotali protested to Yakub regarding his comments on Salma. Yakub got annoyed at this. Hearing Yakub speaking loudly, Fajru, Akhtar, Farida, Sufeda, Sukarbi and Asmina came there. Akhtar was armed with aofarsa while others were armed witholathis and stones. On reaching the spot, Akhtar gave aofarsa blow on Dhotali. On hearing the commotion, Moosa and Issa his brothers came to the spot. Yakub gave aolathi blow on the right hand of Dhotali. Fajru gave aolathioblow on his right hand which fell on his fingers. Sufeda gave aolathi blow on his right elbow. Sukarbi gave a blow with brick bat on his left hand, Asmina gave a brick bat blow on his left knee. Farida gave a stone blow on his right elbow. Fajru gave a lathi ::10:: blow that fell on the palm of his right hand. Fajru gave another lathi blow on his right wrist. They all assaulted Moosa and Issa as well who would disclose their injuries themselves. Hanif son of Shahbuddin, Umardin son of Chintila were watching the occurrence from nearby and came to their rescue. In cross-examination, he denied the suggestion that he alongwith Moosa, Issa, Kamru, hanif, Ahmad, Akhtar and Amin had attacked Yakub at his house and that the injuries were caused by the accused in their self-defence. PW-13/Moosa stated that on 07.10.1999 at about 7.00 PM, he heard loud voices at the back of the village chopal. He alongwith his brother Issa went there. He saw Yakub, Akhtar, Fajru, Sukarbi, Farida, Asmina and Sufeda. Akhtar was having a farsa.oooAll others had lathis in their hands. Dhatoli and Nasru were also there. Akhtar gave aofarsa blow on the head of Dhatoli,oYakub gave a blow of lathi on the hand of Dhatoli, Akhtar gave a farsa blow from the blunt side on his left eye. He gave another blow from the same side below his left eye. Akhtar gave a lathi blow on his left wrist. He then again said that he gave a farsa blow from the reverse side. Yakub gave a lathi blow on his left arm. Umardin son of Chntula and Hanif son of Shahbuddin came to the spot and rescued them. Yakub gave a lathi blow on Issa which fell on his right thumb of the hand. In cross-examination, he denied the suggestion that he alongwith Nasru, Dhatoli, Issa, Hanif, Akhtar, Kamru, Ahmad and Amin had attacked Yakub at his house and had caused injuries to Yakub, Akhtar, Sufeda and Fajru and that they (accused party) had SUKHPREET KAUR caused injuries to them (complainant party) in their self-defence. ::11:: PW-15/Salma daughter of Nasru stated that on 07.10.1999 when her father had gone away to the Masjid to offer Namaz leaving her in the fields, Yakub came there and passed certain obscene comments on her. When her father returned to the spot, she told him about the incident with Yakub. PW-16/Ishwar Singh ASI stated that on 08.10.1999, he first went to General Hospital, Gurgaon where he was told that Dhatoli had been referred to Safdarjang Hospital, New Delhi. On moving an application before the doctor concerned, the doctor opined that Dhatoli was unfit to give a statement. On moving another application, the doctor opined that the injury of Dhatoli was dangerous to life. He visted the bed of Dhatoli where on finding Moosa and Issa alongwith others, he recorded their statements under Section 161 Cr.P.C. On 08.10.1999, he recorded the statement of Salma under Section 161 Cr.P.C. On the basis of the said statement, Sections 294 and 307 IPC were added. He, thereafter, arrested the accused who suffered their disclosure statements. Meanwhile, a wireless message was received from Safdarjang hospital that Dhatoli had died. Thereafter, he handed over the investigation to Ram Niwas SI/SHO. PW-17/Om Parkash DSP, stated that on 13.10.1999, he received the file of this case. He reached Ferozepur Jhirka where he interrogated Sufeda, Akhtar and Fajru. On the basis of the disclosure statement of the said accused, Sufeda and Fajru got recovered lathis whereas Akhtar also got SUKHPREET KAUR recovered a lathi only as he had stated in his disclosure statement that the ::12:: upper iron part of the spear on top of the lathi had been thrown by him in the well in front of the Mosque.

¶12The accused were examined under Section 313 Cr.P.C. The evidence was put to them. They denied the same and claimed false implication at the instance of Hanif and consequent party faction. They were also given opportunities to lead evidence in defence. The accused examined five witnesses in defence and closed their evidence.

¶13The gist of the defence witnesses is as under:- DW-1/Dr. Jai Narain, stated that that on 09.10.1999, he medico legally examined Sufeda son of Nasiba and Akhtar son of Sufeda and found the following injuries on their person:- 0*)e!'

1.oAobruiseosizeoofo10ocmo!otiocmsoobli=uel"osituatedooverothe rightosideoofoloweropartoofochestoandoabdomeno1ustobehindothe postoa!illar"oline.ooColourowasobluish.oo6notheoupperoofoitothere wasobrownishoabrasiono1ocmodiameter.o%atientowasocomplaining ofopain.ooTheoin1ur"owasodeclaredosimpleoandowasocausedowithin aodurationoabouto'otootioda"soandocausedob"obluntoweapon.ooThe photocop"oofowhichoiso,!.AC. A34('r

1.oAnoabrasionosizeoofo/cmo!o'cmsowithoscaboformation, brownishoinocolourooverotheorightofrontalopareitaloregionoofothe scalp. '.oAnoabrasionosizeoofo/ocmo!o'ocmsooverorightoparietaloregionoof theoscalpowithoscaboformation,obrownishoinocolour. ::13:: o othotheoin1uriesowereosimpleoandocausedowithinoaoprobabation durationo'otootioda"soandocausedob"obluntoweapon.o oThe photocop"oofo+&)oiso,!.AA. DW-2/Rehmuddin stated that the occurrence took place because of some dispute between Hanif on the one side and Yakub on the other due to some business transaction and it was the complainant party which had opened attack on the accused persons. DW-3/Dr. S.S. Yadav stated that on 08.02.2000, he had referred patient-Sufeda son of Nasiba to Medical College, Rohtak for treatment because he was suffering from T.B. Yakub and Akhtar accused who were confined in District Jail, Gurgaon were also referred to Civil Hospital, Gurgaon as they were suffering from SOM. DW-4/EHC Naresh Kumar stated that he had brought the summoned record containing DDR No.35 dated 08.10.1999 which was recorded on the information of ASI Ishwar Singh. The copy of the DDR was Ex.DF. As per record, DDR No.28 dated 09.10.1999 was also recorded by Ishar Singh ASI. They copy of the same is Ex.DF/1. DDR No.5 dated

10.10.1999 was registered by SI/SHO Ram Niwas. The copy of the same is DF/2. DW-5/ HC Sube Singh stated that he had brought the summoned record of case FIR No.165 dated 08.10.1999 under Sections 148, 149, 323, 324 IPC, Police Station Ferozepur Jhirka. The FIR was registered SUKHPREET KAUR by Nasru against Sufeda, Akhtar, Yhakub, Sukarbi, Aasmina, Fajru and ::14:: Farida. Some part of the FIR had been written in different ink but he could not disclose as to who had written which part.

¶14Based on the evidence led, the accused-appellants, namely, Sufeda, Akhtar, Fajru and Yakub came to be convicted and sentenced by the Court of the Additional Sessions Judge, Chandigarh, vide judgment of conviction and order of sentence dated 29/30.01.2004 as under:- N',e o ") O))e#+e 0e#(e#+eo F5#e I#o!e)'*6(o") (4eo'++*se! *#!er 7'8,e#( o ") 0e+(5"# )5#e Sufeda, 302/149 RI Life Rs.2,000/ RI 01 year Akhtar, IPC Imprisonment - each Fajru and each Yakub 325/149 RI 03 years Rs.5,00/- RI 03 months IPC each each 324/149 RI 01 year each -- -- IPC 323/149 RI 06 months each -- -- IPC 148 IPC RI 01 year each -- -- Yakub 294 IPC RI 02 months All the sentences were ordered to run concurrently.

¶14The aforementioned judgment of conviction and order of sentence dated 12/16.08.2003 passed by the Additional Sessions Judge, Fast Track Court, Gurgaon, is under challenge before this Court.

¶15During the pendency of this appeal, the sentences of the accused-appellants, namely, Sufeda (since deceased), Akhtar, Fajru and Yakub were suspended by this Court vide orders dated 23.09.2004, 2025.05.13 21:24 31.08.2006, 20.08.2007 and 23.11.2006 respectively. ::15::

¶16The learned Amicus Curiae for the appellants No.2 to 4 contends that the incident took place on the spur of the moment when the complainant party went to remonstrate with the accused side regarding the obscene talk of Yakub with Salma daughter of Nasru (complainant). An altercation took place and even as per the prosecution, the accused persons came one after the other only armed with lathis,oother than Akhtar who was armed with a farsao(axe like weapon). &athisoand farsaocannot be said to be weapons as they are usually carried by villagers. Only one fatal injury was caused on the person of the deceased by Akhtar that too without pre-meditation in a sudden fight. A cross bearing DDR No.28 dated 09.10.1999 Ex.DF/I stands registered at the instance of Akhtar against the present complainant party. Three accused persons, namely, Sufeda, Akhtar and Yakub also received injuries in the occurrence which apparently is a free fight between the two parties. In a case of a free fight, the individual role of the accused is to be considered and if that be so, then the Akhtar would be liable under Section 304 for causing the fatal injury on the deceased, Yakub would be liable under Section 323 for causing simple injuries on the wrist of Dhatoli and a simple injury each on the right thumb and right arms of Issa and Moosa respectively. Fajru would be liable for having caused grievous injuries on the person of Nasru. He, thus, contends that the conviction and sentence be modified accordingly.

¶17The learned counsel for the State, on the other hand, contends SUKHPREET KAUR that the deposition of the witnesses is clear and categoric as to the manner in ::16:: whichotheooccurrenceotooko place.oTheomedicaloevidenceoisototallyoin consonanceowithotheoocularoaccount.oAllotheoaccusedocameodulyoarmedoand causedofataloinjuriesotootheodeceased-Dhatolioandoalsoocausedoinjuriesoto Nasru,oIssaoandoMoosa.oTherefore,otheoconvictionohasobeenorightlyorecorded underoSectiono302oIPC,oetc.oTherefore,otheopresentoappealoisoliableotoobe dismissed.o

¶18Weohaveoheardotheolearnedocounseloforotheoparties.o

¶19Beforeoproceedingofurther,oitowouldobeoappositeotooexamine someoofotheolawoonotheoissueoatohand. TheoHon'bleoSupremeoCourtoin o"KedaroPrasadoandoothers versusoStateoofoM.P.o1992oAIRoSupremeoCourto1629",ohasoheldoasounder:-

2.oWeohaveoheardolearnedoCounseloforotheoappellant.oHisomain prayeroisothatosinceotheoappellantsoareoonobail,oweomayoreduce theosentenceoofotheoappellantsotootheoperiodoalreadyoundergone. Thereoareothreeoappellantsoinotheseotwooappeals.oInotheodying declarationoofotheodeceasedospecificorolesohaveobeenoasedotoothe appellants. o Theo deceased oAlafat ohad o been o attracted oby o a commotionoinotheoneighbourhoodowhereoaowomanowasobeing beaten.oTheodeceasedoaskedotheoassailantsonototoobeatothat woman.oThenomaliceowasotransferredotootheodeceasedoandothe accusedopersonsoexhortedotooeachootherotoodivertotheiroattention tootheodeceased.oTheofirstoblowowasogivenobyoKedaroPrasad appellantowithohisostickowhichostruckoonotheoheadoofothe deceasedoandoanotheroblowowasogivenobyoRamlaloappellantowith hisospearostrikingoatohisokneeoandoyetoanotherooneoonohisohand andothereafterotheodeceasedosaysothatoheowasogivenoblowoby others.oByoprocessoofoexclusiono12ooutoofo15oaccusedooriginally arraignedohaveobeenoacquittedobyotheocourtsobelow.oOutoofothe remaining,otwooappellants,onamely,oKedaroPrasadoandoRamlal haveobeenoconvictedounderoSectiono304,oPartoI,oIndianoPenal Codeoandosentencedotoorigorousoimprisonmentoforofiveoyears.oAllSUKHPREET KAUR integrity of this document theothreeoappellantsohoweverohaveobeenoconvictedounderoSection ::17:: 323oofotheoPenaloCodeoandosentencedotoooneoyear'sorigorous imprisonment.

3.oTheodyingodeclarationoofotheodeceased,owhichowasorelied uponobyotheocourtsobelow,odisclosesothatotheodeceasedohad positivelyomentionedoKedaroPrasadoandoRamlalotoobeothe personsowhoofirstogaveohimoblowsooneoafterotheootheroandothen byoothersowhoodoonotofigureoinotheseoappealsoexceptoRamoBali appellant.oItoisoevidentothatoKedaroPrasadoappellantogaveothe headoinjury.oAccordingotooDr.oC.oL.oNigam,oP.W.o12,owho performedotheopostmortemoexaminationoofotheodeceased,othe deceasedohadodiedoonoaccountoofotheosevereoheadoinjuryocausing multipleofractureoofotheoskullobesidesoextraduralohaemorrhage whichobyoitselfowasofatal.oSinceotheofataloinjuryoisoattributedoto KedaroPrasad,oappellantoitoappealsotoousothatohisoconvictionoand sentenceoasorecordedobyotheoHighoCourtoshouldobeosustained andoweoorderoaccordingly.oSoofaroasoRamlal,oappellantois concernedotheoinjuriesogivenobyohimowithoaospearoonotheoknee andotheoarmoofotheodeceasedowereosimple.oForotheseoinjuries RamlaloappellantocannotobeoconvictedounderoSectiono304,oPart I,oIndianoPenaloCodeoasoSectiono34oIndianoPenaloCodeohasonot beenoappliedoafterosettingoasideoconvictionounderoSectiono147 IndianoPenaloCodeoHisoconvictionohasothusotoobeobroughtodown toooneounderoSection o324o IndianoPenaloCodeoandoweoorder accordingly.oThereoisonothingowhichocanobeosaidoaboutothe convictionoofoRambalioappellantowhoostands'oconvictedounder Section o323o IndianoPenaloCodeoTheoendoresultoisothatowe confirmotheoconvictionoandosentenceoofoKedaroPrasadoappellant, afterotheoconvictionoofoRamlaloappellantotoooneounderoSection 324oIndianoPenaloCodeoandosentenceohimotootheoperiodoalready undergoneounderoallocountsoandodismissotheoappealoofoRambali reducingohisosentenceotootheoperiodoalreadyoundergoneounderoall counts.oThusobothotheoappealsoareodisposedoof. Orderoaccordingly. TheoHon'bleoSupremeoCourtoino"GurmukhoSinghoversusoState ofoHaryanao2009(15)oSCCo635",oheldoasounder:-

21.oInotheoinstantocase,otheooccurrenceohadotakenoplaceoatothe spuroofotheomoment.oOnlyotheoappellantoGurmukhoSinghoinflicted I attest to the accuracy and aosingleolathioblow.oTheootheroaccusedohaveonotoindulgedoinoany ::18:: overtoact.oThereowasonoointentionooropre-meditationoinotheomind ofotheoappellantotooinflictosuchoinjuriesotootheodeceasedoasowere likelyotoocauseodeathoinotheoordinaryocourseoofonature.o

22.oOnoconsiderationoofotheoentireoevidenceoincludingothe medicaloevidence,oweoareoclearlyoofotheoviewothatotheoconviction ofotheoappellantocannotobeosustainedounderosectiono302oIndian PenaloCode,obutotheoappropriateosectionounderowhichothe appellantooughtotoobeoconvictedoisoSectiono304oPartoIIoIndian PenaloCode.o

23.oBeforeoweopartowithotheocase,oweowouldolikeotooclearly observeothatoweoareonotolayingodownothatoinonoocaseoofosingle blowooroinjury,otheoaccusedocannotobeoconvictedounderosection 302oIndianoPenaloCode.oInocasesoofosingleoinjury,otheofactsoand circumstancesoofoeachocaseohasotoobeotakenointooconsideration beforeoarrivingoatotheoconclusionowhetherotheoaccusedoshouldobe appropriatelyoconvictedounderosectiono302oIndianoPenaloCode orounderoSectiono304oPartoIIoIndianoPenaloCode.o

24.oTheseoareosomeofactorsowhichoareorequiredotoobeotakenointo considerationobeforeoawardingoappropriateosentenceotoothe accused.oTheseofactorsoareoonlyoillustrativeoinocharacteroandonot exhaustive. o Each o case o has o to o be o seen o from o its o special perspective.oTheorelevantofactorsoareoasoundero:o a)oMotiveooropreviousoenmity;o b)oWhetherotheoincidentohadotakenoplaceoonotheospuroofothe moment;o c)oTheointention/knowledgeoofotheoaccusedowhileoinflicting theoblowooroinjury;o d)oWhetherotheodeathoensuedoinstantaneouslyoorothe victimodiedoafteroseveralodays;o e)oTheogravity,odimensionoandonatureoofoinjury;o f)oTheoageoandogeneralohealthoconditionoofotheoaccused;o g)oWhetherotheoinjuryowasocausedowithoutopre-meditation inoaosuddenofight;o h)oTheonatureoandosizeoofoweaponousedoforoinflictingothe SUKHPREET KAUR injuryoandotheoforceowithowhichotheoblowowasoinflicted;o ::19::

i)oTheocriminalobackgroundoandoadverseohistoryoofothe accused;o j)oWhetherotheoinjuryoinflictedowasonotosufficientoinothe ordinaryocourseoofonatureotoocauseodeathobutotheodeath wasobecauseoofoshock;o k)oNumberoofootherocriminalocasesopendingoagainstothe accused;o l)oIncidentooccurredowithinotheofamilyomembersooroclose relations;o m)oTheoconductoandobehaviouroofotheoaccusedoafterothe incident.oWhetherotheoaccusedohadotakenotheoinjured/the deceasedo to otheohospitalo immediatelyo tooensureo that he/sheogetsoproperomedicalotreatmento?o These o are o some o of o the o factors o which o can o be o taken o into considerationowhileograntingoanoappropriateosentenceotoothe accused.oTheolistoofocircumstancesoenumeratedoaboveoisoonly illustrativeoandonotoexhaustive.oInoouroconsideredoview,oproper and o appropriate o sentence o to o the o accused o is o the o bounded obligationoandodutyoofotheocourt.oTheoendeavouroofotheocourt must o be o to o ensure o that o the o accused o receives o appropriate sentence,oinootherowords,osentenceoshouldobeoaccordingotoothe gravityoofotheooffence.oTheseoareosomeoofotheorelevantofactors whichoareorequiredotoobeokeptoinoviewowhileoconvictingoand sentencingotheoaccused.o

25.oWhenoweoapplyotheosettledoprincipleoofolawowhichohasobeen enumeratedoinotheoaforementionedocases,otheoconvictionoofothe appellantounderosection o302o IndianoPenaloCodeocannotobe sustained.oInoouroconsideredoview,otheoaccusedoappellantoought toohaveobeenoconvictedounderoSectiono304oPartoIIoIndianoPenal Codeoinsteadoofounderosectiono302oIndianoPenaloCode.

26.oWeoaccordinglyoconvertotheoconvictionoandosentenceoofothe appellantoGurmukhoSinghofromosectiono302oIndianoPenaloCode toooneounderoSection o304o PartoIIoIndianoPenaloCodeoand sentenceohimotoosufferorigorousoimprisonmentoforosevenoyears. TheofineoasoimposedobyotheotrialocourtoandoasoupheldobyotheoHigh Courtoisomaintained.oTheoappellantowouldobeoentitledotooget 2025.05.13 21:24 benefitoofosectiono428oofotheoCodeoofoCriminaloProcedure. ::20::

27.ooTheoappealoisopartlyoallowedoinotheoaforementionedoterms andodisposedoof. oAppealopartlyoallowed. TheoHon'bleoSupremeoCourtoin o"MariappanoversusoState representedobyoInspectoroofoPoliceo2024oAIRoSupremeoCourto253",ooheldoas under:-

8.oHenceothe oonlyoquestionothatoremainsoforoconsideration beforeousoisowhetherotheoactoofotheoaccusedoisoculpableohomicide amountingotoomurderooronot.oInootherowords,otheoquestionois whetherotheoactsoofotheoaccusedowouldocomeounderoExceptiono4 tooSectiono300oIPCoorowouldobeoanoactoofoculpableohomicide amountingotoomurderopunishableounderoSectiono302.

9.oThisoCourtoinoRampaloSinghov.oStateoofoU.P.o(2012)o8oSCC 289,owhileoalteringotheooffenceounderoSectiono302otooSectiono304 Parto1oofoIPC,ohasoelaboratelyodiscussedotheodistinctionobetween culpableohomicideoamountingotoomurderoandoculpableohomicide notoamountingotoomurder.oWhatoisoheldoisothatoclassification wouldobeoaomatteroofofactodependingouponotheoevidenceoledoin theotrial.oBroadlyospeaking,otheofactorsotoobeoconsideredoare enumerated o in o paragraph o 25 o thereof. o The o same o is o been reproducedobelow: "25.oAsoweohaveoalreadyodiscussed,oclassificationoofoan offenceointooeitheropartoofoSection o304o isoprimarilyoa matteroofofact.oThisowouldohaveotoobeodecidedowith referenceotootheonatureoofotheooffence,ointentionoofothe offender,oweaponoused,otheoplaceoandonatureoofothe injuries,oexistenceoofopremeditatedomind,otheopersons participatingoinotheocommissionoofotheocrimeoandotoosome extentotheomotiveoforocommissionoofotheocrime.oThe evidenceoledobyotheopartiesowithoreferenceotooallothese circumstancesogreatlyohelpsotheocourtoinocomingotooaofinalSUKHPREET KAUR I attest to the accuracy and conclusionoasotoounderowhichopenaloprovisionoofotheoCode ::21:: the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the "principle of exclusion". This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, "culpable homicide amounting to murder". Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused." 1:.o8towouldoalsoobeoaptohereotooreferotootheo1udgementoof ;urinderoCumarov.o>nionoTerritor",oChandigarho?19G9@o'o;CC '13,owhereinothisoCourtohadolaidodownotheogroundsotooinvoke ,!ceptiono/otoo;ectionoti::o8%C7 "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 no 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."

¶11o 8n o the o present o case, o while o looking o at o the o facts o and circumstancesoofotheocase,oitocanobeoseenothatotheoappellantohadSUKHPREET KAUR ::22:: suddenly o stabbed o the o deceased o during o a o heated o verbal argumentowithohimoandonotoduringoaopreplannedoattackowhich wasocarriedooutowithotheosoleointentionoofocausingotheodeathoof theodeceased.oTheopreviousoenmityobetweenotheoappellantoand theodeceasedohadobeenoaocontributoryofactoroleadingotoothe verbaloaltercationobutoitowasonototheoreasonoforotheoaccusedoto carryooutoaopre-plannedofataloattackoagainstotheodeceased.oThe appellantohadoactedo"suddenly",oinotheoheatoofopassionoand withoutoaopre-plannedoapproachotookillotheodeceased.

12.oRightofromotheobeginningoi.e.oheoprosecutionostoryoasosetoup inotheoFIRowasothatoinitiallyothereowasoaoheatedodiscussion betweenotheopartiesoandoinoaofitoofoangerotheophysicaloassault tookoplace.oEvenotheoocularotestimonyoisoalsootootheosameoeffect. AlthoughoonotheosameoevidenceotheoTrialoCourtohasoacquitted twooco-accusedoandoconvictedoonlyotheoappellant.oItohasoalso comeoinoevidenceothatotheoappellantohadocausedoonlyooneoinjury whereasootheroaccusedohadocausedomultipleoinjuries.oHowever, theoTrialoCourtoacquittedotheootherotwooaccused.

13.oHence,oitocanobeosafelyoconcludedofromotheoevidenceoledoin theopresentocaseothatotheoappellant'soovertoactoofokillingothe deceasedohappenedoduringoaofitoofoangeroinotheoheatoofoa passionateoverbaloquarreloandowouldofallounderoExceptiono4oto Sectiono300oIPC.oMoreover,otheoclearointentoneededotooprove culpableohomicideoamountingotoomurderohasoalsoonotobeen establishedobyotheoprosecution.

14.oTheoappealoisopartlyoallowed.

15.oTheoconvictionounderoSection o302o IPCoisoConvertedoto Section o304o Part-I o with o sentence o of o 10 o years o Rigorous ::23:: ImprisonmentoandofineoofoRs.o50,000/-,otoobeopaidotootheovictim's family.

¶20TheovariousoHighoCourtsohaveoheldoasounder:-Ino"MangalsinghoandoothersoversusoStateoofoM.P.o1996oCriLJ 1908", otheoGwalioroBenchoofotheoMadhyaoPradeshoHighoCourt,oheldoas under:-

9.oItoisonotodisputedothatoPharsaoblowowasogivenotooPitaramoonly by o Mangalsingh o and o not o by o other o accused o persons. o As mentionedoabove,oDr.oR.S.oDixit,oP.W.o12,oinohisotestimonyoandoin hisoletter,oEx.oP-31,ohasoveryoclearlyostatedothatoInjuryoNo.o1oon theoheadowasonotocausedobyoanyosharpoedgedoweapon.oThe Pharsa,otherefore,oappearsotoohaveobeenoinflictedofromotheoblunt sideowhichoresultedoinotheofractureoofoscalpoandodamageotoothe brain.oDr.oG.D.oAgarwal,oP.W.o15,owhooperformedotheopost mortemohasoalsooinohisodepositionostatedothatotheoinjuryocaused onotheoheadomightohaveobeenocausedobyohardoandobluntoobject. Inoparao12oDr.oR.S.oDixit,oP.W.o12,ohasoveryoclearlyostatedothat injuriesoNos.o1,o2oando3ofoundoonotheopersonoofoPitaramowere notosufficientoinotheoordinaryocourseoofonatureotoocauseodeath. Theoversion,oasostatedobyotheoprosecutionowitnesses,omakesooutoa caseoofofreeofight,oasoheldobyousoabove.oWeocannot,otherefore, inferoanyointentionoonotheopartoofotheoaccusedoMangalsinghoto commitomurderoofoPitaram.oTheoinjuriesowereocausedobyohimoin the o course o of o quarrel o which o suddenly o took o place o when Roshansingh o had o gone o to o lodge o protest o to o the o house o of Thakurdas.oTheooffence,otherefore,ocommittedobyoMangalsingh wouldonotobeooneounderoSection o302oIndianoPenaloCodeobut underoSection o304,oPartoI,oIndianoPenaloCode.oMangalsingh I attest to the accuracy and hadoalsoocausedoinjuriesotoocomplainantoBhagwansinghoandohe ::24:: hasoalsoobeenoconvictedounderoSectiono325oIndianoPenaloCode. Weoareoinformedothatoheoisoinojailosinceotheodateoofoincidentoand hasoalmostosufferedonineoyearsosentence.oWe,otherefore,osetoaside hisoconvictionounderoSection o302o IndianoPenaloCodeoand insteadoconvictohimounderoSection o304,oPartoI,oIndianoPenal Code,oSection o325o andoSection o148o IndianoPenaloCodeoand sentenceohimoforotheoperiodoalreadyoundergone.

10.oSoofaroasotheootheroaccused-appellantsoNos.o2otoo7oare concerned,otheyohaveoallocausedoinjuriesobyoLuhangisoand lathis.oTheoinjuriesoasoperotheoinjuryoreports,oEx.oP-26otooEx.oP-29oareoallocontusions,oabrasionsoandolaceratedowounds.oAsoheld above,othereowasonooformationoofounlawfuloassemblyowithinothe meaningoofoSectiono149oIndianoPenaloCodeoandothereowasono commonointention.oTheyoareoall,otherefore,oliableotoobeoconvicted onlyounderoSectiono325oandoSectiono148oIndianoPenaloCode. Theyoareoalloonobail.oAppellantoNo.o21,oThakurdas,oAppellant No.o6oJagdishoandoappellantoNo.o7oBhagwatsinghohaveosuffered aboutotwoomonthsosentenceoandoappellantoNo.o3oKalyansingh, appellantoNo.o4oParashramoandoappellantoNo.o5oPremnarayan haveoallosufferedothreeomonthsosentenceoeachobeforeotheyowere enlargedoonobail.oInothisocase,obothopartiesoclashedoandohad causedoinjuriesotoomembersoofootheroparty.oInotheocircumstances ofotheocase,oinoouroopinion,oendsoofojusticeowouldobeometoby sentencingoappellantsoNos.o2otoo7otootheoperiodoofoimprisonment alreadyoundergoneobyothemoandofineoofoRs.o2000/-o(RupeesoTwo thousandoonly)oeachopayableoasocompensationotootheoinjured withinothreeomonths.oInodefaultoofopaymentoofofineotheyoshall sufferofurtherorigorousoimprisonmentoforosixomonths.

¶11o Consequently, o the o appeal o only o partly o succeeds. o The SUKHPREET KAUR convictionoofotheoappellantsounderoSection o302o readowith ::25:: Section o149o IndianoPenaloCodeoisoherebyosetoaside,oinstead appellantoNo.o1oMangalsinghoisoconvictedounderoSectiono304, PartoI,oSectiono325oandoSectiono148oIndianoPenaloCodeoandois sentencedotooimprisonmentoforotheoperiodoalreadyoundergoneoby him.oTheootheroappellantsoNos.o2otoo7oareoconvictedoforothe offencesounderoSectionso325oando148,oIndianoPenaloCodeoand areosentencedotootheoperiodoofoimprisonmentoalreadyoundergone byothenoandofineoofoRs.o2000/-o(RupeesoTwoothousandoonly)oeach payableoasocompensationotootheoinjuredowithinothreeomonths.oIn defaultoofopaymentoofofineotheyoshallosufferoaofurtherosentenceoof rigorousoimprisonmentoforosixomonths.oTheirobailobondsoare cancelled.oAllotheoappellantsobeosetoatoliberty,oifotheyoareonot otherwiseorequiredoinoconnectionowithoanyootherooffence. In o"BholaoRamo&oOrs.oversusoStateoofoRajasthan,o(D.B. CriminaloAppealoNo.22oofo2006odecidedoono09.03.2015)",otheoJaipuroBench, RajasthanoHighoCourt,oheldoasounder:-

41.oInotheopresentocase,othatotheooccurrenceowasosuddenoaffair, withoutoanyopre-meditationodueotootheoincidentoatotheowell, whereoSmt.oGuddiowasogivenobeatingobyoSunitaoandoSaroj.oItois theofamilyomembersoofoGuddi,owhoofeltohurtoandoitohasorightly beenostatedoinotheowrittenoreportothatoimmediatelyothereafter, ladiesoofobothotheohousesohadoanoaltercation.oToous,osudden occurrenceohadoeruptedoinotheostreetoandobothosidesocameoto blows.oItoisoaocaseoofosuddenofight.

42.oItowasoheldobyotheoHon'bleoSupremeoCourtoinotheocaseoof Jummano&oOrs.ov.oStateoofoPunjabo[AIRo1957oSupremeoCourt 469]oasounder:- "(24).oInosuchoaocaseowhereoaomutualoconflict 2025.05.13 21:24 developsoandothereoisonooreliableoandoacceptable ::26:: evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C." /0.oAoAivisiono enchoofothisoCourtoino uddhio<o6rs.ov.o;tateoof )a1asthanoH'::3o?1@o)CCo''GI,orel"ingouponoAharmanov.o;tate ofo%un1ab,oA8)o1953o;upremeoCourtoti'/Ioheldoasounder7$ "13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 Supreme Court 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code." //.oTakingototalit"oofotheocircumstances,oweoareoofotheoviewothat I attest to the accuracy and theoaccusedo holao)amoandoJadramohaveobeenosubstantivel" ::27:: convictedoforotheooffenceounderoSectiono302oforohavingogiven fataloblowsotooMotioRam,otheodeceased.oThus,oBholaoRamoand YadramoareoheldoresponsibleoforocausingodeathoofoMotioRam. Consideringothatotheooccurrenceowasosuddenoaffair,owithoutoany pre-meditation,oweoareoofotheoviewothatotheooffenceoquaothem willonotofallounderoSectiono302oI.P.C.,obutounderoSectiono304-I I.P.C.

45.oConsequently,oweoconvertotheooffenceoandosetoasideothe sentenceoofolifeoimprisonmentoawardedounderoSectiono302oI.P.C. uponoBholaoRam.oHeoisoheldoguiltyoofooffenceounderoSection 304-IoI.P.C.oandosentencedotooundergootenoyearsoR.I.oandotoopay aofineoofoLo10,000/-,oinodefaultoofopaymentoofofine,otoofurther undergoooneoyearoR.I.

46.oSubstantiveoconvictionoofoBholaoRamoforotheooffenceounder Sectiono307oando325oisoupheld.oTheosentenceoawardedotoohimoon allotheocountsobyotheotrialocourtoshallorunoconcurrently.

47.oWeoacquitotheoaccused,oGhanshyamoofooffenceounderoSection 302/149,o307/149oando325/149oandomaintainohisosubstantive convictionoforotheooffenceounderoSectiono324,oasoheoisoalso individuallyoliableoforotheoroleoplayedobyohim.oConsequently,owe alsooupheldotheosentenceoofooneoyearoawardedouponoGhanshyam underoSectiono324oI.P.C. XXXXX XXXXXX XXXXX

49.oSince oweohaveoheldothatoSectiono149oisonotoattracted, Prakashos/ooKhayalioRam,oPrakashos/ooMohanoLal,oUmmedioLal andoMannuoRamoareoacquittedoofooffenceounderoSectiono302/ 149,o307/o149,o325/o149oando324/o149oIPCoandotheirosubstantive convictionoforooffenceounderoSectiono323oI.P.C.oisoupheld.oWe ::28:: alsooupholdotheosentenceoawardedotoothemounderoSectiono323 I.P.C. Withotheoaboveomodification,oquaooffenceoandosentenceonoted, quaoeachoappellant,otheopresentoappealostandsodisposedoof. In o"Radheshyamoandoanr.oversusoStateoofoRajasthan,o(D.B. CriminaloAppealoNo.1095oofo2005odecidedoono24.03.2015)", otheoJaipur Bench,oRajasthanoHighoCourt,oheldoasounder:-

17.oTheocontentionoofotheoappellantoisothatoasoperoprosecution evidenceowhenogoatsoenteredoinotheofieldoofotheocomplainant partyoonoaospuroofomomentowithoutoanyopremeditation,othe occurrenceohappened.oLatoorohasoinflictedoonlyooneoinjuryoto theodeceasedothatotooobyobluntoweapon.oThereoisonoorepetitionoof theoblows,ohenceotheocaseoofotheoappellantodoesonototravel beyondotheoscopeoofoSectiono304oPart-IoIPC.oTheocontentionoof theocounseloforotheoappellantoseemsosoundoandolookingotoothe factothatoincidentohasohappenedoonoaospuroofomomentowhen goatsoenteredointootheoagriculturalofieldoofotheocomplainant party.oTheoappellantohasonototakenoanyoundueoadvantageoofothe situation,oheohasonotorepeatedotheoblow,oconsequently,oweoset asideotheoconvictionoofotheoappellantoLatoorounderoSectiono302 I.P.C.oandoconvertoitointoo304oPart-IoIPC.

18.oItocanobeonotedothatoprosecutionowitnessohasostatedothat Radheshyamohasoalsooinflictedoinjuryobyobluntoweapon.oPW/12 Ramdayal,oPW/7oShambhoooDayaloandoPW/1oRamoRatanohave statedosoobutoasoconsideredoearlier,otheoincidentohasooccurredoon aospuroofomoment.oThereowasonoopre-mediationoofomindoand whenoincidentohasooccurredospontaneously,oSection o34o I.P.C. wouldonotocomeointooplayoandocommonointentionocouldonotobe 2025.05.13 21:24 attributedotooRadheshyamobutoasospecificoinjuryohasobeen ::29:: attributedotoohim,oheowouldobeoonlyoliableoforohisoindividualoact, henceohisoconvictionounderoSectionso302oando307oI.P.C.oisoset asideobutoconvictionoandosentenceounderoSectiono323oI.P.C.ois maintained. Inotheolightoofotheoabove,otheoconvictionoofotheoappellantoLatoor isoconvertedofromo302oI.P.C.otoo304oPart-IoI.P.C.oAsoperoarrest memoo(Ex.P/18),oLatoorowasoarrestedoono29.10.2003.oAsostated byocounsel,oheoisoinocustodyofromolasto11oyearsoandoaboutofive month,ohenceohisosubstantiveosentenceoisoreducedotootheoperiod alreadyoundergoneowhileomaintainingotheosentenceoofofineoand defaultoclause. Whileomaintainingotheoconvictionoandosentenceoofoappellant Radheshyam o for o offence o under o Section o323o I.P.C., o he o is acquittedoofooffenceounderoSectiono302/34oando307/34oIPC. Ino"BanwarioandoothersoversusoStateoofoU.P.o(CriminaloAppeal No.105oofo2012odecidedoono20.11.2015)oandoRakeshoversusoStateoofoU.P. (CriminaloAppealoNo.106oofo2012odecidedoono20.11.2015)",otheoAllahabad HighoCourtoheldoasounder:-

16.oKeepingoinoviewotheoaforementionedolegalopositionoandothe factsoofotheoinstantocaseowhichoreflectsothatotheoincidentohas takenoplaceoonotheospuroofotheomomentoandofreeofightotookoplace betweenobothotheosidesoinowhichobothosidesohaveoreceived injuries.oLawoisosettledoonotheopointothatoinocaseoofofreeofight eachoandoeveryoaccusedoshallobeoresponsibleoforohisoownoactoand inotheoinstantocaseobothotheoaccusedopersonsoareoallegedotoohave givenolathioblowsotootheodeceasedoandotheodeceasedohasoreceived twoolathioblowsoonohisoheadowhichoprovedofatal.oSoobothothe appellantsohaveogivenooneoblowoeachoonotheodeceasedoandonoSUKHPREET KAUR ::30:: effortowasomadeotoorepeatotheoblowoonoanyovitalopartoofotheobody. Nooundueoadvantageoofotheoaboveosituationowasotakenobyoanyoof theoappellantsoandotheooffenceowasonotocommittedowithoprior intentionooropremeditation.oThusothisooffenceowouldofallounder Sectiono304opartoIIoIPC.

17.oInotheseocircumstances,otheooffenceowouldofalloonlyounder Sectiono304opartoIIoIPC.oAccordingly,oweoareoofotheoconsidered viewothatothisoappealodeservesotoobeopartlyoallowedoandois hereby o partly o allowed. o Conviction o of o both o the o appellants deservesotoobeomodifiedofromoSectiono302oIPCotooSectiono304 partoIIoIPCoandotheirosentenceodeserveotoobeoreducedofrom imprisonmentoforolifeotootheorigorousoimprisonmentoforoaoperiod ofofiveoyearsoandoalsoowithofineoofoRs.o10,000/-oeachowithodefault stipulation o of o two o months o additional o imprisonment. o The convictionoandosentenceoinflictedobyotheolearnedotrialocourtofor theooffenceounderoSectiono325oIPCoisoalsooherebyoconfirmed. TheoappellantsoBanwarioandoRakeshoareoinocustody.oTheyoshall serveooutotheosentenceoasomodifiedobyothisoCourt.oTheoperiod alreadyoundergoneobyotheoappellantsoinocustodyoinothisocase, shallobeosetooffoinotheirosubstantiveosentenceoinoaccordanceowith theoprovisionoofoSectiono428oCr.P.C. In o"JagramoandoothersoversusoStateoofoRajasthano(inoDB CriminaloAppealoNo.1255oofo2011odecidedoono14.01.2016)", otheoJaipur Bench,oRajasthanoHighoCourtoheldoasounder:

23.oThus,otoous,otheotrialocourtohasorightlyogivenoaofindingoofofree fight.oInotheofactsoandocircumstances,odueotoonon-impleadmentoof rightoofoselfodefence,oweocannotosayowithoaodefiniteoopinionothat fromotheocaseoofoprosecutionoitselforightoofoselfodefenceoof SUKHPREET KAUR propertyoofoaccusedooropersonoisomadeoout. ::31:: '/.o;upremeoCourtoino&akshmio;ingho<o6rs.ov.o;tateoofo ihar H?1932@o/o;CCo09/Iohasoheldothatoifotheoin1uriesoonotheoperson of o accused o are o not o e!plained, o it o is o to o be o assumed o that prosecution o has o suppressed o genesis o and o origin o of o the occurrence o and o thus, o ac=uittal o of o the o accused o should o be recorded.oTheorelevantoparasoofotheoaforesaido1udgmentoareoas under7$ "This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows: In State of Gujarat v. Bai Fatima Criminal Appeal No.67 of 1971 decided on March 19, 1975 : ) one of us (Untwalia, J., speaking for the Court, observed as follows: In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all. ::32:: The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." '5.o;inceobothotheoparties,ohaveowithheldooriginoandogenesisoof theooccurrence,oitocannotobeodeterminedoasotoowhichopart"owas aggressor.oThus,otrialocourtohasorightl"oheldothatoitoisoaocaseoof freeofight.o*owever,otrialocourtowrongl"ocameotootheoconclusion thato4agramoandoCailashointendedotoocauseodeathoofoCanchan &al,obuto;a1anaoAevioando+allioAeviohaveonotosharedothe commonointentionowithothem.oToous,othisofindingoisonoto1ustified. 6nceotheocourtocomeotootheoconclusionothatoitoisoaocaseoofofree fight,o;ectionoti/o8%Cocannotobeoapplied. '2.o8towasoheldob"otheo*onDbleo;upremeoCourtoinotheocaseoof 4ummano<o6rs.ov.o;tateoofo%un1aboHA8)o1953o;upremeoCourt /29Ioasounder7$SUKHPREET KAUR ::33:: "(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to Section 300, I.P.C., applies with the result that the offence is under Section 304 (Part I), I.P.C." '3.oAoAivisiono enchoofothisoCourtoino uddhio<o6rs.ov.o;tateoof )a1asthanoH'::3o?1@o)CCo''GI,orel"ingouponoAharmanov.o;tate ofo%un1aboHoA8)o1953o;upremeoCourtoti'/Ioheldoasounder7$ "13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman v. State of Punjab, AIR 1957 Supreme Court 324 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code." ::34:: 'G.oThus,otakingototalit"oofocircumstances,oweoareoofotheoview thatoconvictionoofotheoaccused$appellantso4agramoandoCailash cannotobeosustainedoforooffencesoundero;ectionsoti:'oandoti:'/0/ 8%Corespectivel".o othotheoaccusedohaveocausedooneoin1ur"oeach onotheoheadoofodeceasedoCanchano&al,othusob"oappl"ingoratiooof lawolaidoino4ummanDsocaseo?supra@oandoAharmano?supra@, 4agramoandoCailashoareoliableotoobeoconvictedoforooffenceounder ;ectionoti:/o%t.8o8%C. '9.oConse=uentl",oweoconvertotheooffenceo=uaotheoappellants andosetoasideotheosentenceoofolifeoimprisonmentoawardedounder ;ectionoti:'o8%Coupono4agramoandoCailash.oThe"oareoheldoguilt" ofooffenceoundero;ectionoti:/o%t.8o8%Coandosentencedotooundergo teno"earsorigorousoimprisonment.oThe"oareofurtheroheldoliableoto pa"oaofineoofo)s.o1:,:::/$oandoinodefaultothereofotooundergooone "earorigorousoimprisonment.

¶21A perusal of the aforementioned judgments would show that where injuries were caused without pre-meditation in a sudden fight, which had taken place on the spur of the moment and the deceased had received a single fatal injury, then, ordinarily, Section 34/149 IPC would have no application and each accused would be convicted for the individual role played by him in as much as, the accused who has given the fatal injury on the person of the deceased would be liable for having committed an offence under Section 304 IPC, whereas the other accused would be liable for the individual injuries caused by them to the deceased and other injured.

¶22Coming back to the facts of the instant case, as per the prosecution case, initially, Salma daughter of Nasru was told some obscene jokes by Yakub. Later, when the complainant party was going to I attest to the accuracy andremonstrate to the house of Yakub, then Yakub met them on the way, got ::35:: annoyed and spoke loudly with the complainant party. It was then that the other accused came one after the other. Only Akhtar was armed with a farsa ?a!e) whereas Fajru, Yakub, Sufeda and others (found innocent) were armed with lathis.oAkhtar gave a single blow of the farsa on the head of Dhatoli which proved to be fatal. The other blow on the person of Dhatoli was given by Yakub with a lathi on his right wrist. Yakub also gave a simple injury each on the right thumb of Issa and right arm of Moosa respectively. Fajru caused lathioblows on the palm of Nasru causing fracture of metacarpal bone and right proximal phalanx of the right little finger. Sufeda (since deceased) caused a simple injury with aolathi on the left elbow of Nasru.oIt is apparent that it was a sudden fight, without pre-meditation in the heat of the movement only lathisoand aofarsa were usedoand it cannot be said that the accused party acted in a cruel manner or took undue advantage. Further, three persons from the side of the accused, namely, Sufeda, Akhtar and Yakub received simple injuries, though unexplained by the prosecution and a cross-report bearing DDR No.28 dated 09.10.1999o Ex.DF/1 came to be registered at the instance of Akhtar against the present complainant side. Thus, in the facts and circumstances of the present case, it cannot be said that the accused formed an unlawful assembly the object of which was to commit the murder of the deceaded-Dhatoli and therefore, each accused would be liable for the individual role/injury attributed to him.

¶23In view of the aforementioned discussion, the conviction of the 2025.05.13 21:24 accused-appellants No.2 to 4, namely, Akhtar, Fajru and Yakub is modified ::36:: as under:- The conviction of '++*se!-'77e66'#(oN"%29A34('r is modified from Section 302/149 IPC to that under Section 304(I) IPC and he is sentenced to undergo rigorous imprisonment for a period of 07 years and to pay a fine of Rs.15,000/-. In default of payment of the fine, he shall undergo rigorous imprisonment for a further period of 01 year. The conviction of '++*se!-'77e66'#( o N"%$9F':r* ofor the offence punishable under Section 302/149 IPC is set aside. His conviction for offence under Section 325/149 IPC is modified to that under Section 325 for having caused grievous injuries on the person of Nasru and is sentenced to undergo rigorous imprisonment for 03 years, to pay a fine of Rs.500/- and in default of payment of fine, he shall further undergo rigorous imprisonment of 03 months. Similarly, his conviction for offence under Section 323/149 IPC is modified to that under Section 323 for having caused simple injuries on the person of Nasru and is sentenced to undergo rigorous imprisonment for 06 months. Both the sentences shall run concurrently. The conviction of '++*se!-'77e66'#( o N"%49Y'3*; for the offence punishable under Section 302/149 IPC is set aside. His conviction for offence under Sections 323/149 is modified to that under Section 323 IPC for having caused simple hurt to Dhatoli, Issa and Moosa and is sentenced to undergo rigorous imprisonment for 06 months for injury caused to Dhatoli and a similar sentence for injuries I attest to the accuracy andcaused to Issa and Moosa. ::37:: The conviction of '++*se!-'77e66'#(oN"%49Y'3*; for having committed the offence under Section 294 IPC is upheld. The sentence of rigorous imprisonment for 02 months as imposed by the Trial Court shall remain unaltered. All the sentences awarded to '++*se!-'77e66'#(oN"%49Y'3*; shall run concurrently. All the accused are acquitted for having committed the offence under Section 148 IPC.

¶24The present appeal is disposed of in the above terms.

¶25The pending applications, if any, shall stands disposed of accordingly. (oGUR1INDERo0INGHoGI//) ooooJUDGE 0-%0&%202& (oJA0JITo0INGHoBEDI)