Rajasthan High Court - Jodhpur
Gehri Lal & Ors vs State on 8 August, 2017
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 240 / 2013
1. Gehri Lal S/o Sh. Tulsi Ram Gayari
2. Shankar Lal S/o Sh. Kana Gyari
3. Tulsi Ram S/o Sh. Kana Gyari
All residents of Gyariyawaas Gorana Police Station
Jhadole, District Udaipur.
----Appellants
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Deepak Menaria.
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
REPORTABLE [Per Hon'ble Manoj Kumar Garg, J.] Date of Judgment :: 8th August, 2017 The instant criminal appeal under Section 374 (2) Cr.P.C. has been filed by the accused appellants against the judgment dated 22.02.2013 passed by learned Addl. Sessions Judge No.5, Udaipur (for brevity, hereafter referred to as „Trial Court‟) in Session Case No.16/2012, arising out of F.I.R. No.58/2008 of (2 of 19) [CRLA-240/2013] Police Station- Jhadhole, District Udaipur, whereby the appellant No.1- Gehri Lal was convicted for offence u/s 302 of IPC, appellant No.2- Shankar Lal was convicted for the offence u/s 302/34 of IPC and appellant No.3 was convicted for offence under Section 302/34 and 323 of IPC and following sentence was passed against them, which reads as under:
Appellant No.1- Gehri Lal 302 of IPC Life imprisonment along with fine of Rs.2,000/-. In default of payment of fine to further undergo one month rigorous imprisonment.
Appellant No.2- Shankar Lal 302/34 of IPC Life imprisonment along with fine of Rs.2,000/-. In default of payment of fine to further undergo one month rigorous imprisonment.
Appellant No.3- Tulsi Ram 302/34 of IPC Life imprisonment along with fine of Rs.2,000/-. In default of payment of fine to further undergo one month rigorous imprisonment.
323 of IPC Rigorous imprisonment for one month along with fine of Rs.200/-. In default of payment of fine to further undergo seven days simple imprisonment.
As per facts of the case, a report (Ex.P/1) was submitted by PW.1- Bheemraj Gayri before the S.H.O., Police Station- Jhadole, District Udaipur on 03.06.2008 alleging therein that he along with his brother Rodi Lal (deceased) went to the house of Bheru Lal for dinner, where the appellants came for dinner. In the dinner for some money transaction, a quarrel took place, in which some hot (3 of 19) [CRLA-240/2013] discussion occurred and accused appellant Tulsi Ram eschewed the finger of deceased, Rodi Lal. Thereafter, the complainant along with his brother Rodi Lal were going back to their house in between the way, the complainant was going ahead, suddenly heard the cries of Rodi Lal, who was behind him and saw that accused appellant Gehri Lal inflicted injury upon Rodi Lal. The complainant along with his brother Gumani Lal (PW.2), his wife Smt. Sansa (PW.4) moved for rescue and saw that Rodi Lal (deceased) fell down and accused Shankar Lal and Tulsi Ram were throwing stone upon Rodi Lal.
Upon aforesaid report (Ex.P/1), an FIR No.58/2008 was registered at Police Station Jhadole, against the appellants u/s 302/34 of IPC and investigation was commenced.
During the course of investigation, the appellants were arrested and after regular investigation, charge sheet was submitted against them under Section 302/34 & 323 of IPC in the court of learned Addl. Chief Judicial Magistrate, Jhadole, where from the case was committed and transferred to the court of learned Addl. Sessions Judge No.5, Udaipur for trial.
At the commencement of the trial, the learned trial court after providing opportunity of hearing to the appellants framed charge against appellant No.1- Gehri Lal for offence u/s 302 of IPC and also framed charge against accused appellant No.2, Shankar Lal for offence u/s 302/34 of IPC and framed charge against accused appellant No.3- Tulsi Ram for offences u/s 302/34 & 323 of IPC, but they denied the allegations and claimed for trial.
(4 of 19) [CRLA-240/2013] In the trial, statements of 12 prosecution witnesses were recorded in support of prosecution case and 22 documents were exhibited during trial and thereafter statements of accused appellants were recorded u/s 313 Cr.P.C., in which they denied all the allegations levelled by the prosecution witnesses and said that they have falsely been implicated in this case without any trustworthy and reliable evidence. No evidence was led by the appellants in defence.
The learned trial court thereafter proceeded to hear final arguments of the both the parties and vide its judgment dated 22.02.2013 convicted the accused appellants for the offences u/s 302, 302/34 & 323 IPC respectively and passed sentence, mentioned above.
At the threshold the learned counsel for the appellants submits that against appellants Shankar Lal and Tulsi Ram there is no evidence to even prove the allegations for causing any injury to the person of deceased. In support of aforesaid argument learned counsel for the appellants invited our attention towards the postmortem report (Ex.P/22) and submit that Dr. Anil Bansal (PW.12) conducted postmortem and prepared the postmortem report (Ex.P/22). In the postmortem report only one injury was found upon the vital part of the body and second injury was abrasion upon the finger, therefore, allegation for inflicting injury by throwing stone has not been proved by the medical evidence. Learned counsel for the appellant further submits that it is a case in which trial court has wrongly relied upon the testimony of prosecution witnesses so as to convict the accused appellants (5 of 19) [CRLA-240/2013] Shankar Lal and Tulsi Ram u/s 302/34 and 323 of IPC respectively. It is also submitted that there is no evidence of motive, and the incident took place in the dinner all of sudden, in which even if the allegation of prosecution is accepted for inflicting one injury by appellant No.1- Gehri Lal, then also it cannot be said that appellant No.1 Gehri Lal is guilty for the offence u/s 302 of IPC, but the learned trial court not only convicted the accused appellants No.2 & 3 (Shankar Lal and Tulsi Ram) for offence u/s 302/34 and 323 IPC respectively but also committed grave erred in holding the accused appellant No.1 Gehri Lal guilty for committing offence u/s 302 of IPC. Admittedly, in the dinner some quarrel took place all of sudden, therefore, in absence of any reliance evidence of motive/intention, it cannot be presumed that appellants are guilty for committing offence u/s 302 and 302/34 of IPC.
Learned counsel for the appellants vehemently argued that appellants No.2 Shankar Lal and appellant No.3 Tulsi Ram are entitled to be acquitted from the charges levelled against them because the prosecution has miserably failed to prove any allegation of inflicting injury in between the way by them to the person of deceased. Further, the conviction of the accused appellant No.1 Gehri Lal also deserves to be altered from offence u/s 302 IPC to offence u/s 304 Part-I of IPC because as per allegation of the eyewitnesses who were alleged to be present at the time when occurrence took place, alleged in their statement that one injury was caused by accused appellant Gehrilal, to the deceased by sharp edged weapon i.e. axe.
(6 of 19) [CRLA-240/2013] Learned counsel for the appellants lastly argued that without there being any reliable or trustworthy evidence, the appellants Shankar Lal and Tulsi Ram have been convicted under Section 302/34 of IPC by the trial court and the appellant Gehri Lal, against whom there is allegation for inflicting only one injury, has wrongly been convicted for offence u/s 302 IPC because as per settled principle of law, if evidence of motive or intention is absent, and occurrence takes place all of sudden, then obviously case does not fall under Section 302 IPC or 302/34 of IPC. Therefore, he prayed that the instant appeal may kindly be allowed and the judgment impugned dated 22.02.2013 may kindly be quashed to the extent of appellants Shankar Lal and Tulsi Ram and conviction of appellant No.1 Gehri Lal may be altered from offence u/s 302 IPC to 304 Part-I of IPC.
Per contra, learned Public Prosecutor vehemently argued that FIR was registered upon the report submitted by PW.1 Bheemraj, who was very much present when occurrence took place. Admittedly, the accused party as well as complainant party and deceased went to the house of Bheru for taking dinner, in the dinner some quarrel took place in between Rodi Lal (deceased) and Tulsi Ram, and during hot discussion, Tulsi Ram inflicted one injury upon the finger of Rodi Lal but after settling the dispute, Rodi Lal went to hospital for first aid and in between the way, Gehri Lal inflicted injury by axe and accused appellants Shankar Lal and Tulsi Ram threw stone upon him. Upon hearing the hue and cry of deceased, Rodi Lal, the complainant who was going ahead, immediately rushed and saw that injury was inflicted by (7 of 19) [CRLA-240/2013] appellant Gehri Lal on the person of deceased. At that time, other witnesses viz. PW.2 Gumani Lal and PW.3 Hem Raj and PW.4 Smt. Sansa were also present and as per their statements, appellants after inflicting injury ran away from the place of occurrence.
As per prosecution the occurrence place due to some money transaction dispute related to construction of Well, therefore, it cannot be said that there was no motive for inflicting injury by axe upon vital part of the body of Rodi Lal (deceased). Learned Public Prosecutor further submitted that there is no question to disbelieve the testimony of PW.1 Bheemraj, PW.2 Gumani Lal, PW.2 Hem Raj and PW.4 Smt. Sansa, because all these witnesses were present when occurrence took place.
With regard statement of Dr. Anil Bansal (PW.12) it is submitted that doctor has proved that there was cut wound upon the neck of the deceased and said injury was cause of death, therefore, there is no question to ignore the testimony of all these witnesses, corroborated by the medical evidence. Learned Public Prosecutor further prayed that prosecution has proved its case beyond reasonable doubt against the appellants for committing offence under Section 302, 302/34 and 323 of IPC and, therefore, this appeal of the appellants may kindly be dismissed.
After hearing the learned counsel for the parties, we have perused the statements of all the prosecution witnesses and so also perused the postmortem report (Ex.P/22).
The allegation of the prosecution is that accused appellant inflicted injury by axe Lal to the deceased and the axe was recovered as per information given by him u/s 27 of the Evidence (8 of 19) [CRLA-240/2013] Act, but one of the witness of recovery i.e. PW.5- Inder Lal , turned hostile and did not support the recovery of axe vide Ex.P/7. The axe was recovered in the presence of two witnesses, namely, Manalal and Inder Lal. The other witness, Manalal (PW.11) stated in the examination-in-chief that axe was recovered from the house of Gehri Lal, whereas in the cross examination gave following statement, which reads as under:
";g lgh gS fd dqYgkMh+ Hkkis k iq= dkyq dh jkMs h+ ls iqfyl us cjken dh FkhA".
We have perused the site plan of recovery memo (Ex.P/8) in which it is recorded that axe was recovered from the house of accused appellant Gehri Lal himself. The relevant paragraph of Ex.P/8 reads as under:
"vfHk;qDr vkxs vkxs pydj vius firk rqylhjke ds dy s qik"s k edku tgka ij eqfyTe Hkh ifjokj lfgr jgrk gS vius ?kj ds dejk ds ckgj dys qik"s k cjkenk cuk gvq k] gks ds dkus s eas nks feV~Vh dh dkBs h iMh+ gqbZ gS ftlds uhps ls ,d ykgs s dh dqYgkMh+ eqfYte us fudky dj i"s k dh ftls s vfa dr gSA"
lqnk QnZ tIr fd;k x;kA dqYgkMh+ cjkenxh LFky gLc ty Meaning thereby there is serious doubt about the place of recovery of axe but investigation officer has categorically said that axe was recovered from the house of accused appellant Gehri Lal and the said axe was sent for chemical examination to FSL and as per FSL report, human blood of „A‟ group was found upon all the articles including axe. Therefore, the recovery of axe at the instance of accused appellant Gehri Lal, cannot be disbelieved.
We have perused the statement of Dr. Anil Bansal (PW.12). As per his statement, one injury (incised wound) 4 x 4 x 3 cm was found upon the neck of deceased and another injury was abrasion (9 of 19) [CRLA-240/2013] upon the finger. In the cross-examination, following statement is given by doctor, which reads as under:
";g lgh gS fd ;fn "kkiZ pht ij dkbs Z fxj tk, vFkok okgu eas ls fudyh dkbs Z /kkjnkj pht ls O;fDr Vdjk tk,s rks mDr pkVs vkuk lHa ko gSA ;g lgh gS fd iow Z pkVs vkus ls ;fn dkbs Z O;fDr tehu ij fxjs rks mles vxa y w h esa vkbZ pkVs vkuk lHa ko gSA ;g lgh gS fd ;fn fdlh O;fDr ds "kjhj o pgs js ij ,oa dU/ks ij 5&5 fdyks ds iRFkj ekjs tk, rks pkVs vkuk lHa ko gS fdUrq e`Rrd ds "kjhj ij dkbs Z pkVs ugha FkhA e`Rrd ds "kjhj ij vkSj gfFk;kj ls dkbs Z pkVs ugha vkbZ FkhA iRFkj dh Hkh dkbs Z pkVs ugha vkbZ FkhA "ko ijh{k.k ds le; e`Rrd dk egaq [kqyk ugha FkkA e`Rrd ds nkra eSua s pSd ugha fd;s FkAs ;g lgh gS fd pfaw d euaS s e`Rrd ds egaq pSd ugha fd;s blfy;s eSa ugha crk ldrk gaw fd nkra kas ij [kqu yxk Fkk ;k ughAa "
We have examined the allegation of prosecution witness with regard to causing injury by throwing stones by accused appellants Shankar Lal and Tulsi Ram. In our opinion, the allegation for inflicting injury by the appellants, Shankar Lal and Tulsi Ram by pelting stone, has not been corroborated by the medical evidence because Dr. Anil Bansal (PW.12) specifically stated in his statement that no injury was caused by stone was found upon the body of the deceased, therefore, involvement of appellants Shankar Lal and TulsiRam is seriously doubtful.
With regard to fact for inflicting injury by axe to Rodi Lal (deceased) by accused appellant Gehri Lal, we have perused the statements of all the four witnesses viz. PW.1 Bheem Raj, PW.2 Gumani Lal, PW.3- Hem Raj and PW.4 Smt. Sansa, wife of complainant. All these witnesses though did not see the occurrence because Rodi Lal was coming behind them but their presence cannot be disbelieved because accused party as well as (10 of 19) [CRLA-240/2013] complainant party, went to the house of Bhera for taking dinner on the date of incident and this fact has not been disputed by the counsel for the accused appellants.
Now question arose whether there was any motive or intention to cause death of Rodi Lal, upon assessment of entire evidence and allegations of the complainant and other witnesses, we are of the firm opinion that prior to incident some quarrel took place in house of Bhera in the dinner for some money transaction and due to said quarrel, Gehri Lal inflicted one injury by axe to deceased and unfortunately said injury caused upon the neck of deceased and although size of injury was 4 x 4 x 3 cm but due to said injury, the deceased, Rodi Lal died. Therefore, the evidence of prosecution for the purpose of ascertaining motive is not acceptable or reliable because accused party as well as complainant party admittedly went to the house of Bhera (PW.7) for taking dinner but PW.7 Bhera turned hostile and did not support the alleagtion of prosecution that any quarrel or hot discussion took place between the accused appellants and the deceased, in his house with regard to any money dispute during dinner.
PW.7 Bhera categorically stated in his statements that nothing was happened in his house and the only statement is given by the accused appellants as well as complainant party came to his house, except Gehri Lal and Bheema, but we cannot accept the fact that Gehri Lal was not present in the dinner because PW.1, 2, 3 and 4 categorically proved his presence in the (11 of 19) [CRLA-240/2013] house of Bhera.
On the basis of above discussion, we are of the opinion that there is strength in the arguments of learned counsel for the appellants that prosecution has failed to prove its case beyond reasonable doubt against accused appellants Shankar Lal and Tulsi Ram because allegations levelled against them, has not been proved by the prosecution because allegations levelled against them have not been corroborated by medical evidence. Therefore, accused appellants No.2 and 3 Shankar Lal and Tulsi Ram are entitled to be acquitted from the charges levelled against them while giving them benefit of doubt.
With regard to finding recorded by the trial court for offence u/s 302 IPC against the accused appellant No.1 Gehri Lal, we have no hesitation to hold that the prosecution has failed to prove motive or intention to cause death of the deceased by appellant Gehri Lal. Of course, it is proved that Gehri Lal inflicted one injury upon the neck of deceased, which can be outcome of the quarrel took place in the dinner in the house of PW.7 Bhera. There is no allegation of undue advantage, cruel attitude or motive and the allegation of the prosecution is only that one injury was inflicted by the accused appellant Gehri Lal to the person of deceased. Therefore, in our opinion the case against the appellant Gahri Lal falls under the category of "culpable homicide not amount to murder" and thus the conviction of accused appellant Gehri Lal deserves to be altered from offence u/s 302 of IPC to offence u/s 304 Part-I of IPC.
(12 of 19) [CRLA-240/2013] The Hon‟ble Supreme Court in the case of State of Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat"
and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.
6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused;
(13 of 19) [CRLA-240/2013]
(b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice.
8. For the reasons stated, this appeal fails hence dismissed."
In the case of Arjun Vs. State of Maharasthra reported in 2012 Cr.L.R. (SC) 506, the Hon‟ble Supreme Court gave following verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so.
18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to th e accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra reported in 2012 Cr. L.R. (SC) 1025, the Hon‟ble Supreme Court held as under:
(14 of 19) [CRLA-240/2013]
8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and th e deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47. Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon‟ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC (15 of 19) [CRLA-240/2013] (Cri.) 318 held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW-10- Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh reported in AIR 2017 sc 1150, the Hon'ble Court held as infra:
"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre- meditation. Injuries as reflected in the post-mortem report (16 of 19) [CRLA-240/2013] also suggest t h at appellants h av e not t ak e n undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case.
25. Fee of the learned Amicus is fixed as per Rules."
In the case of Arumugam Vs. State represented by Inspector of Police, reported in (2009) 3 SCC (Cri.) 1130, the Hon'ble Court held as infra:
(17 of 19) [CRLA-240/2013]
"9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
"17. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 toSection 300 IPC is not defined in the IPC. It takes (18 of 19) [CRLA-240/2013] two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.
16. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.
10. When the factual background is considered in the touchstone of the legal position set out above, the inevitable conclusion is that the appropriate conviction would be under Section 304 Part I IPC instead of Section 302 IPC. Custodial sentence of 10 years would meet the ends of justice. Appellant who is on bail pursuant to the order dated 21.1.2001 shall surrender to custody forthwith to serve remainder of sentence, if any.
11. The appeal is allowed to the aforesaid extent." In view of above discussion, this criminal appeal of accused appellants, Shankar Lal and Tulsi Ram is hereby allowed. The (19 of 19) [CRLA-240/2013] conviction and sentenced passed by learned Addl. Sessions Judge No.5, Udaipur in Session Case No. 16/2012 against them for offence u/s 302/34 and 323 of IPC respectively, is hereby quashed and set aside and they are accordingly acquitted from the said offences. Accused appellants, Shankar Lala and Tulsi Ram are on bail, their bail bonds are hereby discharged.
In view of above discussion and in the light judgment of Hon‟ble Apex Court, the appeal of the accused appellant Gehri Lal, is partly allowed. His conviction for the offence under Section 302 of IPC recorded by the learned Addl. Sessions Judge No.5, Udaipur in Session Case No. 16/2012, is hereby altered from offence under Section 302 of IPC to the offence under Section 304 Part-I of IPC and the sentence of life imprisonment is hereby reduced to ten years‟ rigorous imprisonment but order of fine is hereby maintained.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Shankar Lal and Tulsi Ram, are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-