Punjab-Haryana High Court
Suraj Mal And Anr. vs State Of Haryana on 12 January, 2007
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. This appeal has been preferred by the appellants against their conviction under Section 302 IPC and sentence of imprisonment for life.
2. PW-7 Silk Ram made a statement Exh.PH, which was recorded at 10.15 P.M., which led to registration of FIR Exh.PH/1 at 11.30 P.M., to the effect that on 28.06.1994, dry sticks of mustard were blown by the wind to the roof of the complainant from the roof of appellant Suraj Mal. Though the same were restored to the roof of the appellant Suraj Mal, there was exchange of abuses. On 29.06.1994 at 4.30 P.M., Mohinder Singh, brother of Silk Ram was abused by Shakuntla, sister of the appellant, Suraj Mal, who was also a co-accused and has been granted probation by the trial Court. This was narrated to Mange Ram, deceased, the elder brother of father of Silk Ram at about 5 P.M. Mange Ram was going to the house of the accused and on the way near the house of Bharat Singh, Ex-Sarpanch, the accused Suraj Mal armed with a Jelly, his brother Bijender and sister Shakuntla armed with lathis came and raised an alarm that they will teach a lesson to him and Suraj Mal inflicted a Jelly blow lathiwise on the left side of the head of Mange Ram, while Bijender inflicted lathi blow on the back of the head of Mange Ram and Shakuntla inflicted lathi blows on the right hand and left leg behind knee. Mange Ram fell down and became unconscious. Silk Ram reached their. His brothers Mohinder and Sanjay Kumar and his father Balwan Singh also came there. Bijender inflicted lathi blow on his left hand and Suraj Mal inflicted Jelly blow lathiwise on the head of Balwan Singh. Bijender inflicted lathi blow on the head of Sanjay, Shakuntla inflicted lathi blow on the head of Mohinder Singh. On alarm being raised, other villagers came to the spot and rescued them. The accused ran away with their weapons. Mange Ram was carried to the hospital in the jeep of Raj Kumar and he succumbed to his injuries.
3. The above statement was made before Ramesh Kumar, ASI (PW9), the Investigating Officer, who visited the hospital on receiving the message Exhs. PM and PN from Dr. S.K. Gupta, PW-5 that Mange Ram, injured had died at 8 P.M.
4. The Investigating Officer prepared Inquest Report (Exh.PJ) and made an application Exh.PI on 30.06.1994 for post-mortem examination, rough site plan Exh. PK was prepared, blood stained earth was taken into possession vide Exh.PU. Post-mortem was conducted by Dr. S.S. Malik, PW-4. The accused were arrested on July 01, 1994 and produced their respective weapons Jelly Exh. P2, Lathis Exhs.P3 and P4. Suraj Mal and Bijender were also medically examined by Dr. Satish Sulekh, PW-2 and their medico-legal reports are Exhs. PG and PE. The accused were charged under Sections 302/323 and 34 IPC. They pleaded not guilty.
5. The prosecution examined Silk Ram, PW-7 and Mohinder PW-8, the eyewitnesses, Dr. S.K. Gupta, PW-5, Dr. S.S. Malik, PW-4 and Ramesh Kumar, Sub-Inspector, PW-9. PW-1 Shamsher Singh was examined to prove site-plan Exh.PA, Dr. Satish Sulekh, PW-2 was examined to prove injuries on the accused and Hari Ram, ASI, PW-3 was examined to prove lodging of FIR Exh.PH/1. Affidavits Exh.PB of MHC Rai Singh and Exh. PC of Constable Suresh Kumar and report of the Forensic Science Laboratory Exh.PAA and PBB were tendered in evidence.
6. In their statements under Section 313 Cr.P.C., the accused pleaded innocence. They further stated that Silk Ram, PW-7 and Bijender Singh, accused had exchanged abuses on the point of dry sticks of mustard on 28.06.1994. Bijender, accused had shown resentment to Mohinder Singh, PW-8 on account of which, Mange Ram, deceased, Silk Ram, Mohinder, Sanjay Kumar and Balwan Singh reached their house with lathis and caused injuries. To save Bijender Singh, Suraj Mal took lathi and caused injuries to Mange Ram, Sanjay Kumar, Mohinder Singh, Balwan Singh and Silk Ram in self defence. Shakuntla was not present on the place of occurrence.
7. The trial Court held the case of the prosecution to be fully proved against the appellants while Shakuntla, co-accused was held guilty under Section 323 IPC only. Following findings have been recorded:
1) Plea of self-defence was not plausible and attack was opened by the accused party;
2) Medical evidence of Dr. S.S. Malik, PW-4 was clear that injury No. 2 on the person of Mange Ram was a result of several blows while injuries on the person of accused were simple in nature as stated by Dr. Satish Sulekh, PW-2.
(3) The accused had no apprehensions to their lives and thus had no right to self-defence.
(4) The occurrence took place suddenly and since Shakuntla did have common intention, Suraj Mal and Bijender Singh who had caused fatal injuries were liable to convicted under Section 302 IPC. Shakuntla was liable to be convicted under Section 323 IPC for simple injuries.
8. Learned Counsel for the appellants submitted that the case of self- defence was made out and in the alternative, the occurrence being sudden occurrence, the case was covered by exception 4 to Section 300. Conviction of the appellants be converted to under Section 304-II. Reliance has been placed on judgments of the Honble Supreme Court in Pappu v. State of Madhya Pradesh 2006 (3) RCR (Criminal) 737 and Chanda Lal and Ors. v. State of Rajasthan .
9. Learned Counsel for the State opposed the submissions.
10. We have considered the rival submissions and perused the record.
11. It will be worthwhile to reproduce the injuries suffered by the deceased and the other injured persons:
Injuries on Mange Ram:
1. Lacerated would 6.5 cm. X 0.5 cm. on the left parietal region of the scalp. It was 9 cms. above the pinna of left ear and the injury was scalp deep. Fresh bleeding was present. X-ray examination was advised.
2. There was defused boggy swelling of the size 16 cm x 8 cm. present on right parieto-temporal area of scalp, above the behind the pinna of right ear. The injury was kept under observation and X-ray was advised.
3. A Lacerated would of the size of 2 cm. x 0.5 cm. x 0.25 cm. on distal phalanx of middle finger of right hand. Fresh bleeding was present and X-ray examination was advised.
4. A fresh abrasion of the sixe 1.5 cm. x 0.75 cm. on distall phalanx of right finger of right hand. Fresh bleeding was present.
5. Fresh abrasion of the size 2 cm. x 1 cm. on the back of the lower part of the left thigh.
Injuries on Sanjay Kumar:
A lacerated wound having dimensions 1 cm. x 0.25 on the right parietal portion which was skin deep and scalp deep. The same was 6 cms. right to the midline. Fresh clot of blood was present.
Injuries on Mohinder Singh:
A lacerated wound having size of 3 cm. x 0.5 cm. on the right parietal portion of the skull. It was 1 cm. right to the midline and the top of vertex.
Injuries on Balwan Singh:
A red contusion of 5 cm. x 2.5 cm. on the right side of the forehead.
Injuries on Silk Ram:
1. Lacerated wound having size of 1.5 cm. x 1/3 cm. x 0.25 cm. on proximal phalanges of middle finger of left hand. Fresh clot of blood was present.
2. Lacerated wound 2 cm. x 1/3 cm. x 1/3 cm on palm of left hand in between middle and index finger of left hand. Fresh clot of blood was present.
Injuries on Bijender Singh:
1. Swelling left side of skull measuring 1.2 cm. x. 8 cm. was present with an abrasion. 4 x .2 cm. injury was lying behind plane joining both the ears over the scalp. Brown scab was present.
2. There was abrasion .6 cm. x .4 cm. irregular on the right side of the posterior aspect of head, brown scab was present.
3. There was an abrasion on tip of the nose measuring .3 cm. x . 2 cm. covered with brown scab. Tenderness was present.
4. There was bruise measuring 4.6 cm. x 1.2 cm. red brown in colour. lying transversly on the lateral aspect of the upper margin of the left shoulder blade on the back. Tenderness was present.
5. There was an abrasion measuring .3 cm. x .2 cm. irregular surrounded by a swelling measuring 2.4 cm. x 1.6 cm. just above the left lateral malleolus lying transversly. Tenderness was present covered with brown scab.
6. There was red brown bruise oblique 4.8 cm. x 2.4 cm. lying on the lower end of lateral aspect of left thigh above the knee joint. Tenderness was present.
7. There was a tender swelling of right hand from the base of the thumb to the wrist joint. X-ray was advised and expert orthopaedic opinion was sought and was referred to General Hospital, Hansi.
Injuries on Suraj Mal:
1. There was an abrasion of .5 cm. x .2 cm. transverse on the dorsum of left hand just in front of the wrist joint covered with brown scab. Injury was present on the side of the hand towards the thumb.
2. There was an abrasion 1.4 cm. x. 1 cm. lying transversly on the dorsum of left hand towards the bony prominence covered with brown scab.
3. There was a laceration 1.2 cm. x. 8 cm. irregular covered with brown scab on the antero-medial on left thigh at junction of upper 1/3rd and lower 2/3rd of the thigh. The surrounding skin was red and inflamed.
4. There was a laceration measuring .6 cm. x. 2 cm. anterolateral aspect of the left thigh covered with brown scab with inflamed surrounding. Separated from injury No. 3 by 4.6 cm. Dr. S.S. Malik performed the postmortem on the deadbody of Mange Ram and found following injuries:
1. Lacerated wound 6 cm. x 4 cm. was present on the left parietal scalp situated 9 cm. from the left pina and 10 cm. from the left eye brow. Clotted blood was present in the wound. On dissection, infiltration of blood was present in the layers of scalp. The underlying bone was fractured into multiple pieces.
2. Diffused swelling 20 cm. x 12 cm. on the right parietal temporal area of the scalp, above and behind the ear pinna. On dissection, haematoma was present in the scalp layers. The underlying bones were fractured due to multiple pieces. On opening the cranial cavity, haematoma was present in the extra dur4al space. Underlying injuries No. 1 and 2 mentioned above. Underlying brain had been lacerated. Haematoma was also present in the brain matter.
3. Abrasion 1 cm. x cm. on the lateral side of distal phalanx of right ring finger. It was covered with clotted blood. On dissection, infiltration of blood was found present in the subcutaneous tissues. The underlying bone was intact.
4. Lacerated wound 2 cm x cm. bone deep on the medal side of distal phalanx of right middle finger. Clotted blood was present. On dissection infiltration of blood was present in the sub-cutaneous tissues. Underlying bone was intact.
5. Abrasion 2 cm. x 1 cm. On the posterior side of lower part of left thigh. It was covered with clotted blood. On dissection, there was infiltration of blood in sub-cutaneous tissues, underlying bone was intact.
The cause of death has been opined to be due to the injuries received on the person of Mange Ram on his skull and brain. The injuries were sufficient to cause death in the ordinary course of nature.
12. We do not find any reason to reject the version given by Silk Ram, PW-7 to the effect that it was the accused persons who opened the attack. While Suraj Mal caused Jelly blow on the left side of the head, Bijender caused lathi blow on the back side of the head and both the injuries have been found to be sufficient in the ordinary course of nature to cause death. From all the circumstances including the medical reports, the version given by Silk Ram has been corroborated by Mohinder Singh, brother of Silk Ram who is also an injured eyewitness.
13. We also find that the version put forward by the witnesses who gave their ocular account of the occurrence is consistent with the injuries noted in the post mortem report and medical evidence of Dr. Satish Sulekh (PW-2) and their statements do fit in with the medical evidence on record. The incident had taken place in broad day light at about 4.30 P.M. and such an incident had been witnessed by two prosecution witnesses, namely Silak Ram (PW-7) and Mohinder Singh (PW-8) from the close quarters and their evidence substantially tallies with the medical evidence on record. We are of the clear view that the prosecution evidence pertaining to the assault by a Jelly substantially fit in with the medical evidence on the record. The cross-examinations conducted on the eye witnesses, namely, Silak Ram (PW-7) and Mohinder Singh (PW-8), in no way cause any dent in the prosecution version and even during the course of cross-examinations from these witnesses nothing of importance could be elicited against the prosecution.
14. Learned Counsel appearing for the appellants has contended that both the eye witnesses, namely, Silak Ram (PW-7) and Mohinder Singh (PW-8) are closely related to deceased Mange Ram and as such, no reliance can be placed on their testimony, also does not appeal to reasoning at all. Speaking of interested and relations witnesses, the Supreme Court observed in Hari Singh v. State of U.P. , Sarwan Singh and Ors. v. State of Punjab and Gopal Singh v. State of U.P. 1978 Supreme Court Cases (Crl.) 378 is as follows:
15. The testimony of eye witnesses cannot be rejected merely because they are interested and partisan witnesses. It is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such but the Courts require as a rule of prudence, not as a rule of law that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without any interested evidence may be available and no other e.g. when an occurrence had taken place at midnight in the house when the only witnesses who could see the occurrence may be family members. In such case it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. Relation witnesses shall be the least disposed to falsely implicate the appellant or substitute him in place of the real culprit.
16. We are unable to uphold the plea of self-defence. Principles dealing with the issue of existence and extent of right of private defence have been gone into in several decisions and reiterated in recent judgment of the Honble Supreme Court in State of Madhya Pradesh v. Ramesh AIR 2005 SC 1186. The relevant observations are extracted below:
10. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram v. Delhi Administration AIR 1968 SC 702, State of Gujarat v. Bai Fatima , State of U.P. v. Mohd. Musheer Khan , and Mohinder Pal Jolly v. State of Punjab . Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia v. State of U.P. , runs as follows:
It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence.
The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
11. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non- explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar ]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.
12. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
13. In order to find whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v. State of Bihar . (See Wassan Singh v. State of Punjab , Sekar alias Sekharan v. State represented by Inspector of Police T.N. .
14. As noted in Butta Singh v. The State of Punjab , a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to and hypertechnical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M.P. . Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.
16. In the illuminating words of Russell (Russell on Crime), 11th Edition Volume I at page 49:
...a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable.
17. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not been devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.
As regards the nature of offence, we are unable to hold that the case falls in exception Fourth of Section 300 IPC. This exception is not applicable where one party attacks the other side. Suddenness of occurrence cannot be equated to sudden fight. Mere absence of pre-meditation is not enough. Right of self-defence commences only if there is a reasonable apprehension of danger from an attempt or threat to commit an offence. In the present case, it cannot be held that the accused had any apprehension of attempt or threat of any offence till they themselves attacked the deceased. An aggressor cannot take the plea of private defence. In Bhagwan Munaji Pawade v. State of Maharashtra , the Honble Supreme Court observed:
6. .It is true that some of the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. Fight postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. He did not cause any injury to the appellant or his companions. Furthermore no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant, is therefore, not entitled to the benefit of Exception 4, either.
17. In Sachchey Lal Tiwari v. State of Uttar Pradesh 2004 SC 5039, it was observed as under:
9. 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 mens 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. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender 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 to Section 300 IPC is not defined in IPC. It takes 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 or 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.
18. In Pappus case (supra), relied upon by learned Counsel for the appellants, on facts exception 4 was held to be attracted. It was made clear that no rule of universal application could be laid down.
19. In Subhash Shamrao Pachunde v. State of Maharashtra , the matter was again considered by the Honble Supreme Court with reference to the earlier case law and having regard to the fact that in that case there was no provocation from the side of the deceased, it was held that exception 4 could not be attracted.
20. In the present case, even though the incident took place suddenly, the appellants were clearly aggressors and were armed and the deceased did not participate in the fight and was unarmed. The accused took undue advantage and caused injuries on the head by lathis which were sufficient in ordinary course of nature to cause death.
21. For the above reasons, we do not find any merit in this appeal and the same is dismissed.