Punjab-Haryana High Court
Ram Pal & Ors vs State Of Haryana on 7 May, 2019
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CRA-D-1490-DB-2015 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1. CRA-D-1490-DB-2015
Ram Pal and others
... Appellants
Versus
The State of Haryana
... Respondent
2. CRA-D-1577-DB-2015
Birma and others
... Appellants
Versus
State of Haryana
... Respondent
Reserved on : 29.04.2019
Date of decision : 07 .05.2019
CORAM: HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
Present: Mr.Arvind Bansal, Advocate
for the appellants in CRA-D-1490-DB-2015.
Mr.Bijender Dhankhar, Advocate
for the appellants in CRA-D-1577-DB-2015.
Mr.Vishal Garg, Addl.A.G. Haryana.
Mr.Parminder Singh, Advocate
for the complainant.
RAJIV SHARMA, J.
Since common questions of law and facts are involved in the aforesaid appeals, therefore, these are taken up together and disposed of by a common judgment.
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2. These appeals have been instituted against the judgment and order dated 08.09.2015 rendered by the Additional Sessions Judge, Karnal, in Sessions Case No.136 of 2014 whereby the appellants were charged with and tried for offences punishable under Sections 148, 341 read with Section 149, 307 read with Section 149, 302 read with Section 149 and 323 read with Section 149 of the Indian Penal Code (in short 'IPC'). The appellants Ram Pal, Satpal, Sonu, Ankur alias Monu, Birma, Jitender, Roshan, Dharambir and Santosh were convicted and sentenced as under:-
Offence Sentence Fine In default 148 IPC R.I. for two years Rs.1,000/- each S.I. for one month 302/149 IPC R.I. for life Rs.10,000/- each S.I. For two years 307/149 IPC R.I. for seven years Rs.5,000/- each S.I. For one year 323/149 IPC S.I. for one month Rs.500/- each S.I. for seven days 341/149 R.I. for 15 days Rs.500/- each S.I. for two days.
All the sentences were ordered to run concurrently.
3. The case of the prosecution in a nutshell is that on 16.11.2011 at about 02.00 P.M., Jony son of complainant Amarjit Singh and his nephew Rinku son of Darshan Lal had gone to village Barsat on motor cycle to get pulses and spices. At village Barsat, Sonu and Monu sons of Ram Pal and Nirmal son of Babu Ram picked up quarrel with Jony and Rinku. At about 09.30 P.M. Rishi Pal son of Jai Bhagwan, nephew of the complainant was taking Vikram alias Vicky son of Karan Singh, brother-in-law of the complainant, on motor cycle from the house to barra (Gher) to sleep. When they reached in front of house of Birma, accused Jitender son of accused Birma, got stopped motor cycle of Rishi Pal. He picked up the quarrel. The complainant, his brothers Ramesh and Raghbir sons of Sandeep and cousin Jagdish reached at the spot. In the meanwhile, Anita alias Neeta (since deceased) wife of the complainant, Saroj, his brother's wife, and sister Jeeto 2 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 3 also reached at the spot. Accused Ram Pal armed with iron rod, Satpal armed with gandasi, Sonu armed with iron rod, Monu armed with iron rod, Birma armed with spade, Jitender armed with gandasi, Roshan and Dharambir armed with iron rods and Santosh carrying a brick in her hand were standing in a street. Birma exhorted a lalkara that complainant party be taught a lesson for picking up quarrel. Accused Birma gave a spade blow on the head of Jeeto, sister of the complainant. Accused Santosh caught hold Anita wife of the complainant with her hair. She was pushed on the ground. Thereafter Jitender gave a gandasi blow on the head of Anita. Accused Sonu, Ram Pal and Satpal caused injuries on the head of complainant by their respective iron rods. Accused Dharambir, Roshan and Monu inflicted injuries to Ramesh, Raghbir, Jagdish, Sandeep, Vikram alias Vicky and Saroj with sharp edged weapons with the intention to kill them. Jeeto and Anita lost their consciousness. All the injured were taken to CHC, Gharaunda. Anita died on the intervening night of 16/17.11.2011. FIR was registered. Challan was put up after completing all the codal formalities.
4. The prosecution examined 21 witnesses in support of its case. Statements of accused were recorded under Section 313 Cr.P.C. They denied the case of prosecution. Accused Ram Pal, Sonu, Monu, Roshan and Dharambir took a plea that they were not present on the spot. On 16.11.2011 at about 10.00 P.M., accused Birma along with his wife Santosh and son Jitender were sleeping in their house. In the meantime, complainant party after forming an unlawful assembly of about 15/20 persons attacked them with deadly weapons. The complainant Amarjit and other relatives were under the influence of liquor. They along with their ladies caused injuries to them. The accused also examined DW-1 Dr.Birbal Singh. The appellants 3 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 4 were convicted and sentenced, as noticed hereinabove. Hence these appeals.
5. Learned counsel appearing on behalf of the appellants have vehemently argued that the prosecution has failed to prove the case against the appellants.
6. Learned counsel appearing on behalf of the State has supported the prosecution case.
7. Learned counsel for the complainant has also supported the prosecution case.
8. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.
9. PW-2 Dr. Neeraj Singh had conducted the post-mortem examination on the body of Anita. His opinion is Ex.P6/1. The cause of death was head injury as well as due to hemorrhage and shock to the vital organs. The injuries were ante-mortem in nature and sufficient to cause death in normal course of life.
10. PW-1 Amarjit is the complainant. He testified that on 16.11.2011 his son Jony and nephew Rinku had come to village Barsat on motor cycle. Sonu, Monu sons of Ram Pal and Nirmal son of Babu Ram had picked up quarrel with his son Jony and nephew Rinku. On the same day, at about 09.30 P.M. his nephew Rishi Pal after taking Vikram alias Vicky son of Karan Singh resident of Sahanpur (Saffidon) who happened to be his brother-in-law, on his motor cycle, were going to barra (gher). They were going to sleep. When they reached in front of the house of Birma, Jitender son of Birma stopped the motor cycle of his nephew Rishi Pal. He picked up quarrel with them. On hearing noise, he, his brother Ramesh, Raghubir, his 4 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 5 son Sandeep and cousin Jagdish reached at the spot. In the meantime, his wife Anita alias Neeta and his brother's wife Saroj and his sister Jeeto followed them to the spot. Ram Pal son of Inder Singh armed with an iron rod, Sat Pal son of Inder Singh armed with a gandasi, Sonu son of Ram Pal armed with an iron rod, Monu son of Ram Pal armed with an iron rod, Birma son of Sant Ram armed with a spade (kassi), Jitender son of Birma armed with a gandasi, Roshan and Dharambir sons of Joginder armed with iron rods, Santosh wife of Birma carrying a brick in her hand were standing in the street. Birma raised a lalkara. Thereafter accused Birma gave a spade (kassi) blow on the head of his sister Jeeto. Accused Santosh caught hold of his wife Anita by her hair. She was pushed. Accused Jitender gave a gandasi blow on the head of his wife Anita. Accused Sonu, Ram Pal and Sat Pal caused injuries on his head with their respective weapons. Accused Dharambir, Roshan and Monu also inflicted injuries on the person of their men namely Ramesh, Raghbir, Jagdish, Sandeep and Vikram alias Vicky and also to his bhabhi Saroj with their respective weapons with the intention to kill them. His wife Anita and sister Jeeto became unconscious. They were taken to the General Hospital. His statement was recorded by the police vide Ex.P1. In his cross-examination, he deposed that his house was at a distance of one killa from the house of accused Birma. There were five houses in between his house and of accused Birma. Nine persons including him and deceased Anita were injured in the occurrence. He denied the suggestion that accused Birma, Jitender and Satpal had also received injuries in the occurrence. He was medico legally examined at Gharaunda. The occurrence lasted for 5-7 minutes. First of all his sister Jeeto received injuries and then Anita received injuries and then he received the injuries.
5 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 6 He has categorically admitted that there was no ill will between them and the accused party prior to the present occurrence. There was no litigation between them nor any complaint was ever moved by any party against the other party.
11. PW-3 Jagdish Lal has corroborated the statement of PW-1 Amarjit the manner in which the complainant party received injuries. On 17.11.2011 at about 09.00 A.M. police reached the spot. His statement was recorded. Police had taken in possession one blood stained kurta and pajama. Police had also taken in possession a blood stained lady shirt of green colour and mahroon salwar of Saroj. Accused Birma had made disclosure statement the manner in which the incident had happened. He also disclosed that he had kept concealed kassi after washing it on the roof of his house. The disclosure statement is Ex.P8. Accused Jitender also made disclosure statement Ex.P9 on the basis of which gandasi was recovered. Accused Satpal was also interrogated. His disclosure statement is Ex.P10. He got the gandasi recovered from the cabin of double bed of his residential house. He was medico legally examined on 17.11.2011. He has also admitted that there were nine persons from their side and 9-10 persons from the accused side.
12. PW-6 Kamlesh Rani had visited the spot and prepared her report Ex.P24. In her cross-examination she deposed that the place of occurrence was in front of the door of the house of Birma and partly inside the house of Birma. The width of the street was 7-8 ft. She found one blood stained bamboo lathi from inside the house of Birma. She handed over the same to I.O. More than 40 broken pieces of bricks were lying on the spot.
13. PW-8 Hisham Singh deposed that accused Dharambir was 6 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 7 interrogated. He made disclosure statement Ex.P26. He disclosed that he kept concealed iron rod in his house and could get the same recovered. Accused Ram Pal made disclosure statement Ex.P27 qua iron rod. Accused Sonu made disclosure statement Ex.P28 qua iron rod. Accused Monu made disclosure statement Ex.P29 qua iron rod. They got the iron rods recovered. Accused Roshan Lal was also interrogated. His disclosure statement is Ex.P38. He also got the iron rod recovered on the basis of disclosure statement. In his cross-examination, he admitted that he and complainant party belong to Saini caste. He and Ramesh identified the body of Anita.
14. PW-9 Raghbir Singh also deposed the manner in which the complainant party received injuries. According to him, Roshan had given sariya blow on his head. He was moved to G.H., Gharaunda. All the injured were medically examined. In his cross-examination, he deposed that the accused had not caused any injury to Rishi Pal and Vikram till they reached. Even the accused had not caused any injury to Rishi Pal and Vikram after they had reached there. The quarrel lasted for 5-7 minutes.
15. PW-10 Sandeep is son of the complainant. He testified that at about 09.30 P.M. Rishi Pal and Vikram alias Vicky were going to sleep in the barra on the motor cycle. When they reached in front of the house of Jitender, he stopped them in front of his house . Quarrel ensued. They heard the noise of quarrel. Thereafter he along with his father Amarjit, Jagdish, Raghbir and Ramesh reached the spot. His mother Anita, Saroj and Jeeto followed them. The accused were standing in the street armed with sariya, gandasis, kassi. Santosh wife of Birma was carrying a brick. She pushed his mother on the ground. Jitender gave a gandasi blow on the head of his mother. Ram Pal son of Inder gave a sariya blow on his head. His mother 7 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 8 Anita died. In his cross-examination, he admitted that fight had taken place in front of door of house of Birma and Jitender. The quarrel took place for 5-7 minutes.
16. PW-11 Ramesh has also deposed the manner in which the accused had given beatings to the complainant party. In his cross- examination, he also admitted that place of occurrence was in front of the door of accused Birma. The occurrence took place for about 5-7 minutes.
17. PW-12 Jeeto Devi also deposed the manner in which accused Monu gave sariya blow on her back. Birma accused gave a kassi blow on the right side of the forehead. Jitender gave a gandasi blow on her head. Thereafter she became unconscious.
18. PW-14 Vikram also supported the case of prosecution in the manner in which the incident had taken place at 09.30 P.M. on 16.11.2011. In his cross-examination, he deposed that the occurrence took place for 2-3 minutes at the spot. The occurrence took place in front of the house of accused Birma.
19. PW-16 Ram Sarup received the complaint Ex.P1. He made endorsement. Thereafter FIR was registered. He enquired about the fitness of Jagdish, Sandeep, Rajbir and Saroj. They were declared unfit to make statement. In the morning he got information that Anita had died. He added Section 302 IPC. FSL team was summoned. Blood stained clothes of Anita deceased as well as of injured were taken into possession. Accused were interrogated. They made disclosure statements on the basis of which gandasi, kassi and iron rods were recovered.
20. PW-21 Naveen Sharma has proved the medico legal case summary dated 17.11.2011 of Jeeto Devi. The same is Ex.P64.
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21. PW-4 Dr.Birbal Singh has tendered his evidence by way of affidavit. He had medico legally examined Amarjit. He noticed following injuries on his body:-
"1. Lacerated wound over forehead 4 cm x 1 cm bone deep, right side, just lateral to middle line.
2. Swelling overhead 5 cm x 3 cm, parietal region right side."
The duration of injuries was within 24 hours. The patient was referred to the General Hospital, Karnal.
22. PW-5 Dr.Ashish Verma has tendered his evidence by way of affidavit. He had medico legally examined Ramesh. He noticed the following injuries on his person:-
"1. Reddish Contusion of size 5 cm x 2 cm over the anterior aspect of left shoulder joint.
2. Reddish abrasion of size 4 cm x 1 cm over the left index finger.
3. Lacerated wound of size 1 cm x 1 cm skin deep left middle finger.
4. Lacerated wound of size 1 cm x 1 cm skin deep over the right hand, palmar aspect at level of metacarpophalangeal joint."
All the injuries were simple, blunt caused within 24 hours of duration.
He also medico legally examined Smt. Saroj. He noticed the following injuries on her body:-
"1. Lacerated wound of size 5 x 1 cm, skin deep over left parietal area, advise X-ray skull and surgeon opinion.
2. Swelling right parietal area.
3. Lacerated wound of size 0.5 x 0.5 cm over posterior aspect right fore arm in lower 1/3rd with 9 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 10 swelling around injuries, advised X-ray and ortho opinion.
4. Lacerated wound of size 1 x 1 cm skin deep, posterior aspect left elbow joint."
All the injuries were by blunt weapon and within 24 hours of duration.
He also medico legally examined Sandeep. He noticed the following injuries on his body:-
"1. Lacerated wound of size 4 x 1 cm wound deep right frontal area. Advise X-ray skull and surgeon opinion."
He also medico legally examined Raghbir and noticed the following injuries on his body:-
"1. Lacerated wound of size 4 x 1 cm wound deep right frontal area. Advise X-ray skull and surgeon opinion."
Injury was by blunt weapon and within 24 hours of duration.
He also medico legally examined Jagdish. He noticed the following injuries on his person:-
"1. Lacerated wound of size 8 x 1 cm skin deep over right of parietal frontal area. Advise X-ray skull and surgeon opinion."
Injury was caused by blunt weapon and was within 24 hours of duration.
23. Dr.Sanjay Agarwal had medico legally examined Vikram. He has proved case summary Ex.P63.
24. DW-1 Dr.Birbal Singh had medico legally examined Jitender. He noticed the following injuries on his body:-
"1. Incised wound on skull 7 x 0.5 cm right side, parietal region, antero posterior in direction around 5 cm lateral to the midline.
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2. Pain in right forearm.
3. Pain in left forearm.
4. Abrasion 3 x 2 cm on left hand dorsal aspect."
X-rays and surgeon opinion were advised for these injuries. Injury No.1 was inflicted with sharp weapon and rest of the injuries were inflicted with blunt weapon within a probable duration of 24 hours. He proved MLR Ex.DW1/A. He also medico legally examined Sat Pal. He noticed the following injuries on his body:-
"1. Incised wound on skull left side 4 x .5 cm, bone deep on parietal region around 4 cm lateral to the midline.
2. Lacerated wound on right arm 3 x 0.5 cm above the elbow joint on dorsal aspect.
3. Abrasion on right leg 4 x 2 cm on knee joint."
Injuries No.1 and 2 were kept pending for X-rays and surgeon opinion. Injury No.3 was simple. Injury No.1 was inflicted with sharp weapon and rest of the injuries were inflicted with blunt within a probable duration of 24 hours. He proved MLR Ex.DW1/B. He also medico legally examined Birma. He noticed the following injuries on his body:-
"1. Pain and tenderness in left forearm.
2. Contusion on back 4 x 1 cm on left side in the thoracic region.
3. Pain in the forehead along with swelling.
4. Incised wound on left side of forehead 4 x 0.5 cm.
5. Lacerated wound on left forearm 5 x 0.5 cm just above the elbow on lateral aspect."
Injury No.4 was inflicted with sharp weapon and rest of the injuries were inflicted with blunt weapon within a probable duration of 24 11 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 12 hours. He proved MLR Ex.DW1/C.
25. The FSL report is Ex.P61. According to the report, exhibit-1a (paper), exhibit-1b (cottonwool swab), exhibit-1c (brick piece), exhibit-1d (piece of brick), exhibit-3 (dupatta), exhibit-5a (kurta), exhibit-5b (pyjama), exhibit-5c (parna), exhibit-6a (banian), exhibit-6b (sweater), exhibit-7a (lady's shirt), exhibit-7b (salwar), exhibit-7c (undershirt), exhibit-8a (kurta), exhibit-8b (pyjama), exhibit-9a (shirt), exhibit-9b (banian), exhibit-9c (pants), exhibit-10a (lady's shirt) and exhibit-10b (salwar) were stained with blood stains. Blood was detected on exhibit-2a, 2b (bangles), exhibit-11 (kassi), exhibit-12 and 13 (gandasi). Traces of blood too small for serological analysis were detected on exhibit-14 to exhibit-18 (saria).
26. The case of the prosecution precisely is that on 16.11.2011 at about 09.30 P.M. Rishi Pal and Vikram were going to sleep after attending the marriage ceremony. When they reached opposite of the house of accused Birma, they were stopped. Quarrel took place. Thereafter witnesses reached the spot. Anita was given gandasi blow on her head by Jitender. Jeeto was also hit on her head. Anita succumbed to her injuries. All the injured were medically examined. According to the post-mortem report, the cause of death was head injury, due to hemorrhage and shock to the vital organs. Three of the accused were also medico legally examined namely Jitender, Sat Pal and Birma by DW-1 Dr. Birbal Singh.
27. PW-1 Amarjit has categorically admitted in his cross- examination that there was no ill will between them and accused party prior to the incident. There was no litigation between them nor any complaint was moved by any party against each other. PW-6 Kamlesh Rani has deposed that incident had taken place partly inside the house of Birma. PW-9 12 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 13 Raghbir Singh has stated in his examination-in-chief that the incident had happened in front of the house of Birma. PW-11 Ramesh has also deposed that the incident had happened near the house of Birma. PW-14 Vikram has also admitted that incident had taken place in front of the house of Birma. PW-1 Amarjit has deposed that incident lasted for 5-7 minutes. PW-9 Raghbir Singh has also deposed that the incident lasted for about 5-7 minutes. PW-10 Sandeep has also deposed that the quarrel took place for 5- 7 minutes. PW-11 Ramesh has also deposed that incident lasted for 5-7 minutes. PW-14 Vikram has also deposed that incident took place for 2-3 minutes at the spot. It has come on record that there were 9 persons from the complainant side and 9-10 persons from the accused side. It was free fight. Accused Jitender, Sat Pal, and Birma had received injuries. Jitender had received injuries with a sharp edged weapon. Sat Pal had also received injuries with sharp edged weapon. One of the injuries received by Birma was also from sharp edged weapon.
28. The complainant is PW-1 Amarjit. He has specifically deposed that there was no enmity between the complainant party and the aggressors. There was no litigation going on between them. The fight had taken place suddenly in front of the house of accused Birma. PW-6 Kamlesh Rani has deposed that the fight had taken place partly in the street and partly inside the house of Birma. It was not premeditated act. It has also come on record that Rishi Pal and Vikram were not given beating till the witnesses reached at the spot. The fact of the matter is that one Anita died due to injuries received by her. Jeeto had received injuries on her head. Since the accused had used kassi, gandasis and iron rods, they had the intention to kill the members of the complainant party in furtherance of common object.
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29. Their Lordships of the Supreme Court in Sukhbir Singh vs. State of Haryana, (2002) 3 Supreme Court Cases 327 have held that the time gap between the quarrel and the fight should be minimum so as not to give enough time for the passion to subside and the accused to come to normalcy. Their Lordships of the Supreme Court have held as under:-
"To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of pre- meditation and on account of total deprivation of self- control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception."
In the instant case the fight has taken place only when the rest of family members reached the spot and before that no injury was inflicted to Rishi Pal and Vikram.
30. Their Lordships of the Supreme Court in Pappu vs. State of M.P., (2006) 7 Supreme Court Cases 391 have explained the difference 14 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 15 between Exceptions 1 and 4 of Section 300 IPC. Their Lordships have further held that for bringing in its operation Exception 4 of Section 300, 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. Their Lordships have explained the word "Fight". Their Lordships have held as under:-
"12. 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.
13. 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
15 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 16 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'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 to Section 300 IPC is not defined in the 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 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 of 17 ::: Downloaded on - 13-05-2019 06:39:04 ::: CRA-D-1490-DB-2015 17 In the instant case, there was sudden quarrel without premeditation. The offenders have not taken undue advantage or acted in cruel or unusual manner.
31. Now as far as Section 307 IPC is concerned, it is not injury, it is the intention that matters. In the instant case injury has been caused on the head of Jeeto with the sharp edged weapon.
32. Accordingly the appeals are partly allowed. The conviction of the appellants under Section 302 read with Section 149 IPC is converted to Section 304 Part I read with Section 149 IPC. The conviction and sentences for other offences under Sections 148, 307/149, 323/149, 341/149 IPC are upheld. Appellants Sat Pal and Jitender are in custody. They be produced in Court on 14.05.2019 to hear them on quantum of sentence under Section 304 Part I IPC. Other appellants are on bail. They are also directed to appear on the aforesaid date to hear them on quantum of sentence under Section 304 Part I IPC.
(RAJIV SHARMA) JUDGE (HARINDER SINGH SIDHU) JUDGE May 07, 2019.
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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