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41. The next contention pressed by Mr. K Singhal, learned counsel is that it has not been proved beyond reasonable doubt that the appellants were in fact the persons who assaulted Rampal and the deceased Ramesh @ Ram Asre.

42. In this regard, we may refer to the court testimonies of the material witnesses together, who have deposed to the following effect:

NO. PW WITNESS COURT DEPOSITION I. PW-1 Indira On SA:

"...On hearing the noise all of us came Devi out. 1 saw that there was quarrel going on. The kabadis were quarrelling i.e. Ajay, Shankar and Raju. My husband had gone to intervene - samjhane ke liye and then,Raju, Shanker and Ajay started using abusive language. My husband was asking them not to abuse and he also spoke loudly. At that time Ajay brought a hammer (hatoda) and hit my husband and then my husband was assaulted with a saria and a danda. I do not know who assaulted my husband with a saria and who assaulted him with danda. Ajay, Raju and Shanker after assaulted my husband had run away. 1could not see who hit my husband with the saria and who hit my husband with danda (in reply to specific Court query). I then went forward to save my husband and at that time Ajay hit me and pushed me. On seeing that my husband had been injured on the head, 1 immediately took my husband to the doctor. My sambadhi Rampal had also sustained injuries. I do not know who had caused the injuries to Rampal...."

"...At that time at about 09:30 PM there was a loud noise (shor macha) and we all came out and saw that the (kabadi) were quarelling amongst themselves and were using abusive language i.e. the (kabadi) Ajay, Raju and Shankar were quarelling and had consumed a lot of liquor. Those three (kabadi) are present in the Court room and I identify them.

Conclusion:

57. The testimonies of Indra Devi (PW-1); Jitender (PW-3) and Rampal (PW-6) establish that the appellants were clearly amongst themselves using abusive language and that they had consumed a lot of liquor. In fact, these three witnesses and the deceased were indoors when the noise created by the sound of vulgar abuses and noise of the quarrelling of the appellants attracted them.

58. Thus tempers of the appellants were already running high. The evidence of Rampal (PW-6) is that the appellants were quarrelling under the influence of alcohol. The intervention by the deceased to loudly command the appellants to keep quiet resulted in the attention and ill temper becoming directed towards the deceased. It was in this atmosphere of heightened temper that Ajay Bind picked up the hammer lying at the spot. The other two picked up the danda and the saria lying there itself. None of these are dangerous weapons but ordinary tools lying on the spot which came to be used as weapons. Clearly, the evidence establishes that there was no pre-meditation and that the violence was a result of sudden provocation in an ongoing fight between the appellants from a stranger (the deceased).