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5 Criminal Appeal No. 324 of 2011 & 483 of 2011 (3) In brief, case of the prosecution is that on 11-09-2006, at around 11:45 am, complainant Hakim Singh (PW4) lodged a report at Police Station Dursada, District Datia with the allegation that on the said date, at around 08:30 in the morning, his uncle Sahab Singh had gone outside for attending the call of nature. Accused Ghanshyam Yadav, Ramkishan, Bharat & Prakash armed with farsa, Vansingh armed with luhangi, Ramsewak, Ravindra, Arvind, Narendra, Kallu and Chandan armed with lathi reached the agricultural field and hurled abuses and when his uncle Sahab Singh objected to it, all accused persons within intention to kill committed marpeet by their respective weapons with his uncle as a result of which, his uncle Sahab Singh sustained injuries on various parts of his body and blood started oozing. When he along with his father Ramswaroop, uncle Afsar, aunt Avdeshbai and grand-mother Prembai came there for rescue, all accused persons committed ''marpeet'' with them as a result of which, his father Ramswaroop sustained injuries on various parts of his body and blood started oozing, his uncle Afsar sustained contusion injury 6 Criminal Appeal No. 324 of 2011 & 483 of 2011 on his head and his aunt Smt.Avdeshbai sustained injuries on her head and blood started oozing after sustaining injuries on various parts of her body. His grand-mother Prembai also sustained contusion on her head. Complainant Hakim Singh also sustained injuries on his head and blood started oozing after sustaining injuries by him on the finger of his right hand and left leg. On the basis of aforesaid report lodged by complainant Hakim Singh, FIR was lodged at Crime No.72 of 2006 vide Ex.P9 for commission of offences under Sections 147, 148, 149, 294, 323, 307 of IPC. The injured persons were sent for medical examination on the same day i.e. 11-09-2006. On the basis of merg intimation vide Ex.P14 and Ex.P48 of death of Ramswaroop and Sahab Singh, Merg Report No.405/2006 and Merg Report No.406/2006 were recorded separately. Postmortem of deceased Sahab Singh and Ramswaroop were conducted on 12-09-2006. Matter was investigated. Blood stained and plain soil were collected. Accused were arrested. Deadly weapons i.e. farsa, lathi and luhangi were seized and the same weresent to FSL for 7 Criminal Appeal No. 324 of 2011 & 483 of 2011 examination. Statements of witnesses were recorded and after completion and other formalities, the police filed charge sheet before the Court concerned from where, the case was committed to Sessions Court for its trial.

(4) Accused persons abjured their guilty and in order to lead evidence in their support, accused Prakash Yadav examined himself as DW1 whereas Raghuvir Singh Yadav and Moolchandra Yadav were examined as DW2 and DW3. Prosecution proceeded to examine its witnesses. In all, as many as 19 witnesses were examined by prosecution, in its support.

(5) Learned Trial Judge, after appreciating the entire evidence led by Prosecution and relying on the same, found charges against appellants as proved and accordingly, convicted and sentenced them for offence as indicated above in paragraph (2) of this judgment and acquitted all the appellants of charge under Section 294 of IPC for causing simple injuries to injured Prem Bai. (6) It is contended on behalf of appellants that complainant are the members of appellants' family and this fact has been admitted 8 Criminal Appeal No. 324 of 2011 & 483 of 2011 by Avdeshbai (PW2) in her Court statement. The presence and any act committed by appellants at the time of incident does not find proved in spite of the fact that the Trial Court has committed an error in convicting and sentencing the appellants. It is also contended that there are eleven accused amongst them four were armed with farsa and remaining seven were armed with lathi and luhangi.As per the postmortem report, death of deceased had been caused by inflicting injuries from sharp edged weapon on their head and not caused by lathi. There were two incised wounds and remaining two were mark of abrasion on the body of deceased Ramswaroop and there are allegations of causing injuries against seven accessed persons, who were armed with lathi and luhangi, whereas as per the opinion of doctor, death of Ramswaroop is caused by scratching on the road. In such a view, charge of murder of Ramswaroop does not find proved against the appellants. Same opinion regarding the deceased Sahab Singh has been given by the doctor and charges lelled against seven accused persons does not find proved. In fact, seven out of eleven accused 9 Criminal Appeal No. 324 of 2011 & 483 of 2011 armed armed with lathi, would have assaulted Sahab Singh and Ramswaroop, then both deceased would have sustained grievous injuries of hard and blunt object. The authenticity of eyewitnesses is suspicious because there is contradiction between evidence of PW1 Afsar and remaining eye-witnesses. Hence, it is prayed that the impugned judgment deserves to be set aside, being contrary to established principle of law. In support of contention, learned counsel for appellants has relied on the judgment of Hon'ble Apex Court in the case of Jugut Ram vs. State of Chhattisgarh [Criminal Appeal No. 616 of 2020 Arising out of SLP (Crl.) No.7416 of 2018, decided on 16th September 2020] (7) Per contra, counsel for the State supported the impugned judgment and submitted that prosecution evidence is fully corroborated by medical evidence and there is no infirmity in the impugned judgment. The Trial Court did not err in convicting and sentencing appellants for the aforesaid offences. Hence, prayed for dismissal of these appeals.

28 Criminal Appeal No. 324 of 2011 & 483 of 2011 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'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 29 Criminal Appeal No. 324 of 2011 & 483 of 2011 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'.'' (27) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-

(52) Dr.R.S.Parihar (PW3) in his deposition stated that on 11- 9-2006 he was posted as Medical Officer in CHC, Bhander. Injured Afsar, complainant Hakim Singh and Prembai were medically examined by him on the same day. MLC reports are 48 Criminal Appeal No. 324 of 2011 & 483 of 2011 Ex.P3 to Ex.P5. No bone injury of Afsar and complainant Hakim Singh was found as per X-ray reports Ex.P7 and Ex.P8. (53) Accused Prakash examined himself as DW1 and pleaded that he has been falsely implicated by complainant party and he has not caused death of deceased. Similarly, DW2 Raghuvir Singh Yadav in his statement denied that his son-in-law Ramkishan and his son Ravindra both were present at the place of occurrence as Ravindra was studying by staying with him. Mulchand Yadav (DW3) in his evidence although deposed that some unknown persons have committed murder of deceased but he did not give any information to police in this regard which is clear from para 3 of his cross-examination. In para 3 of his cross-examination, he deposed that after receiving SMS from Court he has come to Court for giving his evidence on behalf of accused. On analysing the evidence of Defence Witnesses, the learned trial Court has rightly disbelieved their evidence in order to save the accused. (54) The contention of learned counsel for the appellants that the Trial Court has committed an error in convicting appellants on 49 Criminal Appeal No. 324 of 2011 & 483 of 2011 basis of evidence of related witnesses and no independent witness has been produced by the prosecution. The said contention of the counsel for the appellants has no force. In the matter of Guru Dutt Pathak vs. State of Uttar Pradesh, reported in (2021) 6 SCC 116, the Hon'ble Apex Court has held that mere non- examination of independent witnesses and/or in absence of examination of any independent witnesses, would not be fatal to prosecution case. Similarly, in the matter of Asharam Tiwari vs. State of Madhya Pradesh, reported in (2021) 2 SCC 608, the Hon'ble Apex Court has held that if PW1 and PW4 are both injured witnesses and they were found to be reliable and truthful, then there is no reason why they would falsely implicated another. The Hon'ble Apex Court has further held that failure to examine any available independent witness is inconsequential. It is quality of evidence and not number of witnesses that is relevant. Merely because witnesses being related to deceased, that by itself would not affect the credibility of testimony of such witnesses. If for the plea of false implication proper foundation is laid, then the Court 50 Criminal Appeal No. 324 of 2011 & 483 of 2011 by adopting a cautious approach will analyze the evidence to find its credibility as held by the Hon'ble Apex Court in the case of Gangadhar Behera and Others vs. State of Orissa, reported in (2002) 8 SCC 381.