JUDGMENT 1. - This appeal by seven accused-appellants is directed against the judgment of the Additional Sessions Judge, Alwar, dated January 30, 1980. The learned Additional Sessions Judge convicted and sentenced the accused-appellants as under: 1. Ram Singh Under Sec. 302 IPC for imprisonment for life and a fine of Rs. 100/-. In default of payment of fine to undergo fifteen days' rigorous imprisonment. Under Sec, 324 IPC for two years' rigorous imprisonment and a fine of Rs. 100/-. In default of payment of fine to undergo fifteen days' rigorous imprisonment. 2. Sher Singh Under Sec. 323 IPC for ten months' rigorous imprisonment and a fine of Rs. 100/-. In default of payment of fine to undergo three months' simple imprisonment. 3. Chhitar. ) Under Section 323 IPC for four months 4. Hari Singh. ) Simple imprisonment and a fine of Rs. 100/-. 5. Karan Singh ) In default of payment of fine to undergo simple imprisonment for one month. 6. Mst. Brahma ) Under Section 323 IPC and both these 7. Mst Ramrati ) appellants have been given benefit of Sec, 360 Cr. P.C. 1973 and released on furnishing bonds of Rs. 1000/- each for a period of one year. 2. The prosecution case in brief is that Prabhati, P.W. 1 and his nephew Shame Singh, P.W. 2, had gone to village Nagli Patliya on May 9, 1979. On that day at about 121 P.M. in the noon when they were taking meals in the father-in-laws' house of Prabhati, a quarrell took place between the women folk and there was exchange of abusive language. Prabhati on this told the women folk not to fight in the presence of the relatives and to fight after they had dispersed. After sometime Sher Singh (accused), Girdhari, Shees Ram, Girdhari son of Sahiba and Karan Singh (accused) came armed with lathis and started burling abuses. Soon there after Ram Singh (accused), Ameela, Sibbu, Sukha and Hari Singh (accused) also came on the spot. Ram Singh had a Farsi in his hand and the others had lathis. As soon as these persons came, Sher Singh (accused) told to beat the complainant party. At this Ram Singh (accused) inflicted a Fursi blow on the head of Kanhaiya (since deceased) and Sher Singh (accused) inflicted a lathi blow. Kanhaiya fell down due to injuries. Ram Singh had a Farsi in his hand and the others had lathis. As soon as these persons came, Sher Singh (accused) told to beat the complainant party. At this Ram Singh (accused) inflicted a Fursi blow on the head of Kanhaiya (since deceased) and Sher Singh (accused) inflicted a lathi blow. Kanhaiya fell down due to injuries. When Prabhati wanted to intervene and rescue the complainant party then Hari Singh (accused), Karan Singh (accused) and Girdhari beat him and inflicted injuries on his head, left hand, waist and wrist. Ram Singh also 0 inflicted a blow by Fursi on the finger of right hand of Shame Singh. Thereafter Manggu and Chhitar (accused) also came on the spot and they also inflicted lath, blows on Shame Singh. Thereafter when Mst. Murti, sister-in-law of Prabbati wanted to rescue Shame Singh than Mst. Brahma and Ramrati (accused-appellants) inflicted injuries on Mst. Murti by lathis. On hearing hue and cry Sundaram Nambardar and Boden Goojar also came on the spot and intervened in the fight. According to the prosecution fight took place on account of litigation of certain land in between the accused Ram Singh and Prabhati's father-in-law, Kanhaiya. As the condition of Kanhaiya was serious as such he was taken to the hospital. On an oral statement (Ex. D. 1) of Prabhati FIR (Ex. P. 38) was written at police station, Kherthal on May 10, 1979 at 110 A. M. The injured persons were got clinically examined on May 9, 1979 by Dr. Amar Nath Gupta, PW 5, Medical Officer-in charge Government Dispensary, Kherthal at II PM. Two lacerated wounds, five bruises were found on the body of Prabhati. Two lacerated wounds, two bruises and one incised wound were found on the body of Shame Singh. Two lacerated wound sandly four bruises were found on Mst. Murti and following two injuries were found of the body of Kanhaiya : 1. Sharp wound 5x1 cm x bone deep with clear margins on the right parietal region directed from before backwards (anterior-posteriorly). Perfused bleeding present, No healing. 2. Lacerated wound 3 x 5 cm x scalp deep on the parieto-occiptal region directed posterio-anteriorly. No bleeding - oozing of blood present. 3. According to the Doctor injury No. 1 of Kanhaiya was suspected to be grievous and X-ray was advised. Patient was unconscious and his condition was serious. Perfused bleeding present, No healing. 2. Lacerated wound 3 x 5 cm x scalp deep on the parieto-occiptal region directed posterio-anteriorly. No bleeding - oozing of blood present. 3. According to the Doctor injury No. 1 of Kanhaiya was suspected to be grievous and X-ray was advised. Patient was unconscious and his condition was serious. Kanhaiya as such was referred for treatment to General Hospital, Alwar. Kanhaiya subsequently died on May 15, 1979 at General Hospital, Alwar. On autopsy conducted by Dr. P. S. Agrawal, PW. 6, following external and internal injuries ;ere found on the body of Kanhaiya :External Injuries ; 1. Stitched wound 5 cm in length on right side parietal region with swelling around and partial healing. 2. Lacerated wound on dorsum of right hand 2 x 1.25 cm with partial healing. 3. Lacerated wound 1 x 1 cm on top of scalp with partial healing. 4. Abrasion 1 x 1 cm. near base of left big toe. Internal Injuries : 1. Sub-cutaneous and muscular blood clots under external injury No. 1. 2. Depressed fracture of right parietal bone with laceration of meninges with sub-kull thick blood clots pressing over the brain. 3. The brain matter was compressed. 4. There were fractures of 5th and 6th ribs on left side anterior part with clots around. 4. In the opinion of Dr. Agrawal death of Kanhaiya occurred due to head injury, fracture of skull and compression of brain. All the injuries were ante-mortem in nature External injury Nos. 2, 3 and 4 were caused by blunt weapon and were simple in nature. External injury No. 1 was grievous and was fatal and was sufficient in the ordinary course of nature to cause death. The police after conducting usual investigation filed a challan against the accused-appellants. On January 15, 1979 charges were framed against accused Ram Singh under Section 148, 302, 302/-149, 324, 324/149, 307/149, 325/149 and 323 IPC. The rest of the six accused persons were charged for offences under Sections 148, 302/149,324/149, 307/149, 325/149 and 323 IPC. The accused persons denied the charges and claimed to be tried. Ramrati accused also stated that she was given beating and had 11/2 months child in her womb. The prosecution in support of its case examined 13 witnesses and the defence only examined one witness, Dr. Suresh Kumar as DW. 1. The accused persons denied the charges and claimed to be tried. Ramrati accused also stated that she was given beating and had 11/2 months child in her womb. The prosecution in support of its case examined 13 witnesses and the defence only examined one witness, Dr. Suresh Kumar as DW. 1. Learned Additional Sessions Judge after thoroughly examining the record of the case convicted and sentenced the I accused-persons as aforesaid and acquitted them for other charges. 5. It was contended by Mr. Tibrewal, learned counsel for the accused-appellant that the entire prosecution witnesses are related and are interested and such partisan witnesses cannot be relied It was also argued that there are discrepancies in the statement of the prosecution witnesses and alleged independent eye-witnesses have not been produced. It was further argued that even if the prosecution story is believed no case under Sec 302 IPC is held proved against the accused-appellant Ram Singh. Ram Singh, according to the prosecution was sister's son of Mst. Sarti widow of Sheodan and as such had no interest in the litigation between Kanhaiya and Mst. Sard. It is further argued that Ram Singh had no intention to cause death of Kanhaiya. According to the prosecution case, Kanhaiya had reached on the spot after the quarrel had started between women folk and Ram Singh had also reached at a late stage and he inflicted only one injury in sudden fight in the heat of passion and did not take any undue advantage of the situation nor acted in a cruel or unusual manner. According to Mr. Tibrewal the case against Ram Singh if at all proved, fell under exception 4 of Section 300 IPC and was thus covered under Part II of Section 304 IPC. As regards the other accused persons it was contended that Sher Singh who has been sentenced to ten months' imprisonment has already under gore the sentence for a period of 9 months 5 days. So far as accused-appellants Hari Singh and Karan Singh are concerned they have been sentenced for four months and they have remained in Jail for two months and ten days. As regards Chhitar, it is contended that he has remained in Jail for eleven days and thus it is prayed that the sentence of these persons sh mid be reduced to the period already undergone by them. Mr. As regards Chhitar, it is contended that he has remained in Jail for eleven days and thus it is prayed that the sentence of these persons sh mid be reduced to the period already undergone by them. Mr. Trbrewal placed reliance on Randhir Singh alias Dhire v. State of Punjab 1981 (4) SCC 484 in which upon a minor quarrel the accused appellant had given one blow on the head of the deceased by a Kassi. The Supreme Court in the above case held the accused to be guilty under Section 304 part II IPC only and sentenced to suffer rigorous imprisonment for five years. 6. On the other hand Mr. K.K. Sharma, learned Public Prosecutor, supported the judgment of the trial Court. It was contended by him that no fight took place at the time of incident and there is nothing to show that Ram Singh was involved in any fight or any member of the complainant party inflicted any injury on him and as such exception of Section 300 IPC does not apply in the facts and circumstances of this case. Reliance is placed on Narayanan Nair Rughavan Nair v. The State of Travancore-Cochin : AIR 1956 SC 99 and Bhagwan Munjaji Pawade v. State of Maharashtra 1978 (3) SCC 330 . 7. We have given our careful consideration to the arguments advanced by learned counsel for both the parties and thoroughly perused the record. The F.I R. Ex. P. 38 based on an oral statement (Ex. D.1) of Prabhati was lodged at police station Kherthal on May 10,1979 at 110 A.M. The police station is at a distance of 12 km. from village Nagli Pataliya where the incident took place on May 9,1979 at 12 1 P. M. in the noon. Thus the F.I.R. was lodged without delay. Prabhati PW. 1. Shame Singh PW. 2, Murti PW. 3 and Mst. Anaro PW'. 4 are the eye witnesses of the incident and they are also injured persons. The injuries on the body of Prabhati, Shame Singh and Mst. Murti were examined by Dr. Amar Nath Gupia, PW. 5, at 10 P. M. on May 9, 1979 itself. The injuries of Kanhaiya (deceased) were also examined by Doctor Amar Nath and on account of the condition of Kanhaiya being serious, he was advised to be taken to the General Hospital, Alwar. Murti were examined by Dr. Amar Nath Gupia, PW. 5, at 10 P. M. on May 9, 1979 itself. The injuries of Kanhaiya (deceased) were also examined by Doctor Amar Nath and on account of the condition of Kanhaiya being serious, he was advised to be taken to the General Hospital, Alwar. Kanhaiya succumbed to the injuries on May 15,1979 and autopsy was conducted by Dr. P. S. Agrawal PW. 6. Learned Additional Sessions Judge has placed reliance on the statements of these witnesses supported by the F.I.R. and the injury reports and we have also gone through the statements of these witnesses and do not find any reason I to take a different view. It has been proved by the statements of these withnesses that Ram Singh inflicted a Fursi blow on the head of Kanhaiya which proved fatal. The other accused persons inflicted injuries on Prabhati, Shame Simgh and Mst. Murti and Mst. Anaro and were rightly held guilty for offence under Section 323 IPC. The only point remains to be considered is as to what offence has been committed by Ram Singh in the facts and circumstances of this case. 8. Learned Additional Sessions Judge has himself held that first of all there was exchange of abuses between women folk and then Sher Singh. Girdhari. Sheeshram and Kiran Singh reached on the spot. The quarrel started at the spur of the moment and Prabhati told them not to fight in presence of relations as he himself was son-in-law and asked them to do so after the relations had dispersed. No challan has been filed against Sheeshram and Girdhari out of the four persons who came at the first instance. These persons as such had not come with an intention to fight or to inflict any injury on that complainant party. Thereafter according to Prabhati PW. 1, his father-in-law Kanhaiya came inside. Then Sher Singh, Sheeshram, Girdhari and Karan Singh came and picked up lathis which were lying on the spot. Thus, according to the statement of Prabhati himself these persons had not come armed with lathis or other weapons and-had picked up lathis from the spot. PW. 3 Murti has also stated that Sher Singh had picked up a lathi from the spot and told to beat the complainant party so as to end the dispute for all times to come. PW. 3 Murti has also stated that Sher Singh had picked up a lathi from the spot and told to beat the complainant party so as to end the dispute for all times to come. Learned Additional Sessions Judge on the statements of these prosecution witnesses clearly arrived to the conclusion that Sher Singh and Karan Singh had come on the spot empty handed and they had no idea about any fight going on the spot. Learned Additional Sessions Judge has thus acquitted the accused persons for offence under Section 148 IPC and has also acquitted them of charge under Section 302/149 IPC. In the light of the above prosecution story, if we examine the rase against Ram Singh, it appears that he also reached the spot subsequently along with some more persons. According to the prosecution story itself the litigation was between Mst. Surti and Kanhaiya and Ram Singh being sister's son of Mst. Surti cannot be said to have any direct interest in the litigation. There is no case of the prosecution that Ram Singh had any idea of any quarrel or fight going on in the house of Kanhaiya and Mst. Surti and any intention on the part of Ram Singh to cause death of Kanhaiya is totally over-ruled. Ram Singh, according to the prosecution witnesses, inflicted only one blow by a Fursi on the head of Kanhaiya. There is Ex. D. 9 on record which is an application submitted by the S. H. O., police station, Kherthal, deted May 20,1979 by which he had requested the Medical Officer, Hospital Kherthal to examine the injuries of accused peisons Kt ran Singh, Sher Singh and Ram Singh. There is injury report Ex. D. 8, of Karan Singh, dated May 20, 1979 which shows one lacerated wound which was inflicted by a blunt weapon. But the wound was completely healed up by then. As regards Ram Singh, it has been mentioned in the application, dated May 20, 1979 that there was a small injury on his left hand. However, there is a note on it that Sher Singh and Ram Singh did not show any injury on the body. There is also Ex D. 10, injury report of Smt. Ramrati, dated May 10, 1979 which shows that there were two abrasions and one bruise on her body. However, there is a note on it that Sher Singh and Ram Singh did not show any injury on the body. There is also Ex D. 10, injury report of Smt. Ramrati, dated May 10, 1979 which shows that there were two abrasions and one bruise on her body. This shows that on May 20, 1979, when accused persons were arrested they had made a complaint about some injuries but we find force in the contention of learned counsel for the defence that the injuries being simple were healed up and no useful purpose could have been served if such injuries were got examined on May 20, 1979. However, we are satisfied in the facts and circumstances of this case that Ram Singh had no premeditation and only one injury was inflicted by him in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner and as such the case falls under exception 4 of section 300 IPC. Ram Singh as such had not committed an offence of murder but in the facts and circumstances of this case he is liable to be convicted for culpable homicide not amounting to murder under Part I of Section 304 IPC. 9. As regards the other accused-appellants, Sher Singh Hari Singh, Karan Singh and Chhitar in our view they have been rightly convicted under Section 323 IPC but in our view ends of justice would meet if they are sentenced to the period already undergone by them. They are already on bail and no useful purpose will be served to send them to jail again. 10. In the result, we partly allow this appeal, set aside the conviction and sentence of Ram Singh accused-appellant under Section 302 IPC instead we convict him under Section 304 Part I IPC and sentence him to seven years' rigorous imprisonment. His conviction and sentence under Section 324 IPC is set aside. The conviction of the other accused-appellants under Section 323 IPC is maintained. However, the sentence of accused-appellants Sher Singh, Chhitar, Hari Singh and Karan Singh is reduced to the period already undergone by them. The sentence of fine and imprisonment in default of payment of fine is maintained. So far accused appellants Mst. The conviction of the other accused-appellants under Section 323 IPC is maintained. However, the sentence of accused-appellants Sher Singh, Chhitar, Hari Singh and Karan Singh is reduced to the period already undergone by them. The sentence of fine and imprisonment in default of payment of fine is maintained. So far accused appellants Mst. Brahma and Ramrati are concerned, they have been convicted under Section 323 but granted benefit of probation under Section 360 Cr. P.C. No modification is needed in the order of Additional Sessions Judge as regards these accused appellants are concerned. Accused persons Chhitar, Hari Singh, Karan Singh and Sher Singh are already on bail as such they are not required to surrender to the bail. Their bail bonds are cancelled. Accused Ram Singh shall get benefit of Section 428 Cr. P.C. for the period he has remained in the jail during investigation, enquiry or trial of this case. *******